Measuring a 'Degree of Deference' - Institutional Academic Freedom in a Post-Grutter World

Abstract:     
In Grutter v. Bollinger, the Supreme Court mandated that the judiciary afford a "degree of deference to a university’s academic decisions, within constitutionally prescribed limits." Since Grutter, scholars and courts have struggled to conceptualize this right to institutional academic freedom. In this article, we provide a concrete framework for addressing institutional academic freedom cases, which, most notably, arise in two different legal contexts: to bolster the institution’s state interest when balanced against other parties’ constitutional rights, and as an independent constitutional right to ward off state interference with the institution’s decisions. We first illuminate Grutter’s ambiguous language on academic freedom and examine how the lower courts have applied academic freedom since Grutter. We then establish threshold requirements for determining when institutional action implicates academic freedom. We argue that, to warrant academic freedom, a university’s decision must be academic, not ideological, in nature, and we define the difference between academic and ideological. Finally, we describe how, once entitlement to academic freedom is established, courts should give universities different amounts of deference depending on who is making the academic decision and in what context academic freedom is being invoked.

Number of Pages in PDF File: 45

Accepted Paper Series