Abstract

Most of the reaction to the Supreme Court's 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 Court's 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 single-sex or single-race education, and the current litigation over the Solomon Amendment, which penalizes schools (including law schools) that bar on-campus military recruiters.

Grutter 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 Court's vision of academic freedom and the contested understanding of academic freedom outside the courts.

My exploration of Grutter's 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.

Disciplines

Civil Rights and Discrimination | Comparative and Foreign Law | Constitutional Law | Public Law and Legal Theory

Date of this Version

September 2004

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