The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Higher Education

"Judges Have Long Deferred to Academe. That's Changing."


A very interesting article by Prof. Steve Sanders (Indiana), who is also an Associate Dean for Academic Affairs and a scholar of sexual orientation and the law; it's in the Chronicle of Higher Education, but also available without the need for registration here. An excerpt:

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….

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….

"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. [Examples omitted. -EV] …

When the AAUP was founded, the agenda at some colleges was still set by church sponsors or plutocratic trustees…. The 1915 Declaration [of Principles] 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." …

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.


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. [Details omitted. -EV] …

A very interesting article, which is much worth reading in its entirety.