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Fisher, academic freedom, and distrust.










Is the Supreme Court's recent decision in Fisher v. University of Texas at Austin (1) monumental or inconsequential? Is it a major or a minor addition to the jurisprudence on affirmative action in higher education? The early returns suggest that a consensus is forming around the latter conclusion.

Post-decision commentary on SCOTUSblog tells the story. While calling Fisher "a break with the Court's earlier decisions on affirmative action in higher education," Richard Sander cautioned that "It]his is not the sweeping repudiation of racial preferences that many conservatives hoped for." (2) After all the excitement about the case, Elise Boddie wrote, the opinion "fizzles. It charts no new doctrinal territory but instead reads more like a hornbook on strict scrutiny." (3) The big news about Fisher, Olatunde Johnson concluded, was that there was "no big news." (4) In the world of constitutional law casebooks, there are major cases and there are squibs. Fisher, on this view, is a squib.

Not much background is needed to see why this consensus formed, either as a matter of good-faith analysis or for more strategic reasons. In Grutter v. Bollinger, (5) the University of Michigan law school case, the Supreme Court upheld an affirmative action program for law school admissions. Justice Sandra Day O'Connor's majority opinion gave such broad latitude to the law school's own determinations that the decision was widely viewed as applying something less or different from the ostensible standard of strict scrutiny that the Court purported to apply. (6) Noting that twenty-five years had passed since its seminal decision in Bakke, (7) Justice O'Connor also wrote: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student diversity] approved today." (8) That language was seen as indicating the Court's hope that it might keep higher education affirmative action cases off its docket for a substantial period of time, while warning that its decision came with an effective sunset provision. (9)

When the Court granted certiorari in the Fisher case, (10) it seemed as if "later" had come around sooner than expected. With the retirement of Justice O'Connor and the addition of more politically conservative personnel on the Court, the fact that the Court had granted certiorari at all was taken as an indication that Grutter might be headed for the chopping block. (11) As is so often the case, the swing vote in Fisher was expected to be that of Justice Anthony Kennedy, whose dissent in Grutter expressed strong skepticism about the majority's application of strict scrutiny. (12) The prediction of a major shift in doctrine was not unreasonable.

In the event, it didn't quite happen. To his credit, Justice Kennedy is remarkably consistent: He never fails to disappoint. Writing for a 7-1 Court, with Justice Elena Kagan not participating in the decision, Kennedy concluded that the Fifth Circuit, which had upheld the use of race by the University of Texas in its undergraduate admissions process, "did not apply the correct standard of strict scrutiny" and remanded the case for further proceedings by the court below. (13) The use of affirmative action in higher education survived, but with the important caveat that the Court would henceforth insist on genuine strict scrutiny in evaluating such programs.

So it makes sense that there would be a push to describe Fisher as "no big deal." (14) As a matter of doctrinal analysis, there is at least some truth to it, compared to what might have happened. Grutter was not overruled, and affirmative action survived, at least in theory--although the Court certainly signaled that such programs would face more rigorous review. (15)

At the same time, the "no big deal" conclusion seems to undersell the extent to which courts are now instructed to conduct a genuinely strict scrutiny of university admissions programs and demand a meaningful inquiry into whether those programs are narrowly tailored. From a tactical standpoint, however, if you are a supporter of affirmative action, underselling the possible effects of Fisher also makes sense. It's generally good strategy to accentuate the positive and eliminate the negative. Sea-change or squib? You decide.

In this Article, I focus on roughly the same issue--what Fisher means for strict scrutiny, "critical mass," and other aspects of judicial review of affirmative action in higher education admissions programs--but from a different perspective. As with most of my work in this area, my interest has less to do with affirmative action or equal protection as such. Rather, my concern is with what the affirmative action cases say about the general relationship between courts and universities, particularly with respect to academic freedom. (16)

From this perspective, what I find most striking about Fisher--especially the dueling opinions that emerged from the Fifth Circuit prior to review in the Supreme Court--is what it says about competing judicial conceptions of the university itself. That is so in two respects. First, the discussions in Fisher--and elsewhere, including in other decisions of the Supreme Court--reveal a couple of different visions of the purposes of a university. No less important, they reveal competing views about where and how debates about the university should be undertaken and settled. Is the question fundamentally one for universities themselves to decide? Or are courts themselves entitled to establish, as a matter of law, a definition of the purpose and nature of the university--and, if so, how fixed should that definition be?

Second, the decisions in Fisher and in other cases suggest a growing judicial mistrust of universities altogether: an increasing unwillingness to defer to them on core questions of academic functioning. This may not be surprising, in an era in which the headlines are filled with talk of the failure to prevent child sexual abuse at Pennsylvania State University, skyrocketing tuition costs, and other seeming breakdowns in the system of higher education. But the distrust runs deeper than any particular incident, reflecting in part a view on the part of some judges that universities are active in, and on the wrong side of, the culture wars. And it has implications that run broader than any particular incident or occasion for judicial review and may leave judges inclined to be more distrustful and less deferential, even in core academic freedom cases.

Both trends--the presence of competing visions of the university, and the increase in judicial distrust of the university as an autonomous institution--may be a reflection of what is already going on in other academic freedom cases. Or they may represent something new, a change with potential implications for future academic freedom cases. Perhaps both are partly true. In any event, I disagree with both trends. I believe courts should defer substantially to universities and that in doing so they should leave open some space for institutional pluralism: for the possibility that different, but equally constitutionally legitimate and protected, conceptions of the university can and should coexist within the broader academy.

To the extent that courts have moved away from both views, however, I suggest that a good portion of the fault lies with the universities themselves. We live in an era of generalized distrust for institutions, and universities have hardly emerged unscathed. If they want to retain or revive meaningful legal and]or constitutional autonomy and continue to be able to make their own decisions for themselves, the universities are going to have to work hard to make sure that judges, and others, understand them--and, above all, trust them. (17)

I discuss competing conceptions of the university in Section I. Section II focuses on competing views concerning judicial deference to academic decisions by universities. Section III discusses the importance to these issues of the increasing distrust of institutions, including academic institutions.


One of the most curious features of the Supreme Court's decision in Grutter--and one of the likeliest explanations, as a doctrinal matter at least, (18) for the gentle form of "strict" scrutiny the Court applied in that case--is that it is an Equal Protection case that is subtended in a somewhat odd fashion by the First Amendment. (19) The First Amendment entered into the calculus in the Court's consideration of whether the University of Michigan's law school had "a compelling interest in attaining a diverse student body." (20) In holding that it did, the Court made the following statement:

   The Law School's educational judgment that such diversity is
   essential to its educational mission is one to which we defer....
   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.... 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.... 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." (21)

Characteristically for Supreme Court pronouncements on academic freedom, this statement is filled with ambiguities and generalities, making it hard to see with clarity exactly what it means or where its limits lie in practice. (22) It is hardly surprising that such a broad statement, so pregnant with promise and effusive about both the importance and the expertise of the university, seemed to overspill its bounds in Grutter itself, leading to a strict scrutiny discussion that was as deferential in the narrow tailoring portion of the analysis as it was in the compelling interest portion.

Still, we can tease out two distinct points in this statement. Both points are relevant to the analysis in this Article. The first has to do with the constitutional value of academic freedom itself. On this view, as the Court puts it, "universities occupy a special niche in our constitutional tradition," (23) one that is undergirded by the First Amendment. As Justice Brennan put it in one case, which represented a pre-Grutter high-water mark for the constitutional rhetoric of academic freedom:

   Our Nation is deeply committed to safeguarding academic freedom,
   which is of transcendent value to all of us and not merely to the
   teachers concerned. That freedom is therefore a special concern of
   the First Amendment, which does not tolerate laws that cast a pall
   of orthodoxy over the classroom. (24)

The second point concerns deference. As the Grutter Court pointed out, there is a substantial tradition of judicial deference to "complex educational judgments ... that lie[] primarily within the expertise of the university." (25) The Court has written that judges are ill-equipped to make decisions concerning "the multitude of academic decisions that are made daily by faculty members of public educational institutions--decisions that require 'an expert evaluation of cumulative information and [are] not readily adapted to the procedural tools of judicial or administrative decisionmaking.'" (26) So there are, in fact, two important aspects of academic freedom as a legal concept: judicial protection of academic freedom as a constitutional right (or at least a constitutional sensibility), and judicial deference to the expertise of the university when it makes academic judgments. (27)

Importantly, both aspects imply or require some underlying vision of what the university is: how and why it functions, and what aspects of its activities fall within the scope of concern of academic freedom. Universities do all sorts of things. They field football teams, secure patents, raise money, hire and fire janitors and engineers--and, yes, occasionally they are involved in teaching, research, and service. Neither courts nor academics are equally concerned with all these activities as a matter of academic freedom. They are concerned only with the "academic decisions" of a university. (28) As a First Amendment matter, nonacademic decisions are likely to fall outside the scope of the constitutional right of academic freedom (if such a right exists). As a matter of deference, courts are supposed to defer to "complex educational judgments," (29) not to anything and everything a university does, much of which judges will consider routine material for judicial decision-making. (30)

In short, '"[a]cademic' must itself be defined so that those [legal] boundaries can come clearly into view." (31) As Mark Yudof warned some years ago: "If academic freedom is thought to include all that is desirable for academicians, it may come to mean quite little to policy makers and courts." (32) In short, in order to protect academic freedom, we have to define it. (33) And to do that, we need some understanding or definition of the university itself: what it does, what lies at the heart of its mission, which of its actions are particular to its functioning as a university and which would be undertaken by any large institution, and so on.

Enter the Fifth Circuit. The panel decision in Fisher is striking because it places in the foreground two very different judicial visions of the university, and of the overarching question of who gets to decide what a university is and what its mission consists of. Those visions have a substantial effect on the judges' differing approaches and the results they recommend. Both of them are worth setting out in detail.


Judge Patrick Higginbotham wrote for the panel in Fisher. Near the beginning of his opinion, Judge Higginbotham, drawing heavily on Grutter, describes "three distinct educational objectives served by the diversity [Justice O'Connor] envisioned." (34) Those objectives are to improve educational quality by increasing the number of perspectives available in the classroom; to better prepare students as professionals; and to encourage and enhance civic engagement. (35)

Although most of these objectives arguably fall pretty squarely within what is widely understood as the traditional mission of the university, it is still noteworthy how Judge Higginbotham prefaces this discussion: "[Justice O'Connor's] opinion recognizes that universities do more than simply impart knowledge to their students." (36) Thus, the Higginbotham version of the university already emphasizes a somewhat broad understanding of what it does rather than a narrow or traditionalist one. It stresses that a "diversity of views and perspectives" is "paramount to a university's educational mission." (37)

There are also indications in Higginbotham's opinion of an acknowledgment of and respect for the possibility of institutional pluralism. Higginbotham recognizes that different universities may have different missions and goals. Thus, in describing the value of educational diversity and its relationship to a university's mission, Higginbotham writes: "Preparing students to function as professionals in an increasingly diverse workforce ... calls for some consideration of a university's particular educational mission and the community it serves." (38) A "nationally renowned law school," for example, may take applicants from across the country and "send[] its graduates into careers in all states; therefore it is appropriate for such a school to consider national diversity levels when setting goals for its admissions program." (39) Or a university might be committed to serving local needs, in which case it may adopt "a more tailored diversity emphasis." (40) Similarly, to the extent that "foster[ing] civic engagement and maintain[ing] visibly open paths to leadership" are part of a university's goals, those goals may "require[ ] a degree of attention to the [university's] surrounding community." (41)

Note that Higginbotham does not fix in place a particular mission that applies to all universities. Some may serve a local community and some a national one; some may seek to foster civic engagement and some may not. The kinds of goals they pursue will differ. Presumably, the kinds of actions they take to achieve those goals, and the concomitant constraints on their actions, will vary accordingly. Higginbotham's approach is thus not a general blessing of any affirmative action policy, undertaken using any metrics the university wishes. Rather, it defers substantially to university admissions programs only to the extent that those programs correspond to the university's own distinct mission.

