« Co-Authoring with Students | Main | On Presidential Succession »

Thursday, March 01, 2007

Universities as First Amendment Institutions: Some Easy Answers and Hard Questions

What degree of autonomy should universities enjoy under the law?  How can efforts to legislate an Academic Bill of Rights be unconstitutional, when the bills seem on their face simply to reiterate basic principles of evenhandedness that are prized as classic academic freedom values?  Should the plaintiffs have won the Solomon Amendment litigation -- and would they have lost something deeper by winning?  And what do these questions have to say about broader issues of how we should structure our First Amendment doctrine to serve larger values of  public discourse -- or, indeed, about the structure of constitutional law as a whole?

These and other questions are addressed in my latest article, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions.  It's now up on SSRN and I welcome readers' thoughts, questions, comments, and corrections.  It will be appearing in the UCLA Law Review as part of this year's Law Review Symposium, Constitutional "Niches": The Role of Institutional Context in Constitutional Law.  The Symposium was superb, with papers by Fred Schauer, Pam Karlan, John Yoo, Adam Winkler, Mark Rosen, and Cynthia Estlund, among others, and it nicely illustrated how the issues I raise in the university context find echoes throughought a variety of constitutional "contexts."  Many thanks, once again, to its organizers.

Here's a portion of the abstract:

First Amendment doctrine is caught between two competing impulses. On the one hand, courts and scholars face what one might call the lure of acontextuality: they seek a set of rules by which the law of the First Amendment can be understood as a purely, formally legal phenomenon. On the other hand, their efforts to construct acontextual legal doctrine are regularly disturbed by particular facts and contexts that fit poorly into existing doctrine. This tension between acontextual doctrine and factual variation has led to an increasing sense that First Amendment doctrine, in attempting to be pure and responsive at the same time, has become incoherent.

This Article argues that one solution to this dilemma is to openly acknowledge, and make room in First Amendment doctrine for, an understanding of the importance of various “First Amendment institutions” – institutions that play a significant role in contributing to public discourse, and that are both institutionally distinct and largely self-regulating according to a set of institutional norms, practices, and traditions.  For a variety of reasons, universities are one especially strong example of a First Amendment institution.

The Article lays out the arguments for a First Amendment institutional approach to universities, and surveys some of the implications of that approach. It also asks a set of questions about the treatment of universities as First Amendment institutions. Some arguments that might be raised against this approach ultimately turn out not to present significant obstacles to the institutional project. But even for those who support such an approach, harder questions remain and deserve to be confronted. In particular, this Article asks how we should think about the proper scope and limits of universities' rights as First Amendment institutions, concluding that we should defer substantially to universities provided that they act within the scope of proper “academic decisions,” and that the question what, precisely, constitutes an “academic decision” should itself be approached deferentially. It also observes that, although educational autonomy may generally serve academic freedom, the two concepts are not identical. It concludes by applying the institutional approach to several controversies involving the university, including the use of race-conscious admissions programs, the Academic Bill of Rights movement in the state and federal legislatures, and the recent litigation concerning the Solomon Amendment. It closes by drawing a link between the institutional approach and other currents in contemporary constitutional scholarship.

Again, comments are welcome.  For different takes on some of the same or related issues offered at the same Symposium, take a look at this piece by Paul Secunda or this one by Scott Moss.

Posted by Paul Horwitz on March 1, 2007 at 09:01 AM in Article Spotlight | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d834330a0553ef

Listed below are links to weblogs that reference Universities as First Amendment Institutions: Some Easy Answers and Hard Questions:

» Universities as First Amendment Institutions: Some Easy Answers ... from University Update
[Read More]

Tracked on Mar 1, 2007 12:18:12 PM

Comments

I'd guess it's because the un-indent is after the jump.

Posted by: ca | Mar 2, 2007 3:42:01 PM

Ditto billb's comment. The entire homepage is now indented.

Posted by: Bruce Boyden | Mar 2, 2007 2:39:59 PM

Rick, given my choices, I thought at first I'd say the answer is option number 1 (facilitate), but on closer reflection I'm leaning toward either number 3 (does the question make sense?) or option 4 -- none of the above. I generally like option 1, but worry that this notion of valuing speech when it facilitates the First Amendment can be used in a mechanical or ham-handed manner, along the lines of what I'd consider some of the worst excesses of civic republican writing on free speech -- if it serves 1A values, it's OK; if not, go ahead and regulate it. On the other hand, I'm not sure I'm saying that the special-ness of institutions is definitionally built in. Rather, I'm inclined to say something along the lines of: First Amendment doctrine can't be blind to the ways and spaces in which speech actually occurs; it can't build a doctrinal structure that ignores the sheer reality of institutions. So in that sense we must recognize them in law. Moreover, once we actually start to look at some institutions, at least, we can appreciate that they are especially valuable to and facilitative of public discourse, political stability, etc. If that's so, we should be at least provisionally willing to welcome the idea of granting such spaces some autonomy. And when we actually look at many of these institutions, we can see them self-regulating in all kinds of ways that ought to make autonomy still more welcome and still less threatening.

So, what is that? Is it closer to your option 1 or 2, or is it something else altogether, or is it actually my own version of option 3?

Cheers,

Paul

Posted by: Paul Horwitz | Mar 2, 2007 2:33:44 PM

This is a great paper, Paul. (And, I'm not just saying that because I'm working on something similar!) Here's a question, with respect to the "institutional focus" that Prof. Schauer and, I take it, you are proposing: Do institutions matter because they *facilitate* -- in a structural way -- the exercise of first amendment freedoms and the achievement of first amendment values? Or, is the special-ness of institutions somehow built into the *definition* of those freedoms? (Does the question even make sense?)

Posted by: Rick Garnett | Mar 2, 2007 12:36:10 PM

There seems to be an unclosed blockquote tag or messed up jump/fold marker in this post. It's borking the main page.

Posted by: billb | Mar 1, 2007 11:01:13 PM

The comments to this entry are closed.