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Headlines these days deal with court cases challenging the constitutionality of some forms of affirmative action and the way some colleges handle allegations of sexual assault. Much of the public discussion of these issues suggest a history in which courts have deferred to colleges on many matters. But when it comes to access (getting in or getting kicked out), the narrative has evolved, writes Scott M. Gelber, associate professor of education and (by courtesy) history at Wheaton College, in Massachusetts. He traces this history in Courtrooms and Classrooms: A Legal History of College Access, 1860-1960 (Johns Hopkins University Press).
Gelber responded via email to questions about his new book.
Q: Why has conventional wisdom been that, for most of American history, courts have deferred to colleges and universities on questions of admissions and expulsion of students?
A: It’s clear that legal challenges to colleges and universities intensified during the 1960s and 1970s, and I believe that the judicial drama of that era, beginning with Dixon v. Alabama (1961), made the earlier epoch of college-access law seem deceptively bland by comparison. Our tendency to view the NAACP’s desegregation cases as a distinct campaign, rather than part of a broader debate over deference, has also contributed to this perception. Another reason is that courts were consistently deferential with respect to most other categories of higher education (especially faculty termination suits), so the more contested outcomes of admissions and expulsion suits may have been overlooked. And although this is just a hunch, I suspect that the conventional wisdom was attractive for faculty and administrators because it allowed us to point to the past and imply that we should return to more deferential and less litigious golden age.
Q: Would you describe one or two cases from the 19th century that show that in fact courts were willing to challenge colleges' judgments?
A: State ex rel. Stallard v. White (1881) was the most significant 19th-century admissions case. The Indiana Supreme Court prevented Purdue University from categorically rejecting applicants who refused to disassociate themselves from fraternities. The court determined that a public university could create its own on-campus discipline policies but could not ban entire classes of residents without authorization from the state Legislature.
The ruling concluded that applicants had a “right” to admission as long as they met the minimal entrance requirements that had been established by statute. At the time, the ruling meant that Purdue was compelled to accept virtually all students who were not suffering from a contagious disease. Albeit somewhat extreme, Stallard reflected the widespread assumption that accessibility was essential to the mission of a public university.
Commonwealth ex rel. Hill v. McCauley (1887), a case that was cited in the Dixon opinion, was probably the most influential 19th-century expulsion ruling. While overturning the expulsion of a Dickinson College student who was suspected of throwing a rock through the president’s office window, a Pennsylvania judge determined that students did not relinquish all of their rights upon enrollment. The court rejected the notion that colleges deserved special deference and concluded that administrators remained beholden to the “ordinary duties and obligations” associated with all contractual relationships. Dixon instructed colleges to provide students with something akin to a trial prior to expulsion (the Dickinson student had been merely asked to make a statement).
Q: How did the trend change -- so that in the early 20th century, courts were more likely to accept the judgments of colleges?
A: The expansion of American higher education and the evolution of the nation’s legal culture combined to increase the level of deference afforded to colleges. The profile of American universities benefited from larger enrollments, closer ties to the state and the prestige of an increasingly professionalized faculty. Meanwhile, judges reacted to the increasing power of corporations and the state by emphasizing individual rights -- a focus that encouraged vigilant enforcement of particular constitutional provisions, but eroded an earlier rationale for supervising colleges in the name of custom and the public good. The increasing prominence of administrative expertise throughout the American legal system also bolstered the authority of faculty and governing boards. Judicial deference toward academe peaked between 1910 and 1940, a periodization that corresponds almost exactly with the heyday of popular confidence in administrative expertise. This extension of administrative authority discouraged courts from overruling the decisions of faculty and university officials who governed increasingly complex institutions. Courts began to respect the legitimacy of the quasi-judicial admission and expulsion processes that governed decisions on the campus level.
Q: Numerous cases as the civil rights era dawned dealt with various limits on enrollments for black students. How did those cases change the trends?
A: Legal scholars have tended to view the desegregation campaign in isolation from concurrent debates about academic autonomy. Although suits against racial discrimination were somewhat distinct from other challenges to university authority, I argue that they also contested the overall principle of judicial deference. Especially during the 1930s, when civil rights attorneys targeted institutions in states that lacked precise statutory grounds for racial exclusion, desegregation briefs invoked earlier rulings (such as Stallard) that had verged on establishing a right to enrollment for all qualified applicants. In part by harkening back to 19th-century precedents involving white students, these suits were able to mount a remarkable challenge to institutional authority during an era in which American colleges and universities seemed otherwise immune from student-initiated litigation. In turn, the first wave of desegregation cases and their progeny weakened the types of the arguments that could be made on behalf of judicial deference to academia in subsequent decades.
Q: Today we are seeing colleges face new challenges -- over affirmative action, over expulsions due to sex assaults, etc. Do you think we are entering a new period in terms of how courts look at colleges' decisions?
A: Like most historians, for better or worse, I’m more comfortable talking about the past than making predictions about the future. Having said that, my guess is that we won’t look back at this current moment as a major turning point. There may be some intensification of judicial oversight, but the overall pattern seems to have remained consistent for a few decades -- judges are comfortable challenging colleges on procedural matters (how sexual assault cases are adjudicated or whether preferential admissions policies are too mechanical) but they remain fairly deferential when it comes to substantive academic matters.
