Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College. Email: tobias.gibson [at] westminster-mo.edu.
I was delighted when I was asked to review this book. The idea of writing a book about the impact of the United States Constitution on the country’s institutions and system of higher learning is very interesting. And, to be sure, Rodney A. Smolla, former dean of University of Richmond and Washington and Lee law schools, and current president of Furman University, delivers the goods. He has a mastery of the relevant case law, and an interesting perspective stemming from his educational and employment background. This book is well researched, well written, articulate and thought provoking.
The preface briefly describes the purpose and scope of the book. Smolla describes the confluence of life, including being a parent, lawyer and educator, and the impact that his worldview will have on the book.
The first chapter introduces the focus of the book, which include five “constitutional ideas” that have had particular impact on the nation’s colleges and universities. These ideas include: the debate over a “living Constitution”; the separation of “public” and “private”; understanding the differences between a right and a privilege; “ordered liberty”; and varying notions of what equality entails.
Smolla’s argument, that the Constitution, and judicial interpretation of it, plays a major role in developing the identity of the institutions of higher learning, begins in earnest in chapter two. Noting the importance of academic freedom, and its absence from the Constitution, Smolla suggests that this right may be implied by the First Amendment, especially if in conjunction with the Ninth. Smolla also notes that freedom of association, itself not an enumerated right, has been found by the Supreme Court to be implied by the First. He then takes the reader on a multi-page history and impact of the right to privacy, and concludes that section by noting that there are several reasons why privacy will not lead to explicit recognition of a constitutional right to academic freedom. Smolla also provides a short but detailed look at the precedent of academic freedom by the Supreme Court. The chapter concludes by noting that there is some fear and trepidation in granting elite rights to a small cadre of citizens, college professors in this example, and that Smolla is not convinced that the Court need recognize such an explicit grant of liberty.
Smolla discusses the different constitutional expectations between public and private universities in chapter three. He begins his tour with a fine discussion of the famed Trustees of [*233] Dartmouth College v. Woodward (1819). In particular, he notes the perceived need for autonomous institutions of higher learning by both Daniel Webster, who argued the case at the Court for his alma mater, and Chief Justice John Marshall. The remainder of the chapter is dedicated to exploring the necessary distinctions of a public university, whose employees work for the state, and the private college, whose employees are not employed by the state. In what is perhaps the most interesting portion of the chapter, Smolla notes that private institutions possess free speech rights, where as public universities do not, although the individual faculty and students of a public university most assuredly do (p.44). Another particularly well done section, “The Curious Right Not to Associate,” discusses the impact of the constitutionally mandated ban on religious establishment and civil rights, and several specific U.S. Supreme Court decisions on the clubs and associations that frequently are part of the co-curricular environment of undergraduate and graduate educational programming.
The fourth chapter focuses on the differences between rights and privileges. Smolla begins the discussion with an extension of then-Judge Holmes’s argument, in Mcauliffe v. City of New Bedford (1892). Holmes agreed that McAuliffe, who had been fired as a police officer because he had been discussing politics while walking his beat, had a constitutional right to free speech. However, Holmes went to argue that “he has no constitutional right to be a policeman” (as quoted in Smolla, p.72). Much of the rest of the chapter is dedicated to extending this principle to the college, and arguing that by accepting a position at a university, a professor or student may have some restrictions that would not normally be allowed.
Titled “Ordered Liberty,” the fifth chapter is the book’s longest, most detailed and best chapter. He details the impact of Socrates’s death, and just as importantly, how theorists including Plato and J.S. Mill have used the event to note the needs of individuals and societies. And, though both Mill and Holmes have argued vociferously for the so-called “marketplace of ideas,” Smolla contends that this conception of the modern university is false. For example, Smolla notes, correctly, that “[a] university that does not evaluate thought and expression is incoherent” (p.98), whether assigning a grade to a student or deciding to grant tenure to a professor. Moreover, colleges offer more than simply learning space; they are also often places of everyday life, with dorms and the amenities of life. In short, simply arguing that “free speech” should be allowed on college campuses discounts the wide variety of spaces on and services provided by a college. After establishing the dual nature of universities, Smolla tackles issues arising from security, campus protests, hate speech, and the free speech afforded members of the faculty and students. This chapter is pivotal to the book, and is its most important, most detailed and most interesting addition to the understanding of the rights and liberties afforded at and by modern colleges and universities. The strength and quality of the book is best found here.
The sixth, and final substantive chapter, is titled “Competing Conceptions of Equality,” and notes the differences between “process equality” and [*234] “outcome equality” (p.162). The chapter has a very nice discussion about the role of Supreme Court cases, such as Plessy v. Ferguson (1896), Sweatt v. Painter (1950), Brown v. Board Of Education (1954), and the affirmative action cases of Regents of the University of California v. Bakke (1978), and the more recent University of Michigan cases of Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003). Smolla also discusses at some length several cases related to gender equality. This chapter is interesting, but basic. It is unlikely that the most readers, especially those who teach, or have even taken, a rights-based Constitutional Law course will learn much.
Smolla includes a brief, concluding chapter in which he extends and coordinates the preceding chapters’ arguments.
