The Fourteenth Amendment and University Intellectual Diversity

Abstract

Under current Supreme Court doctrine under the First Amendment, constitutional complaints that a state university has selected its faculty on ideological grounds—that it has “cast a pall of orthodoxy over the classroom”, in the language of the court from 1967—face three barriers. States may claim that an ideologically uniform faculty is required for the efficient performance of government functions, that it represents the state’s own speech, or that faculty’s expression of ideology is part of their jobs, subject to an uncertain exception for “expression related to academic scholarship or classroom instruction”. This article looks at these claims from the perspective that the Court has used with increasing frequency: the meaning expressed by the text of the Fourteenth Amendment in its original 1868 context. While there are strong arguments that the Fourteenth Amendment does not apply the First Amendment’s meaning as of 1791 against states, the Fourteenth Amendment does require that citizens of all political and religious creeds receive the same civil rights as similarly situated fellow citizens. However, the “civil rights” covered by the Fourteenth Amendment in 1868 excluded “political rights” to influence the government and serve on its behalf. State universities’ Fourteenth Amendment obligations of ideological neutrality thus run not directly to faculty, but to students. An ideologically slanted process of faculty selection violates students’ civil rights in the same way that a racially biased process of jury selection violates defendants’ rights to a fair trial.

1. Introduction

The intellectual environment among American university faculties, especially public universities, is notoriously uniform. Is that uniformity a constitutional problem? This essay contends that it is, but only indirectly, and for reasons that do not quite fit current Supreme Court doctrine in cases like Keyishian v. Board of Regents (1967), Pickering v. Board of Education (1968), Connick v. Myers (1983), Rust v. Sullivan (1991), and Garcetti v. Ceballos (2005). The Fourteenth Amendment requires states to promote intellectual diversity among their universities as part of their duty to provide equal educational opportunity to similarly situated citizens of all religious and political creeds. The ability to be a university student without facing monolithic intellectual opposition from one’s teachers is thus part of what it means to be an equal citizen of the United States and of a state with a public university. If the intellectual views of faculty are too uniform, equal educational opportunity suffers in two ways. Students who stand up to the prevailing university ethos will leave school with a better understanding of why they believe what they believe and a better civil education in the ability to respond to counterargument. That benefit will be lost, however, if the process of resisting the hostile environment is sufficiently unpleasant that such students simply remain closeted and keep their political or religious creeds hidden. On the other hand, students whose views fit in better will find their education more pleasant, but at the cost of receiving less education in genuine civic engagement with those who disagree. Those students may learn what to think but not how to think.1

2. Beyond Judicial Enforcement

Constitutional issues with universities are a pressing concern in three ways beyond their enforcement in court.

First, even if a constitutional claim cannot be judicially enforced, the Fourteenth Amendment is still binding on legislators and administrators who have taken their own oaths to the Constitution. The Court’s work properly revolves around the Constitution, not the Constitution around the Court.2 Courts properly give deference to elected branches’ decisions about precisely how far to go in implementing constitutional requirements. But legislators or administrators whose constitutional views are treated with respect in court have a special duty to attend to those constitutional requirements carefully themselves. Non-judicial officials cannot properly be lax about their constitutional requirements simply because courts will let them get away with it.

Second, even if courts will not themselves implement a constitutional obligation to promote university intellectual diversity, the existence of such a duty should encourage courts to be more deferential when legislature or administrators themselves act to implement it. The Constitution’s requirements are not incoherent; if states are required to promote intellectual diversity in certain ways, they certainly are allowed to do so. Courts should be more deferential when they recognize that legislatures are acting on such a basis.

Third, the congressional enforcement of the Fourteenth Amendment under its Section Five power extends to the clarification of Section One requirements.3 Courts who stay out of the business of enforcing Section One in unclear cases should also allow Congress to act when states are not clearly acting constitutionally. Congress might impose requirements on states, either directly or as a condition of receiving federal money, based on states’ obligations to promote equal educational opportunity.