Given this kind of approach, which takes an expansive and pluralistic view of the university's purpose, it is hardly surprising that Higginbotham's view of the role of the courts in assessing a university's academic decisions, including admissions decisions, is highly deferential. He accepts both the authority-based and the epistemically-based justifications for judicial deference in university cases, emphasizing a right of "educational autonomy grounded in the First Amendment" and asserting that academic decisions lie "far outside the experience of the courts." (42) And although he makes a pro forma statement that "the scrutiny triggered by racial classification 'is no less strict for taking into account' the special circumstances of higher education," (43) he makes clear that the manner of strict scrutiny in cases involving universities should focus on the process the university adopts rather than its substance: "Rather than second-guess the merits of the University's decision, a task we are ill-equipped to perform, we instead scrutinize the University's decisionmaking process to ensure that its decision to adopt a race-conscious admissions policy followed from the good faith consideration Grutter requires." (44)

Moreover, citing Grutter, Higginbotham asserts that even this process-based scrutiny should begin with a presumption that "the University acted in good faith." (45) And he insists, as did the majority in Grutter, that narrow tailoring '"does not require exhaustion of every conceivable race-neutral alternative,' especially if the proffered alternatives would require the University to sacrifice other important interests, like its academic selectivity and reputation for excellence." (46)


Judge Emilio Garza filed a special concurrence in the Fisher panel decision. In his view, although he was obliged to follow Grutter and the panel opinion represented a "faithful" application of that decision, Grutter itself was a "misstep," a "digression in the course of constitutional law," and a "detour from constitutional first principles." (47) For Garza, as for many other critics of Grutter, despite the Court's invocation of strict scrutiny, "what the Court applied in practice was something else entirely." (48) So Garza concurred in Judge Higginbotham's opinion, while urging the Supreme Court to take the case and correct its errors in Grutter.

What is most relevant for present purposes is not Judge Garza's view of Equal Protection doctrine, but his view of the purposes of the university itself. Garza writes that "[s]tate universities are free to define their educational goals as broadly as needed to serve the public interest," and courts "defer to educators' professional judgments in setting those goals." (49) But just as there is an arguable gap between what Judge Higginbotham says about traditional strict scrutiny and what he does in his opinion, so there is a gulf between that statement by Garza and his evident views in the rest of his opinion. He writes:

   Notwithstanding an institution's decision to expand its
   educational mission more broadly, the university's core
   function is to educate students in the physical sciences,
   engineering, social sciences, business and the humanities,
   among other academic disciplines. (50)

Garza is not adamant about restricting universities to this narrow, traditional understanding of their function (51) Nevertheless, his understanding of the university's "core function" clearly influences the course of his opinion. Thus, he rejects the Grutter Court's emphasis on civic engagement as a justification for affirmative action in university admissions, arguing that it "has nothing to do with the university's core education and training functions." (52) And he questions whether there is any good reason for deference to universities that argue that things like "promoting 'cross-racial understanding' and enabling students 'to better understand persons of different races"' are necessary aspects of their "educational goals." (53) These matters, Garza argues, "could just as easily be facilitated in many other public settings where diverse people assemble regularly. (54) He adds: "I do not believe that the university has a monopoly on furthering these societal goals, or even that the university is in the best position to further such goals." (55)

Unsurprisingly, Garza's narrow definition of the university's mission, and his skepticism that universities have any special role or expertise with respect to broader goals, color his own application of strict scrutiny. His vision leaves little room for the kind of respect for "complex educational judgments in an area that lies primarily within the expertise of the university" that Grutter and the academic freedom jurisprudence command, (56) precisely because he doubts that racially conscious admissions policies fall within the expertise of the university. Thus, he criticizes Grutter's reliance on the "educational benefits of diversity" arguments advanced by the University of Michigan in that case and by the University of Texas in Fisher, arguing that "it remains suspended at the highest levels of hypothesis and speculation." (57) He is skeptical that anyone, including the university, is capable of testing or judging whether "a critical mass of minority students could perceptibly improve the quality of classroom learning." (58) Far from presuming the good faith of the university, he argues that its findings could be manipulated to achieve a desired result. (59)

In short, two related currents run through Judge Garza's special concurrence: a narrow, traditionalist view of the "core function" of the university, and a strong skepticism that anything it says or any studies it conducts in support of a broader vision--or, indeed, in support of the view that race-conscious admissions are central to the core function of educating students--is either valid or based on meaningful expert opinion. Garza's vision of the university colors his views on whether the university is acting in good faith and how much deference is due to it. Conversely, his lack of deference is clearly influenced by his view that universities have wandered far afield from their core function, are acting in areas about which they know little, and are indistinguishable in those areas from any other public institution.

The two opinions in the Fisher panel opinion thus suggest two competing visions of the university. The vision offered by Judge Higginbotham suggests that diversity can be a strong, almost independent interest for the modern university, and more generally that universities should not be understood as simply "impart[ing] knowledge" to students. (60) It also suggests the possibility that there is no single "core" function, narrowly understood, of the university. Rather, different universities can serve a plurality of purposes, purposes that vary depending on a university's "particular educational mission" and "the community it serves." (61) Judge Garza's vision of the university, in contrast, is narrow and traditional, emphasizing that "the university's core function is to educate students in the physical sciences, engineering, social sciences, business and the humanities, among other academic disciplines." (62) This vision leads him to refuse to give much credit or deference to aims that arguably fall outside the scope of that core function.


Put to one side for now the Supreme Court's own decision in Fisher, which focuses less on the function of the university and more on the role of deference. (63) Similar disagreements about the purpose of the university also crop up from time to time elsewhere in the jurisprudence of the Supreme Court. On the High Court, too, the doctrinal argument between the justices concerning academic freedom is sometimes subtly influenced by the justices' competing visions concerning what the university exists to do and who gets the final word on that question.

The Higginbotham vision--one that is characterized by respect for the potential breadth of the university's mission and the possibility of institutional pluralism within the universe of higher educational institutions--appears in the Supreme Court mostly indirectly, by hints and signs. It is somewhat apparent in Justice John Paul Stevens's concurrence in Widmar v. Vincent. (64) There, Justice Stevens rejected the majority's fairly mechanical use of public forum doctrine to evaluate a university speech controversy, arguing that "the use of the terms 'compelling state interest' and 'public forum' to analyze the question presented in this case may needlessly undermine the academic freedom of public universities." (65)

Stevens did not expressly speak in terms of varied university missions. To the contrary, he spoke in fairly basic terms about universities' "learning and teaching missions." (66) More broadly, however, the central point of his concurrence was to emphasize that "the managers of a university routinely make countless decisions based on the content of communicative materials" and student extracurricular activities, (67) and that the decision of how to allocate its resources should be left to the university itself. Thus, in deciding between two competing uses by a student group of a room in the university, one devoted to the classics and one to "Mickey Mouse cartoons ..., a university should [be] allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom." (68)

Of course, this standard is primarily about deference. But note that Stevens does not argue that either decision by the university--whether to privilege Shakespeare or Walt Disney-would be presumptively right or wrong. Rather, he leaves the decision to the university itself and implicitly recognizes that different universities may make different reasonable choices in allocating their own resources. Thus, in effect if not in intent, Justice Stevens's vision of the university leaves room for institutional pluralism in the implementation of the "learning and teaching missions" of the university. Just as important, he sees that decision as belonging to universities, not courts.

Justice Stevens's banner was taken up, briefly, by Justice David Souter. The similarity of approach is apparent in Souter's concurrence in Board of Regents of University of Wisconsin System v. Southworth, (69) a case involving the constitutionality of mandatory student activity fees. As with the majority opinion in Widmar, the case was decided by the majority using fairly conventional and mechanical doctrinal tools. It was this approach to which Souter objected. (70) For Souter, other "sources of law" might be more relevant to deciding the case. (71)

One of those sources consisted of "First Amendment and related cases grouped under the umbrella of academic freedom." (72) A key principle of those cases was that "universities and schools should have the freedom to make decisions about how and what to teach." (73) Although in his view the cases had never firmly asserted an absolute right of universities to autonomy qua universities, and the courts were still obliged to consider the speech rights of students within universities, it was "enough to say that protecting a university's discretion to shape its educational mission may prove to be an important consideration in First Amendment analysis of objections to student fees." (74)

Again, this language has more to do with judicial deference to universities than with the function of universities. But in recognizing the importance of academic autonomy and the right of a university to "shape its educational mission," Souter necessarily suggests that a university's own vision of its mission, and of the role of universities generally, may differ from the vision offered by the courts; when these visions differ, the university's vision must take precedence. Indeed, under Souter's approach, "acceptance of the most general statement of academic freedom" might even render acceptable a public university's decision to impose student speech codes, (75) a bete noire of those who advance a more traditional view of the status of free speech within the university.

Compare this with Justice Alito's vision of the university in Christian Legal Society v. Martinez. (76) In that case, the Supreme Court upheld Hastings College of the Law's use of an "all-comers" nondiscrimination policy for student groups to withdraw official recognition from the law school's chapter of the Christian Legal Society. (77) As with Southworth, the case was decided using standard, acontextual doctrinal tools such as public forum doctrine. (78) Thus, the majority opinion itself said little about universities and their mission(s).

In dissent, however, Justice Alito objected sharply to the decision in terms that left little doubt that he hewed closely to a more traditionalist vision of the university. Alito argued that the majority's decision stood for the principle that there should be "no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning." (79) Contrasting the decision with the Court's earlier decision in Healy v. James, (80) Alito emphasized that the Healy Court had refused to defer to university administrators with respect to how to achieve their "educational objectives," and there was "no reason why we should bow to university administrators" in the present case. (81)

This is suggestive language only, to be sure. But it presents a fairly striking contrast with opinions like those of Souter and Stevens, which suggest that universities may contain a multitude of different visions and goals and that courts should not impose upon them a particular mission or set of policies--no matter how laudable or consistent with the traditional understanding of universities it may be. For Justice Alito, as for Judge Garza, there simply is a particular set of core functions or norms that govern the university--one that happens to resemble the standard depiction of a university in the pages of the National Review circa 1993. Any departure from that understanding of what universities exist to do will be judged non-deferentially, if not harshly.