Although I recommend this book highly, there are issues I have with this book. The first issue is small, but telling. Smolla’s “hypothesis is that five large themes of the American constitutional experiment …[as described above]… have exerted a profound influence on the identity of American colleges and universities” (p.vii). Later, however, Smolla states that his “thesis is that the American Constitution and the American college campus are in a very deep and fundamental sense connected, and that we may learn a great deal by exploring that connection” (p.3, emphasis in original). This slight shift in argument is important, but more importantly Smolla continues to alter his argument somewhat. By page 33, Smolla identifies several cases that substantiate “a central thesis of this book, which is that constitutional values have operated in an informal, value-laden sense to shape and influence the identity of American colleges and universities” (my emphasis). It seems that there are nuances to Smolla’s contention that even he has trouble identifying and directly addressing.
Secondly, because the analysis of impact on the universities and colleges is done almost completely through case law, there is an almost complete lack of discussion about a) what other voices were adding to the discussion and debate and b) how the case law impacted actual policy as adopted and administered on college campuses. Smolla’s understanding and analysis of the relevant cases, as noted above, is excellent. However, there are so many additional sources of information that would inform the reader about the impact of the Constitution, judicial interpretation (Smolla’s real focus) and the college.
For example, several books written by current and former Supreme Court Justices have relevance in understanding the jurists’ views of role of the courts and constitutional law on American institutions of higher learning. Recent examples of relevant texts author by notable justices include Chief Justice William Rehnquist’s The Supreme Court and Justice Stephen Breyer’s Active Liberty and more recent Making Our Democracy Work. Breyer, in Active Liberty, has chapter length discussion of both the role of speech and affirmative active in his conception of participatory self government. Breyer’s 2010 effort discusses the Supreme Court’s difficult role in deciding questions of individual liberty, and is the author’s continued effort to offer detailed insight on his [*235] beliefs about how the Supreme Court fulfill its “responsibility to help ensure a Constitution that endures” (p.xiv).
Additionally, there are several excellent books detailing the jurisprudence about Supreme Court justices. Recent works by Frank Colluci and Helen J. Knowles detail Justice Anthony Kennedy’s legal views. Using these works, in conjunction with Kennedy’s own opinions might have allowed Smolla to paint a more detailed and nuanced picture of Kennedy’s views on speech and affirmative action.
Smolla spends many pages detailing the University of Michigan affirmative action cases Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003). Here he misses an opportunity to discuss the impact of, and the public’s reaction to, Supreme Court decisions. In the wake of the University of Michigan cases, as he notes on page 177, “Michigan voters approved a state constitutional amendment, adopted by statewide ballot … which banned affirmative action programs.” In other words, the Michigan public reacted to the Court’s decision that allowed the flagship law school in the state to use affirmative action in its admissions process. I would have liked to see Smolla note that there is a literature in which the public’s reaction to Supreme Court decisions is studied. For example, a brief discussion or even nod toward Valerie Hoekstra’s Public Reaction to Supreme Court Decisions, or similar literature, would have illustrated a command of literature beyond merely the cases themselves.
The Constitution Goes to College provides background for why speech codes at colleges are (and should be) allowed, but does not prove effective in discussing the background about the contentious debate that surround their existence. Nat Hentoff (1992) took aim at campus speech codes in a tellingly titled chapter called “The Pall of Orthodoxy on the Nation’s Campuses” in an even more telling titled book called Free Speech for Me – But Not for Thee. In a more current line of reasoning, the Foundation for Individual Rights in Education (FIRE) takes on speech codes from a conservative viewpoint. On its website, FIRE has a section called “Speech Code of the Month” in which “FIRE features a college or university with a particularly egregious speech code as its Speech Code of the Month. The Speech Code of the Month feature serves both to educate the public about the broader problem of speech codes on campus and to use public pressure to encourage particular institutions to abandon repressive policies.” But, an uninformed reader would not learn from Smolla that both conservatives and liberals view speech codes as forcing discussion on campus toward pre-approved, non-controversial and conventional speech.
In conclusion, Smolla’s book is excellent and highly recommended. As noted, it is thought provoking, detailed and well written. It added to my understanding of the impact on the nation’s colleges and universities of the Constitution and the Supreme Court’s interpretation of the governing document. My critiques of the book are meant not only to address the limits of the book, but to offer some indication about how the book might be included in a Supreme Court or federal judiciary college course. Moreover, the book led me to contemplate additional [*236] ideas and works that relate to the information presented in Smolla’s effort.
Breyer, Stephen. 2005. Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf Publishing.
--. 2010. Making Our Democracy Work: A Judge’s View. New York: Vintage Books.
Colucci, Frank J. 2009. Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Jurisprudence. Lawrence, KS: University of Kansas Press.Hentoff, Nat. 1992. Free Speech for Me – But Not for Thee. New York: HarperPerennial.
Hoekstra, Valerie J. 2003. Public Reaction to Supreme Court Decisions. New York: Cambridge University Press.
Knowles, Helen J. 2009. The Tie Goes To Freedom: Justice Anthony M. Kennedy On Liberty. New York: Rowman & Littlefield.Rehnquist, William H. 2002. The Supreme Court. New York: Vintage Books.
Brown v. Board Of Education 354 U.S. 483 (1954).
Gratz v. Bollinger 539 U.S. 244 (2003).
Grutter v. Bollinger 539 U.S. 306 (2003)
Mcauliffe v. City of New Bedford 29 N.E. 517 (1892).
Plessy v. Ferguson 163 U.S. 537 (1896).
Sweatt v. Painter 339 U.S. 629 (1950).
Regents of the University of California v. Bakke 438 Us 265 (1978).
Trustees of Dartmouth College v. Woodward 4 Wheaton (US) 518 (1819).
Copyright 2012 by the Author, Tobias T. Gibson.