Public attention this week has been on President Obama’s new nominee to the Supreme Court, Sonia Sotomayor. But those in higher education should not overlook the contributions and the legacy of the justice that Sotomayer, if confirmed as expected, would replace.
With the retirement of David H. Souter, academics and librarians will lose an ally on the nation’s highest court. Not only did he staunchly defend intellectual freedom, but his opinions also displayed sensitivity and a sophisticated understanding toward faculty work and university decision making.
Souter’s writings on such matters were not frequent, and they came in the form of concurrences and dissents rather than majority rulings that would shape the law for the ages. But he deserves praise for several thoughtful, carefully argued opinions that rejected what he saw as unworkable restraints on the freedoms of colleges, library patrons, and professors.
More than some of his colleagues, Souter seemed to understand that colleges are unique institutions whose internal workings the law must respect. For example, in Board of Regents of the University of Wisconsin System v. Southworth (2000), a group of conservative students challenged the university’s mandatory activity fee because it supported certain activities —including centers for women and gay students and a liberal political-action group —with which they disagreed. The students argued that being forced to help pay for such things violated their First Amendment rights.
The Supreme Court’s majority upheld such fees but imposed a condition: that the proceeds be allocated on a “viewpoint neutral” basis. In other words, while the groups supported by such fees could express positions on controversial issues, the university’s financial allocations must be free from any sort of favoritism.
Souter agreed that such fees were permissible, but he wrote separately to express his concern about the potential consequences of imposing a viewpoint-neutrality requirement on a university’s operations. In any academic setting, he wrote:
"… students are inevitably required to support the expression of personally offensive viewpoints in ways that cannot be thought constitutionally objectionable unless one is prepared to deny the University its choice over what to teach. No one disputes that some fraction of students’ tuition payments may be used for course offerings that are ideologically offensive to some students, and for paying professors who say things in the university forum that are radically at odds with the politics of particular students. Least of all does anyone claim that the University is somehow required to offer a spectrum of courses to satisfy a viewpoint neutrality requirement. … The University need not provide junior years abroad in North Korea as well as France, instruct in the theory of plutocracy as well as democracy, or teach Nietzsche as well as St. Thomas.”
If students could not demand tuition refunds for courses or professors they found objectionable, Souter reasoned, they should not be able to demand similar refunds for extracurricular activities. Souter suggested that the objecting students’ First Amendment claims were simply outweighed by the university’s traditional autonomy —also grounded in the First Amendment —"to shape its educational mission.”
In United States v. American Library Association (2003), the court upheld a federal law that required libraries and public schools to install Internet-filtering software on their computers. The purpose was to protect minors from accessing pornography. Souter acknowledged that the government had a legitimate interest in protecting children from such material. But he dissented on the basis of his concern that in practical effect, the government-imposed filters also blocked access to material that adult library patrons were entitled to see. “There is no good reason, then,” he wrote pointedly, “to treat blocking of adult enquiry as anything different from the censorship it presumptively is.”
Souter’s vote was crucial to the 5-4 majority in Grutter v. Bollinger (2003), which upheld university affirmative-action programs so long as they are designed to advance educational purposes and do not involve quotas. Justice Sandra Day O’Connor’s opinion emphasized that courts should defer to faculty judgments regarding education because “universities occupy a special niche in our constitutional tradition.”
In a companion decision, Gratz v. Bollinger, the court struck down an affirmative-action program that relied on numerical formulas. Souter, in dissent, said he would have let that affirmative-action scheme stand as well. “Since college admission is not left entirely to inarticulate intuition,” he explained, “it is hard to see what is inappropriate in assigning some stated [numerical] value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race.”
Perhaps Souter’s most prescient statement about academic freedom came in Garcetti v. Caballos (2006). In that case, which involved staff members of a district-attorney’s office, the court continued a trend in its decisions toward curtailing the First Amendment rights of public employees. It held that the workaday speech of government employees —that is, speech they engage in pursuant to their “official duties,” including internal complaints to or about their superiors —is not protected by the Constitution.
As part of a lengthy and vigorous dissent, Souter sounded an alarm about the implications for college faculty members. The range of speech that the court was placing outside the First Amendment’s ambit, he wrote, was “spacious enough to include even the teaching of a public university professor.” “I have to hope,” he added, “that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”
In response to Souter’s concern, the majority added a brief passage to its opinion that reserved judgment on how Garcetti should apply to the academic workplace. “There is some argument,” the court acknowledged, “that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”
Nonetheless, Souter’s concern would prove well founded. Since Garcetti, federal courts have decided a number of cases involving free-speech claims by public-university faculty or staff members against their own institutions. In most of those cases, the employees have lost. Lower courts applying Garcetti in the academic context often seem to have lost sight of the principle that a university, by the nature of its work and governance traditions, is not just another government job site. It seems only a matter of time before the Supreme Court will have to confront the issues it left open in its earlier decision. .
Should Sonia Sotomayor become part of the court, her paper trail as a federal judge since 1992 betrays little evidence of her thinking about academic freedom, her attitudes toward faculty members, or her knowledge of how colleges work. She does, however, bring a certain amount of practical experience. As an adjunct faculty member, she taught from 1998 to 2007 at the New York University School of Law, and since 2000 she has supervised a federal-court externship program at the Columbia Law School. She has also served on the Board of Trustees at Princeton University, her alma mater, since 2007.
