On Institutional Academic Freedom
![handle is hein.journals/tlr61 and id is 855 raw text is: On Institutional Academic Freedom
Matthew W. Finkin*
The court below focused its attention on Princeton Univer-
sity as a property owner rather than as a private university. It
thus chose to ignore the protection accorded academic freedom
as a special concern of the First Amendment and failed to fo-
cus on the fact that the purpose of the property comprising a uni-
versity campus is at bottom simply to promote the university's
own educational viewpoint (a First Amendment right).'
With the aid of academic freedom, Princeton University sought to
insulate itself from the reach of a state constitutional provision which
forbade it to exclude from its public premises whomever it might wish.
Princeton's action is not surprising. Increasing governmental regula-
tion of the nation's colleges and universities, especially at the federal
level, has been decried as a serious threat to institutional autonomy,2
and the United States Supreme Court has recognized that academic
freedom is protected by the first amendment.3 Not surprisingly, to se-
cure legal protection for its autonomy, the University turned to the first
amendment for support. Indeed, two Supreme Court justices have spo-
ken expressly about institutional academic freedom,4 and a similar fus-
ing of academic freedom and institutional autonomy can be found
* Professor of Law, Southern Methodist University. A.B. 1963, Ohio Wesleyan University;
LL.B. 1967, New York University; LL.M. 1973, Yale University.
The author served as the principal draftsman of the American Association of University
Professors' amicus curiae brief in the Princeton case. While the views expressed here bear a strong
resemblance to the arguments of the amicus brief, they are the author's and not those of the
Association.
My thinking about this question was significantly assisted by comments on a draft of the brief
by Walter Metzger, William Van Alstyne, Thomas Scanlon, and Walter Murphy, and by addi-
tional comments on a draft of this Article by Ralph Brown, Bernhard Grossfeld, Walter Metzger,
and William Van Alstyne. Indeed, the comments in the latter two cases were so extensive and
searching as scarcely to fall short of collaboration, for which I am deeply indebted. Nevertheless,
errors or misjudgments necessarily remain my own.
I. Jurisdictional Statement of Princeton University at 7, in Princeton Univ. v. Schmid, 455
U.S. 100 (1982) (footnote omitted).
2. For the range of views, see generally H. EDWARDS, HIGHER EDUCATION AND THE UN-
HOLY CRUSADE AGAINST GOVERNMENTAL REGULATION (1980); SLOAN COMMISSION ON HIGHER
EDUCATION, A PROGRAM FOR RENEWED PARTNERSHIP (1980) [hereinafter cited as SLOAN COM-
MISSION REPORT]; Bok, The Federal Government and the University, 58 PUB. INTEREST 80 (1980);
Oaks, A Private University Looks at Government Regulation, 4 J.C. & U.L. 1 (1976); O'Neil, God
and Government at Yale: 7he Limits of Federal Regulation of Higher Education, 44 U. CIN. L.
REV. 525 (1975).
3. See infra cases discussed in Part III(B).
4. See infra text accompanying notes 114-17.
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On Institutional Academic Freedom
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