3. Ethics? Precedent?

We might think about university’s intellectual diversity through a few different lenses besides the Fourteenth Amendment. We might instead ask normative questions of policy and ethics. Would intellectual diversity help universities serve their function? Is intellectual uniformity just? Would intellectual diversity produce good results? Elsewhere, I have defended the idea that moral reality is a defeasible guide to constitutional meaning, so I think this sort of consideration is of some interpretive weight in thinking about the Constitution.4 The sorts of arguments that John Milton presented in Areopagitica and John Stuart Mill presented in On Liberty are of relevance in interpreting the Constitution. John Bingham, the author of the key language of Section One of the Fourteenth Amendment, quoted Areopagitica in an important 1871 speech on the Amendment. Empirical arguments that exposure to differing views improves education are also interpretively relevant to what equal citizenship requires. For instance, it was common ground between the majority and dissenting justices in the most recent affirmative action case, Students for Fair Admissions v. Harvard (2023), for instance, that “exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills”, and that the “exchange of different perspectives”, and the existence of “diverse viewpoints and perspectives” has important tangible benefits. The only dispute was whether race-conscious admissions would permissibly advance those goals. It is of course possible for a constitution to contain normatively unattractive requirements—our Constitution certainly has done so in the past—but other things being equal, we would expect the Fourteenth Amendment’s requirements to be sensible, normatively attractive ones. I will leave that sort of question, however, for another time.

We might also look at intellectual diversity with reference to Supreme Court precedent. Those challenging university intellectual uniformity would invoke the Supreme Court’s statement in the 1967 case Keyishian v. Boart of Regents that the First Amendment, which has long been understood to apply to states through the Fourteenth Amendment, “does not tolerate laws that cast a pall of orthodoxy over the classroom”.5 Keyishian struck down an anti-communist loyalty oath for public school teachers and is a promising place to ground a Fourteenth Amendment duty to have intellectually diverse faculty. Keyishian-based challenges to university faculty uniformity face, however, three big hurdles. First, the 1968 Pickering case,6 and then Connick in 1983,7 required that government-employee free speech claims be balanced against the worry that such speech might sometimes impair governmental functions. The disruption in government’s activities thus became a key idea in what came to be called “Pickering–Connick balancing”. Second, the 1991 Rust case carved out a free-speech exception in cases of governmental speech.8 If universities are simply speaking themselves, rather than restricting the individual speech of their faculty, they are not subject to the First and Fourteenth Amendments’ usual requirements of viewpoint neutrality. Third, the Garcetti case in 20059 limited Pickering–Connick claims still further. As a general matter, governments may penalize employees for speech made in the course of those employees’ official duties; only penalties on employees’ private speech, outside the scope of their employment, trigger. First and Fourteenth Amendment protections. The Garcetti principle, applied in undiluted form, would doom any important constitutional argument for intellectual diversity related to university faculty, because to be meaningful, such diversity would of course have to exist with respect to faculty’s on-the-job work of teaching and scholarship, not just their views about subjects unrelated to their fields of study. However, the Garcetti Court itself blunted the force of its principle, carefully reserving the issue of “expression related to academic scholarship or classroom instruction” (Garcetti v. Ceballos 2005, p. 425) in response to the dissent’s invocation of Keyishian. Since then, the exact scope of the First and Fourteenth Amendment rights of university faculty have been imperfectly clear, though the Eleventh Circuit in Pernell v. Lamb will soon decide a case involving Florida’s ban on instruction that “espouses” or “promotes” or “advances” a list of eight controversial ideas. The Garcetti “academic scholarship or classroom instruction” caveat and Rust government-speech exception are central to the arguments in the case, and depending on what the Eleventh Circuit decides, the Pernell case or a similar one may well arrive at the Supreme Court soon.

4. The First Amendment?

If we turn from ethics and Supreme Court precedent to constitutional history, it is tempting to think that we should focus on the First Amendment rather than the Fourteenth. This is, however, a mistake. Consider the text of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech…”. There are three reasons why the 1791 meaning of the First Amendment is not the critical consideration for thinking about intellectual diversity at state universities. First, the First Amendment was written to restrict a federal government of limited powers, and those powers did not include the management of a national university. States are not literally restricted by the First Amendment; the first word is “Congress”. Accordingly, no one considering the First Amendment contemplated the free-speech concerns involved in universities. The point was to further restrict a federal government already restricted by its list of enumerated powers.

