Paul A. Gowder (Northwestern University - Pritzker School of Law) has posted Standpoint Epistemology, the First Amendment, and University Affirmative Action (32 William & Mary Bill of Rights Journal 979 (2024)) on SSRN. Here is the abstract:
This short essay sketches the outline of a case for First Amendment protection of private university race-based affirmative action. Unlike other views, it does not depend on either the religious identities of certain universities, or the notion that universities are ideologically committed to any particular view about race and social justice as reflected in the composition of their communities.
Instead, it rests on the basic First Amendment freedom of a university to conduct the expressive activities of research and teaching, combined with two observations. First is that far-right activists have for decades attempted to influence the content of university teaching and research by influencing the composition of their faculty and student bodies; this triggers a First Amendment right in universities to resist the efforts of such activists to leverage antidiscrimination law to recruit the state to help them censor university speech. Second is that a university may adopt the theory of standpoint epistemology associated with feminist philosophy of science and critical race theory to connect its capacity to offer teaching and research on the concerns of subordinated groups with its capacity to employ and admit a critical mass of people from those groups.
Recommended.
