Courtrooms and Classrooms: A Legal History of College Access, 1860–1960 by Scott M. Gelber (review)

In Courtrooms and Classrooms, Scott Gelber offers a nuanced account of the history of "academic deference," that is, the tendency of courts to defer to the autonomy and expertise of colleges and universities. Pushing back against legal scholars and historians who have assumed complete deference to institutions of higher education existed before the turbulent 1960s upended the system, Gelber argues that academic deference was a "fluid concept" that only dominated judicial rulings for a short period of time in the early twentieth century (3). Using state and federal court cases regarding college admission, expulsion, and tuition payment, Gelber identifies three distinct periods in the ways in which courts adjudicated cases between students and colleges and universities. From 1860 to 1910 Gelber finds no consistent deference by the courts to institutions of higher education. From 1910 to 1960 the courts exhibited more academic deference and more consistently sided with colleges and universities against students. After the 1960s, however, courts more frequently intervened on behalf of students, assuring them greater protections of due process and equal rights. Gelber points to this varied and inconsistent history in order to demonstrate that any twenty-first century calls for return to greater academic autonomy and deference "rests uneasily on a history of contention rather than doctrinal bedrock" (5).

Gelber traces this century-long legal history of academic deference alongside an institutional history of higher education. Indeed some of the most compelling parts of the book are the way it details changing ideas about college and its uses. At the heart of many of the court cases are arguments about college being a privilege or a right. Additionally, Gelber reveals that institutional calls for academic autonomy were largely positioned within larger debates about the public good colleges and universities purported to provide. The book is strongest when Gelber merges his in-depth research and careful analysis of over a hundred examined court cases with the debates around college use and access and the historical context in which they were adjudicated. His detailing of three expulsion cases, Barker v. Bryn Mawr, Woods v. Simpson, and Anthony v. Syracuse, alongside an examination of rapidly changing gender roles in the 1920s and 1930s, for example, combine to reveal important ideas about gender, access, and education in the early twentieth century.

Gelber does a good job parsing out the intricacies and differences between private and public institutions and mapping the cases he details onto the larger fabric of higher education in the late nineteenth and early to mid-twentieth century. Nevertheless coeducational, predominantly white institutions comprise the bulk of the cases and therefore the bulk of the analysis. There is far less about minority-serving institutions or women's colleges. Perhaps the most glaring absence is a discussion about historically black colleges and universities (HBCUs). While desegregation and access and/or exclusion based on race is a major thread of this investigation, no black college is represented in the analysis. Was this because black college students did not bring cases against their institutions? Were their reasons for expulsion, claims for tuition support, or admission different? Did black institutions ever enjoy any academic deference from the courts? Their lack of representation in the cases seemingly translates into a lack of representation in the book. The robust and well-documented history of black higher education in this account is relatively obscured.

Despite this limitation, Gelber's rich source base provides the opportunity for compelling insights on the legal and intellectual history of higher education in the United States. The organization of the book, by categories of case law and not chronology, sometimes buries Gelber's larger themes and historiographical points. Yet Gelber's nuanced arguments and engagements with an underutilized source base offer important considerations for legal scholars and historians of higher education.