Universities as First Amendment Institutions: Some Easy Answers and Hard Questions

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 incoherent.

This 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 self-regulating 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 interference.

This 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 public-private 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 race-conscious 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.

Keywords: solomon amendment, universities, academic freedom, institutions, grutter, first amendment