'The Constitution Goes to College'

April 26, 2011

A new book, The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University (New York University Press), argues that key values in American higher education can be traced to the U.S. Constitution. Some of the traditions in academe that the book traces to the Constitution include the divide between public and private spheres, the distinction between rights and privileges and ideas of equality. The author is a legal scholar and higher education administrator, Rodney A. Smolla. He is the president of Furman University, having previously held two law school deanships, at Washington & Lee University and at the University of Richmond.

Smolla responded via e-mail to questions about his new book:

Q: Many in higher education think of current events and politics, not the Constitution, as dictating their institutions' fates. Why do you see the Constitution as key to shaping American higher education?

A: Certainly as a "regulated industry," those of us in higher education are more tuned in to the day-to-day changes in administrative or legislative regulation that immediately impact our operations. From a broader perspective, however, I argue that much of the identity of modern American universities, both public and private, has been shaped directly or indirectly by constitutional principles. Notions such as academic freedom, due process, privacy, and equality are examples. Even the structures of our universities have been influenced by constitutional norms. Universities are a fascinating blend of corporations and democratic republics. Our conceptions of shared governance resemble constitutional principles such as separation of powers. And of course, many of the "culture war" battles of the last three decades have been fought on constitutional terrain, and those contests course through our campuses.

Q: How do you see the Constitution influencing the shape of private higher education in the United States, given that private colleges are not state actors?

A: I argue that there is a "shadow constitution," a blend of statutes, contracts, and customs, providing a network of principles that often mirror the protections that derive directly from the Constitution, providing legal or customary protections that largely reflect constitutional principles and doctrines. Some constitutional norms get reinforced through a blend of federal, state, and local statutory law, and may bind private institutions. Civil rights laws are a good example. Often, however, the influence of constitutional principles on private institutions is more cultural than legal. Private institutions will "borrow" constitutional notions such as due process or freedom of expression, acting as if they are state schools. The borrowing may be formalized, through such vehicles as faculty contracts, or be more the stuff of custom and convention. My claim is that these various forces create a kind of “constitutional unconscious,” in which the values and habits of thought that emanate from formal constitutional law are absorbed into the larger societal bloodstream, including higher education.

Thus at a private university such as Furman, I see debates over campus policy often articulated in the vocabulary of constitutional law, such as in our debates over freedom of speech, though in a strict legal sense as a private actor Furman is not "bound" by the First Amendment.

Q: The issue of affirmative action raises questions related to the Constitution that have been the focus of key decisions in Bakke and Grutter. Do you think those rulings will stand or are we due for another?

A: I think that is very difficult to predict. The Supreme Court’s decision to bar race-conscious pupil assignments for public schools in the Parents Involved case shows that the Court is divided right down the middle on these issues, and if there were a vacancy on the Court the balance could easily change.

Q: Several recent court cases have dealt with conflicts between the rights of state universities to bar bias and the religious freedom of students. How do you see these issues playing out?

A: The Supreme Court’s decision in the Martinez case from last summer clearly puts the trumps in the hands of universities, establishing that a university may deny official recognition to student groups that discriminate. Presumably, however, a student group that forms independently of the university, operating as a true "private club," would retain its freedom of religion and freedom of association rights, which could include exclusion of persons who do not share the group’s ideological or religious identity. To the extent that such groups seek to operate in the public forum spaces of a state campus, I believe their freedom of association and free exercise rights would prevail.

Q: How much do you think the Supreme Court's treatment of higher education issues changes based on court appointments?

A: The impact of changes on the Court will not be felt for higher education law as a set piece, because justices are not likely to have any comprehensive "higher education jurisprudence." What does change, however, is the balance of power on the Court on specific issues. The principles governing race-conscious policies such as affirmative action, which I talked about above, provide a particularly significant example.

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