To be clear, I am not endorsing a particular vision of the university here. I am not saying, for example, that seeking student diversity is not just permissible but mandatory for universities--that student diversity is an indefeasible part of the mission of every university. Nor am I suggesting that the traditionalist view of the university advanced by judges such as Garza and Alito, one in which teaching and learning on core subjects is the fundamental purpose of every university and "political correctness" should be anathema on campus, is wholly illegitimate. To the contrary, there is much to be said for Alito's picture of the university. Indeed, something like this traditional view has been defended quite eloquently by some of the greatest champions of constitutional academic freedom. (82)

What interests me is simply the fact of the dispute, and especially its location. The role of the university, and the concomitant boundaries of the professional and legal norms of academic freedom that protect that role, is hotly debated within the university itself. (83) The different visions of the university that figure in the Fifth Circuit's opinion in Fisher, and that can be seen in scattered opinions by individual Supreme Court justices, suggest that the same debates exist on the courts as well. Although he defends a fairly traditional view of the purpose of the university, J. Peter Byrne has called American universities "dazzlingly diverse" in their aims and "full of conflicting purposes," both individually and as a whole. (84) It is ultimately that form of institutional diversity--not the racial diversity of students that is the focus of cases like Grutter and Fisher, but the plurality of missions and aims that may characterize a modern university--that drives opinions like Judge Higginbotham's. Others, like Judge Garza, insist that universities have a particular mission, that it is easily identifiable, and that they are perfectly comfortable as judges declaring what it is.

These competing visions are bound to affect outcomes in cases involving universities. They may do so directly, in cases involving standard disputes over academic freedom. Since Garcetti v. Ceballos, (85) for example, the law concerning speech by public employees has held that public employers may discipline employees for statements made in the course of their "professional duties." (86) Justice Souter worried that such a rule would "imperil First Amendment protection of academic freedom in public colleges and universities, (87) and the majority in Garcetti left open the question whether the rule announced in the case "would apply in the same manner to a case involving speech [by an academic] related to scholarship or teaching." (88) How such a case would play out might turn on what a court concludes about the scope of the professional duties of academics. Similarly, courts are sometimes called upon to decide disputes over the circumstances in which university administrators can take action against professors who arguably depart from proper classroom or scholarly standards. How they resolve those questions may turn on whether courts believe that universities have the primary say about such matters, or whether judges will instead step in as self-proclaimed defenders of core academic values against those who would "impose [a] straightjacket upon the intellectual leaders in our colleges." (89) Or, as in Fisher, they may affect the outcome indirectly. Judges' views about the scope of discretion allowed to universities in admissions programs and other areas may be influenced by their views about what constitutes an appropriate mission for a university. A case may only rarely turn openly on a judge's conception of the role and purpose of universities. Underneath the doctrinal surface, however, a great deal may depend on what judges think about the proper mission of the university.


What judges think about the purpose of the university is closely tied to another question: How much judicial deference is owed to universities? This question played a central part in the debate over the University of Texas's admissions program in Fisher, both in the Fifth Circuit and in the Supreme Court itself.

As we saw earlier, Judge Higginbotham's panel opinion in Fisher rests heavily on deference, beginning with the key phrase that "the Supreme Court has held that '[c]ontext matters' when evaluating race-based governmental action, and a university's educational judgment in developing diversity policies is due deference."(90) Although Higginbotham insists that this deference does not mean the courts should apply anything less than strict scrutiny, in practice his strict scrutiny analysis is something less than the traditional analysis we would expect, for two reasons. First, he argues that in this context strict scrutiny should focus on the process by which the university reaches a policy decision on admissions, not on the substance itself. (91) Second, in applying strict scrutiny he begins with a presumption of good faith on the part of the university. (92)

Thus, even the narrow tailoring portion of the strict scrutiny analysis should be "undertaken with a degree of deference to the University's constitutionally protected, presumably expert academic judgment." (93) Universities are "engaged in a different enterprise" from other defendants in affirmative action litigation, such as governments engaged in public contracting. So long as their admissions programs operate in "a holistic and individualized manner," all that matters is that they reasonably exercised expert judgment and concluded that some admissions policy was necessary to the achievement of its educational goals. (94) With this version of strict scrutiny in place, upholding the University of Texas's admissions plan presented no great challenge.

I am less concerned here with the details than with the general impression one receives from Higginbotham's presentation of the evidence. What it appears to suggest is not just a formal or mechanical application of deference, but a strong underlying trust in the university and a respect for its academic expertise.

That trust and respect are evident in his description of the University of Texas's actions. "Over the past two decades," he says at the opening of this discussion, "UT has repeatedly revised its admissions procedures to reflect its calculus of educational values while navigating judicial decisions and legislative mandates." (95) His description of the university's "calculus" sets out lovingly and at length the care and thought the university put into its admissions program, piling detail upon detail to show that the university operated as an expert, informing itself fully on the details and limits of its policy and coming up with a "complex admissions process." (96) He concludes with a warm commendation of the university, writing that "it is evident that the efforts of the University have been studied, serious, and of high purpose, lending support to a constitutionally protected zone of discretion." (97) Given Higginbotham's evident respect for the expert efforts undertaken by the university, it is unsurprising that he rejects any suggestion that courts could oversee its operations in this area by imposing "fixed numerical guideposts" on the university. (98)

That sort of trust in universities all but disappears when one examines the other Fifth Circuit opinions in Fisher. Much of the reason for this is strictly doctrinal, on the surface at least. As presented, the problem is not that the University of Texas did not act sensitively or carefully or was unworthy of trust; it is that the university's expertise is irrelevant. It may matter in applying the compelling interest strand of strict scrutiny, although even here Judge Garza is doubtful. But it certainly has nothing to do with the narrow tailoring strand, which "the Court [wrongly] redefined" in Grutter to remove its sting. (99) By deferring so much, by vesting universities with so much unguided discretion to determine that a program is the least restrictive means of achieving its educational goals, Grutter renders "meaningful judicial review all but impossible. (100) On the surface, then, the problem is not so much that the University of Texas acted badly. Rather, the problem is that its program was not subjected to an independent judicial review of the means the university adopted toward the achievement of its educational goals.

Beneath the surface, however, one senses the distrust bubbling up. Garza's language is shot through with suspicion. Universities like the University of Michigan Law School and the University of Texas, he writes, "can get away with something less" than what the Constitution requires given the laxity of the narrow tailoring analysis. (101) Judicial deference to universities, especially when combined with a presumption that they are acting in good faith, leaves those schools with "a peculiarly low bar" to leap. (102) Universities, having been given the green light by the Court in Grutter, will "do covertly" what they cannot do openly--will, in other words, employ subterfuge, a conclusion that hardly entitles the university to much judicial deference. (103)

Given Judge Garza's strong distrust of the university, even the deference that ought to be accorded to a university's expert judgment about its own goals is lacking here. Any determination by universities that racial or other forms of student diversity are an important part of their admissions programs that satisfies the compelling interest standard "remains suspended at the highest levels of hypothesis and speculation," he writes. (104) The facts suggest that the University of Texas engaged in careful study before concluding that a racially conscious admissions policy was needed to achieve what it considered the essential educational goal of student diversity. Given his distrust of the university, however, Garza easily waves this off, suggesting that any measure the university might employ here "would be subjective and, at worst, capable of manipulation through framing biases." (105) Beyond the university's "core function" (106) of educating students in specific traditional subjects, nothing about the university gives it any special expertise in judging the importance of such goals as promoting cross-racial understanding. Although the university may treat such values as "self-styled educational goals," it is in no better position than any other institution--including the judiciary itself--to evaluate such goals. (107)

In short, for Garza, deference to the university is simply a mistake, a "digression in the course of constitutional law." (108) The fact that the case involves race obviously has much to do with Garza's refusal to defer. (109) But his language suggests something more than this. It suggests a skepticism that universities are entitled to deference at all, especially once they move beyond what Garza sees as their narrowly traditional "core function." It all but accuses them of being undeserving of such trust altogether.

The same distrust of universities is equally apparent in Chief Judge Edith Jones's dissent from the denial of en banc review of Fisher. (110) If anything, Jones's dissent is more contemptuous of the university, filled with a degree of disdain that goes beyond a mere conclusion that deference is the wrong doctrinal tool to apply in such cases. "University administrators cherish the power to dispense admissions as they see fit," she writes, adding with evident sarcasm that "even University administrators can lose sight of the constitutional forest for the academic trees." (111) One gets the sense that if given free rein, Jones would take an axe to those academic trees, cutting a judicial swath through the groves of academe and whistling a merry tune all the while.

Leaving unmentioned the Grutter Court's discussion of the complexity of the educational decisions made by universities, (112) Jones writes that Grutter's discussion of educational decision-making "was meant to challenge the university, not to bless whatever rationale it advances for racially preferential admissions." (113) It is difficult to read this sentence without concluding that Jones thinks the university's proffered rationales are really just rationalizations: post hoc justifications for the university to pursue the impermissible non-academic goal of racial balancing. She not only questions whether it is constitutionally appropriate for the university to seek racial diversity at the classroom level, but suggests again that the university would use such a goal dishonestly, treating it as "carte blanche" to do what it wants. (114) She agrees that a university is entitled to deference on the narrow question of whether it has "a compelling interest in achieving racial and other student diversity," but concludes that "that is about as far as deference should go." (115)

As with Judge Garza's opinion, then, Chief Judge Jones's opinion can fairly be read as signaling more than a mere conclusion that Grutter, and the Fifth Circuit, deferred to the university too much or on the wrong question. Rather, it suggests a generalized distrust of universities: a conviction that they hardly merit any deference, that they are acting as social reformers rather than genuine academics and would dither about among the "academic trees" in any event, and that they will act dishonestly to achieve their goal of racial balancing.

The same sarcasm and distrust toward universities played a prominent role in the oral arguments when the Supreme Court heard Fisher. (116) Again the argument was primarily doctrinal. But, again, a strong undercurrent of skepticism toward universities tout court is obviously at work here. It is most prominent, unsurprisingly, in the questions asked by the usual suspects. (117)

This skepticism appears soon after the argument turns to the merits, in a question by Justice Antonin Scalia suggesting that the University of Texas, no matter what serious study it had devoted to the issue by this time or how long it had had since the Fifth Circuit's decision in Hopwood (118) to reconsider its admissions policy, had simply reinstated "racial [quotas]" the second Grutter came down, without any serious reflection or analysis at all. (119) It is evident in Chief Justice John Roberts's questioning of counsel for the State of Texas on the issue of critical mass, in which he responds to a laundry list of efforts undertaken by the university to make a determination about critical mass with the skeptical statement: "So, I say--when you tell me, that's good enough." (120) And it reaches its peak when Justice Scalia implies that the very administrative bureaucracies that universities employ in making "complex educational judgments" about admissions in fact reveal the university to have been captured by these bureaucrats, who have grown like kudzu and should just be eliminated:

JUSTICE SCALIA: Since we are asking questions just about ... curiosity, I am curious to know how many--this is a very ambitious racial program here at the University of Texas. How many people are there in the affirmative action department of the University of Texas? Do you have any idea? There must be a lot of people to, you know, to monitor all these classes and do all of this assessment of race throughout the thing. There would be a large number of people ... out of a job, ... wouldn't [there], if we suddenly went to just [a] 10 percent [plan]? (121)

That the Supreme Court's decision in Fisher might turn substantially on the question of the proper scope of judicial deference to universities surprised absolutely no one. The contours of judicial deference to higher educational institutions--indeed, whether there should be any deference at all, at least where race is involved--were hotly contested by the dissenting justices in Grutter. Not without reason, Justice Clarence Thomas called the extent of deference shown to the University of Michigan "unprecedented" in his passionate dissent in Grutter. (122) Indeed, Thomas was skeptical that the university was entitled to deference under either prong of the strict scrutiny analysis. With respect to whether the law school had a compelling interest, he questioned whether a racially diverse student body could be said to provide any educational benefits at all, let alone whether a compelling interest in student diversity could be said to exist. (123) More broadly, Thomas cast doubt on the very "idea of 'educational autonomy' grounded in the First Amendment"(124) and made clear his view that even if it existed, it hardly justified lessening the rigor of judicial review in race-based Equal Protection cases. (125)

