William A. Kaplin Professor of Law The Catholic University of America. I. Introduction: Trends

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1 Stetson 25 th Anniversary National Conference Clearwater, FL February 2004 THE U.S. SUPREME COURT S ROLE IN HIGHER EDUCATION : THE FIRST AMENDMENT * William A. Kaplin Professor of Law The Catholic University of America I. Introduction: Trends The law s impact on education, including higher education, has increased substantially from 1979 to As the law s impact has increased, so has the role of the courts regarding education. Indeed, this trend began well before See generally William Kaplin, Law on the Campus : Years of Growth and Challenge, 12 J. OF COLL. & UNIV. LAW 269 (1985). Brown v. Board of Education, 347 U.S. 483 (1954), a case arising under the Fourteenth Amendment s equal protection clause, is usually considered to be the starting point for modern judicial involvement in education. Although Brown was an elementary/secondary education case, the U.S. Supreme Court extended its application to higher education shortly thereafter in Florida ex. rel. Hawkins v. Board of Control, 350 U.S. 413 (1956). In the following years, the Court used other constitutional provisions besides the equal protection clause in reviewing higher education cases, including the free speech and press clauses and the religion clauses of the First Amendment. In Sweezy v. New Hampshire, 354 U.S. 234 (1957), for example, the Court engaged in a critically important discussion of academic freedom, relying in part on the free speech clause. Similarly, in Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Court used * 1 Copyright ) 2004 by William A. Kaplin. May be copied and distributed by the Continuing Legal Education Office at Stetson College of Law. No further copying or distribution is permitted without the author s written consent, and all other rights are reserved. 1

2 the free speech clause to protect the expressions and affiliations of professors; in Tilton v. Richardson, 403 U.S. 672 (1971), it used the establishment clause to protect the eligibility of religiously affiliated institutions for certain federal funding; in Healy v. James, 408 U.S. 169 (1972), it used an implied First Amendment freedom of association to protect a student political organization s members at a public university; and in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), the Court used the free press clause to protect a student newspaper editor. See William Kaplin & Barbara Lee, The Law of Higher Education, secs. 1.6, 3.7.1, , and (Jossey-Bass, 3 rd ed., 1995) for discussion of these cases. II. First Amendment Overview Before reviewing the U.S. Supreme Court s higher education cases applying the First Amendment, it will be helpful first to review the text of the First Amendment and the Amendment s component parts.???? Here is a succinct description: Ratified in 1791 as part of the Bill of Rights, the First Amendment is only 45 words in length. But in those 45 words are six rights clauses, each with its own distinct importance: the establishment clause, the free exercise clause, the free speech clause, the free press clause, the assembly clause, and the petition clause... [T]hese six clauses can be sorted into three sets of two clauses each. The establishment and free exercise clauses combine to protect freedom of religion.... The freedom of speech and freedom of press clauses combine to protect freedom of expression.... The assembly and petition clauses provide additional 2 The text of the First Amendment reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 2

3 protections for speech-related activities in certain special circumstances. Although the latter two clauses protect essential political rights, they have played a lesser role in constitutional litigation than the other four, and are thus usually given little independent attention in constitutional law [cases]. In addition to the express protections in these six clauses, the First Amendment also protects the implied right of freedom of association.... A key threshold term is associated with each of the four primary First Amendment clauses. For the first two clauses, the term is "religion ; for the third clause it is "speech ; and for the fourth clause it is "press." Each clause applies only to situations where government has intruded into the realm defined by that clause's key threshold term. Thus important definitional problems arise, with which courts and commentators have frequently struggled. Yet another threshold textual problem arises at the very beginning of the First Amendment, with the language "Congress shall make no law...." Taken literally, the language suggests that the Amendment applies only to Congress and limits only the lawmaking functions of government. But the courts have not applied this language literally; indeed the U.S. Supreme Court has never directly addressed and interpreted this language. See Mark Denbeaux, The First Word of the First Amendment, 80 NORTHWESTERN U. L. REV (1986). In modern times the courts have applied the First Amendment to the executive and judicial branches of the federal government as well as to Congress, and... to the states as well as to the federal government. In short, the First Amendment now applies to all types of governmental actions that intrude into the realms of religion, expression, assembly, or petition. 3