Second, in 1791, states were specifically allowed to create institutions that propagated particular doctrines: established churches. The Establishment Clause’s language about Congress making no law respecting an establishment of religion was intended both to prevent the federal creation of a national church and prevent the federal disestablishment of state churches. Massachusetts only abandoned its established church in 1833. If ideologically tilted universities resemble a state church whose entire point is to favor a particular viewpoint, the First Amendment is not a good tool to use to challenge that lack of diversity. Twisting the First Amendment’s guarantee of freedom of speech into a principle capable of condemning what another part of the Amendment specifically safeguards—a state church—will require resources outside of the First Amendment.

Third, the difference in responsibilities between states and the federal government makes it implausible that the First Amendment as such—the precise meaning that its language expressed in its 1791 context—was applied to states in the Fourteenth Amendment. Justices Jackson and Harlan made this point repeatedly in the 1950s and 1960s.10 States have much bigger responsibilities to promote their citizens’ interests—and a wider variety of ways that they might harm those interests—than does the federal government. Accordingly, a different set of rights—bigger in some respects and smaller in others—makes sense with respect to states than with respect to the federal government.

5. The Fourteenth Amendment

If we turn from Supreme Court precedent and the First Amendment to Reconstruction history, what would the original meaning of the Fourteenth Amendment say about intellectual diversity among university faculty?11 The first key consideration is looking at the right clause. Keyishian and all of the cases qualifying it are officially applications of the Fourteenth Amendment’s Due Process Clause, which says that states may not “deprive any person of life, liberty, or property without due process of law”. This interpretation is, alas, implausible. Contrary to the Supreme Court’s doctrine that has emerged since 1925, infringements on freedom of speech do not represent the mere absence of adequate process; the Due Process Clause allows deprivations of liberty as long as due process is afforded. What about the Equal Protection Clause? Is equality at universities for those of all political and religious creeds part of the “equal protection of the laws” that states may not deny to those in their jurisdiction? This original meaning of this clause fares no better than the due-process theory, because “protection of the laws” was limited to protection from violence and the enforcement of the law. Contrary to what the Supreme Court has said since 1886, it is not true that “the equal protection of the laws is a pledge of the protection of equal laws”.12 Blackstone explained that “protection of the law” was meant this way: “[I]n vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting these rights, when wrongly withheld or invaded. This is what we mean properly, when we speak of the protection of the law”.13 Marbury v. Madison used the term “protection of the laws” to refer to a remedy for violations of rights: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection”.14 Because university education is obviously not part of the “protection of laws” according to this definition, the Equal Protection Clause does not tell states how to structure it.

The discussions of free speech and equality during Reconstruction were focused not on due process or equal protection, but on the rights of citizenship. The Fourteenth Amendment’s first two clauses require “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. Benjamin Butler explained the basic idea on the campaign trail: “every citizen of the United States should have equal rights with every other citizen of the United States, in every State”.15 To be “treated as citizens of the United States”, said John Conness, was to be “entitled to equal civil rights with other citizens of the United States”.16 The chief concern, of course, was equal civil rights for the freedmen, but a secondary concern was equality for Unionists in the South, and here it was equal civil rights for those of all creeds that was paramount. Equal civil rights for similarly situated citizens of all races, colors, and creeds was a common theme among Republicans. Joint Committee on Reconstruction member Roscoe Conkling demanded “assurance of human rights to all persons within their borders, regardless of race, creed, or color” (Congressional Globe 1866, p. 252). Wisconsin’s governor sought protection of “the sacred natural rights of the humblest citizen, whatever may be that citizens’ creed or color”.17 During a ratification debate, a leading proponent said that the Fourteenth Amendment secured “equal rights of all, regardless of color, race, or creed”.18 Many Republicans echoed Jefferson’s First Inaugural, in which he began his list of the “essential principles of our Government” with “[e]qual and exact justice to all men, of whatever state or persuasion, religious or political”. Democrats did as well, acknowledging the legitimacy of the Fourteenth Amendment in their 1872 platform: “We recognize the equality of all men before the law, and hold that it is the duty of the Government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color or persuasion, religion or politics”. The preamble of the Civil Rights Act of 1875, supported overwhelmingly by Republicans who had approved the Fourteenth Amendment, parroted the Democratic platform: “[I]t is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political … [I]t [is] the appropriate object of legislation to enact great fundamental principles into law”.19