Justice Anthony Kennedy also dissented in Grutter. True to form, he took a position between that of Justice Thomas and that of the majority. He would have paid deference within limits with respect to the compelling interest portion of the strict scrutiny analysis, concluding that "[o]ur precedents provide a basis for the Court's acceptance of a university's considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence." (126) But he charged that the majority had "confuse[d] deference to a university's definition of its educational objective with deference to the implementation of this goal." (127) The university might be entitled to deference with respect to the selection of its goal of student diversity, and that goal might constitute a compelling interest. But no deference whatsoever should be given to its use of racial classifications to implement the goal of educational diversity. (128)

Both before and after the oral argument in Fisher, it was widely assumed that the outcome would turn on Justice Kennedy's vote and on his view of the appropriate scope of deference in the case. (129) And so it did. Writing for the Court, Justice Kennedy neither upheld Texas's program nor struck down Grutter. Instead, he remanded the case to the Fifth Circuit for failure to apply strict scrutiny correctly. He accepted Grutter's conclusion that "the decision to pursue 'the educational benefits that flow from student body diversity' that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper." (130) Provided that there is "a reasoned, principled explanation for the academic decision," the courts should bow out. (131)

But Kennedy insisted that once the initial policy determination is made, it is for the courts to determine "that the admissions process meets strict scrutiny in its implementation." (132) In other words, deference as to ends, not means; deference on what constitutes a compelling interest, not on narrow tailoring. To be sure, even at the latter stage of strict scrutiny analysis "a court can take account of a university's experience and expertise in adopting or rejecting certain admissions processes." (133) But the court must remain in the driver's seat. (134) Contrary to Judge Higginbotham's opinion, it must "second-guess the merits" of the university's implementation of its educational goals where racial classification is involved. (135)

Kennedy spoke for six other justices, with only one member of the Court--Justice Ruth Bader Ginsburg--dissenting. (136) That might seem to belie the prediction that Kennedy would provide the pivotal vote in the case. But there is more than one way to be a swing justice. It is fairly clear that Justice Kennedy called the tune here, and that at least some of the liberal and conservative justices reluctantly sang along. They joined his opinion because it provided adequate security for their own views, and because joining, with the hope of limiting the scope of Kennedy's wanderings, was preferable to the risk of wrenching defeat from victory. Fisher is a Kennedy product through and through.

That has certain consequences for the visibility--but not, I think, the accuracy--of the basic points I have canvassed in this Article: that the judicial view of the mission of universities, and of the trustworthiness of universities and their entitlement to judicial deference, were two major animating issues in Fisher. Justice Kennedy is motivated more by judicial amour propre than by distrust of---or even, perhaps, concern for---other institutions. (137) There was little need, and for Kennedy probably no strong impetus, to use Fisher to take on the universities' own amour propre and their insistence on academic autonomy. Sufficient unto the day is the evil thereof.

To say these animating impulses were not clearly visible in the Supreme Court's decision in Fisher is not to say they were absent, however. It is often possible to glimpse deeper motives in a judicial decision, motives that are just barely concealed by the patina of doctrine. (138) It is surely true that in the context of affirmative action, the justices care more about race and equal protection than they do about the mission of the university or the judicial implications of academic freedom. (139) The Court may have meant what it said about academic freedom, university autonomy, and judicial deference in Grutter. But it is less clear that it cared what it said about those topics, at least compared to the central issue of race.

But the underlying questions about the mission of universities and their entitlement to judicial deference are there nonetheless, and were relevant to Fisher's fate in the Supreme Court, just as they clearly were relevant in the Fifth Circuit. Certainly they are doctrinally relevant. The narrower a university's mission as the courts understand it, the less likely it is that courts will defer to the university's claim that it has a compelling interest in matters that stray from that core mission. The more that courts trust or distrust universities, the more likely it is that they will expand or contract the scope of judicial deference. The general doctrinal gloss offered by Justice Kennedy's opinion may have passed lightly over those issues, but they did not disappear. They remain present and unresolved.


If I am right that there is a lack of judicial consensus about the mission of universities and about the degree to which universities are entitled to deference when they make academic decisions, that should concern universities and those who champion academic freedom, whether as a legal or a professional principle. How universities fare in the courts, and in the court of public opinion, will depend considerably on how much they are trusted--and on what, exactly, they are trusted to do.

Although Fisher brings these questions to the surface, they are not new. Nor are these questions likely to be confined to the context of race-conscious admissions. Not long after the Supreme Court's decision in Grutter, J. Peter Byrne wrote to express concern about a "trend of decisions justifying greater judicial intrusion into academic decision making," decisions that taken together "imperil[] the constitutional autonomy of colleges and universities protected by the First Amendment." (140) Similarly, in her book The Trials of Academe: The New Era of Campus Litigation, Amy Gajda argued that the era of "courts allow[ing] universities to run their own shop" is over. (141) Judges are increasingly willing to tread on ground they once would have left to the universities to police for themselves. Small wonder that another doyen of academic freedom jurisprudence wondered recently whether judicial deference to academic decision-making had become "an outmoded concept." (142)

Before asking why things seem to have changed, it is worth emphasizing that there are several issues at work here. Because they are closely related, it is easy to conflate them. That would be a mistake. In surveying the terrain, we should be aware of several distinct questions.

First, what is the mission of the university? Should it be broadly or narrowly understood? Is it confined to traditional actions such as research, teaching, and scholarship? Does it depend on traditional values such as truth seeking and impartiality? Or has the university's mission expanded in a way that more directly implicates broader goals, such as ameliorating social inequality and opening a path to leadership?

Second, how deserving are universities of deference, whether from judges or from non-academics in general? Do they continue to possess a level of expertise and authority that deserves and demands deference from outsiders? If not, is it because the very idea that an institution's authority and expertise provide sufficient reasons for judges and others to defer has been discredited, in favor of the view that no institution should be insulated from democratic control or judicial supervision? Or is it because universities in particular have lost the trust they once enjoyed?

Third, how should judges, in particular, treat universities? Should academic autonomy, or academic freedom, be constitutional principles at all? Should universities continue to enjoy a judicial presumption of good faith and independence? Or are judges as qualified to judge a university's conduct as they are any other institution?

Finally, there is an often-ignored question that may affect how we answer all of the prior questions. This is the question of institutional pluralism. (143) There are several thousand public and private colleges and universities in the United States, ranging from purely teaching-oriented community colleges to flagship doctorate-granting research institutions. Must they all have the same mission? If their missions differ, as they inevitably will, should any legal protection or judicial deference these institutions receive be limited to or depend on their adopting some set of core academic functions or values? How much variation between those functions and values should be acknowledged and protected? (144) Rather than focusing on core functions and values, should we instead take a cue from the institutions themselves, acknowledging the existence of different missions and holding each institution to its own stated mission, but reducing deference when they depart from those missions?

The question of institutional pluralism has both professional and legal implications. On a professional level, there may be disagreement about the proper function or values of an "academic" institution. That question is compounded when we ask how courts should deal with this question. Some legal scholars have focused on protecting a particular set of academic values and effectively enshrining them within the definition of constitutional academic freedom. (145) If we take that approach, how fixed should that definition be, and what risk does it present that courts will reify a particular understanding of the academic mission without acknowledging the possibility that academic missions may evolve, at one institution or across the academy? Another possibility, one I have advocated, is that given the existence of institutional pluralism within the universe of higher educational institutions, courts should not only defer to academic decisions made by universities, but should also be deferential about whether a particular university's mission can properly be conceived of as "academic," and thus entitled to judicial deference. (146) But if we fail to arrive at a fixed legal understanding of core academic values, will we risk dissipating any legal protection for academic freedom altogether? (147) This tension between institutional pluralism and a more particularized, singular, fixed understanding of the university mission and academic values has been around for some time. (148)

It is worth laying out in detail these different issues, and the questions they raise, because one need not have the same answer to all of these questions. One might, for example, believe that there is room for institutional pluralism among universities: that different universities may have different emphases or values and different goals but they all deserve the label "academic." But someone taking this position, and whatever beliefs about professional academic freedom follow from it, might nevertheless believe that when it comes to constitutional academic freedom, we will gain more and risk less if we avoid the thicket of institutional pluralism at the legal level, and instead concentrate on a core set of fixed academic values that merit constitutional protection.

Conversely, one might take a fairly fixed and traditional position on the proper mission of the university. One might conclude, for example, that the core mission of the university is to seek the truth impartially, and that more political or postmodern goals are inconsistent with genuine academic values. (149) But despite taking sides in that conflict, the same person might believe that this is an academic debate that should take place between academics. At the level of constitutional rather than professional academic freedom, one might believe that the appropriate approach, given the limitations of judges, is for courts to take a capacious view of the university mission and the meaning of academic values or academic freedom, deferring substantially to different academic visions while allowing that debate to percolate within the academy.

In short, thinking about academics' debates about the nature of the university and the definition of academic decisions or academic freedom is different from thinking about the judicial resolution of similar questions. One may reach different answers depending on one's conclusions about where the final decisional authority resides: in the universities or in the courts. These distinctions, and the multitude of possible approaches they suggest, are not always appreciated, even by experts on the law of academic freedom. They are certainly not always recognized among the general run of academics, who may simply assume that professional academic freedom and constitutional academic freedom are synonymous. Unsurprisingly, they are rarely appreciated by judges, who after all are generalists.

That all this matters is evident from a contrasting reading of some of the opinions we have seen so far. Consider, on the one hand, Judge Higginbotham's opinion in Fisher, which assumed that different universities may have different goals and suggested that how these institutions fare under strict scrutiny will depend on the particular context facing each institution. Compare this opinion with Justice Alito's dissent in Martinez, which implied that any university that aligns itself with what he sees as the "prevailing standards of political correctness in our country's institutions of higher learning" is departing from traditional academic values and may be entitled to less deference, or none at all. (150) Once these debates over the role of the university, which are routine among academics, shift from an academic forum to a judicial forum, they may have a significant and lasting effect on the nature and scope of universities' legal rights.

My own view, which I have offered at much greater length elsewhere, (151) is that our discussions of academic freedom, whether as a professional or a constitutional value, must acknowledge the inevitability of institutional pluralism, and recognize its importance, more than they generally do. Even if one readily grants that some institutional goals and values fall outside any reasonable definition of the modern university and its mission, there is still a great deal of room for variety within the crowded environment of American higher educational institutions, public and private. Professional debates about the nature of the university should not be too quick to adopt too monistic or too fixed a definition of the university and its mission.

Similarly, when making their case to courts, universities and academic organizations, especially when acting as amici, should point out that few if any universities look and act precisely the same as they did 100 or fifty years ago. Within the current environment, different universities--such as a large public research university and a small religious college---may have different goals, missions, and values, all of them still sheltering under the big tent of the academy. Courts should not only defer to academic goals and decisions; they should be at least somewhat deferential about what constitutes a proper academic goal or decision. (152) If there is no room for professional and legal pluralism in a nation with a substantial tradition of pluralism (153) and thousands of public and private colleges and universities, then there is no room for pluralism at all.

