The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University

3. The Public and the Private Sphere

[ 38 ] 3 The Public and the Private Sphere In this connection it is proper to state that civil rights, such as are guarantied by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. . . . Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offenses, but abrogation and denial of rights, which it denounces. —Justice Joseph P. Bradley, writing for the Court in the Civil Rights Cases (1883), establishing the “state action” doctrine Vital First Amendment speech principles are at stake here. The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression. That danger is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition. . . . In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. . . . The quality and creative power of student intellectual life to this day remains a vital measure of a school’s influence and attainment. For the University, by regulation , to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry The Public and the Private Sphere [ 39 ] in one of the vital centers for the nation’s intellectual life, its college and university campuses. —JusticeAnthonyKennedy,writingfortheCourtinRosenberger v. Rector and Visitors of the University of Virginia(1995) Dartmouth and Daniel Webster Daniel Webster, arguing before the Supreme Court of the United States in Trustees of Dartmouth College v. Woodward (1819)1 on behalf of his beloved alma mater, Dartmouth, brought tears to the eyes of Chief Justice John Marshall as he proclaimed that Dartmouth was “a small college, but there are some who love it.” 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 education, it is possible to discern deeper forces in play. The decision in Dartmouth College is an early example of the influence of the Supreme Court and constitutional law on the character and identity of American higher education. While the Court’s judgment would be articulated in the sedate vocabulary of contracts and corporations, it was clear from the arguments of Daniel Webster and the response of Chief Justice Marshall that Dartmouth College was a passionate defense of academic freedom and the importance of independence and autonomy for society’s colleges and universities. While the phrase “academic freedom” may not yet have been in use, and while the case was litigated not under the First Amendment rights of freedom of speech, but under the comparatively mundane language of the Constitution’s “Contract Clause,” the soul of the case was the cause of academic autonomy. The litigation arose when the legislature of New Hampshire sought to modify the charter of Dartmouth College, in order to reinstate the College ’s ousted president, effectively turning the college from a private to a public university. This academic coup d’état put the College in the politi- The Public and the Private Sphere [ 40 ] cal crosshairs, as New Hampshire’s newly elected Republican Governor, William Plumer, sought to wrest control of the Dartmouth Board of Trustees from the Federalists who dominated it. While today such a power grab by a state government against a private university would be thought of as more than just a simple “impairment of contract”—it would be a matter of grave concern to First Amendment values of academic freedom of speech and association—in 1819 the First Amendment, and indeed the entire Bill of Rights, did not bind state governments . It was not...