The Supreme Court’s 2023 decision in Students for Fair Admissions ended race-conscious affirmative action in college admissions. The longer-term question is what that decision means for the special constitutional status American universities have enjoyed for more than 50 years.
From the 1950s through the aughts, the Court’s opinions reflected a particular conception of universities and their faculties, a conception that gave universities a constitutional status. The Court accepted as self-evident that universities and their teachers played a unique and uniquely important role in American society in generating useful research and in educating students – consistent with the image universities have long had of themselves. In return, the Court also assumed that universities and their faculties exercised “academic judgment,” something that is difficult to define, but which at least entails respect for neutral principles and the fair, unbiased application of professional expertise. This conception has allowed universities and their faculties a degree of autonomy and of judicial deference toward their decision making, as well as (for faculty at public universities) a larger set of First Amendment rights than other government employees enjoy. In 2003, the Court in Grutter v. Bollinger confirmed that this was because universities enjoyed a special constitutional status, what Justice O’Connor’s majority opinion called “a special niche in our constitutional tradition.”
Because these doctrines of deference and of First Amendment rights depend almost entirely on trust, grace, and judicial attitudes – attitudes that, like so much else in our constitutional landscape, are open and vulnerable to being reconsidered – they are in peril in the wake of Students for Fair Admissions. My intent in this talk is to trace the special status of universities under the Constitution and to consider what will be lost if the Court expels them from the “special niche” they have enjoyed.