William E. Thro (University of Kentucky) has posted No Angels in Academe: Ending the Constitutional Deference to Public Higher Education (5 Belmont University Law Review 27 (2018)) on SSRN. Here is the abstract:
The Constitution reflects a Calvinist perspective—a fundamental distrust of humans and human institutions. Neither the People nor the People's Agents are angels; they are flawed individuals who will pursue self-interest, abuse power, and engage in corruption. The Constitution protects the liberty of the People—individually and collectively—from the People’s Agents and the ever-shifting political winds. Instead of an all-powerful national government, the Constitution “split the atom of sovereignty . . . establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” Rather than combining executive, legislative, and judicial power in a single parliament dominated by the majority party of the day, the Constitution “protects us from our own best intentions” by preventing the concentration of “power in one location as an expedient solution to the crisis of the day.” Because “all . . . are created equal and endowed by their creator with certain unalienable rights,” the Constitution “withdraws certain subjects from the vicissitudes of political controversy” and “places them beyond the reach of majorities and officials.”
When the Will of the People's Agents as expressed in the statutes or executive actions contradicts the Will of the People as expressed in the Constitution, then the judiciary must ensure that the Constitution prevails. Because judicial review is inherently anti-democratic and because judges are flawed humans who also need to be limited, the judiciary must apply the original public meaning of the constitutional text or, when such an interpretation is inconclusive, a constitutional construction consistent with the original public meaning. Judicial review must recognize constitutional actors are humans, not angels; there must be doubt, not deference. Although there have been occasions or even eras when the Court has failed the Republic, the Court generally has enforced the division of sovereignty, the separation of powers, and the guarantees of the Bill of Rights.
Yet, with respect to academe, a different constitutional paradigm prevails. In the view of the judiciary, higher education administrators are “angels”—entitled to greater deference than constitutional actors in other spheres. For example, constitutional actors in academe may: (1) utilize racial classifications for different purposes and with far greater deference; (2) force religious groups to admit those who disagree with the group’s basic faith tenets; and (3) impose life-altering punishments with little due process protections.
This Article’s thesis is simple—because public university administrators are no more angelic than other constitutional actors are, the judiciary’s deference to higher education officials must end. There is no reason for greater deference to the academy than to other governmental units. Instead, judges must subject higher education administrators to the same skepticism and doubt as other constitutional actors.
This Article has three parts. Part I examines how the Courts treat academe’s constitutional actors more deferentially than constitutional actors in other spheres. Specifically, it discusses different approaches concerning racial preferences, student religious groups’ freedom of association, and due process for students facing life-altering penalties. Part II details the consequences of the judiciary’s unwarranted deference to higher education. Racial preferences have significant costs, frequently do not help disadvantaged students, and are not necessary to the achievement of racial diversity. Forcing religious groups to admit non-believers undermines Confident Pluralism. Diminishing due process protections does nothing to help sexual assault victim-survivors. Part III details the possibility of ending this judicial deference to higher education through state constitutional provisions, federal statutory or regulatory changes, or overruling existing Supreme Court precedents. In particular, it explores the likelihood racial preferences in higher education will be treated the same as racial preferences in other context, student religious groups will have the associational rights as religious organizations outside of academe, and due process protections will be enhanced.