SMU Law Review


American colleges and universities are facing an unprecedented wave of state legislative actions calling into question the freedom that these institutions have long enjoyed, as well as their ability to serve increasingly diverse student populations. Current constitutional protections for academic freedom under the First Amendment are proving an inadequate defense from these types of incursions. This Article argues for a reexamination and reinvigoration of a constitutional theory of educational autonomy protected by substantive due process, drawing on both the pre-colonial models that informed the creation of American colleges, as well as the earliest cases involving state efforts to control them. Substantive due process protections for educational autonomy would enhance and reinforce First Amendment academic freedom to ensure that American colleges and universities can continue to fulfill their important historical mission, while being responsive to the educational needs of today’s students.

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