FIRE Legal Scholarship in ‘Santa Clara Law Review’: Institutional Academic Freedom in a Post-’Grutter’ World

By December 1, 2010

FIRE’s Justice Robert H. Jackson Legal Fellow, Erica Goldberg, and former Jackson Fellow Kelly Sarabyn teamed up to write an article on academic freedom that has just been published in one of the nation’s top law reviews. Erica’s and Kelly’s article in the Santa Clara Law Review explores academic freedom as a First Amendment right. The abstract of "Measuring ‘A Degree of Deference’: Institutional Academic Freedom in a Post-Grutter World" provides an overview of Erica’s and Kelly’s argument:

In Grutter v. Bollinger, the Supreme Court mandated that the judiciary afford a "degree of deference to a university’s academic decisions, within constitutionally prescribed limits." In this article, we provide a concrete framework for addressing institutional academic freedom cases, which, most notably, arise in two different legal contexts: to bolster the institution’s state interest when balanced against other parties’ constitutional rights, and as an independent constitutional right to ward off state interference with the institution’s decisions. We establish threshold requirements for determining when institutional action implicates academic freedom. We argue that, to warrant academic freedom, a university’s decision must be academic, not ideological, in nature, and we define the difference between academic and ideological. Finally, we describe how, once entitlement to academic freedom is established, courts should give universities different amounts of deference depending on who is making the academic decision and in what context academic freedom is being invoked.

Applying academic freedom as a constitutional right has long plagued scholars and courts. But, as FIRE continually maintains, academic freedom is a value that is critical to allowing professors, students, and universities to speak and think freely in the face of state intervention. In their article, Erica and Kelly devise a coherent way for courts to afford universities their academic freedom rights without trampling on the First Amendment rights of students or professors. Given that universities often invoke academic freedom improperlyfor instance, as a shield to protect ideologically-based decisionswe eagerly anticipated the opportunity to announce this article. Erica’s and Kelly’s methods of analysis would ensure that universities benefit from academic freedom only when they are fulfilling the true mission for which a university needs academic freedomto promote knowledge and discourseand would protect the individual academic freedom rights of students and professors.

Torch readers interested in academic freedom, especially regarding the balance of rights among universities, students, and professors, should check out this article. You can download the article here, or on SSRN here.

This article is the fourth article written by Kelly and is Erica’s first article.  Kelly’s scholarship, compiled here, has been cited in FIRE’s numerous amicus briefs to federal courts. Erica’s second article, "Must Universities ‘Subsidize’ Controversial Ideas?: Allocating Security Fees When Student Groups Host Divisive Speakers," was recently accepted for publication as the lead article in the George Mason Civil Rights Law Journal. Erica is currently working on an article taking on the Supreme Court’s recent, unfortunate decision in Christian Legal Society v. Martinez.