In recent decades, several federal judges and Supreme Court Justices have stated that, at some time or another in the past, the Court determined that public universities or their professional schools are entitled to institutional academic freedom (or institutional autonomy) under the First Amendment. Notwithstanding the views of many learned commentators, the Court has never so held. Concurring opinions and dicta do not constitute Constitutional law. This article traces the series of misattributions, misreadings and other errors that have contributed to the present peculiar state of confusion in regard to these matters.
Richard H. Hiers, Institutional Academic Freedom or Autonomy Grounded upon the First Amendment: A Jurisprudential Mirage, 30 Hamline L. Rev. 1 (2007), available at http://scholarship.law.ufl.edu/facultypub/742