Introduction: Universities and the First Amendment

The subject of this symposium, The First Amendment in Higher Education, is remarkably important and timely, and the editors of the William & Mary Bill of Rights Journal are to be congratulated on their selection. Their choice of topic, however, imposes considerable challenges to the contributors to this symposium because the issues raised by the application of the First Amendment in universities are among the most difficult in constitutional law. This is so for a number of reasons. First, universities are not only places of transition between students' formative years of secondary schooling and the outside world, they are also places of transition between the disparate ways the United States Supreme Court treats First Amendment issues in the public schools and the way it addresses those issues in the outside world. In Establishment Clause jurisprudence, for example, the same prayer that would be unconstitutional in public schools may be perfectly permissible in state legislative assemblies.1 In free speech law, the same message that a government might permissibly sanction in a public school is fully protected when disseminated in a courthouse.2 Thus, any analysis of First Amendment issues in higher education must initially meet two threshold questions: where, and for what reason, are universities situated along the public-school-to-outside-world spectrum, and what is the significance of this locus for the application of specific constitutional protections. These questions do not lend themselves to easy answers.3 Second, First Amendment issues in higher education are inordinately complex because the relationship of the university to the First Amendment is inordinately complex. On one hand, the university is the preeminent societal institution devoted to the goals of developing and disseminating ideas4 and in that sense is joined at the hip with the First Amendment itself.5 But the university is also still inescapably an institution, and, like other institutions, it requires rules of governance and administration in order to be able to function effectively. The problem is that these institutional demands can place the university on the opposite side of First Amendment claims. Thus, although the university may be fully committed to the free exchange of ideas, its institutional concerns may lead it to assert, for example, that its campus quadrangle is not a public forum that must be open to all speakers6 or that its faculty members should not be free to say whatever they believe regardless of institutional consequence.7 In such circumstances, the university is inevitably in the uncomfortable position of having its institutional exigencies at war with its institutional mission. The fact that First Amendment doctrine, when applied to these conflicts, is similarly torn by tension and internal contradiction, is therefore only to be expected. Third, the difficulties in navigating through the First Amendment issues in higher education controversies are often exacerbated by the claims of that attend these disputes. The constitutional significance of academic freedom is not clear. Some would contend that the doctrine exists fully apart from the First Amendment,8 while others argue that if the doctrine has any constitutional basis at all, it applies to the rights of the university and not to individual faculty or students.9 There is no question, however, that the doctrine can serve as a powerful rhetorical tool when applied to First Amendment issues. The firing of a public university professor because of objectionable writings, for example, may be criticized for violating principles of academic freedom as much as it is analyzed for whether it violates the First Amendment. The concern that arises, however, is that because the principle of academic freedom is so ill-defined,10 its invocation frequently serves to only cloud, rather than clarify, the underlying constitutional issues. Fortunately, for our purposes, the distinguished speakers in this symposium have been undeterred by the degree of difficulty inherent in analyzing these issues. …