Minnesota State Board for Community Colleges v. Knight

Justice Marshall,

concurring in the judgment.

I do not agree with the majority’s sweeping assertion that no government official is ever constitutionally obliged, before making a decision on a matter of public policy, to afford interested citizens an opportunity to present their views. Ante, at 283-285. Nor do I agree with Justice Stevens that the First Amendment always — or even often — requires that government decisions be made in “an open marketplace of ideas.” See post, at 300, 314. Rather, I think that the constitutional authority of a government decisionmaker to choose the persons to whom he will and will not listen prior to making a decision varies with the nature of the decision at issue and the institutional environment in which it must be made. Cf. Healy v. James, 408 U. S. 169, 180 (1972) (“First Amendment rights must always be applied ‘in light of the special *293characteristics of the . . . environment’ in the particular case”) (quoting Tinker v. Des Moines Independent School District, 393 U. S. 503, 506 (1969)). The narrow question presented in these cases is the constitutional validity of a peculiar set of constraints on consultation between administrators and members of the faculties of state colleges; it can be sensibly resolved only by attending to the distinctive characteristics and needs of public institutions of higher education.

We have frequently affirmed that “the intellectual give and take of campus debate” is entitled to constitutional protection. E. g., Healy v. James, 408 U. S., at 181-182. Accordingly, we have been solicitous of the rights of students in public colleges to organize themselves into voluntary associations, see id., at 180-184; of the rights of student organizations to make use of college facilities, see Widmar v. Vincent, 454 U. S. 263, 267-270, and n. 5 (1981); and of the rights of faculty members to espouse unpopular ideas or to join controversial organizations without fear of discharge or retaliation, see Keyishian v. Board of Regents of University of New York, 385 U. S. 589, 601-603, 607-608 (1967); Shelton v. Tucker, 364 U. S. 479, 485-487 (1960). In an appropriate case, I would be prepared to include within this collection of constitutionally protected avenues of communication a measure of freedom on the part of faculty members (as well as students) to present to college administrators their ideas on matters of importance to the mission of the academic community. Such freedom is essential if all members of the community are to participate meaningfully in the determination of the goals of the institution and the choice of means to achieve them. Such participation is, in turn, essential if our academic institutions are to fulfill their dual responsibility to advance the frontiers of knowledge through unfettered inquiry and debate, see Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957), and to produce a citizenry willing and able to involve itself in the governance of the polity, see id., *294at 250-251; see also Keyishian v. Board of Regents, supra, at 603.

In determining whether a given constraint on the ability of faculty members to communicate with administrators runs afoul of the Constitution, it seems to me proper to consider not only the asserted justification but also the source of the constraint. As Justice Stevens suggests, see post, at 300, 313-314, 322-323, there are good reasons to be more suspicious when a state legislature instructs college administrators to listen to some faculty members but not others than when administrators decide on their own to listen to some faculty members but not others. Administrators are more accountable to slighted faculty members than are state legislators.* Moreover, our solicitude for the rights of unpopular members of academic communities and our desire to keep open the channels of communication within those communities, see supra, at 293, should not blind us to the fact that, in general, colleges and universities are most likely to fulfill their crucial roles in our society if they are allowed to operate free of outside interference. See University of California Regents v. Bakke, 438 U. S. 265, 312 (1978) (opinion of Powell, J.); Sweezy v. New Hampshire, supra, at 262-263 (Frankfurter, J., concurring in result). That insight should prompt us to defer to the judgment of college administrators — persons we presume to be knowledgable and to have the best interests of their institutions at heart — in circumstances in which we *295would not defer to the judgment of government officials who seek to regulate the affairs of the academy.

The difficult tasks of giving shape to these First Amendment rights and of assessing the state interests that might justify their abridgment can, however, be left to another day, because the proofs in these cases do not establish the kind of impairment of the ability of faculty members to communicate with administrators that would, in my view, give rise to constitutional difficulty. As the majority observes, there remains substantial opportunity, outside the formal “meet and confer” sessions, for administrators and faculty members in Minnesota community colleges to exchange ideas on a wide variety of topics. See ante, at 276-277, and nn. 3, 4. This is not to say that all faculty members have equal access to the most effective media for communicating with the administration; the findings of the District Court make plain that the representatives of the MCCFA enjoy greater freedom to express their views than appellees. See 571 F. Supp. 1, 8 (1982). But the Constitution does not require college administrators to give “equal time” to all persons competing for their attention. No more can legitimately be expected than that all members of the academic community be afforded a meaningful opportunity to make themselves heard. In my view, appellees have failed to show that the PELRA denies them that opportunity.

For the foregoing reasons, I concur in the judgment of the Court but not its opinion.

Cf. Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 445 (1915) (contending that property owners in Denver, who were adversely affected by a State Board of Equalization ruling, “are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule”). At least in the context of decisions affecting public colleges and universities, I agree with Justice Stevens’ suggestion that, when the “power” posited by the Court in Bi-Metallic becomes too “remote,” the First Amendment warrants the establishment of a right on the part of the affected persons to present their views to the decisionmakers, as an alternative check on the choices made.