Document Type

Working Paper

Publication Date

3-1-2007

SSRN Discipline

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

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 untainted by the brute contingencies of the actual factual world 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 incoherentThis 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 selfregulating according to a set of institutional norms practices and traditions Under an institutional approach these entities would enjoy substantial autonomy to make decisions according to their own best sense of their missions as libraries educators religious associations members of the press and so on Universities are one especially strong example of a First Amendment institution In myriad ways they play a special role in contributing to the broader world of social discourse that we value under the First Amendment Moreover they are institutionally distinct bound by disciplinary constraints and governed by a host of norms and practices that substitute for external regulatory forces while still protecting fundamental speech values in the university setting Legal doctrine should recognize the special role played by universities under the First Amendment by largely deferring to these institutions and permitting them to govern themselves according to their own sense of academic mission without government interferenceThis 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 that it elides the publicprivate distinction that the institutional approach falls afoul of the principle that more speech is better that such an approach unduly privileges universities as First Amendment actors and others 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 raceconscious 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

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