The campus of the University of Chicago, where the frequently cited Kalven Report on the ... [+]
Amid all the campus turmoil over the Israel-Hamas war in Gaza, university leaders have repeatedly come under fire for saying too much or saying too little about the war, for not forcefully enough addressing problems of antisemitism and Islamophobia on campus, and for failing to speak with “moral clarity.”
In response, many institutions have justified their position by referencing the Kalven Report, a 1967 University of Chicago document, written when student protests against the Vietnam War were taking place on almost every American campus and when the University of Chicago’s investment policies were under fire. The report recommended the university, in order to not inhibit the academic freedom and “full freedom of dissent” on which it thrives, should remain neutral on important social and political issues.
“It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues,” reads the report, the entirety of which can be found here.
Written in 1967 by a committee of seven University of Chicago faculty led by Henry Kalven, a leading First Amendment scholar and the Harry A. Bigelow Professor of Law at the time, the Kalven report has been praised by organizations such as the Foundation For Individual Rights and Expression (FIRE) and the Goldwater Institute. And it’s recently been officially adopted by the University of North Carolina and eloquently embraced by Daniel Diermeier, chancellor of Vanderbilt University.
As a general principle, the Kalven Report’s advice is commendable, and in most instances it has – and will – serve institutions well. But the report is not without its flaws. Its objection to university position statements on sensitive social matters is not absolute, as the report itself recognizes, and its application has been uneven, even at the University of Chicago.
Kalven’s own son Jamie Kalven, who continued his father’s scholarly work on the contours of the First Amendment, recognized the importance of the report’s nuances that those who demand strict adherence to its prescription tend to gloss over.
“The University has used the Kalven Report as a kind of shield and hasn’t really engaged as much as it might in these things. To invoke it as this absolute principle is not, I think, what they had in mind. It’s important that these be real conversations, and that the University not just reflexively hold up the Kalven Report as the Holy Grail,” said Jamie Kalven in 2018.
Arguing that the University had applied the Kalven Report more rigidly than its framers might have intended, Jamie Kavlen added,“My father’s position was that the First Amendment is almost an absolute, but everything hinges on that ‘almost.’ We have to be prepared to have that argument again and again in those types of situations, and that’s a good thing. If it’s an absolute, people just sort of apply it reflexively, thoughtlessly, and don’t really grapple generation to generation with the nature of the principle.”
Other scholars have come to similar conclusions, leading them to caution against universities automatically relying on the Kalven Report to defend their silence on controversial matters. In addition to the philosophical question of whether a position of total neutrality is even possible, here are three other issues worth considering.
The Premise Of The Kalven Report Report Is Faulty
Robert Post, Sterling Professor of Law at Yale Law University, has recently criticized the Kalven Report for jumping to the conclusion that a university cannot express an institutional position on controversial issues without endangering it faculty’s academic freedom.
Post argues that it’s “a mistake to equate institutional neutrality with academic freedom” because the “relationship between institutional neutrality and academic freedom is empirical and contingent.” Some violations of institutional neutrality might infringe on faculty’s academic freedom, while others would likely have no effect whatsoever. It’s not a matter of logic or of inevitability, but of specific factual events.
For example, it’s a stretch to think that a university’s decision to disinvest in South Africa over its apartheid policies has quelled what individual faculty write or teach about the issue. Have there been any faculty anywhere claiming their academic freedom was limited because their institution did or did not disinvest in South Africa? To the contrary, students and faculty have often objected to their institutions’ position on this issue and other investment decisions.
Likewise, as Post points out, religious universities often take positions on moral issues without at the same time requiring their faculty to advocate for the same viewpoint. As Post suggest, “analysis should focus on how particular university actions affect academic freedom, not on institutional neutrality as such.”
The Kalven Report Did Not Endorse Absolute Neutrality
The Kalven Report itself did not recommend an absolute rule of institutional neutrality. In fact, it recognized two exceptions:
- “From time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.”
- “There is another context in which questions as to the appropriate role of the university may possibly arise, situations involving university ownership of property, its receipt of funds, its awarding of honors, its membership in other organizations. Here, of necessity, the university, however it acts, must act as an institution in its corporate capacity. In the exceptional instance, these corporate activities of the university may appear so incompatible with paramount social values as to require careful assessment of the consequences.”
As a result, the committee concluded, “these extraordinary instances apart, there emerges, as we see it, a heavy presumption against the university taking collective action or expressing opinions on the political and social issues of the day, or modifying its corporate activities to foster social or political values, however compelling and appealing they may be.”
The phrases “paramount social values” and a “heavy presumption” are important qualifiers, slippery slopes that most Kalven Report enthusiasts don’t usually acknowledge.
Sometimes a university’s official statement of a research consensus about an important social matter might be needed, a point alluded to by Jennifer Ruth in a recent article in The Chronicle Of Higher Education. As Ruth observed, “issuing any statement is never risk-free, but avoiding all risk by crying ‘neutrality’ is like waving a white flag in the face of the forces of democratic erosion and rampant misinformation.”
Inconsistent Adherence To The Report
Like all important institutions, universities must decide how they will respond to contestable political and social issues, and whether an institution as unique as the University of Chicago is the model that all others should follow is questionable. But even at the University of Chicago, it’s debatable whether strict adherence to the Kalven Report has been consistently practiced.
For example, the university joined several other institutions in publicly opposing Donald Trump’s executive order barring immigrants from seven predominantly Muslim countries from entering the United States. Likewise, the Kalven Report did not inhibit the University of Chicago from lobbying the Trump administration to continue the Deferred Action for Childhood Arrivals (DACA) program, an issue upon which lawmakers remain deeply divided.
Were both those positions taken because the institution perceived “paramount social values” to be at stake, or were they examples of what the university believed were necessary to protect its mission of teaching and research?
More recently, many university presidents did not hesitate to condemn the January 6, 2021 insurrection at the U.S. Capitol, with some specifically attributing the violence to the actions of a pro-Trump mob. University neutrality took a backseat to a call for protecting the peaceful transfer of power, and properly so, partisan politics notwithstanding.
An Alternative: Institutional Restraint
Rather than a blanket rule against institutional statements on controversial topics, an alternative endorsed by Princeton University is institutional restraint, where, on certain topics the presumption against commenting on social, moral, or political topics can be outweighed by the need to reaffirm essential ethical or moral commitments.
Princeton President Christopher L. Eisgruber has penned a history and defense of this position, citing former Princeton President William G. Bowen claim that “[Princeton] is a value-laden institution, and it is for that reason that I avoid using the word ‘neutrality’ to describe its aims. … But the University’s core values emanate from its character as a university. In this setting, the unrelenting, open-minded search for truth is itself the highest value; it is not to be sacrificed to anything else.”
In 1978, Princeton’s board of trustees endorsed the basic principle of institutional restraint in the context of its investment policies, according to Eisgruber. Acknowledging “there is a strong presumption against the University as an institution taking a position or playing an active role with respect to external issues of a political, economic, social, moral, or legal character,” the trustees also recognized, this presumption could yield in “very unusual situations” involving a “direct and serious contradiction” between an investment and a “central value” of the University.
Robert Post also finds favor with a policy of institutional restraint where official positions on matters of social import are not always eschewed but are taken only when judged to be “truly necessary.” It’s “a counsel of prudence” that resists substituting “a mechanical rule for what inevitably must involve statesmanlike calculations.”
In an era fraught with contentious social issues and explosive political differences, it’s also a policy that deserves more discussion and possible adoption by other universities.
