“The Wise Know When Not to Talk:” Revisiting the Kalven Report

Paul Horwitz

The two papers on offer here are neither complementary nor opposed as such, although they have points of agreement and disagreement. They are properly paired, however. Most simply, both papers are chapters in a forthcoming book, one I eagerly await: Revisiting the Kalven Report: The University’s Role in Social and Political Action, edited by Keith Whittington and John Tomasi and published by the Johns Hopkins Press. As their titles suggest, they concern the same question: Should “the university,” in a corporate sense, speak on the controversies of the day?

This is a perennial question, of course. But it was given renewed attention by the events of 2020, which led to hundreds of universities issuing statements of varying strength and detail. And the question returned with the mishegoss of university responses to October 7^th and the larger Israel-Gaza conflict, the responses to those responses, the replies to those responses and so on.

Since 1967, a key document in the discussion of universities’ obligation to speak or remain silent on such questions has been the Kalven Report—more formally, the Report on the University’s Role in Political and Social Action, issued by a University of Chicago faculty committee chaired by the great First Amendment scholar Harry Kalven, Jr. The report described itself as “principally…providing a point of departure for discussion.” And so it has. The report’s account of the role of the university, and its recommendation that universities refrain from taking “collective action on the issues of the day,” save for circumstances involving threats to the “interests” and “values” of the university itself, has become influential—in the abstract. As the rash of recent statements indicate, however, it has been less influential in practice, although the latest round of controversy may change that. The book, and the selections commended to you here, are certainly timely—somewhat ironically, perhaps, since a signal element of the Kalven Report is its recommendation that universities not treat every moment of perceived urgency as creating a requirement to speak.

For Ginsburg, the best way to understand and justify the “institutional neutrality” of the university recommended by the Kalven Report is in small-c constitutional terms. The university, he writes—and I quite agree—is an institution. It requires “structure and rules”—in short, a constitution, a set of “institutional pre-commitment[s]” to its “foundational principles.” Ginsburg argues that “institutional neutrality” concerning “external issues of the day” is such a principle, or, perhaps, a vital underpinning to those principles.

In particular, on Ginsburg’s view, it serves the principle of robust internal debate within universities. When university leaders speak out on contested issues, this discourages existing members of that university from “inquiring into the issue” and potential members from joining it, and “may generate backlash that threatens the broader academic enterprise.” Ginsburg likens these points to the function of national constitutions. Such constitutions, he writes, “do three things:” they make politics possible by allowing for agreement on “basic institutions”; they “articulate shared values and aspirations” the polity can work toward; and “they lower the stakes of politics by taking certain things off the table, reducing wasteful conflict.” He is particularly interesting on the last point, arguing, following Stephen Holmes, that such constraints “serve to empower, by channeling energy into productive activities and away from zero-sum questions.”

Similarly, university administrators’ institutional role is to “facilitate the process” of academic and intellectual activity, “not to engage in it directly. The university’s “shared goals and aspirations” are truth-seeking and hospitable to diverse views—although Ginsburg acknowledges that whether that is “the telos of the university” is a hotly contested point. Finally, institutional neutrality “reduces the stakes of administrative control by taking some things off the table,” reducing the “wasteful” energy and internal and external politics directed at “crafting corporate statements.” These values and constraints, Ginsburg argues, are not less but more relevant and necessary “in an age of polarization.”

Although Robert Post and Ginsburg may not be too far apart on questions of practical policy, Post’s approach to the Kalven Report is quite different: more analytic, more skeptical, more willing to push at its generalities, poke at its tensions, and question its seeming certitudes. “On close inspection,” he writes, “the Kalven Report is not quite clear about the justification for its bold assertion that universities must adopt a position of ‘neutrality’ with regard to issues of social and political controversy.” He questions the empirical claim that university presidents’ declarations on such issues will “pressure[ ] dissenting faculty to conform to an official university position.” He draws the conversation back to one of the key issues underlying the Kalven Report itself—not press releases, but university decisions about how to invest or divest funds, which he views as not “plausibly connected to faculty research or teaching.” And he sees similar empirical questions in “intermediate cases,” such as whether a tweet on current events issued by a school of public health—and may one interject a quick “God help us,” both that such tweets, written by God knows who, engender controversy and that they exist at all—actually chilled any internal “discussion and inquiry.”

