No Angels in Academe: Ending the Constitutional Deference to Public Higher Education

Abstract

This Article’s thesis is simple—because public university administrators are no more angelic than other constitutional actors are, the judiciary’s deference to higher education officials must end. There is no reason for greater deference to the academy than to other governmental units. Instead, judges must subject higher education administrators to the same skepticism and doubt as other constitutional actors.

This Article has three parts. Part I examines how the Courts treat academe’s constitutional actors more deferentially than constitutional actors in other spheres. Specifically, it discusses different approaches concerning racial preferences, student religious groups’ freedom of association, and due process for students facing life-altering penalties. Part II details the consequences of the judiciary’s unwarranted deference to higher education. Racial preferences have significant costs, frequently do not help disadvantaged students, and are not necessary to the achievement of racial diversity. Forcing religious groups to admit non-believers undermines Confident Pluralism. Diminishing due process protections does nothing to help sexual assault victim-survivors. Part III details the possibility of ending this judicial deference to higher education through state constitutional provisions, federal statutory or regulatory changes, or overruling existing Supreme Court precedents. In particular, it explores the likelihood racial preferences in higher education will be treated the same as racial preferences in other context, student religious groups will have the associational rights as religious organizations outside of academe, and due process protections will be enhanced.

Keywords: Public Higher Education, U.S. Constitution