This chapter examines one of the powerful assumptions of American constitutional law: the great divide between the public and private sphere. It begins by citing the Supreme Court ruling in Trustees of Dartmouth College v. Woodward (1819), which affirmed the independence of private colleges and universities and set the precedent for a series of decisions by the Supreme Court over the next 200 years that would see American constitutional law exert a strong influence on American higher education. The chapter then considers the “state action doctrine” to address the legal and cultural differences and similarities between public and private universities. It also explores the distinctions between private and public universities, whether the U.S. Constitution applies to both public and private universities, the notion of the “shadow constitution,” and the concept of “constitutional unconscious.” Finally, it discusses two areas where the public sphere diverges from the private sphere: religious liberty and the constitutional right not to associate.
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