4 William Kaplin, American Constitutional Law: An Overview, Analysis, and Integration, Chap. 12, Sec. A (Carolina Academic Press, 2004). See also Id., Chaps. 12 and 13 for fuller discussion of the First Amendment. III. Application of The First Amendment The First Amendment, like the Fourteenth Amendment and other constitutional rights provisions, limits only the actions of government, not the actions of private entities. See generally Kaplin, American Constitutional Law, supra, Chap. 9, Sec. D. Thus only public colleges and universities, and their officers and employees, are subject to the restraints of the First Amendment. Of course, there can always be questions about particular institutions that were originally private but have entered into some type of relationship with the state. To become subject to the First Amendment and other constitutional constraints, such an institution must be engaged in state action. See generally Kaplin & Lee, The Law of Higher Education, supra, sec In an education case early in the 25-year period we are studying, however, the U.S. Supreme Court narrowly construed the state action concept. In Rendell-Baker v. Kohn, 457 U.S. 830 (1982) -- a case in which teachers at a private school claimed that the school had violated their free speech rights -- the Court emphasized that a school is not engaged in state action simply because it receives most of its funding from government. Similarly, a school is not involved in state action simply because it is subject to various state regulations. The picture changes if the problem does not concern constitutional claims asserted against a private school, but rather a private school asserting claims against government. Then the private school will have constitutional rights, including First Amendment rights, to assert against government. If the claim arises under the free exercise clause of the First Amendment, however, the institution making the claim must generally be a religiously affiliated institution, since free exercise claims are based on religious belief and practice. 4

5 IV. First Amendment Higher Education Cases: From 1979 to early 2004, the U.S. Supreme Court decided and issued opinions in six higher education First Amendment cases. A higher education case, for purposes of this count, means a case in which one of the parties is a college, university, or higher education governing body; or a student, faculty member, officer, or staff member of a college or university. In this same time period, of course, the U.S. Supreme Court decided other First Amendment cases that, although not themselves higher education cases, nevertheless provide useful guidance for higher educational institutions. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), and Ward v. Rock Against Racism, 491 U.S. 781 (1989), for example, provide useful guidance regarding regulation of protests and demonstrations (see Kaplin & Lee, The Law of Higher Education, supra, at ); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), and Wisconsin v. Mitchell, 113 S.Ct (1993), provide useful guidance on regulation of hate speech (see Id. at ); Waters v. Churchill, 511 U.S. 661 (1994), contains important guidance on the free speech rights of public employees (see William Kaplin & Barbara Lee, Year 2000 Cumulative Supplement to The Law of Higher Education, pp , (NACUA, 2001)); and Boy Scouts of America v. Dale, 530 U.S. 640 (2000), provides important guidance on freedom of association claims (see Kaplin, American Constitutional Law, supra, pp ). All such guidance can usefully be applied to campus situations. But only the six cases listed below are themselves higher education cases, and thus only these six cases provide a perspective on the particular nuances in the law that arise from the Court s consideration of the unique mission and circumstances of higher education. These six higher education cases, and a brief summary of each, follows.?????? 1. Widmar v. Vincent, 454 U.S. 263 (1981). A religious group at a state university challenged a university policy that excluded religious groups from using university facilities generally available to recognized student groups. The Court (opinion by Justice Powell) held 3 The author thanks Pat Petit, Associate Director of the Law Library at Catholic University, for locating these 6 cases, and the cases in part V below, and for providing first drafts of the summaries of these cases. 5

6 that the university policy restricted the religious speech of the religious group s student members, thus violating the free speech clause, and that the university s desire to avoid establishment clause problems did not provide a defense to these claims. For further discussion of this case, see Kaplin & Lee, The Law of Higher Education, supra, at Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984). Faculty members of a community college, who were not members of the representative faculty association, challenged the constitutionality of a statute that required the State Board for Community Colleges to meet and confer on policy issues only with the employees exclusive representative. The Court (opinion by Justice O Conner) held that this statutory requirement did not restrict the free speech rights of the faculty who were not members of the association. The Court concluded that public employees, even in an academic setting, have no special constitutional right to participate in policy making. (See also Knight v. Minnesota Community College Faculty Ass n, 466 U.S. 284 (1984) (summary affirmance on a related issue).) For further discussion of this case, see Kaplin & Lee, The Law of Higher Education, supra, at Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986). A student at a Christian college in a Bible studies program challenged the denial of financial assistance from a vocational program administered by the state Commission for the Blind. The Court (opinion by Justice Marshall) held that the First Amendment s establishment clause does not prohibit the state from providing financial assistance, through a program such as a vocational rehabilitation program, to a blind person engaged in a religious course of study. For further discussion of this case, see Kaplin & Lee, The Law of Higher Education, supra, at University of Pennsylvania v. EEOC, 493 U.S. 182 (1990). The Court upheld the EEOC in its effort to obtain confidential university peer review records concerning the denial of a faculty member s application for tenure. In the course of its opinion (by Justice Blackmun), the unanimous Court rejected the University s argument that the First Amendment right of academic freedom prohibited the disclosure of these documents. For further discussion of this case, see Kaplin & Lee, The Law of Higher Education, supra, at Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). A student newspaper with a Christian editorial perspective challenged the denial of funds from a 6