Post’s bottom line is that “a mechanical principle of institutional neutrality does rather little analytic work.” When it comes to speech about “ideas unrelated to a university’s core mission,” the question is simply the “contingent and empirical” one whether there is a “resulting chill on academic freedom.” In his view, this question is better asked not in the Kalven Report’s language, but in terms of “the perennial quest of universities to preserve immunity from external control.” The more universities extend themselves, speaking about matters besides “the production of education and knowledge,” the further out on a limb they will be, and the more they will reasonably “invite society to impose forms of external regulation that many members of the academic community may deeply oppose.” In such cases, having ventured outside their core mission, they will be unable to claim the mantle of academic freedom.

Post, whose chapter is practically allergic to any use of the word “neutrality,” prefers the formulation of Princeton’s president, Christopher Eisgruber, who speaks about “institutional restraint.” It is, Post writes, “a counsel of prudence, not a principle of academic freedom.” Universities may pursue other ends and speak out on other issues. But given the obligation of university administrators to “protect the independence of their universities,” they “ought to use care and prudence in pursuing goals extraneous to education and research.”

In practical terms, the two contributors are not miles apart. Ginsburg is not unabashed about the phrase “institutional neutrality” but content to use either phrase, viewing both as “standards, not bright line rules.” Post is adamant about the analytic shortcomings of the Kalven Report, but his warnings about the dangers of exceeding a position of “restraint” are sternly put. I think Post is too light about the difference between university speech and departmental speech, however. I would not want to make claims about the chilling effect of a tweet by whoever has momentary control of a departmental Twitter account. But many academic departments have issued more formal statements of late, and the likelihood that untenured professors, at least, could feel compelled to assent to them is greater than the threat from statements by distant administrators. (I leave aside the question whether a whole department, with its myriad sub-specialties, can usefully be said to have an expert opinion, or the “empirical” question whether, when a department issues such a statement, it in fact represents considered disciplinary views rather than merely, inexpertly civilian political ones.)

One might push further than Post’s prudential position and press a little on Ginsburg’s admission that institutional “neutrality” is still simply a “presumption against speaking out,” not a bright line rule, and ask two questions. First, if Ginsburg is insightful in thinking about universities in constitutional/institutional terms, on what basis do university presidents, or “universities” in some corporate sense, speak out at all on issues not clearly or fairly within the scope of their official charge? Individual university presidents may be educated and wise; my own university’s president, for example, has exhibited his own singular intelligence by paying my salary. But that is happenstance. Eisgruber is a smart fellow; but isn’t whatever he might say about the Middle East, or general law enforcement policy, or even his own field of constitutional law—in short, anything except what directly affects Princeton—simply extramural, unofficial speech? If so, on what “constitutional” basis do administrators offer those views on perfectly good university letterhead?

Second, even if both agree that there is necessarily a prudential or uncertain element to any guidance concerning institutional speech by universities on external issues, is there some danger in emphasizing its prudential nature, even if there is also some danger of incoherence in treating “neutrality” as a clear term? Universities have multiple internal and external stakeholders. In their eagerness to embrace the language and logic of the market, their leaders are ever more inclined to have their fingers out in the wind, ready to bend to the wishes of donors, legislators, public and private grant-giving institutions, parents, and students (or “customers”). Many of these stakeholders, and a great many faculty too, are happy to urge on them not only the language of urgency and exigency, but ever more extended and attenuated reasons why some external controversy is really an internal one. Will the language of prudence, or of standards, be enough to keep their courage, such as it is, screwed to the sticking place?

Regardless, both papers, each in its own way, add usefully to our understanding of the Kalven Report, and the larger question of what universities should or shouldn’t say about current controversies.