The Judicial Trend Toward Student Academic Freedom
![handle is hein.journals/uflr20 and id is 300 raw text is: THE JUDICIAL TREND TOWARD STUDENT
ACADEMIC FREEDOM
WILLIAM W. VAN ALSTYNE*
The law that governs the prerogatives of college students and the powers
of universities consists of rising tiers of authority. From ad hoc adminis-
trative and faculty rules, the layers progress upward to the supreme law of
the Constitution. This brief discussion, however, concerns only one part of
this uppermost tier-the fourteenth amendment (plus portions of the Bill
of Rights to the extent they have been absorbed into the fourteenth amend-
ment and made applicable to publicly-supported colleges). Additionally, not
even all of the fourteenth amendment shall be considered, but only two of its
several clauses in the first of its five sections.
[N]or shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.
Virtually every significant change affecting student prerogatives and college
powers made within the past ten years has resulted from an authoritative
interpretation of the fourteenth amendment. Thus, a fairly responsible
review of trends in the law of student prerogatives and college powers may
confine itself to an examination of judicial trends under the fourteenth
amendment and the Bill of Rights.
The fourteenth amendment is, of course, only a limitation on college
power. That is, college rules do not derive their authority from the four-
teenth amendment, and no college need show that its rule-making power is
authorized by the fourteenth amendment.1 The point is mild and self-evident,
but extremely important; those who would seek to displace or invalidate a
college rule by reliance upon the fourteenth amendment must sustain the
burden of showing in what manner a given college rule or action is forbidden
by or conflicts with the ultimate norms of the fourteenth amendment.
Still another preliminary observation needs to be made in narrowing the
field of our discussion. The amendment provides only that no State shall
deny due process or equal protection. Thus, while state colleges and state
universities are readily subject to its strictures the amendment would not ap-
pear to address itself to private colleges and universities. These, it may be
suggested, can operate freely without observing due process or equal protec-
tion. In this sense, the fourteenth amendment does not establish a right to
due process or to equal protection; rather, it merely provides a limited im-
munity - an immunity from state denials of due process or equal protection.
*B.A., 1954, University of Southern California; LL.B. 1958, Stanford University; Cer-
tificate, 1961, The Hague Academy of International Law; Professor of Law, Duke University.
1. The affirmative source of rule-making power is to be sought in articles of incorpora-
tion, charters, state delegation of legislative prerogatives, subdelegations by boards of trus-
tees, et cetera.
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The Judicial Trend Toward Student Academic Freedom
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