May 15, 2011
Luther Spoehr, Review of Rodney A. Smolla's "The Constitution Goes to College: Five Constitutional Ideas that Have Shaped the American University" (New York University Press, 2011).Books
[Luther Spoehr teaches courses on the history of American higher education at Brown University.]
Critics and defenders of American higher education often employ the stereotype of the university as “ivory tower.” But to a greater extent than is often recognized by its critics or admitted by its defenders, the American university is very much implicated, embedded, and nested in American society. That is the point of Rodney A. Smolla’s fine book, which with admirable clarity and subtlety tracks the linkages between ideas based in the Constitution and the ongoing evolution of the American university.
Smolla, currently president of Furman University and formerly dean of the law schools at Washington and Lee University and the University of Richmond, begins by asserting that “there is scarcely any constitutional question that arises in the United States that does not devolve, sooner or later, into a campus question.” Surveying the contested terrain of the contemporary campus, from academic freedom (for faculty, students, and institutions), to affirmative action, to the rights of religious groups on campus, and more, it is hard to disagree. All such issues, Smolla says, involve at least one of “five fundamental tensions” that have influenced American higher education: “(1) the debate over whether we have a ‘living Constitution’; (2) the division between the public and private spheres; (3) the distinction between ‘rights’ and ‘privileges’; (4) the notion of ‘ordered liberty’; and (5) competing conceptions of equality.” Campus religious groups that seek to exclude nonbelievers, for instance, place religious and associational rights in conflict; affirmative action raises questions of “process equality” versus “outcome equality.”
Smolla’s examination of these “tensions” runs from Dartmouth College v. Woodward (1819) to the present and pays close attention to countervailing individual cases and how they both constrain and support the university and its values. The book gives very little attention to the larger historical context in which universities operated, how that context has changed over time, and how such changes may have influenced the course of constitutional argument. Individuals and interest groups, economic, social, and political forces, and intellectual trends outside the law—all are largely absent from this story. Smolla focuses on the interplay of constitutional ideas, and although he conscientiously identifies judicial opinions with their authors, he doesn’t act as if authorship matters much: his work is a highly abstract legal history. This caveat is intended to be more description than criticism, however. When it comes to navigating the university’s legal landscape and showing how it came to be, Smolla’s book is an invaluable GPS system.
Smolla raises the question of “whether we have a ‘living Constitution” mainly to dismiss it: “One person’s original understanding is another’s reactionary slavishness to a dead past. One person’s ‘living Constitution’ is another person’s unprincipled subjective relativism.” Smolla is less interested in interpretive feuds than he is in the intellectual and legal boundaries they establish. Here and throughout the book, he is most comfortable with the middle way: “for every value there is a counter-value….The story of our constitutional experience has been an ongoing story of resolution of competing constitutional values.”
So although Smolla is not persuaded by the argument, made by David Rabban and others, that academic freedom is an “implied right” under the Constitution, he does not find that situation at all alarming. “Constitutional values,” he says, “have operated in an informal, value-laden sense to shape and influence the identity of American colleges and universities. This influence has tended to exert itself not through formal legal doctrines that single out colleges and universities for specialized treatment, but through the application of broader constitutional themes as adapted to the values and settings of academic life.” In the famous case of Sweezy v. New Hampshire (1957), for instance, Smolla argues that Justice Felix Frankfurter’s often-cited opinion should be noted not for singling out the university for special consideration, but because “it treats the values of the university as in alignment with the values on the individual scholar, and both are inextricably intertwined with classic free speech values…”
In the chapter on “The Public and Private Sphere,” Smolla begins with Dartmouth College v. Woodward and discusses at length the potential distinctions between the legal status of public and private institutions. Thanks to “state action doctrine,” he says, “in the case of the state university, legally enforceable constitutional rights are limited to individuals who populate the university, such as students and faculty. This does not mean, however, that a state university or college would itself possess legally enforceable federal constitutional rights against the government that created it.” On the other hand, “private universities and colleges clearly possess legally enforceable constitutional rights as institutions in resisting encroachments on their institutional freedom by government agencies…[But] this does not mean that students and faculty at Northwestern or Furman have legally enforceable constitutional rights against their universities, which are private institutions, and thus not bound by the Constitution, the Bill of Rights, or the First Amendment.”
It turns out, however, that these distinctions don’t matter much to Smolla because of what he calls the “shadow Constitution,” a “blend of federal, state, and local statutory law, agreements in the nature of contract, and voluntary fidelity to custom,” which makes public and private institutions more like one another than his analysis at first implies. The “shadow Constitution,” he says, reflects the existence of a “Constitutional Unconscious,” a “collection of values, principles, struggles and conflicts in American life that derive from those aspects of our political and social identity embedded in the Constitution.” When he finishes making this point, legal differences between public and private academic institutions seem relatively unimportant.
Subsequent chapters dealing with judicial attempts to resolve rights in conflict (for example, whether universities can regulate certain kinds of speech, or the extent to which a college that accepts federal money can be compelled to meet other federal mandates) are presented precisely and fairly, as are familiar controversies over “hate speech” and affirmative action. On rare occasions Smolla makes his commitment to the middle-of-the-road explicit and personal. Speaking of the Bakke and Grutter cases, which ruled out racial quotas but permitted race to be a factor in college admissions, he says, “I believe Justice O’Connor, like Justice Powell before her, has it right. I join the considered judgment of the majority of American educators, who continue to believe that while the pure ideal of a colorblind campus, like the pure ideal of a color-blind Constitution, is where we someday hope to be, we are not there yet.”
Sometimes it must take considerable effort for him to retain his optimism about the middle way: parsing the Supreme Court’s decision in Garcetti v. Ceballos (2006), which narrowed the free speech rights of government employees, he leans heavily on a single passage from the majority opinion that the Court “might in the future exempt public university professors from the scope of the ruling.” Then again, the Court might not. And it may turn out that the public/private distinction matters more than he thinks.
To this reader at least, Smolla’s arguments for the existence and influence of the “Constitutional Unconscious” are the most interesting parts of his book, as he shows that American political and judicial habits, customs, traditions, and precedents not only influence higher education, but also are mimicked there. When discussing the concept of “shared governance,” for instance, he notes rightly that the “university is part corporation and part federal republic,” and he explores some of the complications that follow from the development of this hybrid.
In all, despite what some may see as too much satisfaction with the status quo, The Constitution Goes to College is a valuable, evenhanded guide to understanding the constitutional cat’s cradle in which American colleges and universities operate. Smolla shows that legally and constitutionally the American university is no ivory tower, and he makes a strong case that American higher education is better for that.
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