In one sense, decisions like Grutter or Judge Higginbotham's opinion in Fisher offer encouragement for those who champion both judicial deference and respect for institutional pluralism. Grutter, after all, was at least ostensibly not based on the view that universities must pursue student body diversity, including racial diversity. Rather, it was grounded on the view that whether to pursue diversity is an academic decision, protected by the constitutional value of academic autonomy and entitled to substantial judicial deference. (154) Similarly, Judge Higginbotham, in upholding the University of Texas's policy, did not insist that the University of Texas must look and act exactly like the University of Michigan Law School or that every university must in turn look and act like the University of Texas. Rather, he acknowledged that the constitutionality of different universities' actions required "some consideration of a university's particular educational mission and the community it serves." (155)

Although the Supreme Court ultimately vacated and remanded the Fifth Circuit's decision, the Court's opinion in Fisher, while narrowing the occasions for judicial deference, did not impose a particular view of which educational goals are proper or improper for universities. Even the Supreme Court's rather mechanical doctrinal decision in the Christian Legal Society case did not insist that all universities must treat student groups exactly the same and that no university may opt not to apply non-discrimination policies to student groups. It turned on the view that Hastings College of the Law could impose an all-comers policy, not that it must. (156)

There is thus good reason to think that the legal doctrine of academic freedom and educational autonomy continues to leave a space open for institutional pluralism. Cases like Grutter and Fisher, taken together, suggest that universities that believe that student body diversity, including racial diversity, is an important part of their academic mission, and can provide a "reasoned, principled explanation for" that view, (157) will be entitled to pursue that educational goal without the goal being second-guessed by the courts. (Although, as Fisher now makes clear, they will still have to give strong evidence that they selected the most appropriate means of implementing that goal.) Read properly, however, these cases also suggest that universities may reject that goal. They may, for instance, decide that the best way to admit students is through a narrow, grade-oriented focus on the merits of the students, or through a first-come-first-served admissions policy, even if that approach does not result in a racially diverse student body. Institutional pluralism means that there is room for a diversity of academic goals among colleges and universities--including, so to speak, diversity about diversity.

There is still ample cause for concern, however. It comes from multiple sources, with varied views. The courts themselves provide some reason for concern. Some justices may pay lip service to academic autonomy in cases like Grutter or Christian Legal Society. In truth, they may be more interested in upholding affirmative action or non-discrimination policies, not in protecting academic autonomy for its own sake. (158) If that is so, then there would be reason to question whether they would be as eager to rhapsodize about academic autonomy if a university pursued academic goals that were contrary to those justices' own social views.

The concerns may also come from within the university itself. Some academics might insist that there is a single right answer to the question of what constitutes a proper academic mission. It might be the traditional version. This is the version advanced by Judge Garza, Justice Alito, or those judges who have offered jeremiads against "political correctness" and asserted that courts have an obligation to step in to save the university from itself (159) and should not defer simply because particular universities see their mission differently. It may come from the other side: from those who reject the notion of institutional pluralism and insist that some non-traditional, largely political, goals must be pursued by all universities. (160) Or it may come from those who fall in between, insisting on traditional conceptions of the university mission but in a way that is designed to serve what might be crudely termed liberal political goals. (161) All of these positions threaten to undermine institutional pluralism, and may imperil academic institutional autonomy to boot.

Beyond any specific positions, moreover, there is a deeper concern, one that was clearly present at every level of litigation in Fisher. This is the question of trust. The existence of a constitutional principle of academic freedom or university autonomy depends on others having trust in the authority and expertise of universities and their faculty and administrators. Without that trust, universities stand little chance of success in asserting a right to legal autonomy or judicial deference. And that trust is dissipating.

Some of this is for general reasons. Institutions of all sorts, public and private, increasingly fail to maintain the confidence of the public, and the public shows less and less willingness to defer to experts and authorities. (162) But some of it is specific to universities themselves. Public confidence in colleges and universities, while still high, has dropped in recent years. (163) Judicial confidence in university faculty and administrators has also diminished. (164)

What is true about universities in general is even truer of university admissions. The oral arguments in Fisher were packed with skeptical remarks about universities and their admissions processes. (165) Supporters of affirmative action are sometimes equally distrusting. The entire point of Justice Ginsburg's dissent in Fisher, after all, is that we ought to allow universities to be openly race-conscious because they will do so covertly anyway. (166) Academic observers agree. (167) There is a widespread sense that "diversity" itself can be something of a subterfuge: that it vaulted into the top ranks of academic goals and values less because those who invoke it care about it deeply or even know what it means, but because it is the only basis for affirmative action that the Supreme Court has accepted. (168)

Nor are university admissions offices and their allies always their own best friends when it comes to reducing judicial or public distrust. Data are often hard to come by, especially when the person seeking those data is a potential critic of university admissions policies and their educational outcomes. (169) To outsiders, it may sometimes seem as if scholars, data collectors, admissions offices, and university officials worry that the full disclosure of information about university admissions and outcomes will imperil those admissions programs and harm the talented students who might benefit from those programs. That is not a legitimate reason to fail to fully disclose all available information.

Justice Kennedy's opinion in Fisher, which demands a much more searching judicial evaluation of university admissions policies under the narrow tailoring prong of strict scrutiny, may bring that era of relative opacity to an end. 170 In the meantime, recalcitrance on the part of universities to provide full data to all those who seek it can only deepen the sense of distrust that those outside the admissions process--including judges--may harbor toward higher educational institutions. Universities' insistence that their admissions policies fall within the scope of "complex educational judgments"171 that lie within their expertise and outside the purview of courts, even if true, may fall on deaf ears if they are distrusted by the courts. (172) That will be especially true if the courts become convinced, rightly or wrongly, that admissions offices are operating as bureaucratic fiefdoms of their own, rather than working under the control and supervision of university faculty. (173)

We may learn something about just how distrustful courts are of universities, and what effects this distrust may have, when the Fifth Circuit takes up the Fisher case again on remand. For the truth is that although Judge Higginbotham's original panel opinion only required the University of Texas to show a good-faith process of working toward the compelling goal of student diversity, (174) the university did far more than that. The record showed an extraordinary amount of work on the university's part: substantial review and discussion of its mission, the use of a variety of carefully selected means of achieving the permissible end of student diversity, careful adjustment and re-adjustment in light of both Texas law and intervening judicial decisions, ample empirical research, and serious deliberation about both means and ends. This was no slapdash affair. It was a remarkably full and careful effort on the part of the university. Higginbotham was right to conclude that "the efforts of the University have been studied, serious, and of high purpose, lending support to a constitutionally protected zone of discretion." (175)

Even under genuinely strict scrutiny, in my view, the University of Texas met and exceeded its constitutional obligations. It is pointless to try to predict the future or to anticipate the outcome of particular cases. But certainly nothing in Justice Kennedy's opinion in Fisher requires the Fifth Circuit to reject the University of Texas's admissions policy. If the court nevertheless rejects the university's policy on remand, we may be driven back to the question I have asked in this Section: How much--or little--do courts and others trust universities, their good faith and expertise? And is that distrust hampering universities' ability to succeed in the courts and carry out their academic missions at home?


In this Article, I have suggested that there are deeper questions lying just beneath the surface of the usual doctrinal wrangling in Fisher v. University of Texas at Austin. The Supreme Court's fairly typical focus on doctrinal details obscures but does not conceal a set of underlying conflicts that increasingly characterize the courts' reaction to cases involving universities, academic freedom, and judicial deference. Affirmative action cases like Fisher and Grutter suggest a deeper debate over several related questions: What is the core mission of the university? Is it a single mission, one that applies to all universities--or is there room for institutional pluralism within the larger universe of higher educational institutions? Should courts defer to universities at all, and when? In answering that question, should courts defer only within the scope of their understanding of what constitutes a genuine matter for academic judgment--or should they be deferential about what constitutes an academic judgment as well? (176)

Running through many of these questions is a still more basic question. That is the question of institutional allocation of decision-making responsibility between universities and courts. (177) In the heyday of academic abstention doctrine, (178) the assumption was that "colleges and universities are best managed by their own." (179) Aggressive intervention into the judgments and affairs of a university was beyond the competence of the courts and would "likely destroy something uniquely valuable in higher education." (180)

That freedom from judicial intervention did not require universities to satisfy the courts that they met some exacting judicial definition of the purpose and nature of higher education. It did not, to recall Justice Alito's dissent in the Christian Legal Society case, require universities to satisfy the courts that they favored "political correctness"--or that they opposed it. (181) Nor did it prevent universities from debating the nature of their mission and, sometimes, changing it. (182) The judicial commitment was not to protect the freedom of universities to act as judges--whether moved by a particular notion of liberty or equality or simply by nostalgia for their own college days--would have them act. It was to protect the autonomy of universities and allow them to act and evolve as the universities saw fit, exercising their own independent authority and expertise. To be sure, constitutional academic freedom has long been associated with a particular (and admirable) vision of the university as an impartial truth-seeker, one that values "knowledge [as] its own end, not merely a means to an end," and favors "hypothesis" over "dogma." (183) These values continue to animate most universities, even if they are sometimes honored in the breach. But more important still to constitutional academic freedom than any particular vision of the university is the principle that the university deserves "control over its academic destiny," (184) to formulate its own academic goals and policies--for good or ill. There may be some core values from which the university cannot stray too far, but they should be understood broadly and deferentially. The question what a university is and how it should act belongs to the universities, not to the courts.

There is certainly evidence that, despite Grutter and despite Fisher's reaffirmation that universities deserve deference on at least some matters, the pendulum has shifted away from university autonomy and toward a greater degree of judicial supervision. (185) The question of how to allocate decision-making authority between universities and courts remains a live one. Whether openly or implicitly, it is a question that underlies all of the various opinions in Fisher, both in the Fifth Circuit and the Supreme Court.

The answer to that question, and the other questions raised here, will ultimately depend on trust. Whether and how much courts and others trust universities is a crucial implicit question, not just in Grutter and Fisher but across a range of cases and controversies that confront the universities inside and outside the courtroom. It may be hidden by Justice Kennedy's doctrinal gloss in Fisher, but the question of trust is an animating force in the Fifth Circuit opinions in that case, in the oral argument in the Supreme Court in Fisher, and in countless other judicial and public discussions. I think the evidence in Fisher suggests that the University of Texas earned a great deal of trust in that case, given its extensive study and deliberation concerning its admissions policies. We will have to wait to see if the Fifth Circuit agrees on remand. But Fisher, and the issue of affirmative action in university admissions generally, is far from the only dispute in which public and judicial trust in universities will be at issue and likely to affect the outcome.

If that is so, it is not the fault of the courts or the public alone. Universities bear a significant share of the responsibility. It may be true that in our own time, there is little public trust in any institution. (186) But universities have earned some of that distrust on their own. If insulation from public pressure and hot-button disputes is a strength of the university, insularity is also one of its greatest vulnerabilities.

Those of us who believe that universities are entitled to a substantial scope of judicial deference in the exercise of academic judgments, and that what constitutes the subject of a proper academic judgment is itself a question entitled to deference, must work on our own to demonstrate that the trust we ask for is well-placed. (187) We have an obligation to make sure that the "academic judgments" made by universities are academic judgments, made or scrutinized by academics. We must supervise, monitor, and criticize the policy judgments made by universities, whether on admissions or on other issues, to make sure that they are genuinely consistent with our stated missions as individual universities. We must, perforce, debate what the mission of each university is. And, given some of our most widely shared academic values, we should make sure that our policies on admissions and other issues are based on real data and genuine academic deliberation, and that those data and deliberations are widely and publicly shared, including with critics of those policies.

