Document Type

Working Paper

Publication Date

7-26-2004

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

Most of the reaction to the Supreme Courts decision affirming the law school affirmative action policy at issue in Grutter v Bollinger has focused on its Fourteenth Amendment implications But Grutter also raises significant First Amendment issues By reaffirming a First Amendment value of educational autonomy the Grutter Court raised a host of questions with implications not only for the constitutional law of academic freedom but for First Amendment jurisprudence generally This article therefore puts the Fourteenth Amendment to one side and provides a detailed analysis of the First Amendment implications of Grutter Some of the consequences of the Courts approach in Grutter are surprising If Grutter is read as recognizing a strong constitutional value of deference to educational decisions a variety of ongoing constitutional controversies might be decided differently I trace this possibility through discussions of current issues including the constitutionality of campus hate speech codes the permissibility of singlesex or singlerace education and the current litigation over the Solomon Amendment which penalizes schools including law schools that bar oncampus military recruitersGrutter may also be read as suggesting that the Court does not value educational autonomy as such but rather a particular vision of higher education in which universities are valued for their contribution to democratic legitimacy This reading too has significant implications It offers a substantive vision of First Amendment values that in many respects is at odds with the approach taken by the Justices elsewhere in the jurisprudence of the First Amendment And it raises deep questions about the imperfect fit between the Courts vision of academic freedom and the contested understanding of academic freedom outside the courtsMy exploration of Grutters First Amendment culminates in an extended treatment of what I consider its most powerful implication Grutter may be read as a groundbreaking acknowledgment by the Court of the importance of what I call First Amendment institutions institutions such as universities the press libraries and other entities that play a central role in public discourse and democratic culture I argue that Grutter steps away from the usual more formalist pattern of First Amendment jurisprudence and instead recognizes that the law ought to be responsive to and respectful of the unique role these institutions play in society and should allow them a substantial degree of autonomy to shape their own norms and practices In that sense this article argues for an approach to First Amendment law that builds on a growing school of scholarship advocating an experimentalist approach to constitutional law Ultimately the article is intended to spark a broader debate about the nature and role of First Amendment institutions within our constitutional culture and the complex relationship between constitutional law and constitutional culture Finally it is a plea for the inclusion of Grutter within the First Amendment canon as well as the Fourteenth Amendment canon

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