6. A Problem: The Fourteenth Amendment’s Exclusion of Political Rights

What would this general idea of equal civil rights for similarly situated citizens of all political and religious creeds mean for state universities? The first problem for the no-palls-of-orthodoxy-in-the-classroom idea of Keyishian is the distinction between civil and political rights. The Fifteenth Amendment guarantees voting rights for the freedmen, but Section Two of the Fourteenth Amendment imposes merely a House-representation penalty whenever the voting rights of adult men are restricted. Democratic critics of the Fourteenth Amendment argued that citizenship for the freedmen would inevitably mean voting rights. Republicans over and over in 1866 appealed to Section Two as proof that it need not: Section One only guaranteed civil rights, not political rights. Republicans also pointed to women and children, who were citizens but not voters. Bouvier’s Law Dictionary said in 1856, “Civil rights are those which have no relation to the establishment, support, or management of government”, and Representative James Wilson quoted this language in Congress in defining “civil rights and immunities” in a draft of the Fourteenth Amendment’s precursor, the Civil Rights Act of 1866. The French political tradition marked a similar distinction by distinguishing between “passive citizens”, who are entitled to be treated properly by the government, and “active citizens”, who are entitled to control it. Both the government-speech case, Rust, and the government-employees-speaking-in-the-scope-of-employment case, Garcetti, can be seen as excluding political rights from the scope of the Fourteenth Amendment. To the extent that the government is using an employee to communicate a message, as in Rust, or a government employee’s job involves speech, as in Garcetti, that person is exercising political rights, not merely civil rights.

The right to serve as a faculty member at a state university is a right related to the “management of government”, in Bouvier’s words. If the rights of American citizenship are merely civil rights to be treated with proper respect by the government, and not political rights to control the government or its policies, then it is hard to see how Keyishian, Pickering, and Connick rights could fit with the original meaning of the Fourteenth Amendment. The right to serve as a member of a state’s university faculty, like the right to act as a policy-setting officer of the state, is a political right. Because the Fifteenth Amendment expansion of political rights to the freedmen was limited to a ban on racial restrictions, not those based on creed, there is no general right against viewpoint discrimination in governmental service.

7. A Solution: Civil Rights of Students

Advocates of intellectual diversity at universities have a reply, however, based on a move that Senator John Sherman made in the debates preceding the Civil Rights Act of 1875. Sherman’s argument for a ban on racial discrimination in juries, contained in the Civil Right Act, pointed out that some rights that seem merely political have civil rights aspects. One of the chief attacks on the jury provisions was that service on a jury was a political right, not a civil right. Representative James Wilson mentioned jury service alongside schooling as one of the political rights that were not included under the phrase “civil rights and immunities” in the Civil Rights Act of 1866, and debates on the 1875 Act picked up on the same idea. In February 1872, Senator Matthew Carpenter argued that jury service was a political right:

The right to serve in the jury-box strikes me as a political right like that of serving on the bench. It is not inherent in a citizen. If it was, a woman would have as much right to serve in the jury-box as a man. A woman is as much a citizen as a man, and always has been under this Government. The political right to be a judge, the political right to be a sheriff, the political right to be a clerk of the court, the political right to be a juror, seem to me to fall in the same class and belong to those political rights as to which States always have discriminated and may still discriminate.20

Senator John Sherman replied the next day:

