Introduction

   I. Academic Freedom and Judicial Deference From Sweezy to Grutter

   II. The Central Role of Faculty on Educational Policy Making

Conclusion

Affirmative action in higher education remains a controversial legal question, 

reflecting ongoing political and social debates about the role of race in American life. In Grutter, the Court held that a carefully limited program of affirmative action survived strict scrutiny because educational diversity was a compelling government interest. The value of educational diversity, in turn, was grounded in faculty members’ classroom experience, academic expertise, and professional judgment. As Grutter comes under new attack and possible reconsideration, my goal in this Article has been to explain that, should the Court now retreat from that view, it would be doing more than ignoring stare decisis or enshrining a more conservative view of the Constitution. It would be repudiating a long and important line of jurisprudence respecting the freedom of universities—acting upon the educational judgments of their faculties—to determine for themselves how best to carry out their academic missions.