October 12, 2003
"Four Essential Freedoms" of a University Based in First Amendment
In 1957, Justice Felix Frankfurter set an anchor for academic freedom in the U.S., drawing from language of South African educators then fighting their nation's ban on education of whites and non-whites in the same university:
". . . It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail `the four essential freedoms' of a university - 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." Sweezy v. New Hampshire 354 U.S. 234 (1957).
In an October 11 address James Wright, President of Dartmouth College, tied Frankfurter's opinion to the history of constitutional protection of academic freedom, dating from a famous 1819 decision of the Supreme Court to two decisions just this year. His audience, the Dartmouth Lawyers Association, were not strangers to the topic. Nearly two centuries ago, Dartmouth was one of the first battlegrounds for academic freedom of universities from state interference. (Read more ... )
That battle arose over an attempt by the State of New Hampshire to take control of Dartmouth, a privately funded corporation created by a royal charter in 1769 and at the time religiously affiliated. Motivated by desires to change the curriculum of the college, the state legislature enacted legislation that changed the institution's name and changed the Board of Trustees so as to grant full control to the Governor of New Hampshire.
In its suit to block the statute, Dartmouth was represented by Daniel Webster (Class of 1802), who engaged in "one of the greatest lawyers' battles in our history." The Court overturned the statute as violative of the Contract Clause of the Constitution in the Dartmouth College Case, 17 U.S. 518 (1819).
Frankfurter's later opinion in Sweezy became an element of the Court's decision in Univ. of California. v. Bakke, 438 U.S. 265 (1978). In Bakke, Justice Powell quoted J. Frankfurter's elicitation of the "four essential freedoms" in his opinion rejecting the use of race to exclude some applicants from a special set-aside program for medical school admission.
Powell pointed also to Keyishian v. Board of Regents, 385 U.S. 589 (1967) in which the Court based academic freedom in the Constitution, saying: "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 .[438 U.S. 265, 312]
The Court also recognized limits on such freedom, saying: "Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded." [438 U.S. 265, 314] "The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." [438 U.S. 265, 315]
In 2003, Bakke became the standard by which the Court evaluated the University of Michigan's freedom to decide "who may be admitted to study." In Grutter v. Bollinger (No. 02-241, June 23, 2003), the Court affirmed the process used by the Law School at the University, distinquishing it from a process of granting diversity "bonuses" used by the same university for other school admissions:
"Here, the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single 'soft' variable. Unlike the program at issue in Gratz v. Bollinger, ante, the Law School awards no mechanical, predetermined diversity 'bonuses' based on race or ethnicity."
In the Gratz opinion (No. 02-516, June 23, 2003), issued the same day, the Court found that the University's undergraduate admissions policy, "which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program."
In his address to the Dartmouth Lawyers Association, President Wright expressed his approval of the Court's decision. As part of its efforts to achieve a widely diverse student body, said President Wright, Dartmouth has for decades used the flexible, individualized admissions process approved by the recent Supreme Court decisions.