I still believe that universities, and not courts, ought to have the final word on university policy, even where particular policies might be wrong or misguided. The responsibility for making academic judgments continues to rest primarily if not solely with the academy, not the courts--even, within broad limits, where race and university admissions are concerned. The freedom to make those decisions, and sometimes to make the wrong decision, is what academic autonomy and academic freedom means. But it is as much a responsibility as a right. The universities must not abdicate that responsibility, just as the courts ought not grasp it for themselves.

(1.) 133 S. Ct. 2411 (2013).

(2.) Richard Sander, Commentary on Fisher: A classic Kennedy compromise, SCOTUSBLOG (June 24, 2013, 4:18 PM),]?p=165770.

(3.) Elise Boddie, Commentary on Fisher: In with a bang, out with a fizzle, SCOTUSBLOG (June 24, 2013, 11:05 PM),]?p=165809.

(4.) Olatunde Johnson, Commentary: Fisher's big news: No big news, SCOTUSBLOG (June 24, 2013, 11:12 PM),

(5.) 539 U.S. 306 (2003).

(6.) See Ian Ayres & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517, 519 (2007) (declaring that the Court's decisions in the University of Michigan cases "represent a sea-change in the requirement that affirmative action plans be 'narrowly tailored' to further a compelling government interest"); Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 CARDOZO L. REV. 1689, 1721-28 (2005) (arguing that the majority in Grutter altered or worked around existing doctrinal categories and tests, including the elements of the strict scrutiny test); Martin D. Carcieri, Grutter v. Bollinger and Civil Disobedience, 31 U. DAYTON L. REV. 345, 360 (2006) ("Justice O'Connor simply abandoned strict scrutiny in Grutter."); Leslie Yalof Garfield, Back to Bakke: Defining the Strict Scrutiny Test for Affirmative Action Policies Aimed at Achieving Diversity in the Classroom, 83 NEB. L. REV. 631, 633-34 (2005) (describing Grutter, approvingly, as having applied a "new strict scrutiny test"); Nelson Lund, Justice Kennedy's Stricter Scrutiny and the Future of Racial Diversity Promotion, ENGAGE: J. FEDERALIST SOC'Y PRAC. GROUPS, Oct. 2008, at 20, 21 ("The Grutter majority purported to apply a familiar constitutional test, but in fact radically transformed its meaning."); Robert C. Post & Neil S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CALIF. L. REV. 1473, 1505 n.170 (2007) (arguing that in Grutter, Justice O'Connor applied "the test of strict scrutiny in a manner that was so deferential as to be inconsistent with the generally accepted meaning of the test").

(7.) Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

(8.) Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

(9.) For an early take on this statement, see generally Vikram David Amar & Evan Caminker, Constitutional Sunsetting?: Justice O'Connor's Closing Comments in Grutter, 30 HASTINGS CONST. L.Q. 541 (2003). As one reader of a draft of this Article noted, there is a more charitable reading of O'Connor's statement, in which O'Connor is expressing the hope that by that time, there will be sufficient diversity in the applicant group in higher education that race-conscious admissions measures will no longer be necessary. See id. at 541-42 (discussing this possibility); Daniel Kiel, An Ounce of Prevention is Worth a Pound of Cure: Refraining the Debate About Law School Affirmative Action, 88 DENV. U. L. REV. 791, 794 (2011) (discussing to same effect); Lani Guinier, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 118-19, 179-81 (2003) (reading O'Connor's statement as "a potential catalyst" for universities to do more to address "the achievement gap that makes affirmative action necessary").

(10.) See Fisher v. Univ. of Tex. at Austin, 132 S. Ct. 1536 (2012) (mere.).

(11.) See Stephen Clowney, Doing Affirmative Action, 111 MICH. L. REV. FIRST IMPRESSIONS 27, 27 (2013) ('2YIost Court watchers predict that the five conservative justices will vote [in Fisher] to curtail the use of racial preferences."); Ian Haney-Lopez, Intentional Blindness, 87 N.Y.U.L. REV. 1779, 1782 (2012) ("Given the emergence of Justice Anthony Kennedy as the swing vote in racial cases, there is also good reason to fear that the Court will soon end affirmative action in higher education.") (citing the certiorari grant in Fisher); Ellen D. Katz, Grutter's Denouement: Three Templates From the Roberts Court, 107 NW. U. L. REV. 1045, 1046 (2013) (stating that Fisher "is widely expected to end race-based affirmative action in higher education").

(12.) See Grutter v. Bollinger, 539 U.S. 306, 387-95 (2003) (Kennedy, J., dissenting).

(13.) Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2415 (2013).

(14.) See Johnson, supra note 4.

(15.) For arguments that universities will still manage to meet those standards by hook or by crook, see, e.g., Clowney, supra note 11, at 33 (predicting that if the Court "announce[d] the end of affirmative action" for universities in Fisher, some universities would "simply tweak their definitions of merit to include qualitative factors that track closely with race," thus "more or less preserv[ing] the status quo"); Leslie Yalof Garfield, The Inevitable Irrelevance of Affirmative Action Jurisprudence, 39 J.C. & U.L. 1, 3-5 (2013) (arguing that a predicted ruling in Fisher much like the one we got could leave universities "free to construct some type of race-preference admissions policy in an effort to ensure diversity among their classes," but that wholly external pressures might deter schools from doing so regardless of what the courts held); Katz, supra note 11, at 1051-55 (predicting as one possible outcome of Fisher more or less what happened--that Justice Kennedy would insist on a stricter scrutiny of means while leaving the basic end of student diversity untouched, leaving universities "free to consider race in admissions so long as they do so the way administrators at the University of Michigan Law School once did"). For an argument that Fisher, while not a total victory for affirmative action opponents, will indeed make it harder for universities to maintain such programs, see Roger Clegg, Commentary on Fisher: Better off than we were a year ago, SCOTUSBLOG (June 24, 2013, 5:39 PM),

(16.) See PAUL HORWITZ, FIRST AMENDMENT INSTITUTIONS (2013) [hereinafter HORWITZ, FIRST AMENDMENT INSTITUTIONS]; Paul Horwitz, Three Faces of Deference, 83 NOTRE DAME L. REV. 1061 (2008) [hereinafter Horwitz, Deference]; Paul Horwitz, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, 54 UCLA L. REV. 1497 (2007) [hereinafter Horwitz, Universities]; Paul Horwitz, Grutter's First Amendment, 46 B.C.L. REV. 461 (2005) [hereinafter Horwitz, Grutter].

(17.) I make similar arguments about other institutions in HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 156 (the press), 159-61 (same), 267-70 (distrust of institutions in general), and Paul Horwitz, Act III of the Ministerial Exception, 106 NW. U. L. REV. 973 (2012) [hereinafter Horwitz, Ministerial Exception] (arguing that the legal autonomy of religious institutions must be accompanied by self-criticism by those institutions and their members, as well as non-members' scrutiny of those institutions' behavior).

(18.) For expressions of doubt that this doctrinal move was wholly sincere, see HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 125-26.

(19.) See generally Horwitz, Grutter, supra note 16 (exploring the relationship between Grutter and the First Amendment).

(20.) Grutter v. Bollinger, 539 U.S. 306, 328 (2003).

(21.) Id. at 328-29 (citations omitted).

(22.) The dean of academic freedom law, J. Peter Byrne, put it best in his classic article on constitutional academic freedom: "The cases, shorn of panegyrics, are inconclusive, the promise of their rhetoric reproached by the ambiguous realities of academic life." J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L.J. 251, 252-53 (1989) [hereinafter Byrne, Academic Freedom].

(23.) Grutter v. Bollinger, 539 U.S. 306, 329 (2003).

(24.) Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).

(25.) Grutter, 539 U.S. at 328; see, e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90-92 (1978).

(26.) Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985) (alteration in original) (quoting Horowitz, 435 U.S. at 90).

(27.) See Horwitz, Universities, supra note 16, at 1501; Horwitz, Deference, supra note 16, at 1128-29.

(28.) See, e.g., Grutter v. Bollinger, 539 U.S. 306, 328 (2003) (emphasis added).

(29.) See, e.g., id.

(30.) Cf. Frederick Schauer, The Dilemma of Ignorance: PGA Tour, Inc. v. Casey Martin, 2001 SUP. CT. REV. 267, 278-79, 284-87 (noting the willingness of judges, including appellate judges without the benefit of direct participation in the trial process, to "determine controversies involving topics about which the judges themselves are not expert"). See generally RICHARD A. POSNER, REFLECTIONS ON JUDGING (2013) (discussing the problems that judges face deciding cases in an age of complexity, and the decisional tools they attempt to use to get around those problems, often badly).

(31.) STANLEY FISH, VERSIONS OF ACADEMIC FREEDOM: FROM PROFESSIONALISM TO REVOLUTION (forthcoming 2014) (manuscript at 9) (on file with author).

(32.) Mark G. Yudof, Intramural Musings on Academic Freedom: A Reply to Professor Finkin, 66 TEX. L. REV. 1351, 1357 (1988); see also Philip Hamburger, More is Less, 90 VA. L. REV. 835, 837 (2004) (asking "whether the definition of any right can be expanded without risking access to the right," because a right that is defined too broadly may "stimulate demands for a diminution of its availability"); Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265, 276 (1981) ("As a matter more of political and sociological fact than of necessary logical correlation, rights can more plausibly be absolute when the range of coverage is narrow. Conversely, rights whose coverage is too broad are likely to offer little in the way of protection.").

(33.) See generally David M. Rabban, Can Academic Freedom Survive Postmodernism?, 86 CALIF. L. REV. 1377 (1998) (reviewing THE FUTURE OF ACADEMIC FREEDOM (Louis Menand ed., 1996)).

(34.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 219 (5th Cir. 2011), vacated and remanded by 133 S. Ct. 2411 (2013).

(35.) Id. at 219-20.

(36.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 219 (5th Cir. 2011), vacated and remanded by 133 S. Ct. 2411 (2013).

(37.) Id. at 236-37.

(38.) Id. at 237.

(39.) Id.

(40.) Id.

(41.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 237 (5th Cir. 2011), vacated and remanded by 133 S. Ct. 2411 (2013).

(42.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 231 (5th Cir. 2011) (citing Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003)), vacated and remanded by 133 S. Ct. 2411 (2013).

(43.) Id. (quoting Grutter, 539 U.S. at 328).

(44.) Id.

(45.) Id.

(46.) Id. at 238 (citing Grutter, 539 U.S. at 339-40).

(47.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 247 (5th Cir. 2011) (Garza, J., specially concurring), vacated and remanded by 133 S. Ct. 2411 (2013).

(48.) Id. at 248 (Garza, J., specially concurring).

(49.) Id. at 256-57.

(50.) Id. at 257.

(51.) See id. at 258 n.14 ("This is not to criticize universities, like the University of Texas, for implementing policies that seek to increase minority representation, not merely for its educational benefits on campus, but also for the secondary benefits that such increases in minority enrollment can have in the workplace and in society generally.... I do not question this goal, but rather the constitutionality of using race to attain it.").

(52.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 258 (5th Cir. 2011), vacated and remanded by 133 S. Ct. 2411 (2013).

(53.) Id. at 257.

(54.) Id.

(55.) Id.

(56.) See Grutter v. Bollinger, 539 U.S. 306, 328 (2003).

(57.) Fisher, 631 F.3d at 255.

(58.) Id.

(59.) See Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 255 (5th Cir. 2011), vacated and remanded by 133 S. Ct. 2411 (2013); see also Fisher, 631 F.3d at 255 n.10.

