A very interesting article by Prof. Steve Sanders (Indiana), who is also an Associate Dean for Academic Affairs and a scholar of sexual orientation and the law; it’s in the Chronicle of Higher Education, but also available without the need for registration here. An excerpt:
During the Red Scare of the 1950s, college faculty members were lauded by Supreme Court Justice Felix Frankfurter as being among the “priests of our democracy.” As campuses were roiled by political controversies in 1967, the Court invalidated a New York loyalty oath and underscored that “[t]he essentiality of freedom in the community of American universities is almost self-evident.” More recently, in Grutter v. Bollinger, a 2003 case upholding some forms of affirmative action, the Court said “universities occupy a special niche in our constitutional tradition” and thus were owed “a constitutional dimension … of educational autonomy.”
A much different attitude prevails on the Court today. When Harvard and the University of North Carolina argued that their affirmative action practices were entitled to the same deference the Court had shown in Grutter, Chief Justice John Roberts’s response was sarcastic, even mocking. In his opinion last June in Students for Fair Admissions v. President and Fellows of Harvard College, Roberts, writing for six justices, laid out a series of objections to the universities’ admissions practices, then twisted the knife: “The universities’ main response to these criticisms is, essentially, ‘trust us.'”
The Court’s message was clear: universities, we don’t trust you….
Unfortunately, universities are giving courts more reasons to question whether their policies are based on favoritism or politics rather than neutral and objective criteria. In the post-George Floyd era, they are embracing political projects under banners like “social justice” and “anti-racism.” By remaking themselves into institutions devoted to progressive politics, universities weaken their moral and legal claims to judicial deference.