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Part One of this Essay defends the Court's [Grutter] analysis. The thesis here is a simple one: Universities should have a zone of freedom in which to conduct their academic affairs because they are better at making choices about educational matters than are generalist courts. This is the position I took, both in the Sixth Circuit and in the Supreme Court, as the chief counsel to the amicus deans of many of the nation's leading private law schools in Grutter. Academic freedom has become something of a pariah concept; indeed, our amicus brief contained the only substantial discussion, let alone defense, of educational autonomy among the various briefs filed in the case. Grutter's celebration of such autonomy was by necessity modest, for what was left unmentioned were the many abuses of power in the name of academic freedom. To construct a viable system of deference to university decisionmaking, one must isolate not only the advantages of autonomy, but also its dangers. Part Two, to that end, sets forth some structural preconditions before academic autonomy claims should be recognized by courts. The Part explains why universities that seek to use educational autonomy to defend their admissions practices must release admissions data to a broader set of people than university administrators. As such, I issue a cautionary note to universities that are tempted to use their autonomy wantonly to carry out policies that cross the constitutional line.

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31 Hastings Const. L.Q. 557-572 (2003)