(60.) Fisher, 631 F.3d at 219 (Higginbotham, J.).

(61.) Id. at 237.

(62.) Id. at 257.

(63.) See infra Section II.

(64.) 454 U.S. 263 (1981).

(65.) Id. at 277-78 (Stevens, J., concurring in the result).

(66.) Id. at 278.

(67.) Id. at 278-79.

(68.) Id. at 278.

(69.) 529 U.S. 217 (2000).

(70.) See Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 236 (2000) (Souter, J., concurring in the result) ("I agree that the University's scheme is permissible, but do not believe that the Court should take the occasion to impose a cast-iron viewpoint neutrality requirement to uphold it.").

(71.) Id.

(72.) Id. at 237; see also id. at 237 n.3 (citing Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967)).

(73.) Southworth, 529 U.S. at 237.

(74.) Id. at 239 (citations omitted).

(75.) Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 239 & n.5 (2000).

(76.) 130 S. Ct. 2971 (2010).

(77.) Id. at 2993-95 (describing the "all-comers" policy as one that "draws no distinction between groups based on their message or perspective" and "require[s] all student groups to accept all comers").

(78.) See HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 136.

(79.) Martinez, 130 S. Ct. at 3000 (Alito, J., dissenting).

(80.) Id. at 3007-09 (Alito, J., dissenting); see Healey v. James, 408 U.S. 169 (1972).

(81.) Christian Legal Soc'y v. Martinez, 130 S. Ct. 2971, 3008 (2010); see also Healey v. James, 408 U.S. 169, 180, 187 (1972).

(82.) See, e.g., J. Peter Byrne, Constitutional Academic Freedom After Grutter: Getting Real About the "Four Freedoms" of a University, 77 U. COLO. L. REV. 929, 951, 953 (2006) (asserting that "constitutional academic freedom protects the core intellectual missions of the university: research, scholarship, and liberal education," and arguing that other goals, such as "[i]nculcation of human values or modeling of professional values," are peripheral to those core missions).

(83.) See Horwitz, Universities, supra note 16, at 1546; Horwitz, Grutter, supra note 16, at 479-81; Byrne, Academic Freedom, supra note 22, at 279-81.

(84.) J. Peter Byrne, Neo-Orthodoxy in Academic Freedom, 88 TEX. L. REV. 143, 170 (2009) (book review).

(85.) 547 U.S. 410 (2006).

(86.) Id. at 426.

(87.) Id. at 438 (Souter, J., dissenting).

(88.) Id. at 425.

(89.) See Vega v. Miller, 273 F. 3d 460, 474 (2d Cir. 2001) (Cabranes, J., dissenting) (alteration in original). See generally J. Peter Byrne, The Threat to Constitutional Academic Freedom, 31 J.C. & U.L. 79, 79-82 (2004) [hereinafter Byrne, Threat] (discussing Vega), 92-95 (discussing Levin v. Harleston, 770 F. Supp. 895 (S.D.N.Y. 1991), vacated inpart by 966 F.2d 85 (2d Cir. 1992)).

(90.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 231 (5th Cir. 2011) (alteration in original) (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003)), vacated and remanded by 133 S. Ct. 2411 (2013).

(91.) See id.

(92.) Id. at 231-32.

(93.) See Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 232 (5th Cir. 2011) (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003)), vacated and remanded by 133 S. Ct. 2411 (2013).

(94.) See id. at 233 (noting Grutter had recognized this characteristic of universities); see also id. at 238 ('"[N]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,' especially if the proffered alternatives would require the University to sacrifice other important interests, like its academic selectivity and reputation for excellence." (alteration in original) (quoting Grutter, 539 U.S. at 339-40)). For a general discussion of the difference between judicial treatment of affirmative action in public contracting and construction cases and in university cases, see Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996).

(95.) Fisher, 631 F.3d at 222 (quoting Grutter, 539 U.S. at 328).

(96.) Id. at 226; see also id. at 222-30 (discussing and examining in great detail the university's admissions policies).

(97.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 231 (5th Cir. 2011) (quoting Grutter, 539 U.S. at 328), vacated and remanded by 133 S. Ct. 2411 (2013).

(98.) Id. at 245.

(99.) See id. at 249, 256-57 (Garza, J., specially concurring) (agreeing that universities are entitled to deference in setting educational goals, but adding, "My concern ... is not that Grutter commands such deference, but that it conflated the deference owed to a university's asserted interest with deference to the means used to attain it.").

(100.) Id. at 251.

(101.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 250 (5th Cir. 2011) (Garza, J., specially concurring), vacated and remanded by 133 S. Ct. 2411 (2013).

(102.) See id. at 251 (Garza, J., specially concurring).

(103.) See id. at 252, 253 (Garza, J., specially concurring) ("Grutter rewards admissions programs that remain opaque.").

(104.) Id. at 255.

(105.) Id. at 255 n.10.

(106.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 257 (5th Cir. 2011) vacated and remanded by 133 S. Ct. 2411 (2013).

(107.) Id.

(108.) Id. at 247.

(109.) See Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 252, 247 (5th Cir. 2011) vacated and remanded by 133 S. Ct. 2411 (2013).

(110.) See Fisher v. Univ. of Tex. at Austin, 644 F.3d 301 (5th Cir. 2011).

(111.) Id. at 304 (Jones, C.J., dissenting) (per curiam) (emphasis added).

(112.) See Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003).

(113.) Fisher, 644 F.3d at 304.

(114.) Id. at 307.

(115.) Fisher v. Univ. of Tex. at Austin, 644 F.3d 301, 305 n.3 (5th Cir. 2011).

(116.) See Transcript of Oral Argument, Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (No. 11-345), available at [hereinafter Fisher Oral Arg. Tr.].

(117.) But not the usual suspects alone. Although her questions may have been designed as much to push the University of Texas to make its best case as to criticize it, Justice Sonia Sotomayor's questions at oral argument also suggested a certain degree of skepticism and exasperation with the university. See, e.g., id. at 5-6, 10, 14, 17.

(118.) Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306 (2003).

(119.) Fisher Oral Arg. Tr., supra note 116, at 11.

(120.) Transcript of Oral Argument at 47-48, Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (No. 11-345), available at

(121.) Id. at 58.

(122.) Grutter v. Bollinger, 539 U.S. 306, 350 (2003) (Thomas, J., concurring in part and dissenting in part); see also id. at 380 (Rehnquist, C.J., dissenting) (calling the majority's application of strict scrutiny "unprecedented in its deference").

(123.) See Grutter, 539 U.S. at 356 n.4.

(124.) Id. at 362.

(125.) See Grutter v. Bollinger, 539 U.S. 306, 362-64 (2003) (questioning the firmness of the foundations laid for constitutional academic freedom in Sweezy v. New Hampshire, 354 U.S. 234 (1957), and Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589 (1967), and emphasizing that the statutes in the latter case "covered all public employees and were not invalidated only as applied to university faculty members").

(126.) Grutter, 539 U.S. at 387-88 (Kennedy, J., dissenting).

(127.) Id. at 388.

(128.) See id. ("[D]eference is not to be given with respect to the methods by which [racial diversity] is pursued.").

(129.) See, e.g., Vikram David Amar, Is Honesty the Best (Judicial) Policy in Affirmative Action Cases?: Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes, 65 VAND. L. REV. EN BANC 77, 85-90 (2012); Bret D. Asbury, The Fisher Oral Argument: Why Affirmative Action Might Endure, 9 SWAN. J. C.R. & C.L. 107, 108, 117 (2013); Tomiko Brown-Nagin, The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change, 65 VAND. L. REV. EN BANC 113, 137-38 (2012); Vinay Harpalani, Diversity Within Racial Groups and the Constitutionality of Race-Conscious Admissions, 15 U. PA. J. CONST. L. 463, 464-66 (2012); Lucille A. Jewel, Merit and Mobility: A Progressive View of Class, Culture, and the Law, 43 U. MEM. L. REV. 239, 299 (2012); Allen Rostron, Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground, 107 NW. U. L. REV. 1037 (2013); Girardeau A. Spann, Whatever, 65 VAND. L. REV. EN BANC 203, 206 (2012).

(130.) Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2419 (2013) (quoting Grutter, 539 U.S. at 330).

(131.) Id.

(132.) Id. at 2419-20; see also id. at 2420 ("Grutter made clear that it is for the courts, not for university administrators, to ensure that '[t]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose."' (alteration in original) (quoting Grutter, 539 U.S. at 333)).

(133.) Fisher, 133 S. Ct. at 2420.

(134.) See id. (noting that "it remains at all times.., the Judiciary's obligation to determine, that the admissions processes" that applicants are not evaluated based on their race or ethnicity).

(135.) See Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420-21 (2013) (quoting Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 231 (5th Cir. 2011)).

(136.) Justice Elena Kagan did not take part in the decision. Id. at 2422.

(137.) For a rather positive statement of this position, see Louis D. Bilionis, Grand Centrism and the Centrist Judicial Personam, 83 N.C.L. REV. 1353 (2005). For a less admiring account, see Richard A. Posner, Foreword: A Political Court, 119 HARV. L. REV. 31, 84-85 (2005). See, e.g., Stephen G. Bragaw & Barbara A. Perry, The "Brooding Omnipresence" in Bush v. Gore: Anthony Kennedy, the Equality Principle, and Judicial Supremacy, 13 SWAN. L. & POL'Y REV. 19, 29-31 (2002); Neal Devins, Talk Loudly and Carry a Small Stick: The Supreme Court and Enemy Combatants, 12 U. PA. J. CONST. L. 491, 527 (2010); Neil S. Siegel, Dole's Future: A Strategic Analysis, 16 SUP. CT. ECON. REV. 165, 198 (2008).

(138.) See, e.g., Posner, supra note 137, at 52 ("There is almost no legal outcome that a really skillful legal analyst cannot cover with a professional varnish."); Girardeau A. Spann, Fisher v. Grutter, 65 VAND. L. REV. EN BANC 45, 48, 54 (2012); Spann, supra note 129, at 203-04, 207, 209.

(139.) See, e.g., HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 126; Byrne, Threat, supra note 89, at 117.

(140.) Byrne, Threat, supra note 89, at 79, 82.


(142.) Robert M. O'Neil, Judicial Deference to Academic Decisions: An Outmoded Concept?, 36 J.C. & U.L. 729 (2010) (canvassing courts and scholars that have observed or exemplified a decline of judicial deference toward academic decisions).

(143.) For discussion, see HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 19. See also BRIAN Z. TAMANAHA, FAILING LAW SCHOOLS 31 (2012); Matthew W. Finkin, On "Institutional' Academic Freedom, 61 TEX. L. REV. 817, 829-40 (1983); Paul Horwitz, The First Amendment's Epistemological Problem, 87 WASH. L. REV. 445, 491-92 (2012); Jerome Organ, Missing Missions: Further Reflections on Institutional Pluralism (Or its Absence), 60 J. LEGAL EDUC. 157 (2010). For a concerned but, in my view, overheated take on institutional pluralism, see also Jose Gabilondo, Institutional Pluralism From the Standpoint of its Victims: Calling the Question on Indiscriminate (In)tolerance, 21 LAW & LITERATURE 387 (2009).

