Title Page, Copyright Page

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Contents

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p. v

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Preface

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pp. vii-ix

Reflecting on my life as a parent, my role as an educator, and my work as a lawyer, scholar, and advocate on issues of constitutional law, I have come to realize that in each setting my world is converging. In all three facets of my life, I face variations on the same themes. As an educator, I want for my students very much the same things that, as a parent, I want...

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1. Five Constitutional Ideas That Have Influenced the Identity of American Universities

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pp. 1-16

Alexis de Tocqueville, in his classic nineteenth-century study of the United States, Democracy in America, observed that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”1 What de Tocqueville aptly observed arose from the special role of law and lawyers in American society, particularly the...

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2. Academic Freedom and the Living Constitution

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pp. 17-37

In interpreting the Constitution, a natural (but sometimes overlooked) starting place is the Constitution. If “academic freedom” is to be understood as a constitutional right, then it is a right that most plausibly fits within the meaning of the First Amendment. Indeed, Justice Lewis Powell’s statement in Regents of the University of California v. Bakke might be...

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3. The Public and the Private Sphere

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pp. 38-70

The Supreme Court’s decision in what is popularly known as the Dartmouth College Case is usually studied by American lawyers as an early nineteenth-century iteration on contracts and corporate law. But looking back at the Court’s 1819 decision through the prism of almost two centuries of development of American constitutional law, and American higher...

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4. Rights and Privileges

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pp. 71-93

One of the principal intellectual architects of the distinction between rights and privileges was Justice Oliver Wendell Holmes. In 1892, when he was still a state Supreme Court Justice on the Supreme Judicial Court of Massachusetts, Justice Holmes was faced with a case involving an Irish constable from New Bedford, Massachusetts, named John...

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5. Ordered Liberty

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pp. 94-159

“Honey, I think the world is flat.” Thomas Friedman, author and columnist for the New York Times, shared these words with his wife, and a book was born. In The World is Flat,1 Friedman argued persuasively that the story of the new century was not the terrorist attacks on the World Trade Center, not the wars in Afghanistan and Iraq, but the “flattening” of the...

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6. Competing Conceptions of Equality

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pp. 160-185

When four members of the Duke University lacrosse team, all white students, were accused of raping an African American stripper hired by team members to perform at an off-campus party, Duke and the surrounding community in Durham, North Carolina, were swept into the vortex of a perfect storm. For months, national discourse over the Duke lacrosse...

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Conclusion

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pp. 186-192

The 1940 Statement of Principles on Academic Freedom and Tenure1 provides an excellent vehicle for concluding this book’s exploration of the influence constitutional ideas have had on the identity of public and private American colleges and universities. The 1940 Statement was crafted by representatives of the American Association of University Professors...

Notes

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pp. 193-219

index

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pp. 221-229

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About the Author

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p. 230

Rodney Smolla is the President of Furman University, and the author of several books, including Free Speech in an Open Society; Suing the Press: Libel, the Media, and Power; Jerry Falwell v. Larry Flynt: The First Amendment on Trial; Deliberate Intent; and The First Amendment: Freedom of...