Judges Have Long Deferred to Academe. That’s Changing.
This article originally appeared in the Chronicle of Higher Education 11/7/23.
During the Red Scare of the 1950s, college faculty members were lauded by Supreme Court Justice Felix Frankfurter as being among the “priests of our democracy.” As campuses were roiled by political controversies in 1967, the Court invalidated a New York loyalty oath and underscored that “[t]he essentiality of freedom in the community of American universities is almost self-evident.” More recently, in Grutter v. Bollinger, a 2003 case upholding some forms of affirmative action, the Court said “universities occupy a special niche in our constitutional tradition” and thus were owed “a constitutional dimension … of educational autonomy.”
A much different attitude prevails on the Court today. When Harvard and the University of North Carolina argued that their affirmative action practices were entitled to the same deference the Court had shown in Grutter, Chief Justice John Roberts’s response was sarcastic, even mocking. In his opinion last June in Students for Fair Admissions v. President and Fellows of Harvard College, Roberts, writing for six justices, laid out a series of objections to the universities’ admissions practices, then twisted the knife: “The universities’ main response to these criticisms is, essentially, ‘trust us.’”
The Court’s message was clear: universities, we don’t trust you.
Students for Fair Admissions effectively overruled Grutter and ended affirmative action in admissions. But its bracing display of skepticism toward the university defendants was also a serious blow to the longstanding doctrine of judicial deference to academic decision-making. The Court clearly believed that Harvard’s and UNC’s approaches to affirmative action involved not academic judgment but rather favoritism toward certain racial groups.
Unfortunately, universities are giving courts more reasons to question whether their policies are based on favoritism or politics rather than neutral and objective criteria. In the post-George Floyd era, they are embracing political projects under banners like “social justice” and “anti-racism.” By remaking themselves into institutions devoted to progressive politics, universities weaken their moral and legal claims to judicial deference.
Activist politicization is not the entire problem. In other recent high-profile decisions, courts have demonstrated that they do not understand the purposes of academic freedom or the norms of academic governance. All these developments threaten the relative latitude courts have long granted colleges and universities to manage their own affairs.
Academic deference has long been a feature of American law, one regularly invoked by courts. As the Supreme Court said in 1985 in Ewing v. Regents of the University of Michigan, “[c]onsiderations of profound importance counsel restrained judicial review of the substance of academic decisions.” Ewing involved a faculty board’s assessment that a medical student was academically unfit to continue in his degree program. The Court, in an opinion by Justice John Paul Stevens, rejected the student’s constitutional due process challenge.
“When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty’s professional judgment,” Stevens wrote in explaining the rationale for academic deference. “Plainly, they may not override [such judgment] unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.”
Lower courts have applied academic deference in a variety of contexts. For example, a federal district court ruled that a student’s proposal to participate in a residency program by telephone was not “reasonable accommodation” under the Americans With Disabilities Act, because the university had designed the residency as an in-person experience. The court said it did “not wish to substitute its judgment for that of experienced education administrators and professionals.”
The Supreme Court’s respect for academic judgment reached its apex in Grutter. Grutter held that the attainment of a diverse student body was a “compelling interest” for universities and thus overcame the prima facie constitutional prohibition on race-based decision making. The University of Michigan Law School explained that racial diversity was necessary to its educational mission, and the Court said this judgment “is one to which we defer.”
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Why have courts tended to defer? For one thing, such deference was predicated on the assumption that key decisions were being made by — or at least strongly influenced by — highly trained specialists. In Ewing, for example, the Court emphasized that it was a faculty determination that the student should not continue. In Grutter, the Court likewise emphasized that the challenged affirmative action policy had been developed and approved by the law school’s faculty.
But at many universities today, faculty control of academic matters has eroded. Administration has become more top-down. The domains of non-academic bureaucrats have expanded. Shared governance fights to maintain traction. And universities rely more heavily on part-time and non-tenure-track faculty, some of whom have not been socialized into the same academic norms as tenured professors.
At a deeper level, judicial deference has been predicated on the assumption that universities are unique social institutions devoted to rigorous analysis, the free flow of ideas, and the discovery of truth; that they are places where, in the Supreme Court’s conception of academic freedom, classrooms are a “marketplace of ideas” unshadowed by the “pall of orthodoxy.” Deference “largely stemmed,” according to the higher education lawyers Edward N. Stoner and J. Michael Showalter, “from the fact that courts identified universities as being run by trustworthy people who desired to have their institutions function to fulfill the purpose for which they were designed: to promote the creation and dissemination of knowledge.”
This was also how the academy saw itself. The American Association of Universities Professors’ 1915 Declaration of Principles said faculty were expected to do their work “without fear or favor”; public acceptance of their work depended on its being seen as “disinterested expression” and “unbiased inquiry.” The University of Chicago’s 1967 “Kalven Report” said the university must remain institutionally neutral on political and social controversies because it “cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness.”
“Political correctness” in academe is nothing new. But what is new is that universities are now officially pledging allegiance to particular orthodoxies and political projects. Since Floyd’s murder by police, it has become almost de rigueur for universities to declare that their missions now include commitments such as social justice and anti-racism.
In introducing its new president, for instance, Columbia University noted that she has spoken “passionately about how the work of the university should promote social justice and human thriving in a pluralistic society.” UCLA’s Luskin School of Public Affairs has pledged to “write a foundation competency related to anti-racist praxis and then place this competency into our current [educational and accreditation standards], foundation courses, and assignments.” Such refrigerator poetry signals to those who are fluent in the jargon that the school is committed not to creating and disseminating knowledge without fear or favor, but to indoctrination.
