Judges, legal scholars, and commentators routinely reference a late 20th century shift away from judicial deference to American colleges and universities toward increased intervention and oversight. In his important new book, Scott M. Gelber challenges this understanding, arguing that the longer legal history demonstrates shifting and contested notions of academic deference over the course of the century beginning in 1860. It is, to Gelber, the “gravitational pull of the 1960s” (p. 2) that has caused scholars to ignore earlier case law and to rely largely on legal decisions between 1910 and 1960 in making their claims for a late twentieth-century abandonment of restraint regarding higher education. Moreover, even that era of deference included significant departures in the area of segregation. Compellingly argued and well documented—165 pages of text are supported by 63 pages of notes as well as three useful tables of court cases—the book charts the legal ground upon which reported cases (those that are published due to significance or precedential value) involving higher education access were argued and decided. In so doing, it simultaneously points to evolving arguments about the public and private purposes of higher education and whether attendance is a right or a privilege.
After introducing his broader themes, Gelber describes the change from nineteenth-century uses of pro-student common school precedents as justification for judicial oversight of higher education access to the reduced reliance on lower education rulings in the twentieth century. He locates these changes in a combination of the growth of higher education case law, a Progressive Era faith in administrative and professional expertise, and growing respect for academic authority. Gelber further identifies the differentiation of the educational system and increased prestige of higher education as significant, although, as he notes, the deference for higher education was also joined by increased deference for K–12 schools and administrators.
The next four chapters each center on one of four areas that Gelber groups under access: admissions, desegregation, expulsion, and tuition. With the exception of desegregation, each treats 1910 as a pivot point where academic deference clarified and solidified, as did institutions' abilities to restrict access. Institutions were granted increased leeway to set and enforce admissions standards, charge tuition, and expel students for violation of both academic and nonacademic policy. Each of these pointed to higher education as a privilege, rather than as a right, though with differing implications and contours. Whereas academic deference to institutions in admissions cases could be justified in terms of serving the broader public good, later tuition cases pointed to an increased emphasis on the private benefits of higher education; public institutions, at times, fought for deference by denying that they were serving the state as a whole. Of course, the case law and reasoning were complicated and, for example, Gelber maintains that court decisions in expulsion cases were significantly influenced by content and context (specifically, perceived threats posed by radicalism, religion, and changing gender roles). Also, despite students losing every case between 1910 and 1960, there was a “strong undercurrent of support for the procedural rights of students” (p. 105). Moreover, the desegregation cases called on justices to consider education as a right or privilege in a different way, demonstrated that institutions appealed to it for various and competing purposes, and showed that deference was far from unlimited. Indeed, students won twenty-one of the twenty-six reported desegregation cases between 1930 and 1960.
The sixth chapter is somewhat of an outlier. Rather than examining litigation involving students and institutions themselves, it explores legal cases around child support and court-ordered payment of educational expenses from the 1920s through 1971. Yet, while the focus is different than that of the other chapters, its arguments fit those of the larger book and the immediate preceding chapter on tuition. By demonstrating courts' midcentury willingness to require college tuition payments as part of child support, including increasingly for students who would have been unlikely to attend college in previous generations, Gelber highlights the larger tension as to whether higher education is a privilege or a right; child support cases pointed to the latter. “Ironically,” he notes, “praise for the collective civic benefits of higher education seemed more prominent in cases that applied to private family units rather than cases that concerned public colleges and universities themselves” (p. 148).
In the concluding chapter, Gelber provides an overview of access cases since 1960 and, perhaps more importantly, highlights the historical shaky ground upon which academic deference rests. He points to the eternal importance of broader context in development and enactment of the legal doctrine and argues that those who believe that higher education plays a unique and important role requiring such deference need to argue for it on substantive grounds, rather than on precedents.
In detailing the cases and interpreting the larger implications for academic deference, Gelber assumes a “promiscuous approach” (p. 6) that draws on institutional histories, archival materials, legal briefs, and testimony to look beyond just verdicts to the larger context, rhetoric, and embedded logic. The book is engaging, although some of the details of the numerous cases can be difficult to keep straight and it might have benefited from succinct definitions of several legal terms. As the author of the award-winning book The University and the People: Envisioning American Higher Education in an Era of Populist Protest (2011), it is no surprise that Gelber is adept at integrating social and political trends into his analysis. Likewise, his deep knowledge of the contexts and experiences of midwestern higher education in the late nineteenth and early twentieth centuries shows through and enlivens the text in those sections where it comes into play. The work is most compelling when specific case discussions are supported by supplementary and contextual details that emphasize the issues at hand while simultaneously providing insight into the actors involved. Such is the case with the treatment of late nineteenth-century Purdue University president Emerson White's hubris, for example. So confident was he in his correctness that he encouraged a student to appeal a verdict affirming the institution's ban on fraternities, only to have the ruling overturned and the university severely damaged.
If, as many would claim, access remains a defining challenge to American higher education and one that, as Gelber has argued, has been increasingly litigated in the modern era, this book should be read widely. The book will be additionally useful to those interested in shifting notions of the purposes and purviews of colleges and universities and in the rise and role of expertise in higher education. Finally, it provides more evidence that those invested in higher education too often refer back to a golden age—real or imagined—as the normal state of higher education, when the history is much more complicated. As such, this work contributes to larger efforts to dislodge the mid-twentieth century as the perceived norm of higher education in the United States.
