This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.
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