7 university fund used to pay outside contractors for the printing costs of student publications. The Court (opinion by Justice Kennedy) held that the university s denial of funding violated the free speech clause by discriminating against a particular student viewpoint. The Court rejected the university s arguments based on scarcity of funding and avoiding violations of the establishment clause. For further discussion of this case, see Kaplin & Lee, Year 2000 Cumulative Supplement, supra, at , Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217 (2000). Students asserted that their free speech rights were violated when a university dispersed funds from mandatory activities fees to student organizations whose views the students did not support. The Court (opinion by Justice Kennedy) held that a public university could fund student organizations with revenue from mandatory student fees if the allocations are viewpoint neutral. The Court also rejected the argument that the university must have a refund system for students who chose not to support particular organizations that received student activity fee allocations. Looking beyond these six cases, there is one other higher education First Amendment case that is currently pending on the U.S. Supreme Court s docket, and is likely to be decided in The case, Locke v. Davey, concerns the eligibility of theology students for state scholarships. When the State of Washington denied a scholarship to Davey because he planned to study theology, Davey argued that the denial violated his free exercise rights under the First Amendment. The court below decided the case in Davey s favor (299 F. 3d 748 (9 th Cir. 2002)); the U.S. Supreme Court granted the state s petition for certiorari on May 19, 2003; the case was argued on December 2, 2003; and a decision is expected by the end of June

8 V. Important U.S. Supreme Court Dicta on Higher Education and the First Amendment: In addition to the cases listed in part IV above, there were other higher education cases between 1979 and 2004 in which the U.S. Supreme Court discussed the First Amendment even though it did not decide the case on that basis. This dicta in the Court s opinions most often concerns academic freedom. Brief summaries of the cases with academic freedom dicta follow. 1. NLRB v. Yeshiva University, 444 U.S. 672 (1980). The Court held that university faculty members who are managerial employees are not entitled to the benefits of collective bargaining under the National Labor Relations Act. In dissent, Justice Brennan argued that the concept of managerial employee is incompatible with the concept of academic freedom. Id. at Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985). The Court upheld the University s authority to dismiss a student for academic deficiencies without offering the student an opportunity for reexamination. The Court recognized First Amendment academic freedom as a reason for its deference to the University s genuinely academic decision. Id. at Central State University v. AAUP, Central State University Chapter, 526 U.S. 124, (1999). The Court upheld an Ohio statute that exempts instructional workload standards for professors from collective bargaining. Justice Stevens dissent identifies academic freedom as an underlying theme of the legal arguments. Id. at 130, Grutter v. Bollinger, 123 S.Ct (2003). In holding that the University of Michigan Law School has a compelling interest in achieving a diverse student body, the Court (opinion by Justice O Connor) affirmed Justice Powell s earlier statement on academic freedom in the Bakke case, 438 U.S. 265, 312 (1978) (opinion of Powell, J.), and determined that First Amendment academic freedom provides a range of discretion for the University to make decisions about the diversity of its student body (123 S.Ct. at 2339). The most important passage of dicta in these cases -- indeed one of the most important passages of dicta in any of the Court s higher education cases from is a passage on 8

9 judicial deference or academic deference that appears in Justice O Connor s majority opinion in Grutter v. Bollinger. In supporting the Court s determination that the University of Michigan s law school has a compelling interest in attaining a diverse student body, Justice O Connor reasoned: The Law School s educational judgment that [student body] diversity is essential to its educational mission is one to which we defer. The Law School s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university s academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 88 L.Ed 523 (1985); Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96, n. 6, 98 S.Ct. 948, 55 L.Ed. 2d 124 (1978); Bakke. 438 U.S., at 319, n. 53, 98 S.Ct (opinion of Powell, J.). We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. See, e.g., Wieman v. Updegraff, 344 U.S. 183, 195, 73 S.Ct. 215, 97 L.Ed. 216 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354 U.S. 234, S.Ct. 1203, 1 L.Ed.2d 1311 (1957); Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S., at 603, 87 S.Ct In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases 9

