20 Jul 2022


American Association of Colleges & Universities v. Trump

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Overview of Sonia Sotomayor Jurisprudence Philosophy 

The jurisprudence of the Supreme Court of the United States combines a legal and philosophical/ideological approach to the issues being addressed. The legal aspect of jurisprudence relates to the applicable laws with a keen focus on the express letter of the US Constitution as variously amended. In this regard, justices of the Supreme Court have a level playing field as the US Constitution has been reduced to writing, as opposed, for example to the UK Constitution that is a collection of different documents. The most important aspect of jurisprudence and the reason why two justices of the Supreme Court will have different findings on the same subject matter is the philosophy or ideological approach of the Justice. In the Supreme Court, the ideology of the judges is mainly divided into two main categories of Conservative and Liberal. There are also several subcategories under each group. For example, some judges are liberal in some issues and conservative in others while others may be extremely liberal or conservative on some issues but moderate on others.

From a very general perspective, US Supreme Court Associate Justice Sonia Sotomayor can be defined as liberal leaning. Sotomayor was nominated by liberal president Bill Clinton to the position United States Court of Appeals for the Second Circuit in 1997 (Biography.com Editors). A second testament to her liberal leanings lies in the fact that her nomination received extreme opposition from conservative senators during her confirmation process. Conversely, Justice Sotomayor was appointed by liberal US president Barrack Obama to the Supreme Court in 2009 (Biography.com Editors). She received a large margin of support in the Senate but was still opposed by conservative senators. Based on the above, it can be argued correctly that Sotomayor is a liberal-leaning judge.

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It must, however, be noted that the instant decision focuses primarily on the issue of the First Amendment in general and more specifically its application to a school setting. It is thus important to evaluate how Justice Sotomayor has ruled on issues kindred to the instant topic. Based on case law, Sotomayor has, to some extent been very passionate about the First Amendment protection. In both the Supreme Court and the Circuit Court of Appeals, decisions authored or supported by Sotomayor have upheld the sanctity of the First Amendment almost to an extreme level. A good example is in the US v. Alvarez , 132 S. Ct. 2537, 567 U.S. 709, 183 L. Ed. 2d 574 (2012) where, in a dissent, Sotomayor made an argument that telling a lie about winning a military medal is part of protected speech by the First Amendment.

It must, however, be noted that the instant case is not about free speech per se but rather on the ability of school administrators to protect free speech within and around their institutions. On this issue, Justice Sotomayor has consistently supported the rights of teachers to regulate free speech within their campuses and even within their proximities. For example, in Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), Sotomayor concurred in a unanimous decision that supported a school administrator from blocking a student from running for student leadership based on the content of off-campus blogs. In the instant case, therefore, Sotomayor’s support for First Amendment Rights will collide with her support for the rights of school administrators to regulate free speech in their institutions.

Introduction and Background of the Case 

Having an understanding of the facts of the case and also its background is important for the justification of how Justice Sotomayor holds with regard to the two questions being addressed herein. The instant case pits an organization that brings together higher learning institutions in America on the one hand and President Donald Trump on the other. For background, it is important to note that President Trump is not a champion of First Amendment Rights (Jim). Indeed, in the few years that he has been president, Trump has undertaken an unprecedented and to some extent preposterous attack on the media. The President has called mainstream media houses in America “Fake News” and even praised a member of his party for physically assaulting a journalist (Jim). The spirit behind a Trump Executive Order in support of the First Amendment is thus suspect. Based on an evaluation of the background of the said executive order, Trump does not seek to protect freedom of speech per se but rather the freedom of speech for conservative speakers (Maggie & Shear). Currently, conservative speakers have gained notoriety for their extreme approach on issues such as immigration, LGBTQ rights, reproductive health issues, and race relations. The perspective above will play an important role in the holding of the instant case.


