Hastings Constitutional Law Quarterly


In this article, Professor Katyal, who filed the "educational autonomy" amicus brief in Grutter on behalf of Deans at the nation's leading private law schools, defends the view that universities have a zone of freedom to pursue Bakke-style affirmative action but outlines some strong limits on such autonomy. The Court's principle of educational autonomy is anchored in judicial precedent and common sense, but, like all forms of judicial deference, such autonomy must be carefully circumscribed. In particular, Professor Katyal argues that if a law school seeks to use educational autonomy as part of its defense of its admissions process, its admissions office cannot keep its admissions data and policies completely secret. One attractive solution, building on another tradition derived from academic freedom, is to use peer review over admissions policies. Without some process to disseminate to outsiders who the university is admitting and rejecting and why, educational autonomy cannot and should not be used to defend a program.