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Populism, Elitism, and Academic Deference

By Ruben J. Garcia

Courtrooms and Classrooms: A Legal History of College Access, 1860–1960 by Scott M. Gelber. Baltimore: Johns Hopkins University Press, 2016.

We live in strange times. In an election year marked by populist groundswells that have shaken the foundations of the political system, economic inequality is at its zenith. Only the wealthy seem to be able to afford college, and tuition keeps rising. Meanwhile, in June 2016, the US Supreme Court handed down its second decision in Fisher v. University of Texas at Austin, endorsing a broad view of deference to academic institutions in crafting affirmative action policies.

These developments make Scott Gelber’s Courtrooms and Classrooms very timely. The book offers an exhaustive history of the litigation involving admissions, student expulsion, and tuition during a period when American society was undergoing major changes. Of course, much of that period was marked by increasing demands for the inclusion of women and minorities and by the litigation that helped desegregate educational institutions and many of the professions. “And yet,” as Gelber writes in chapter 3, “legal scholars rarely situate the first phase of the university desegregation campaign within the arc of this older framework of academic deference.”

Indeed, Gelber’s work also appears at a time when academic freedom is newly contested, with high-profile cases at the Universities of Missouri and Illinois fresh on the minds of many faculty members and administrators. Gelber correctly links the rise of academic deference— that is, judicial deference granted to colleges and universities out of respect for the academic decision-making process—with the rise of the AAUP in the years between its founding in 1915 and the publication of the joint 1940 Statement of Principles on Academic Freedom and Tenure. But he acknowledges that deference to academic institutions, and to the professoriate, has a much longer pedigree. It is part of the contradictory attitude Americans have toward institutional and academic “elites”—suspicion tempered by admiration.

In many areas of the law, courts tend to follow trends in society. During the late Gilded Age, strong skepticism of economic and political elites showed through in many decisions favoring open admission to state colleges and universities. The major litigation theory of these cases was not constitutional, as there has never been a fundamental right to an education under the federal constitution. But for a brief period that lasted until World War I, the law recognized a kind of open access to state institutions through state constitutions.

Gelber traces the basis for academic deference to the litigation of the nineteenth century to open access to lower schools and the effect that elementary and secondary school access had on higher education. Here, again, Gelber is careful not to overlook the boundaries between bodies of doctrine. Nonetheless, as he finds, the murkiness of the distinctions between lower and higher schools made by nineteenth-century courts exhibited the same “fragile commitment” to open access to schools that courts had in the college cases that followed.

Nowhere is the fragility of the courts’ deference more evident than in cases involving college admissions. Whether because of a renewed sense of America’s leadership of the world or suspicion of the GIs entering college at rising rates, colleges and universities became more selective in the latter part of the twentieth century. At the same time, the civil rights movement was making increased demands for equal access after the Supreme Court ruling in Brown v. Board of Education and two earlier law school access cases, Sweatt v. Painter and Missouri ex rel. Gaines v. Canada. While public colleges and universities opened access to women and minorities, they simultaneously made the admissions process for all applicants more rigorous. Private institutions soon followed suit. It is unclear whether the courts’ academic deference contributed to the elite status of private colleges and universities or whether it was the elite status that made possible judicial academic deference. A study that focuses on court cases necessarily leaves the inner workings of private institutions and how they operated for another day.

The rise of anti-affirmative-action litigation put a temporary hold on academic deference by introducing the idea that some academic decisions would receive more scrutiny when race was involved in admission decisions. But even then, elite private institutions served as the model for state colleges and professional schools, as when Justice Lewis Powell, in Regents of the University of California v. Bakke, pointed to the Harvard Plan as the model for how the University of California, Davis, medical school should admit a diverse pool of applicants. Perhaps, as Gelber suggests, the upholding of affirmative action policies has more to do with a reverence for elite institutions than a commitment to racial justice. Justice Anthony Kennedy’s opinion in the second Fisher case fully embraces the theme of Gelber’s book as a reason to uphold UT Austin’s diversity plan: “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and mission.”

The idea of deference was not limited to public universities. For example, in the early twentieth century, California legislators exempted Stanford University from property taxes so long as the school did not charge tuition to state residents. Still, much of the legislation involving tuition dealt with public institutions, and courts generally rejected contractarian arguments in favor of universities, especially during the peak period of deference to colleges (1910–40). While college costs have risen, the courts have done little to restrain those costs, nor could they under existing legal doctrine.

The most interesting parallels between school law and other types of law come through in the expulsion cases, which track the rise of procedural due process in constitutional law. As in cases involving the right to notice and hearing in other areas, the necessity (and difficulty) of framing education as a property right led to much of the modern statutory architecture protecting process in both lower and upper school expulsion cases. The courts’ interpretations of constitutional, contractual, and property rights could always be embellished by a growing web of legislation. Legislators, too, have often adopted a hands-off view of colleges and universities, but as Gelber’s book shows, there is nothing constant or predetermined about such an approach.

Similarly, consideration by family courts of whether divorced parents should have to pay child support for tuition was affected by the perception that higher education was a luxury good for some. Before the women’s equality movement, the need for higher education for women was seen as directly related to the perceived needs for equality. For men, aptitude for postsecondary education was seen as the determining factor. Gelber cites a US Department of Labor study from 1960 that found that a whopping 97 percent of young people would benefit from some form of higher education.

Fast forward to the present. Although nearly 60 percent of working-age adults in the United States lack a college degree, college access seems more important than ever. Recent proposals for free or debt-free college are a testament to the importance of higher education in the current economic environment. Whether any of these proposals will ultimately become law depends on a number of factors, but as Gelber’s book shows, the political environment will ultimately influence the legal environment.

The effect that broader social trends have had on the courts is well documented. As Gelber writes, “Although litigation can galvanize social movements, legal victories themselves tend to have relatively moderate results in the long run.” How the economic collapse of 2008 will affect the need for higher education, and the deference paid to institutions of higher education, remains to be seen. But even as the importance of college education has engendered deference to institutions, our political economy has done much to encourage suspicion of colleges and universities from all sides. The right has tended to see them as bastions of liberal indoctrination, while the left has tended to see them as increasingly subject to corporate control. In all of the bluster, the values of academic freedom and faculty governance can get lost.

As a result, according to Gelber, “it seems an open question whether colleges and universities remain public minded enough to counter the arguments in favor of greater legal oversight.” Gelber asserts that universities should actively promote a public service mission. What’s left unsaid, and will perhaps appear in Gelber’s next book, is what that agenda will look like in an age of austerity. I for one eagerly await more of Gelber’s discussion of this agenda and of the relationship between law and society in higher education. 

Ruben J. Garcia is professor of law at the University of Nevada, Las Vegas, William S. Boyd School of Law, and a member of the Nevada Faculty Alliance–AAUP. He currently serves on the AAUP’s Committee on College and University Governance. His e-mail address is [email protected].

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