Embracing Constitutionalism: The Court and the Future of Higher Education Law

Lincoln’s words at Gettysburg reaffirm the uniqueness of the American Experiment. Our Nation is defined not by blood, soil, language, or culture, but by “the belief in the principles of equality and freedom this country stands for.” As Dr. King reminded us, the self-evident truths of the Declaration constitute “a promissory note to which every American was to fall heir. This note was the promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.” It matters not whether you just took the citizenship oath, your family came through Ellis Island, your ancestors arrived in chains, your four great-grandfather fought the Red Coats, or your heritage extends to the tribes that inhabited the continent long before Columbus. Because of these constitutional principles, “we are just one race here. It is American.” To be sure, American ideals of freedom and equality — while universal — reflect the British experience after Magna Carta, but the Road from Runnymede took a distinctly American fork. The American fork was a written Constitution. We The People “split the atom of sovereignty” between the States and the National Government, divided power among the three branches of the government, and withdrew “certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials . . .” Because our elected officials are imperfect humans prone to sin, there will be times “where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution . . .” In those instances, the judiciary must intervene. Since the U.S. Supreme Court is “supreme in the exposition of the Constitution,” and since no legislative or executive official “can war against the Constitution without violating his undertaking to support it,” the Court’s decisions obligate “other governmental institutions to follow the Court’s interpretations, not just in the particular case announcing those interpretations, but in similar cases as well.” These are the principles of American Constitutionalism. Today, those principles are under attack and university campuses are the center of the battle. Large segments of our society, particularly within academe, define themselves not by a common commitment to Free Speech, Religious Liberty, or Individual Equality, but by “their skin color, sex, and sexual preference.” Identity politics insists “discrimination based on those characteristics has been the driving force in Western Civilization,” and our Nation “remains a profoundly bigoted place, where heterosexual white males continue to deny opportunity to everyone else.” Those who embrace identity politics reject the principles of American Constitutionalism. Instead of having universities “follow the truth wherever it may lead” while tolerating “any error so long as reason is left free to combat it,” identity politics “equate(s) non-conforming ideas with ‘hate speech,’ and ‘hate speech with life-threatening conduct that should be punished, censored, and repelled with force if necessary.” Instead of recognizing “the religious and philosophical objections” to prevailing opinions “are protected views and in some instances protected forms of expression,” identity politics seeks to “vilify Americans who are unwilling to assent to the new orthodoxy.” Instead of judging individuals by the “content of their character,” identity politics insists “those who aren't like you — because they’re white, or because they're male — somehow . . . lack standing to speak on certain matters.” In short, identity politics rejects constitutional principles and calls for “vindictive protectiveness” — the silencing and shaming those who dare to dissent. Although the rise of identity politics is an existential threat to our constitutional principles, the Supreme Court has clearly and decisively rejected identity politics and embraced constitutionalism. In case after case, the Roberts Court has reaffirmed and even expanded individual liberty and equality. The Court has promoted “freedom for the thought we hate," ensured “religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths,” and insisted “[r]ace may not be considered unless the admissions process can withstand strict scrutiny.” By doing so, the Court has presented an alternative vision for American society in general and higher education in particular. This Article’s purpose is to explain the Supreme Court’s embrace of constitutionalism and the significance of that embrace for higher education law. This Article has three Parts. Part I details the challenges to Constitutionalism on campus in the context of Free Speech, Religious Liberty, and Individual Equality. Part II explains how the Court’s recent decisions embrace Constitutionalism in the areas of Free Speech, Religious Liberty, and Individual Equality. Part III explores implications of the Court’s recent decisions for the future of higher education law.