Grutter's First Amendment

Abstract

In Grutter v. Bollinger, the Supreme Court noted that universities "occupy a special niche" in the First Amendment, and suggested that they are entitled to a substantial degree of institutional autonomy. This Article evaluates the First Amendment implications of this ruling. It explores three possible First Amendment readings of Grutter. First, Grutter may be viewed as a charter of institutional autonomy for universities. That reading carries a variety of implications, not all of which may be equally pleasing to Grutter's supporters. Second, Grutter may be read as advancing a substantive view of academic freedom based on its value to democratic deliberation. This ruling carries significant implications too, but it is hard to square with the larger body of First Amendment jurisprudence or with the concept of professional academic freedom itself. A third reading of Grutter's First Amendment carries more profound and attractive implications: it suggests the Court may be willing to abandon its preference for neutral rules over social facts in First Amendment jurisprudence, and to take seriously the role of "First Amendment institutions."