(144.) Commenting on an earlier draft of this Article, Rick Garnett adds another question: Should we answer these questions differently when public rather than private universities are involved? We might accept a good deal of pluralism within the universe of private universities but less--or none---from public universities. I thank him for the reminder. I deal with that question at greater length in Horwitz, Universities, supra note 16, at 1524-26, and HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 141-43. In brief, my view is that while the public status of some universities might limit their options, it does so less than we might expect, and that their status as universities is more salient for purposes of legal analysis than their status as state entities. As a practical matter, moreover, I suspect that the range of choices that public universities might make in shaping their mission would generally fall within constitutionally acceptable lines.

(145.) See, e.g., Byrne, Academic Freedom, supra note 22, at 333-38.

(146.) See, e.g., Horwitz, Universities, supra note 16, at 1547-48. For a related and complementary, but somewhat different, take on judicial deference to universities, see Eboni S. Nelson, In Defense of Deference: The Case for Respecting Educational Autonomy and Expert Judgments in Fisher v. Texas, 47 U. RICH. L. REV. 1133 (2013).

(147.) See Horwitz, Universities, supra note 16, at 1547.

(148.) See Karen Petroski, Lessons for Academic Freedom Law: The California Approach to University Autonomy and Accountability, 32 J.C. & U.L. 149, 151-52, 159-60, 191, 208-12 (2005). See generally Finkin, supra note 143 (arguing that there is a distinction between "academic freedom" and universities' institutional autonomy).

(149.) See generally Rabban, supra note 33 (laying out the debate between traditional and postmodern conceptions of the university and academic freedom).

(150.) Christian Legal Soc'y v. Martinez, 130 S. Ct. 2971, 3000 (2010) (Alito, J., dissenting).

(151.) See, e.g., HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 117, 119, 139-40; Horwitz, Grutter, supra note 16, at 502.

(152.) Cf. Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 30 (1st Cir. 1991) (Breyer, C.J., dissenting) (insisting that only a "substantial departure from academic norms" can justify judicial second-guessing of an academic decision). The "substantial departure" language comes from Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985).

(153.) See generally ABNER S. GREENE, AGAINST OBLIGATION: THE MULTIPLE SOURCES OF AUTHORITY IN A LIBERAL DEMOCRACY (2012) (discussing citizens' allegiances to a wide range of non-state authorities and arguing for an understanding of "permeable sovereignty" in which those authorities stand on an equal footing with the state).

(154.) See Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003).

(155.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 237 (5th Cir. 2011) (emphasis added), vacated and remanded by 133 S. Ct. 2411 (2013).

(156.) Christian Legal Soc'y v. Martinez, 130 S. Ct. 2971 (2010).

(157.) Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2419 (2013).

(158.) See HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 126, 137.

(159.) See supra notes 48-59, 76-82 and accompanying text.

(160.) See, e.g., Gabilondo, supra note 143, at 388-89 (rejecting institutional pluralism when it "provides a disguise for retrograde values in the legal academy" on such issues as the treatment of sexual minorities).

(161.) See, e.g., Lonnie D. Kliever, Academic Freedom and Church-Affiliated Universities, 66 TEX. L. REV. 1477, 1479 (1988) (arguing that traditional principles of academic freedom should apply equally to religious and non-religious universities, and asserting in a distinctly monistic fashion that "[w]hat is at stake is nothing less than the meaning and mission of the modern university" (emphasis added)).

(162.) See Byrne, Threat, supra note 89, at 132-33 (noting a general loss of confidence in the capacity of professionals to govern themselves); Horwitz, supra note 143, at 491 (discussing this phenomenon and collecting sources).

(163.) See Chris Panetta, Colleges and Universities Not Immune From Eroding Public Confidence, WIDMEYER COMM., (last visited Oct. 9, 2013) (referring to surveys conducted in 2012); Pew Research Ctr. for the People & the Press, Colleges Viewed Positively, But Conservatives Express Doubts, PEW RES. CENTER (Mar. 1, 2012),; Confidence in Congress Stays at Lowest Point in Fifty Years, HARRIS INTERACTIVE (May 21, 2012),]vault/Harris%20Poll%2044%20-%20Confidence%20Index_5%2021%2012.pdf.

(164.) See Byrne, Threat, supra note 89, at 132.

(165.) See, e.g., Fisher Oral Arg. Tr., supra note 116, at 11 (Scalia, J.) (suggesting that the University of Texas "reinstitute[d] racial [quotas]" more or less reflexively the second the Grutter decision was handed down), 32-33 (Roberts, C.J.) (probing, and gently mocking, the University of Texas's procedures for identifying the race of applicants), 48 (suggesting that the idea that the Court should defer to universities on the question whether students feel racially isolated if the university amounts to saying, "when you [the university] tell me, that's good enough"), 57-58 (Scalia, J.) (questioning the size of "the affirmative action department of the University-of Texas" and suggesting that "[t]here would be a large number of people ... out of a job" if the university switched entirely to a top ten percent plan).

(166.) See Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2433 (2013) (Ginsburg, J., dissenting) ("[I]f universities cannot explicitly include race as a factor, many may resort to camouflage to maintain their minority enrollment." (quotations and citation omitted)).

(167.) See, e.g., Clowney, supra note 11, at 33 (citing Richard Thompson Ford, Fisher Cut Bait: Affirmative Action Will Live on Even if the Supreme Court Kills it, SLATE (Oct. 12, 2012, 1:21 P.M.), e.html).

(168.) See Anita Bernstein, Diversity May Be Justified, 64 HASTINGS L.J. 201, 203-05 (2012) (collecting examples of judges and scholars criticizing diversity rhetoric as something of a sham, or defending it for strategic reasons, not for its own sake); Sanford Levinson, Diversity, 2 U. PA. J. CONST. L. 573, 577-78 (2000) (observing that "diversity," in the wake of Bakke, had "become the favorite catchword--indeed, it would not be an exaggeration to say 'mantra'--of those defending the use of racial or ethnic preferences," in large measure because such [rhetoric] seem[s] licensed and, indeed, encouraged by the Supreme Court").

(169.) See, e.g., RICHARD H. SANDER & STUART TAYLOR, JR., MISMATCH: HOW AFFIRMATIVE ACTION HURTS STUDENTS IT'S INTENDED TO HELP, AND WHY UNIVERSITIES WON'T ADMIT IT 175-246 (2012) (detailing the authors' difficulties prying loose information about admissions and post-graduation outcomes from universities and other institutions); Richard H. Sander, Listening to the Debate on Reforming Law School Admissions Preferences, 88 DENV. U. L. REV. 889, 951-52 (2011) (discussing Sander's research plan of using State bar data to gather information and the difficulties he is facing with executing the plan); Richard H. Sander, A Reply to Critics, 57 STAN. L. REV. 1963, 1983-84 (2005) (discussing difficulties in obtaining data).

(170.) See Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2421 (2013) ("Strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice." (emphasis added)).

(171.) Grutter v. Bollinger, 539 U.S. 306, 328 (2003).

(172.) Cf. John 0. McGinnis, A Politics of Knowledge, NAT'L AFFAIRS, Winter 2012, at 58, 59 (warning that sources of "expertise and social-scientific knowledge," specifically "experts and bureaucrats," have become full of "arrogance and insularity"). In comments on a draft of this Article, Fred Schauer makes the important point that even if courts or others believe universities are indeed experts where academic matters are concerned, they may still distrust them if they believe that the universities' arguments are self-interested and thus require more intrusive scrutiny. I am grateful to Schauer for this point.

(173.) Cf. HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16, at 135 (making a similar point about law school employment recruiting offices).

(174.) See Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 231 (5th Cir. 2011) (emphasis added), vacated and remanded by 133 S. Ct. 2411 (2013).

(175.) Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 231 (5th Cir. 2011), vacated and remanded by 133 S. Ct. 2411 (2013); see id. at 222-31 (detailing the university's efforts); Gerald Torres, The Education of an Admissions Office, 65 VAND. L. REV. EN BANC 211, 214-15 (2012).

(176.) Cf. GAJDA, supra note 141, at 248 (arguing in favor of "a buffer zone in which wrongful action may well have occurred, but not sufficiently clearly to warrant risks of judicial intervention in the intellectual life of the university"); Horwitz, Universities, supra note 16, at 118.

(177.) For general discussion, see HORWITZ, FIRST AMENDMENT INSTITUTIONS, supra note 16. For a classic discussion of comparative institutional analysis, see NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY (1994). For a recent statement, see Nell Komesar, The Logic of the Law and the Essence of Economics: Reflections on Forty Years in the Wilderness, 2013 WIS. L. REV. 265 (2013). For useful discussions of comparative institutional analysis in the context of constitutional law and judicial deference, see Eric Berger, Deference Determinations and Stealth Constitutional Decision Making, 98 IOWA L. REV. 465 (2013); Eric Berger, Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making, 91 B.U.L. REV. 2029 (2011); Joseph Blocher, Institutions in the Marketplace of Ideas, 57 DUKE L.J. 821 (2008).

(178.) See Byrne, Academic Freedom, supra note 22, at 323-27 (describing academic abstention as "the traditional refusal of courts to extend to common law rules of liability to colleges where doing so would interfere with the college administration's good faith performance of its core functions"); GAJDA, supra note 141, at 22-50.

(179.) GAJDA, supra note 141, at 33.

(180.) Byrne, Academic Freedom, supra note 22, at 326.

(181.) See Christian Legal Soc'y v. Martinez, 130 S. Ct. 2971, 3000 (2010) (Alito, J., dissenting).

(182.) The Supreme Court's famous decision in Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) is illustrative. As Amy Gajda reminds us, that case involved the decision of Dartmouth College's trustees to reorganize the university along more "sectarian" lines, as against a state effort "to put Dartmouth on a more ecumenical course." GAJDA, supra note 141, at 26. By "offer[ing] a significant new measure of protection to the operational independence of colleges and universities," id. at 29, the Supreme Court effectively also gave them the discretion to adopt differing missions. Matthew Finkin concludes that "the Dartmouth College case has been read correctly to embrace a fundamental [judicial] commitment to institutional pluralism per se." Finkin, supra note 143, at 833.

(183.) See Sweezy v. New Hampshire, 354 U.S. 234, 262 (1957) (Frankfurter, J., concurring in the result); see also Byrne, Academic Freedom, supra note 22, at 333-34 (describing the primary value of the university as one of "[d]isinterested scholarship and research").

(184.) Byrne, Academic Freedom, supra note 22, at 330.

(185.) See Byrne, Threat, supra note 89, at 79 (arguing that "judicial interpretations of constitutional academic freedom in the past decade seemed to be sliding toward a dangerous distrust of academic decision making"); GAJDA, supra note 141, at 6 (arguing that even with respect to academic decisions, "courts have shown increasing willingness to intervene" in disputes involving universities).

(186.) See Horwitz, supra note 143, at 491.

(187.) See Horwitz, Deference, supra note 16, at 1102. For a similar argument in the context of religious institutions, see Horwitz, Ministerial Exception, supra note 17.

Paul Horwitz Gordon Rosen Professor, University of Alabama School of Law. This Article is based on a talk given at a joint program of the Constitutional Law and Education Law sections of the Association of American Law Schools at its annual conference in January 2013. I am grateful to my fellow panelists and the audience for comments on that occasion. Thank you to Randy Bezanson, Marc DeGirolami, Rick Garnett, Mae Kuykendall, Kara Larson, Michael Olivas, and Fred Schauer for comments on written drafts.
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Title Annotation:competing concepts of universities in affirmative action cases; court distrust of universities
Author:Horwitz, Paul
Publication:Loyola Law Review
Date:Sep 22, 2013
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