The democratic mission of the university.

• Author: Fiss, Owen

The university is a self-governing institution dedicated to the discovery and dissemination of knowledge. (1) As a historical matter, universities were not borne of the democratic impulse and many of their grandest achievements are wholly unrelated to the furtherance of democracy. Yet today they function in such a way in the United States so as to enhance and strengthen the quality of its democratic system.

Democracy is a system of collective self-governance in which the people shape their public life. The leaders of government are chosen by citizens and then held accountable for their actions through a series of periodic elections. In this way, democracy exalts popular choice. It also presumes, however, that this choice is enlightened. Citizens need to understand the nature of the choices that they face, and must possess the capacity to evaluate the policies and practices of the government and its leaders. Although unenlightened choice is still a choice, that kind of choice and the democratic character of the political system that it supports are not especially inspiring or worthy of our admiration.

The university plays an important role in the process of enlightenment that democracy presumes. Some branches of the university, for example, the departments of political science, sociology, and law, are dedicated to discovering and disseminating knowledge that has a direct bearing on public policies. These departments routinely study the promises of those running for office and the programs that the winners eventually implement. Other departments, like philosophy and literature, or the humanities in general, are concerned with the formation of the moral and political values that will guide citizens in the exercise of their choices. Even the hard sciences play a vital role in informing this process of self-determination. Scientific knowledge is essential for evaluating many government policies, such as those related to the environment, the development of alternative sources of energy, and bio-medical research. Even more, the physical and biological sciences, much like the other branches of the university, are responsible for the intellectual and cultural development of society and enhance citizens' capacity to understand themselves and the world around them.

Professors are the ones primarily responsible for the discovery and production of knowledge. Some of this knowledge is made available to the public through books, articles, public lectures, and the occasional op-ed. Most of it is imparted to students in their classes. Students enter the university at an early age and are enrolled in it for only a few short years. They should be viewed not as passive vessels but rather as active participants in the process through which opinions and beliefs are tested and knowledge revealed. They speak back in class, often challenging the day's lecture, and they also undertake research projects. Admittedly, students engaged in research are guided and supervised by their teachers, but this does not lessen the importance of their research and the discoveries that it may yield.

The contribution of the university to the nation's democratic life is not measured solely by the storehouse of knowledge that it produces. The university also enhances the practice of democracy by instilling in students and faculty a critical frame of mind. (2) Ideally, faculty members are hired and promoted not just on the basis of what they discover, but also on the basis of their capacity to sift through evidence, detect logical flaws, and distinguish a good argument from a bad one. The faculty teach these skills to the students, sometimes only by example, and these lessons are reinforced by the so-called informal curriculum of the university--the many activities and programs that students engage in outside of class, such as working on a student journal or participating in a debate society. Rational inquiry and independence of judgment are virtues that govern all facets of university life.

I can imagine an election or a series of political practices that we might deem democratic in a society that lacks universities. The 1960 election in the Congo, for example, that brought to power Patrice Lumumba--he was the first elected Prime Minister of the country---could fairly be described as democratic. You do not need a university education to tell an honest man or to know when you have been exploited. But given the paucity of educational institutions in the Congo at that time--there were only thirty university graduates in a country of around sixteen million persons (3)--it is hard to be especially admiring of the character of that democratic exercise. Granted, the Congolese exercised a choice, and may have made the right choice, but our willingness to applaud the result of that election derives more from our substantive moral commitments (our hostility to colonial exploitation) than from the intrinsic quality of the process of selection itself--its democratic character. In all, the critical issue is not whether an election is democratic or not, but rather the quality of the choice exercised by the populace, which in my view depends in part on the enlightened character of society.

Even in the most developed societies of the West, including the United States, not all people attend a university. Although every democratic society should be committed, as Ortega y Gasset once argued, to universalizing the opportunity for a university education, (4) democracy can flourish even if only a large number--"a critical mass"--of citizens have attended a university. The knowledge generated by universities will constitute a public resource available to all who participate in the public life of the nation, as will the questioning frame of mind instilled by a university education. Not all may have that quality of mind, but the hope is that those who do will shape public opinion and become the leaders of the nation.

At the heart of the university is speech, either the spoken or written word. Professors communicate their views to students and colleagues, and then to the wider world through lectures, publications, and informal conversations. Students speak up in class, write papers, and also participate in the informal curriculum through a wide variety of communicative activities, some of them quite ingenious. It is not, however, the words themselves, what might in ordinary parlance be denominated "speech," but rather the activity of generating and disseminating knowledge--the core activities of the university--that is protected by the Constitution and the principle of academic freedom.

By its very terms, the First Amendment prohibits Congress from passing a law that abridges the freedom of speech. Some have proposed that in applying the First Amendment, a judge should strictly follow the words of the law and evaluate whether a particular activity is ordinarily considered "speech." Only then would it be constitutionally protected. This method of interpretation, essentially a form of textualism, was heralded by Justice Hugo Black, (5) but in truth, followed by few others. (6) The more dominant and, in my view, the more persuasive method of interpretation, is purposive rather than textual. (7) According to the purposive method, a judge must, through an examination of the text and its history, identify the fundamental purpose of the relevant constitutional provision and then determine whether the protection of a particular contested activity would significantly further that purpose. Safeguarding democracy has long been regarded as the fundamental purpose of the First Amendment, and the body of judicial doctrine that has evolved should be understood as the product of systematic reflection on the meaning and requirements of democracy. (8)

Over the last century, the purposive method of interpretation has led the Supreme Court to protect activities not ordinarily regarded as "speech," for example, the sale of books, (9) financial contributions to political campaigns, (10) labor picketing, (11) and public demonstrations. (12) The purposive method also led the Court to view the First Amendment as giving rise to freedoms only tangentially connected to communicative activity, such as freedom of association, and used it to protect membership in political parties (13) and social action groups. (14) Purposivism is also the method, I contend, that brings the core activities of the university--not just lectures, but also research activities and the selection of faculty and student-within the protection of the First Amendment and that gives constitutional status to the principle of academic freedom.

One branch of the principle of academic freedom--let's call it the external one--confers upon the university a measure of autonomy from government regulation. (15) It is based on the epistemological premise that such autonomy is most conducive to the attainment of knowledge and the truth that it necessarily implies. Autonomy from government regulation does not leave professors or students free to do or say whatever they wish, but rather makes the norms of the academic discipline of which their activities are a part the exclusive standard for evaluating performance. The principle of academic freedom declares that those norms, not politics or other factors extraneous to those norms, should govern the search for knowledge.

The scope of the autonomy conferred by the Constitution on the university from government regulation is limited. Some state regulations--for example, health and safety regulations--do not ever threaten the autonomy that properly belongs to...