When the AAUP was founded, the agenda at some colleges was still set by church sponsors or plutocratic trustees. , The 1915 Declaration spoke dismissively of institutions that “subsidized the promotion of opinions held by persons, usually not of the scholar’s calling” over “unrestricted research and unfettered discussion.” It further warned, “Genuine boldness and thoroughness of inquiry … are scarcely reconcilable with the prescribed inculcation of a particular opinion upon a controverted question.” Yet today, as social justice has become its own form of both religion and big business, numerous major universities have set aside pots of money — and sometimes entire “research” centers — to fund outcome-oriented work that advances the progressive political agenda.
For some scholars, all this goes hand-in-hand with abandoning the pretense of scholarly detachment. In the wake of Floyd’s murder, my university’s history department announced that its faculty members saw their jobs as not just documenting and interpreting history, but participating in the making of history. According to these faculty, “the work of our profession — researching, studying, teaching, and discussing the past — has long been as much an act of advocacy and belief as it is one of inquiry.” “To be a historian,” they claimed, “has always meant to be an activist — whether that ‘action’ pushed toward democratic change or fortified existing inequities of power and wealth.”
To be sure, scholars in many disciplines have long directed their work toward substantive social goals: curing cancer, ending malnutrition, increasing literacy. But the widespread consensus behind these goals made them seem consistent with the general discovery and refinement of knowledge.
By contrast, when we talk about things like “democratic change” or “inequities of power and wealth,” we are on political turf where reasonable minds disagree — not just in the solution, but in the definition of the problem. What constitutes “equity,” “social justice,” or “anti-racism” are highly subjective questions. Your view of what is “democratic” might involve everyone having an equal voice; mine might involve amplifying minoritized voices. The role of academics has traditionally been to illuminate and analyze such debates — not to take sides in them.
When professors declare themselves to be activists and advocates, then when disputes reach the courthouse — a contested tenure case, for example — there is no longer a rationale for judges to defer to their “academic” judgment. When academic judgment no longer means the apolitical application of rigorous analytical frameworks, then there is little reason for courts to treat universities or their faculties as anything other than ordinary litigants seeking to maximize their own interests.
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In response to left-wing politicization of the academy, the right has responded with its own politicization — and in these battles, the right often brings the brute force of government power. In Florida, Gov. Ron DeSantis’s policies to censor faculty in teaching about race and gender have so far been blocked by federal courts. Those are good decisions, but they demonstrate that where educational policies are plainly political and not academic, then ordinary legal standards and precedents can and should prevail.
The sound court decisions in Florida notwithstanding, universities also are vulnerable to a rise in conservative judicial activism.
In 2021, the Sixth Circuit U.S. Court of Appeals sided with an evangelical Christian philosophy professor, Nicholas Meriwether, against his employer, Shawnee State University in Ohio. Meriwether refused to address a transgender student by her requested pronouns. Even a skeptic of today’s woke university can understand why a school might reasonably require its faculty to extend such a courtesy to students in order to create a welcoming — and thus more effective — learning environment. This was a situation where the court should have deferred to the university’s educational judgment.
Instead, the panel of three Republican-appointed judges (two appointed by Donald Trump) not only rejected such deference, it chastised Shawnee State for imposing “ideological conformity.” The court claimed it was upholding Meriwether’s First Amendment right to academic freedom, but it demonstrated a serious misunderstanding of the concept. Meriwether’s views about pronouns came from his personal religious beliefs, not his academic expertise, and the case had nothing to do with opinions he may have expressed in scholarship or class discussions. The court privileged Meriwether’s desire to impose his religion and denied the school’s interest in classrooms where learning is not impaired by teachers who insult their students.
Although a series of Supreme Court decisions has stripped government employees of most free-speech rights in the workplace, the Court has left open the question of whether the work of public university faculty members warrants special First Amendment protection. That is an important recognition that the academy is different than, say, the Bureau of Motor Vehicles. But it has left lower courts to struggle with cases involving various dimensions of faculty work. Their decisions reveal what courts do or don’t understand about academe’s norms.
One recent case stands out. Stephen Porter is a professor in the College of Education at North Carolina State University. In internal communications related to student course evaluations and faculty hiring, as well as a blog post about the quality of research in his field, Porter criticized the emphasis on social justice and the abandonment of “rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’”
In response to what it called his failure to be “collegial,” the college took away some of Porter’s responsibilities. He sued. In a decision this past July, the Fourth Circuit U.S. Court of Appeals said Porter’s internal speech was not protected under First Amendment academic freedom because it concerned matters of “personal interest” and “was not a product of his teaching or scholarship.” (As for the blog post, the court thought it wasn’t a direct cause of Porter’s punishment.)
Whereas the Meriwether case distorted academic freedom to favor a professor’s personal religious beliefs, the Porter decision failed to understand the role that faculty members play in institutional governance. A primary rationale for judicial academic deference has been an appreciation for faculty expertise. Here, Porter was exercising such expertise — for example, his concerns about the teaching evaluation stemmed from his knowledge of survey methodology. Yet the court viewed him as just another troublesome employee.
Academic deference has survived in part because, as Barbara A. Lee has written, “judges and juries have relatively little acquaintance with the inner workings of colleges and universities and the way that academic judgments are made.” The doctrine will founder if more judges decide there’s really nothing special about those inner workings, or if they take a closer look and decide they don’t like what they see.
Steve Sanders is Professor of Law and Val Nolan Faculty Fellow at the Indiana University Bloomington Maurer School of Law.
