The Fourteenth Amendment and University Intellectual Diversity

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.