Clay Calvery


When the United States Supreme Court unanimously declared in March 2000 that mandatory student activity fees at public universities do not offend the First Amendment if distributed in viewpoint-neutral fashion, the decision dealt a severe blow to the conservative movement that had both supported the challenge to fee assessments and long railed against a perceived leftist/liberal bias in higher education. The New York Times, acknowledging the political implications of the case, hailed the Court's decision in Board of Regents v. Southworth as “a surprisingly broad and decisive victory for universities on an ideologically charged issue that has roiled higher education.” The decision, however, should have been anything but surprising to Scott Southworth and his right-wing benefactors. This Article argues that conservative legal advocates either seriously underestimated, or simply failed to appreciate, the sheer power of the marketplace of ideas metaphor in First Amendment jurisprudence and its inextricable connection to academe. The marketplace of ideas, it is asserted here, provides the pivotal premise for nearly all judicial decisions affecting freedom of speech on the nation's college campuses. The backers of Scott Southworth failed, in turn, to realize that the Court will—quite predictably—support measures that facilitate and enhance the academic marketplace of ideas in even-handed fashion. The Article concludes that Southworth signals the willingness of the United States Supreme Court to continue its embrace of the public university as a marketplace of ideas and, perhaps more importantly from the perspective of educators such as the Author of this Article, its desire to promote that academic marketplace—however flawed and imperfect it may be— through affirmative, viewpoint-neutral programs that enhance the educational opportunities of all university students.

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