Compelling Interests/Compelling Institutions: Law Schools as Constitutional Litigants


This Article looks at the relationship between constitutional doctrine and institutional context by considering two recent cases in which law schools—perhaps the American institution most personally familiar to the current U.S. Supreme Court—appeared before the Court as litigants. In Grutter v. Bollinger, the Supreme Court upheld a law school’s use of race-conscious affirmative action in its admission process. In Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), the Court rejected law schools’ assertion of their right to exclude military recruiters. I suggest that both cases turned on the extrinsic function that law schools perform—namely, the production of a cadre of professional leaders—rather than their intrinsic function as educational institutions. And I also discuss the ways in which the Justices’ familiarity with law schools may have influenced the reframing of constitutional doctrine.

About the Author

Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School.

By uclalaw