10 recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: The freedom of a university to make its own judgments as to education includes the selection of its student body. Bakke, supra, at 312, 98 S.Ct From this premise, Justice Powell reasoned that by claiming the right to select those students who will contribute the most to the robust exchange of ideas, a university seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission. 438 U.S., at 313, 98 S.Ct (quoting Keyishian v. Board of Regents of Univ. of State of N.Y., supra, at 603, 87 S.Ct. 675). Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School s proper institutional mission, and that good faith on the part of a university is presumed absent a showing to the contrary. 438 U.S., at , 98 S.Ct VI. The Next Twenty-Five Years: What to Watch For What will the U.S. Supreme Court do in the next twenty-five years ( ) regarding higher education, and particularly the First Amendment s application to higher education? No one can know with any assurance. But reasoned speculation, based on a review of the Court s work in the past twenty-five years, is possible. Here are five such speculations, which are as much statements of what the Court should do as they are statements of what the Court will do. 1. Look for the Court to develop law on the religion clauses application to the campus, particularly the free exercise clause. This speculation is as close as one can get to a sure thing, given the presence of Locke v. Davey (part IV above), a free exercise case, on the Court s decision docket. But Davey concerns the state legislature s relationship to students, rather than 10

11 relationships and problems arising from everyday interactions on the campus. Thus the broader question is whether the Court will move beyond its decision in Davey (which itself is a very important decision to watch for) to address students or faculty members free exercise claims and establishment claims as they relate to campus activities. Up to now, the Court has said very little on this topic. When it has spoken about freedom of religion on campus, as in Widmar and in Rosenberg (part IV above), it has usually used the free speech clause. 2. Look for the Court to address the tension between faculty academic freedom and institutional academic freedom. Many cases presenting this tension have been percolating through the lower courts for some years. See, e.g., Kaplin & Lee, Year 2000 Cumulative Supplement, supra, at , But the Court has not reviewed any of these cases on the merits. Although the Court has discussed academic freedom at various times (see part V above), it has not clearly distinguished between faculty academic freedom and institutional academic freedom or indicated how to resolve the tension between these two concepts. 3. Look for the Court to further develop the concept of student academic freedom. The Court s majority opinion in the Rosenberger case in 1995 (part IV above) includes a very important passage explicitly addressing student academic freedom: Vital First Amendment speech principles are at stake here. The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression. That danger is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition. See Healy v. James, 408 U.S. 169, , 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972); Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, , 17 L.Ed.2d 629 (1967); 1311 (1957). In ancient Athens, and, as Europe entered into a new 11

12 period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. See generally R. Palmer & J. Colton, A History of the Modern World 39 (7 th ed. 1992). The quality and creative power of student intellectual life to this day remains a vital measure of a school s influence and attainment. For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation s intellectual life, its college and university campuses. Rosenberger at This statement apparently marks the first time the Court has explicitly addressed student academic freedom since Healy v. James in 1972 (part I above). Before Healy, apparently, there is virtually nothing. Like faculty academic freedom, student academic freedom can exist in tension with institutional academic freedom. In addition, there may be tension between student academic freedom and faculty academic freedom. The best examples to date in the lower courts of such tension are the cases on whether a faculty members particular teaching methods or classroom conduct constitute sexual harassment that interferes with student learning. See Kaplin & Lee, Year 2000 Cumulative Supplement, supra, at Look for the Court to comment further on the deference that courts should accord the academic judgments of colleges and universities. This is an issue that arose in the Ewing case (part V above) and, more recently, was a critical element of the Grutter case (part V above). There was rigorous debate among the Justices in Grutter and its companion case, Gratz v. Bollinger, 123 S.Ct (2003), on when such deference should apply, and particularly on whether or how such deference should apply when the Court is engaged in a strict scrutiny review of a college s or university s decision. The resulting controversy makes it more likely that the Court will have to return to this issue at some later time. 5. Look for the Court to examine the extent to which the First Amendment freedom of association on campus may limit the application of college and university nondiscrimination 12

13 policies. This issue was opened up by the Court s 2000 decision in Boy Scouts of America v. Dale (part IV above), a case in which the Scouts freedom of expressive association took precedence over a New Jersey law prohibiting discrimination on the basis of sexual orientation. This case s most likely application to the campus would probably be in situations where an institution enforces a nondiscrimination policy against a student organization that denies membership to homosexuals, or perhaps to women (or men) or to ethnic or religious minorities. Another potential application would be to situations in which an institution seeks to take action against a faculty member because of his or her association with an off-campus organization that discriminates on grounds of race, ethnicity, gender, or sexual orientation. 13