The 44 steps that lead to the U.S. Supreme Court are meant to make passersby feel that they exist in a separate world. In Jeffrey Toobin’s recent book on the court, “The Nine: Inside the Secret World of the Supreme Court,” he explains that the architect of the building wanted visitors to have a symbolic experience on those steps – that the walk up the stairs would symbolize a “march to justice.” Toobin writes that the steps make it so the justices literally function on a higher plane.

Angela Cesere
Angela Cesere
University Law School students protest outside the Supreme Court building in 2003 (FILE PHOTO)

But that doesn’t mean what the court does is impossible for students to understand. Although the court has historically seen universities as having a special, autonomous role in our society, that’s not to say that the court has not or will not affect higher education – often with dramatic results.

On this campus, the words “Supreme Court” incite a near-Pavlovian response: “Gratz.”

In 2003, the court decided two landmark cases brought against the University, ruling that universities could consider race as a factor in admissions decisions, but barred the use of quotas and rejected the point-based system previously used by the University. The court held that the Law School’s admissions policy was acceptable (Grutter v. Bollinger) but that the policy used in the College of Literature, Science and the Arts, was not (Gratz v. Bollinger). In Gratz, Chief Justice William Rehnquist argued that the points system used by LSA was unconstitutional because it failed to achieve a “compelling interest in diversity,” violating the Equal Protection Clause of the Fourteenth Amendment.

The immediate effects of Gratz and Grutter were that all universities with admissions policies similar to the University’s LSA policies would change. If not, they could expect to see lawsuits from rejected applicants. Universities with policies that mirrored the Law School’s could rest easy.

The passage last November of Proposal 2, which banned all affirmative action programs in the state, trumped the court’s rulings as they applied to the University of Michigan. But in the Grutter opinion, Justice Sandra Day O’Connor touched on something deeper and more lasting than admissions policies. She addressed the court’s traditional treatment of universities, writing that there is a “tradition of giving a degree of deference to a university’s academic decisions.”

This tradition can be traced back to 1819, when the court decided Trustees of Dartmouth College v. Woodward. This was the first time the court addressed the principle of educational freedom.

In Dartmouth, the attorney Daniel Webster – a graduate of Dartmouth College and a former congressman from New Hampshire – fought for the university’s autonomy. Webster argued against and defeated a New Hampshire law that placed Dartmouth, a private school, under state control. Webster stirred the audience when he proclaimed in front of the court, “It is, Sir, as I have said, a small college. And yet there are those who love it!”

More than one hundred years later, Sweezy v. New Hampshire marked the first in a series of decisions during the last century that preserved freedoms in higher education.

It was 1957 when the court decided Sweezy. Earl Warren, appointed by President Eisenhower, was chief justice. He was supposed to be conservative.

In a 1974 New York Times article, President Eisenhower said, “Warren was the biggest damned-fool mistake I ever made.”

It suffices to say that Warren turned out to be pretty liberal. During his 16 years on the bench, the nation saw an overall restoration of popular liberties. Some call this era an important revolution. Others, like Justice Antonin Scalia, have said they wish it never happened.

In Sweezy, the court decided against prosecuting a professor at the University of New Hampshire for his refusal to answer questions regarding a humanities lecture about the Progressive Party of the United States. Thus, Sweezy protected professors’ freedoms.

Two decades later, Justice Felix Frankfurter wrote of the “four essential freedoms” of a university in University of California Board of Regents v. Bakke: “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

And so the tradition continued. The 2003 Michigan cases did not overrule Bakke – it is still good law. But it’s anyone’s guess what the Supreme Court will deliver next.

With President Bush’s appointments of Justice Samuel Alito and Chief Justice John Roberts, the court is shifting to the right. There has been no indication that the court will abandon its embrace of former Justice Sandra Day O’Connor’s concern about educational autonomy. But some are worried.

Rutgers University General Counsel Jonathan Alger said there is concern about the court under Roberts and its attention to continuing inequalities and the importance of diversity.

In late June of this year, the High Court restricted the freedoms of public school districts to use race-based admissions policies in Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education. Grutter was not overruled – the court specifically stated that the university context is unique and will not be affected by this decision.

In cases like Parents and Meredith, where academic freedoms may be at stake, Alger said it’s essential that universities continue to make the court aware of their unique context in society. This context is one that ought to foster openness through protection, for example, of students’ and faculty’s rights to free speech.

When a case seems to have bearing on higher education, universities may file amicus briefs, or friend-of-the-court briefs, where they take a side and explain how they will be affected by a certain decision.

Education associations often file such briefs on behalf of university faculty, students or staff. An example is the American Association of University Professors. In the Parents and Meredith cases, the AAUP joined in an amicus brief with the American Council on Education, an organization that represents and advocates for about 1,800 universities – including the University of Michigan – and other higher education-related organizations. The brief argued that “programs to promote racial and ethnic diversity in K-12 education advance . efforts to achieve excellence in higher education.”

Organizations like ACE play a role not only in judicial proceedings, but also in policy guidance once decisions are handed down. The Department of Education’s Office for Civil Rights is another institution that serves students and universities following relevant court decisions. Alger, who once worked for the OCR, said that universities pay close attention to the policy guidance offered by the OCR.

Universities can choose to be highly involved in the policymaking that follows court decisions. Taking part in a formal notice-and-comment process is one way to do so, Alger said. In such a process, a federal office like the OCR may propose a rule and universities can submit suggestions that the Office would then consider before publishing a final rule.

Within a university, a key player in the aftermath of court decisions is the general counsel’s office.

For Law School Dean Evan Caminker, the role of a university’s general counsel is an art. The art, he said, is in the creativity general counsels must use to bridge the university’s interests with honest advice about what isn’t working for the university.

The multi-faceted role of a university’s general counsel includes preventative measures to protect the university from future lawsuits. General counsels have to be smart in distinguishing between High Court decisions that establish a clear precedent for higher education – those that ensure future lawsuits if changes are not made – and one-off decisions that only affect the parties involved in the case.

Aside from filing amicus briefs, Caminker said that general counsels together with administration officials should thoroughly do their homework to be confident that the issue at hand is “real” before pursuing or appealing a lawsuit. He said that the relevant departments could hold focus groups and complete formal research, for example.

When it comes to court decisions, universities are overwhelmingly reactive. Higher education institutions have options to participate in High Court proceedings and the policymaking that ensues to varying degrees. Some, like Alger, say that universities and the organizations that represent them need to step up to the plate to trumpet the special context of universities in relevant court cases. Still, much of what is brought to the court and decided by the justices is in the hands of the country’s ideological and political climate, and higher education’s unique place in society is not tenured.

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