He [Carpenter] says that the right to be summoned as a jury-man is not a privilege and immunity of an American citizen. At first view, that appears to be plausible. It may be difficult to distinguish between the right to vote claimed by some women of this country, because they are citizens, and the right to sit upon a jury, assumed to be a privilege under the fourth section of this amendment. Perhaps a right to be summoned on a jury is not in strict terms a privilege or an immunity which a man may claim as a matter of right; but that is not the question. The right to sit upon a jury is a right which no man will claim as a matter of right. It is rather a burden, rather a duty. But there is another view in which this section becomes to my mind clearly constitutional. The Constitution of the United States declares that every man shall have an impartial trial by jury. That is a constitutional right. It is a right secured to him by the laws and by the constitutions of nearly all the States of this Union. It is a right older than the present English monarchy.

(Congressional Globe 1872, p. 844)

Carpenter then interrupted, noting that the Sixth Amendment itself guaranteed an impartial jury only against the federal government, not the states, and Sherman reiterated that it was not merely the Sixth Amendment as such, but the tradition behind it and the consensus of states in 1872, that made the right to an impartial jury one of the privileges of citizens of the United States. “[O]ne of these privileges and immunities, as old as the common law, is the right of trial by an impartial jury of a man’s peers” (Congressional Globe 1872, p. 844). The right protected was not the right to serve on a jury, but the right to be tried by a jury that has been impartially selected: “The very word ‘jury’ implies a trial by a man’s peers of the vicinage, of the neighborhood. Now, what kind of a trial would that be to which you would subject four millions of the people of the United States in the southern States, where by the law of some of them every man of that race is excluded from sitting as a juryman on a trial? Is that an impartial jury?” (Congressional Globe 1872, p. 844).

Sherman’s insight about the dual relationship of juries to civil rights as well as political rights can be applied to universities. That would mean thinking about faculty diversity in terms of students and other beneficiaries of scholarship, rather than in terms of the rights of faculty themselves. Just as those who are tried before discriminatorily selected juries will inevitably receive unequal justice from those juries’ decision-making, university students taught by a faculty that leans overwhelmingly in particular religious or political directions will receive unequal education. The opportunity to serve as a teacher may be a political right, but the right to equal educational opportunity is a civil right, part of being treated as an equal citizen by the government. The obligation to foster intellectual diversity at a university is not an obligation that states owe first to faculty (or potential faculty deemed too far out of the university’s dominant creeds), but to students and to other parts of their citizenry who benefit from the existence of a scholarly community.

Carpenter himself seems to have thought about education this way. In mid-January 1867, just as the Fourteenth Amendment was being ratified by a slew of states in the North, the Supreme Court in Cummings v. Missouri and Ex Parte Garland invalidated federal and state exclusions of former Confederates from a range of occupations. Carpenter himself represented the former Confederate in Garland. The Missouri provision in Cummings said that former Confederates were not to act “as a professor or teacher in any educational institution, or in any common or other school”.21 While the ground of the Cummings decision was the ban on ex post facto laws, the Court’s comments on equal opportunity strike a key Fourteenth Amendment chord: “The theory upon which our political institutions rest is, that all men have certain inalienable rights—that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone, and that in the protection of these rights all are equal before the law” (Cummings v. Missouri 1867, pp. 321–22). Garland, for its part, said of a former Confederate that a pardon “restores him to all his civil rights”, and therefore, he could be a lawyer notwithstanding a federal statute to the contrary. In 1872, a few days before his attack on the jury provision, Carpenter argued in favor of another provision that would have desegregated schools, and he relied heavily on Cummings and Garland to do so. After describing these cases, he elaborated,

So it may safely be affirmed that the privilege or practicing law, if a man can meet the test and pass the necessary examination in the courts; the right of preaching the gospel, if employed and settled according to the usages of any particular church; the right of giving instruction in the public schools—all these are privileges of an American citizen, and why can they not be taken away from him in a particular State? They might be under the former Constitution, but not under the fourteenth amendment, because this amendment goes into every State and says, “You shall neither make hereafter, nor enforce if you have it at present, any law which shall abridge the privileges and immunities of a citizen of the United States”.22

In response to questioning from Democratic Senator Allen Thurman, Carpenter elaborated in terms of the equal rights of children to educational benefits:

We have adopted the principle, wise or unwise—it is too late to discuss that now—that a black man is a man; that he has a soul; that he is entitled to the rights of a citizen; that he is a citizen; and that his children shall be citizens after him; and a fundamental principle is that intelligence is the basis upon which everything rests. Now, to say that the children of one class of citizens shall not have the benefit of a common school supported at public expense by general taxation—shall not, in other words, have the opportunity which the law affords to all citizens to qualify themselves to discharge the duty of a citizen—is a thing which I never will countenance or give the slightest support to.

