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The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University

reviewed by Richard Fossey - February 21, 2012

coverTitle: The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University
Author(s): Rodney A. Smolla
Publisher: New York University Press, New York
ISBN: 0814741037, Pages: 239, Year: 2011
Search for book at Amazon.com

As the title explains, Rodney Smolla’s book, The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University, explores five important constitutional concepts that have influenced the development of the modern American university. Mr. Smolla is president of Furman University and former dean of the law school at Washington and Lee University and the University of Richmond University School of Law. His book demonstrates a law scholar’s deep understanding of important constitutional principles, and he explains his thesis with clarity, making his book accessible to the general reader.

Of course, all university scholars have a strong interest in academic freedom, and it is not surprising that academic freedom is the constitutional idea that Smolla discusses first. As Professor Smolla outlines, the Supreme Court’s early pronouncements on academic freedom indicate a judicial regard for the concept without endorsing it as an explicit constitutional right.

For example, in Sweezy v. New Hampshire (1957), the Supreme Court’s first important pronouncement on academic freedom, the Court ruled that the New Hampshire Attorney General had no right to question a professor about his classroom speech. Nevertheless, the Court based its ruling on due process grounds, not free speech or academic freedom.  In an oft-quoted concurring opinion, Justice Felix Frankfurter, articulated the “four essential freedoms” of the university: the freedom “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Justice Frankfurter’s language seemed to suggest that academic freedom is a university’s right and not a constitutional right of individual university scholars.  Nevertheless, as Smolla points out, nothing in Sweezy’s leading opinion or Justice Frankfurter’s concurring opinion “purported to formally rest their holdings on academic freedom grounds, or even on the First Amendment” (p. 32).

Likewise, in Keyishian v. Board of Regents (1967), a public university declined to renew an instructor’s teaching contract after he refused to sign a loyalty oath. Although the Supreme Court stated that the First Amendment does not tolerate laws that cast a “pall of orthodoxy over the classroom,” the Court justified its ruling in favor of the beleaguered instructor on the ground that the state laws requiring the loyalty oath were unconstitutionally broad and overbroad and not academic freedom.

In recent years, several federal courts, perhaps most notably the Fourth Circuit Court of Appeals in Urofsky v. Gilmore (2000), have specifically rejected the argument that public university professors have a free-standing constitutional right to academic freedom.  Rather, a professor’s constitutional right to freedom of speech is the same as and no more than the free speech rights of any public employee.

Smolla argues that the federal courts may well have done higher education a favor by not constitutionalizing the concept of academic freedom and that the efforts of professors to get the courts to do so smacks of elitism. “As a matter of practical politics,” Smolla observes, “higher education will benefit much more from a well-reasoned application of standard constitutional principles than from a perceived elitist quest for the award of new ones” (p. 37).

From academic freedom, Smolla moves on to examine another constitutional concept that has impacted higher education: the notion that higher education is not merely a sphere of the government.  Smolla recounts the famous case of Trustees of Dartmouth College v. Woodward (1819), in which the New Hampshire legislature attempted to take control of Dartmouth College, a private institution founded prior to the American Revolution. Although the government may establish universities for the public good, Chief Justice Marshall reasoned in his 1819 decision, Dartmouth College was not a governmental institution; and the state of New Hampshire could not make it so by legislative fiat. “[I]n deciding that New Hampshire had no inherent authority to act as an officious intermeddler in the affairs of Dartmouth College,” Smolla writes, “Chief Justice Marshall and the Supreme Court delivered a decisive victory for the independence of private colleges and universities, and set the precedent for a series of rulings by the Court over the next two centuries that would bring American constitutional law to bear strongly on the shaping of American higher education” (p. 42).

In the following chapter, entitled “Ordered Liberty,” Smolla explores the tangled jurisprudence concerning the free speech rights of faculty and students on public college campuses. As Smolla notes, in Healy v. James (1972), the Supreme Court ruled that a public college may not deny recognition to a student group because the college president disagrees with the group’s ideas. Later, in Widmar v. Vincent (1981), the Court ruled that public institutions create forums for the exchange of ideas when they recognize student organizations on their campuses, and that the University of Missouri could not deny recognition to a Christian student group on the grounds that it was a religious organization.

