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The Supreme Court's decision in Grutter v. Bollinger represents a high-water mark for the recognition and influence of constitutional academic freedom. The Court there relied, gingerly perhaps, on constitutional academic freedom, understood as some autonomy for university decision making on matters of core academic concern, to provide a compelling interest adequate to uphold flexible racial preferences in university admissions. Now that the dust has settled from direct import of the decision for affirmative action in admissions, it is important to consider what role constitutional academic freedom, as a working constitutional doctrine, should or may play within current disputes about higher education.

In this essay, I hope to clarify the scope and strength of the right affirmed in Grutter and to suggest how it might apply to a few current and notorious disputes. Preliminarily, I provide some context for Grutter by reviewing the long development of constitutional academic freedom and the role it played in the Court's decision. The core of the paper examines three aspects of constitutional academic freedom by looking both at what Grutter tells us about each and how each addresses current controversies about the nature and scope of academic freedom. First, I argue that Grutter clarifies that constitutional academic freedom is a right and apply it to state referenda prohibiting universities from considering race in admissions. Second, I consider the centrality to constitutional academic freedom of faculty control over the evaluation of scholarship and curriculum, arguing that statutes enacting the so-called "Academic Bill of Rights" would be invalid. Third, I claim that the sphere of autonomy protected by the right must be limited to core academic areas and that broader claims to autonomy based on academic freedom, such as those advanced in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. for employer recruitment policies, both lack merit and may imperil the basic right.

Publication Citation

77 U. Colo. L. Rev. 929-953 (2006)