Measuring a Degree of Deference Institutional Academic Freedom in a Post-Grutter World

Academic freedom, as a constitutional right, has long suffered from a lack of consensus over its scope and application. Although academic freedom is generally conceptualized as insulating certain aspects of the academy from government intrusion, the courts are as divided as scholars on the issue of who may invoke the right, and in what circumstances. Some scholars and courts argue that professors and students have constitutional rights to academic freedom, but universities do not. They reason that constitutional academic freedom is a “special concern of the First Amendment,” and the First Amendment normally functions to protect individuals against state interference, not to protect state actors from interference by other state actors. They conclude, therefore, that public universities, which are established by the state, cannot seek refuge in the First Amendment.