Document Type

Working Paper

Publication Date

9-17-2013

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; LSN Subject Matter eJournals; Cognitive Science Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network

Abstract

In Fisher v University of Texas at Austin the United States Supreme Court remanded to the Fifth Circuit a challenge to the University of Texass postGrutter use of raceconscious admissions in selecting a student body concluding that the Fifth Circuit had not engaged in the proper level of strict scrutiny review such policies require From the moment Fisher was handed down it has been the subject of discussion and debate over whether Fisher represents a speedbump for raceconscious university admissions policies or a major barrier to such policies In this paper I focus specifically on what Fisher means as a First Amendment andor academic freedom case and what it says more generally about the relationship between courts and universities particularly with respect to academic freedom I offer two basic conclusionsFirst one thing that is both striking and emblematic with respect to the Fisher litigation and especially the opinions in the Fifth Circuit in this case is that it shows that there are various competing judicial conceptions of the university itself its purpose and mission its authority and expertise and the role of courts in policing its boundaries Those competing visions are on display not only in Fisher but in other opinions such as Justice Alitos dissenting opinion in CLS v Hastings And they may have a longterm impact on the continuing vitality of constitutional academic freedomSecond the Fisher litigation and other cases also demonstrate a growing judicial mistrust of universities That mistrust is accompanied by an increasing judicial unwillingness to defer to universities on questions of academic policy and functioning This distrust too may cast a shadow not only over affirmative action cases involving universities but over cases involving academic freedom itself I argue that these trends are disturbing and ought to be arrested Courts should defer substantially to universities in these and other cases In doing so they should also leave space open for institutional pluralism for the possibility that different but equally legitimate and constitutionally protected conceptions of the university can and should coexist within the broader academic sphere Much of the increasing judicial distrust of universities is of a piece with a larger prevailing distrust for institutions But I argue also that a good portion of the fault lies with the universities themselves If they want to retain or revive meaningful legal autonomy and ensure continued judicial deference for core academic decisions the universities must do a better job of making sure that judges and others understand them and above all trust them

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