(Congressional Globe 1872, p. 763)

Carpenter thus rooted for the “right of giving instruction in the public schools” in the rights of the children of each class of citizens. The analogous move in a university setting would make students the focus of constitutional arguments for intellectual diversity.

8. Conclusions: Implications of a Student-Focused Approach

How would a student-focused approach to university intellectual diversity affect the issues in Pickering, Connick, Rust, and Garcetti? A focus on the impartial distribution of the benefits of universities, rather than faculty rights as such, would mean that the disruption of governmental functions, as in Pickering and Connick, would not be the key consideration in balancing interests. A government must sometimes tolerate at least some disruption to its operations in order to supply educational opportunity equally to all citizens. Governmental speech would not, as in Rust, be categorically excluded from Fourteenth Amendment scrutiny, if that speech undermined students’ rights to participate as equals in education. It would depend on the context. Some governmental speech could certainly create a hostile environment, and indeed the fact that speech was endorsed by the government would make the imposition of unequal citizenship worse, not better. Finally, the Garcetti exclusion for speech pursuant to one’s job duties would be of no use in rebutting charges of viewpoint discrimination in hiring faculty. The focus of schools’ provision of equal educational opportunity to those of all creeds would be precisely teachers’ speech in the scope of their employment. Job-related speech that supplies educational benefits, not speech unrelated to the educational function, is the sort that matters most for securing equal civil rights for students of all creeds, not least, as under Garcetti. A final important result of this way of thinking about states’ Fourteenth Amendment obligations with respect to their universities is that it is no excuse to say that the political and religious skew among their faculties is unintentional. That will be a critical issue for someone like Keyishian, claiming to have been discriminated against by a university. For students seeking equal educational opportunity, however, it does not matter why the skew exists, but only that it does in fact impair their equal rights as citizens of their states and of the United States. States have an affirmative duty to provide the equal educational benefits that only an intellectually diverse faculty can supply; whether their failure to do so is out of malice or because of negligence is not really material.

Finally, as with racial discrimination with respect to juries, there are difficult questions about the precise level of generality at which an intellectual diversity requirement should be imposed. Strauder v. West Virginia (1880), for instance, required that the entire jury pool be free of racial discrimination, but rejected the claim that individual juries be racially representative. We might similarly ask whether an obligation of ideological neutrality should apply at the level of individual classes, at the level of departments or disciplines, or at the level of an entire university. If a neutrality requirement were imposed on individual classes, then faculty members might simply be required to present more material with which they personally disagree. This would probably be too low of a level at which to enforce neutrality, because it would depend on the dubious idea that an individual faculty member’s own perspective does not undermine the neutral explanation of different perspectives. If that theory were correct, it would be unproblematic for faculty to come entirely from one ideological perspective, as long as the material in their syllabi were deemed sufficiently balanced. It is far better instead to recognize that faculty members’ own perspectives will inevitably bleed into the curation decisions in their courses and to insist instead on diversity among faculty, so that students would be able to be educated from different sorts of professors, rather than merely being exposed to different sorts of readings. Another difficult level-of-generality question concerns neutrality within academic departments or among academic departments. A large university department like history might have dozens of faculty members, but a department like philosophy or classics only might have only three or four. Ideological uniformity among many history faculty members would be a bigger constitutional concern than would the existence at a university of small groups of uniformly liberal philosophers and uniformly conservative classicists or vice versa. I leave such level-of-generality details in the implementation of university ideological diversity, however, for future work.