More recently, however, in Christian Legal Society v. Martinez (2010), the Supreme Court ruled, in a 5 to 4 decision, that Hastings Law School, a public institution, could refuse to recognize the Christian Legal Society as a law-school student organization on the grounds that the group refused membership to student who engaged in extramarital sex, which included gay and lesbian relationships. Justice Ginsberg, writing for the majority, upheld the law school’s policy requiring recognized student groups to be open to any law-school student. In the majority opinion’s view, such a policy advanced legitimate institutional interests. Justice Alito, in an indignant dissenting opinion, argued that there was good evidence that the law school’s grounds for excluding the religious group were a mere pretext and that the group’s constitutional right to association had been violated. Readers may decide for themselves with regard to whether Professor Smolla’s attempt to harmonize Christian Legal Society v. Martinez with earlier Supreme Court decisions is persuasive.

Lastly, Professor Smolla describes how the Supreme Court has dealt with competing notions of equality in higher education.  In 1950, the Supreme Court ruled that the University of Texas School of Law could not refuse admittance to Herman Sweatt, an African American law-school applicant, because the law school’s policy of excluding African-American law students violated Sweatt’s constitutional rights under the Equal Protection Clause (Sweatt v. Painter, 1950). In the same year, the Court also ruled that the University of Oklahoma could not segregate an African American graduate student from other students because of his race (McLaurin v. Oklahoma State Regents for Higher Education, 1950). These decisions laid the groundwork for the Supreme Court’s majestic decision in Brown v. Board of Education (1954), in which the Supreme Court struck down all racial segregation in the nation’s public schools.

A half a century later, in Grutter v. Bollinger (2003), the Supreme Court approved an affirmative action policy of the University of Michigan Law School, a policy that favored minority law-school applicants, on the grounds that the policy furthered a compelling interest of the law school to have a diverse student body and that the policy considered race as but one factor among many in admissions decisions. In a companion decision, Gratz v. Bollinger (2003), the Supreme Court disapproved the affirmative action policy of an undergraduate college at the University of Michigan because that policy was mechanistic and “quota-like,” unlike the more holistic admissions policy of the law school.

Professor Smolla concludes his book by acknowledging that “[t]he parallels between the procedural and structural elements of our Constitution and a modern university are perhaps more metaphorical than literal” (p. 190). Nevertheless, he persuasively maintains, the analogy is meaningful. “Our constitutional notions of checks and balances and divided power is mimicked in higher education through our traditions of shared governance,” he points out (p. 190).

In The Constitution Goes to College, Rodney Smolla defends a well-reasoned thesis that our universities and constitutional law have proceeded on parallel lines, with each beneficially influenced by the other. The book is well worth reading by anyone who is interested in the relationship between constitutional law and the shaping of American universities.


Brown v. Board of Education, 347 U.S. 483 (1954).

Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).

Gratz v. Bollinger, 539 U.S. 244 (2003).

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

Healy v. James, 408 U.S. 169 (1972).

Keyishian v. Board of Regents, 385 U.S. 589 (1967).

McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637 (1950).

Sweatt v. Painter, 339 U.S. 629 (1950).

Sweezy v. New Hampshire, 354 U.S. 234 (1957).

Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).

Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000).

Widmar v. Vincent, 454 U.S. 263 (1981).

Cite This Article as: Teachers College Record, Date Published: February 21, 2012
https://www.tcrecord.org ID Number: 16707, Date Accessed: 1/18/2022 6:38:24 PM

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About the Author
  • Richard Fossey
    University of North Texas
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    RICHARD FOSSEY is a professor and Mike Moses Endowed Chair in Educational Administration at the University of North Texas in Denton, Texas. He is Editor of the Journal of Cases in Educational Leadership and Catholic Southwest, a journal of Catholic history and culture in the American Southwest.
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