2. Academic Freedom and the Living Constitution
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[  17 ] 2 Academic Freedom and the Living Constitution Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. —Justice Lewis F. Powell, Jr., in Regents of the University of California v. Bakke (1978), invoking academic freedom principles to support a university’s pursuit of a diverse student body That the burden of which the University complains is neither content-based nor direct does not necessarily mean that petitioner has no valid First Amendment claim. Rather, it means only that petitioner’s claim does not fit neatly within any right of academic freedom that could be derived from the cases on which petitioner relies. In essence, petitioner asks us to recognize an expanded right of academic freedom to protect confidential peer review materials from disclosure. Although we are sensitive to the effects that content-neutral government action may have on speech,  .  .  . and believe that burdens that are less than direct may sometimes pose First Amendment concerns , . . . we think the First Amendment cannot be extended to embrace petitioner’s claim. —Justice Harry O. Blackmun, writing for a unanimous Court in University of Pennsylvania v. Equal Employment Opportunity Commission (1990), rejecting an academic freedom claim Academic Freedom and the Living Constitution [  18 ] Implied Rights 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 read as an oblique endorsement of the notion that “academic freedom” should be treated as such an “implied” First Amendment right. To dissect this argument, let us look to the actual text of the First Amendment, inserting numbers to keep track of the different clauses: “Congress shall make no law [1] respecting an establishment of religion, [2] or prohibiting the free exercise thereof; [3] or abridging the freedom of speech, [4] or of the press; [5] or the right of the people peaceably to assemble, [6] and to petition the government for a redress of grievances.” Here is how we would have to understand the text if we treat academic freedom as a distinct and severable constitutional right: “Congress shall make no law [1] respecting an establishment of religion, [2] or prohibiting the free exercise thereof; [3] or abridging the freedom of speech, [4] or of the press; [5] or the right of the people peaceably to assemble, [6] and to petition the government for a redress of grievances, [7] or abridging the right of academic freedom.” The Ninth Amendment arguably provides a rule of construction that could be invoked to justify recognition of a right of academic freedom, declaring, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Supreme Court has held that a constitutional right to privacy exists, though no right of privacy is specifically mentioned in the Bill of Rights. And even within the confines of the First Amendment, the Supreme Court has held that the Amendment includes a right—freedom of association —that is not named, in so many words, within the text. If privacy and freedom of association have been recognized as implied rights, why not academic freedom? Any candid answer to this question requires honest engagement with a broader “living Constitution” question that hovers over all American debate about how to approach interpretation of the Constitution. The Academic Freedom and the Living Constitution [  19 ] legitimacy of the entire project of recognizing implied rights, whether under the auspices of the Ninth Amendment or any other “dynamic” theory of the Constitution as a “living” document, is one of the most fiercely contested issues of constitutional interpretation. Liberals are generally more open to construing the Constitution as a living document that may evolve in its meaning over time. Conservatives are more apt to be restrictive in their approach to constitutional rights, vigorously criticizing judicial activism (which to conservatives usually means liberal activism), and severely critiquing any notion of rights not enumerated in the text, arguing instead that all constitutional rights must be firmly tethered in the text of the Constitution, with the words of the text construed in a manner faithful to the original...