A state college or university, through its administrators and, in some contexts, its faculty and students, is a constitutional actor. This statement surprises many who work in public higher education. Because students, staff, faculty members, and visitors retain their constitutional rights, those who act on behalf of public colleges and universities are constitutional actors, the paramount duty is to obey the Constitution. The constitutional obligations trump other duties under statutes, regulations, guidance documents, union agreements, internal policies, and faculty rules.
Because they are flawed human beings, university administrators are no more or no less virtuous than other governmental actors are. Like other government officials, higher education administrators may pursue their own interests at the expense of the public interests, may reward their friends and punish their enemies, and may subordinate the constitutional rights of others to their own well-intentioned policy objectives. Constitutional conflict and constitutional litigation are inevitable. Like government officials outside of academe, a public college or university’s constitutional actors must ensure their own behavior conforms to the Constitution while striving to ensure their colleagues also comply.
Although constitutional conflicts for public universities arise in many contexts, disputes involving the “first freedom” of religious liberty are quite common. Americans are a religious people and, while they differ on fundamental theological questions, there is a broad consensus around the existence of a higher power. Consequently, their government’s foundational documents explicitly acknowledge the unalienable right of religious liberty. This acknowledgment takes the form of the Establishment Clause, which prevents the government from favoring a particular faith, and the Free Exercise Clause, which prohibits government interference with religious practice.
