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

4. Rights and Privileges

[ 71 ] 4 Rights and Privileges The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. —Justice Oliver Wendell Holmes, writing for the Supreme Judicial Court of Massachusetts in McAuliffe v. City of New Bedford (1892) For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations , his exercise of those freedoms would in effect be penalized and inhibited. —Justice Potter Stewart, writing for the Court in Perry v. Sindermann (1972) Holmes and the Right-Privilege Distinction 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 McAuliffe , who was fired for talking politics while walking his beat. McAuliffe argued that his dismissal violated the First Amendment. Justice Holmes Rights and Privileges [ 72 ] disagreed. He tossed out McAuliffe’s free speech claim in McAuliffe v. City of New Bedford (1892) with the gruff observation that “the petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”1 As Justice Holmes saw the matter, McAuliffe signed on to keep his mouth shut when he signed on to be a policeman. No one forced him to take the job. In almost any job, Holmes noted, the employee signs away certain freedoms as a condition of employment, including freedom of speech. As Holmes put it, there are “few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract.” Holmes had a ruthlessly logical mind, and it was difficult to quarrel with his ruthless logic: A person has a constitutional right to sit around and do nothing, and a person has a constitutional right to speak his or her mind. When a person takes a job, however, the standard understanding is that one usually must agree to do the work while working and not spend the day jabbering, in defiance of the boss’s rules. This is true whether the boss is a private business or the government. McAuliffe, Holmes wrote, was like any other employee: “He takes the employment on the terms which are offered him.” The Holmes logic, if extended to the modern public university, would allow public universities to decide for themselves how much “academic freedom” to grant administrators, professors, and students. The university president may have a constitutional right to talk politics, but he or she has no constitutional right to be a university president. The professor may have a constitutional right to talk politics, but no constitutional right to be a professor. Even the student, though not an employee—like Officer McAuliffe, the university president, or the professor—is nevertheless a contractor with the university. When the student accepts the university’s contractual offer of admission, and agrees to pay the contractual tuition, board, and fees, the student also accepts all the fine print that comes with the deal. This may include certain restrictions on liberties that the student would otherwise enjoy, such as restrictions on freedom of speech. In another Holmes decision written while he was on the Massachusetts Supreme Judicial Court, Commonwealth v. Davis,2 Holmes upheld an ordinance that prohibited public speaking in a municipal park without a Rights and Privileges [ 73 ] permit from the mayor. Holmes reasoned that because the city owned the park, it could establish rules for use of the park just as if it were a private landlord. The city, as Holmes saw it, could forbid all public speaking in its parks. Since the city held the greater power to ban all speeches in the park, it logically also held the lesser power to allow public...