Fisher, Academic Freedom, and Distrust

Abstract

In Fisher v. University of Texas at Austin, the United States Supreme Court remanded to the Fifth Circuit a challenge to the University of Texas's post-Grutter use of race-conscious admissions in selecting a student body, concluding that the Fifth Circuit had not engaged in the proper level of strict scrutiny review such policies require. From the moment Fisher was handed down, it has been the subject of discussion and debate over whether Fisher represents a speed-bump for race-conscious university admissions policies or a major barrier to such policies. In this paper, I focus specifically on what Fisher means as a First Amendment and/or academic freedom case, and what it says more generally about the relationship between courts and universities, particularly with respect to academic freedom. I offer two basic conclusions. First, one thing that is both striking and emblematic with respect to the Fisher litigation, and especially the opinions in the Fifth Circuit in this case, is that it shows that there are various competing judicial conceptions of the university itself: its purpose and mission, its authority and expertise, and the role of courts in policing its boundaries. Those competing visions are on display not only in Fisher but in other opinions, such as Justice Alito's dissenting opinion in CLS v. Hastings. And they may have a long-term impact on the continuing vitality of constitutional academic freedom. Second, the Fisher litigation and other cases also demonstrate a growing judicial mistrust of universities. That mistrust is accompanied by an increasing judicial unwillingness to defer to universities on questions of academic policy and functioning. This distrust, too, may cast a shadow not only over affirmative action cases involving universities, but over cases involving academic freedom itself. I argue that these trends are disturbing and ought to be arrested. Courts should defer substantially to universities in these and other cases. In doing so, they should also leave space open for institutional pluralism -- for the possibility that different, but equally legitimate and constitutionally protected, conceptions of the university can and should coexist within the broader academic sphere. Much of the increasing judicial distrust of universities is of a piece with a larger prevailing distrust for institutions. But I argue also that a good portion of the fault lies with the universities themselves. If they want to retain or revive meaningful legal autonomy and ensure continued judicial deference for core academic decisions, the universities must do a better job of making sure that judges and others understand them -- and, above all, trust them.