Question One: Is it unconstitutional for the President to condition receipt of federal research funding on whether private colleges and universities “support free speech”? (AAC&U: Yes; Trump: No) 

Having heard the opinions of both sides and also having carefully evaluated available case law regarding the instant question, it is the opinion of the majority that it is NOT unconstitutional for the President to condition receipt of federal research funding on whether private colleges and universities “support free speech”. Indeed, the instant executive order that seeks to support free speech by pegging it to federal research funding can be considered as redundant from a perspective of constitutionality. After all, the US Constitution is explicit about First Amendment Rights in any and all areas within the USA. As expressly stated in the First Amendment, no laws can be passed by Congress that abridge the right to free speech. As was held in Tinker v. Des Moines Independent Community School Dist. , 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), First Amendment rights also extend to students when in higher institutions of learning. This constitutional provision and the spirit it represents must also be considered to be applicable to the learning institutions in America. The provision of federal funds to organizations that act unconstitutionally would be considered as an act by the government to breach the US Constitution which is untenable. On the face of the Executive Order, it must be adjudged as being not only constitutional but also redundant as it states the obvious.

It is, however, based on the fact that the Presidential Executive Order states the obvious that the same requires more a more careful evaluation by the instant court. The constitutionality of any issue must not only be based on what the constitution actually says but also how the constitution has been interpreted from time to time. In this regard, the interpretation of the First Amendment generally and the interpretation of the First Amendment as it applies to learning institutions differ exponentially. As held in Bethel School Dist. No. 403 v. Fraser , 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986), administrators of learning institutions have a right to substantively control speech and expression in and around campuses. The distinction is based on the fact that learning institutions are special centres where the ordinary limits of speech have been reduced so as to allow for the kinds of debates and arguments that can foment better leaning. See Whitney v. California , 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927). For example, there are statements that can be made in a school that, if made outside the school would lead to the arrest and prosecution of the speaker. See Morse v. Frederick , 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007). There are also statements that would be considered acceptable if said in a school but would seem taboo of spoken in any other setting. The monumental freedom of speech allowed in school creates the necessity for some form of control to limit excesses.

Currently, the limitation of excesses of speech in public schools is controlled by the policy while limitation of speech in private institutions is controlled by the rules and regulations of the institutions themselves. The interpretation of the First Amendment as far as public and private institutions of higher learning are concerned are limited to the need for substantive control by the school’s administration. See Morse v. Frederick (supra). The instant executive order may seem irrelevant, even redundant in its letter but the implementation thereof complicates the issue. Under the executive order, administrators of federal research funding will evaluate free speech rules and regulations of universities and colleges then decide whether or not they warrant federal fees. By so doing the Executive Order goes beyond supporting free speech and begins to define what actually amounts to free speech. Colleges and universities, both public and private will in practice not get federal research funding because they uphold freedom of speech but rather if they are seemed, by specific panels to be upholding free speech. See Morse v. Frederick (supra). It must be noted that the constitution of such panels is also, to some extent, under the control of the executive.

It is based on these interpretations of the constitution that the executive order by the president and its interpretation may be unconstitutional with regard to public schools and is definitively unconstitutional when it comes to private schools. When it comes to public schools, the executive order seeks to mandate individual research funds to evaluate whether or not specific institutions are supporting free speech. The definition of free speech in public schools will no longer be the subject of policy or set standards but rather the whims of federal fund administrators. It is on this basis that the executive order and the implications of its implementation may be considered unconstitutional. The situation is much more definitive when it comes to private institutions who have ordinarily been allowed to set their own rules as far as freedom of speech is concerned. See Morse v. Frederick (supra). Under the executive order, private colleges have to decide between getting federal funds or following their set rules for free speech whenever the administrators of the funds seem to disagree with those rules. Such a provision flies in the face of modern interpretation of the First Amendment and its application to higher education and is thus unconstitutional.

Question Two: 2. Assuming that the order applies, can colleges and universities, consistent with the First Amendment, prohibit speakers from coming to campus who are offensive to some members of the student body, or who offend core values? (AAC&U: Yes; Trump: No) 

Even if the Executive order was to apply, it is the opinion of the majority that colleges and universities should still retain the right to prohibit speeches by outside speakers or some students whose speeches offend core values of the institutions. The interpretation and application of the US Constitution including the First Amendment have taken cognizance of the fact that learning institutions are complex communities with complicated dynamics. The administrators of these institutions have a combined mandate of enabling learning in the institution and also keeping students safe. It is the onus of any learning institution to choose the kind of curriculum and syllabus it wants to teach as long as the same falls within reasonable parameters. For example, a Muslim-based private institution should be allowed to have a religious basis for its education just as a Christian one should. The Christian school has as much a right to prohibit an anti-gospels speaker from its campus just as the Muslim-based institution has a right to prohibit a halal-foods advocate into its compound. This does not mean that that anti-gospel speaker or the Halal-foods specialists do not have constitutional protections for what they wish to say. However, the rights of these speakers must be countermanded by the requirement of the learning institutions. For a start, the respective speakers indicated above might contradict the core values of the respective institutions, something the institutions have the right to protect themselves against. Conversely, students may not be agreeable to what the respective speakers might be saying and might even react to it with active hostility or even violence. See Cohen v. California , 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971). Finally, students who support the speakers and those who oppose the speakers, may, in such emotive issues also collide, precipitating violence. As held in Brandenburg v. Ohio , 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), when free speech has the capacity to precipitate imminent violence, it can lose its protection under the First Amendment. On this basis, the schools should have a right to limit who to accept or not to accept as speakers in their institutions.

