Michael Kagan

 “Unelected Faculty”: Schuette v. Coalition and the Limits of Academic Freedom

Schuette v. Coalition to Defend Affirmative Action, the Supreme Court’s 2014 decision on race in university admissions, attracted considerable attention due to the sharp disagreement about race consciousness between Chief Justice John Roberts and Justice Sonia Sotomayor. But behind the evident division on the Court about the race, a close reading of Schuette indicates a near consensus among the justices that public universities and their faculties have far less constitutional protection than many may assume. Schuette should be taken as a warning to public universities that their autonomy and independence may be illusions, subject to the changing preferences of legislatures and voters.