It is important to note that the examples of speakers indicated above represent the more traditional forms of ideological passions, being religion. In modern times, the same kind of passion that was applied to issues such as religion and patriotism is applicable to social issues such as race-based issues, gender-based issues, and even LGBTQ issues. See Christian Legal Soc. Chapter v. Martinez , 561 U.S. 661, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010). The kind of passion that could be evoked when religious figures were insulted in the 20 th century can, in the current environment be evoked when a homophobic or racial slur is used. Unfortunately, the modern community is also extremely divided when it comes to the issues that they are passionate about. For example, in the abortion debate, one side may argue that pro-abortion commentators are supporting the killing of babies while pro-abortion commentators argue that they are defending eh rights of women. Each side can be extremely passionate which is within their right, but when temper flares up, chaos can ensue. In a university campus with thousands of students, riots and violence can be precipitated because of a speech about an issue as mainstream as climate change. The violence may then cost human lives, lead to injuries and wounds, and also result in massive damage to property. To prevent some of these extremities from taking place, the administrator of learning institutions should be given some leeway to determine who can and cannot be allowed to address a gathering in their learning institutions.

Finally, the majority contends that the fact that the current dispensation has been referred to as the information age should be used to support the regulation of speakers on campuses. In the traditional setting, access to ideas was physical in nature and students could only interact with content that was physically allowed into campus either in the form of a speaker or in the form of written material. In modern times, information technology generally and more specifically the internet had provided avenues where speakers can reach their audiences without the need to be physically presented. Under the instant setting, limiting physical access cannot be considered as an act of censorship in the traditional word as anyone who has a genuine interest in what a speaker has to share always has the option of getting such content electronically. There is thus no need to provoke violence and destruction of damage by allowing a provocative speaker into campuses in the name of free speech, yet the content that the speaker would have used can still be accessed in a safer manner.

Based on the totality of the above, even of the Executive order by President Trump with regard to free speech in the universities was to apply, the application should and must not take away administrator’s ability to regulate speakers on campuses. A situation where anyone who aspires to address a gathering in a learning institution is allowed to do so can only lead to a sense of anarchy and chaos. After all, as held in Schenck v. United States , 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), the right to free speech is never absolute. The chaos not only extend to the possibility of the watering down and eventual obliteration of values but also actual violence that can lead to loss of life, injury and damage to property in a learning institution. To maintain a viable learning institution, a controlled environment must be maintained in campus, and this includes some form of control on who speaks in them.


Bethel School Dist. No. 403 v. Fraser , 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986).

Biography.com Editors, Sonia Sotomayor Biography.com (2019), https://www.biography.com/law-figure/sonia-sotomayor (last visited Apr 20, 2019).

Brandenburg v. Ohio , 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).

Christian Legal Soc. Chapter v. Martinez , 561 U.S. 661, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010)

Cohen v. California , 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).

Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).

Jim Rutenberg, Trump's Attacks on the News Media Are Working The New York Times (2018), https://www.nytimes.com/2018/10/28/business/media/trumps-attacks-news-media.html (last visited Apr 20, 2019).

Maggie Haberman & Michael Shear, Trump Signs Executive Order Protecting Free Speech on College Campuses The New York Times (2019), https://www.nytimes.com/2019/03/21/us/politics/trump-free-speech-executive-order.html (last visited Apr 20, 2019).

Morse v. Frederick , 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007).

Schenck v. United States , 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919).

Tinker v. Des Moines Independent Community School Dist. , 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969).

US v. Alvarez , 132 S. Ct. 2537, 567 U.S. 709, 183 L. Ed. 2d 574 (2012).

Whitney v. California , 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927).

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