Episode 302: Should Universities Voice Opinions?

Four speakers on stage in front of an audience

[Left to right] Tomiko Brown-Nagin, Tom Ginsburg, Janet Halley, and Robert C. Post. Video still by Kevin Grady/Harvard Radcliffe Institute

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On This Episode

Since last fall, communities across the country—including our campuses—have questioned the role of universities in public debates. In this panel discussion, cosponsored by Harvard Radcliffe Institute and the Council on Academic Freedom at Harvard, Dean Tomiko Brown-Nagin and three legal scholars consider whether institutions of higher ed should take stances on the issues of the day.

This episode was recorded on March 5, 2024.
Released on October 10, 2024.

Guests

Tomiko Brown-Nagin is the dean of Harvard Radcliffe Institute, the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, and a professor of history, Harvard Faculty of Arts and Sciences. An award-winning legal historian and an expert in constitutional law, Brown-Nagin is most recently the author of Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (Pantheon, 2022).

Tom Ginsburg is the Leo Spitz Distinguished Service Professor of International Law, the Ludwig and Hilde Wolf Research Scholar, a professor of political science, a faculty director of the Malyi Center for the Study of Institutional and Legal Integrity, and a faculty director of the Forum for Free Inquiry and Expression at University of Chicago Law School. In his work, he focuses on comparative and international law from an interdisciplinary perspective.

Janet Halley is the Eli Goldston Professor of Law at Harvard Law School, and she is an expert on feminist legal theory; sex, sexuality, gender and the law; family law; law and humanities; and critical legal studies.

Robert C. Post is the Sterling Professor of Law at Yale Law School. He specializes in constitutional law, with a particular emphasis on the First Amendment.

Credits

Max Doyle is the A/V technician at Harvard Radcliffe Institute (HRI).

Ivelisse Estrada is your cohost and the editorial manager at HRI, where she edits Radcliffe Magazine.

Kevin Grady is the multimedia producer at HRI.

Alan Catello Grazioso is the executive producer of BornCurious and the senior multimedia manager at HRI.

Sky Jung is a multimedia intern at HRI and a Harvard College student.

Heather Min is your cohost and the senior manager of digital strategy at HRI.

Lily Roberts is a multimedia intern at HRI and a Harvard College student.

Anna Soong is the production assistant at HRI.

Special thanks to Cabin 3 Media for their invaluable contributions to the editing of this podcast episode.

Transcript

Ivelisse Estrada:
Hello, listeners. Welcome back to BornCurious. I’m your cohost, Ivelisse Estrada.

Heather Min:
And I am your cohost, Heather Min. A year ago this week, the crisis in the Middle East escalated and unleashed a global outpouring of grief and anger. On campuses across the US, discussions about the situation exploded with charges of anti-Semitism and anti-Muslim sentiment rocking higher education.

Ivelisse Estrada:
It was quite a year. The issues demanded—and still do demand—our urgent attention, but something else emerged as well. The storm on college campuses threw into sharp relief unresolved issues about whether institutions of higher education should take stances or remain neutral, and what that might mean for things like freedom of speech.

Heather Min:
So earlier this year, our own Dean Tomiko Brown-Nagin convened a group of experts to unpack the ideas around the role that universities should play. Let’s listen in.

Tomiko Brown-Nagin:
Well, good afternoon to all of you. I want to start by saying how excited I am to host a conversation at this very challenging moment, both for Harvard and in higher education generally, about such a timely topic. Many of us are really looking for ways to navigate what is a very troubled moment, and we’ve landed on institutional neutrality as perhaps a tool for helping us find our way. While some discussions of institutional neutrality suggest that it’s a for-or-against proposition, in fact we’re going to take a different tack here. We want to, in our discussion, think about the real -world complexities and the hard cases that might arise within the context of higher education as we consider how we might apply institutional neutrality or restraint. And I want to mention right before I start my question, some of the complexities that I see.

First, I want to note that universities are organizationally complex, with Harvard, of course, being famously decentralized. We are accountable to many different constituencies with different perspectives and expectations. Historically, the mission of higher education has connected to some extent to the outside world. We receive federal funds, which means that we’re a highly regulated industry. And of course those regulations and those laws are inherently political, in the sense of being a byproduct of political process. And I also should mention that universities are reliant on philanthropy, which introduces another layer of complexity. And so, with that framing in mind, I want to begin by asking each of my panelists about their essential positions in this discussion of institutional neutrality, beginning with Tom, who is joining us from the University of Chicago, which has long been associated with the concept of neutrality. And I want to ask the question in this way, Tom: in a forthcoming paper, you write that neutrality is not compatible with the zeitgeist, but nevertheless, you champion it. I wonder if you can tell us why.

Tom Ginsburg:
Great. Thank you so much for having me. And I also want to just acknowledge being on this panel is fantastic. Robert, who taught me everything I’ve forgotten about the First Amendment many years ago, and Janet, who’s always known throughout her career as a fiercely independent thinker. So it’s great to be here, and among you all. Yes, institutional neutrality is associated with University of Chicago, largely through discussions of the Kalven Report, which dates from 1967, but in fact goes back really to the earliest days of the university. It was adopted in 1899 by something called the Congregation of the University in a kind of democratic way in which we adopted the principle of free speech—good progressive-era value—and said also that the university, as such, would not take positions on the issues of the day. And this was designed in order to facilitate the mission of inquiry. So, I really think that neutrality goes hand in hand with the idea that the core mission of the university, to quote Robert Maynard Hutchins, “It’s not a kindergarten, it’s not a political club. It is a community of scholars to engage in research.” And if you have that idea, neutrality at the center is designed to protect everyone outside that position, all the line-level scholars, including students to be able to take positions of the issues of the day themselves. And that’s how the university affects the world. It’s not statements on high. If I could add one other thing, there’s obviously exceptions, and I’m sure we’ll spend some time talking about the exceptions.

To my mind, the most cutting-edge issue here is actually the statements by departments, and they’re spreading like wildfire. And I find them even more problematic because if the university president, as yours did, tells us that you know, Russia’s evil and Ukraine is good, it’s very far from the line-level scholar who maybe wants to pursue something, a countervailing position. When a department does it and tells you—essentially now many departments have foreign policies, is the way I will summarize the point. Well, what does that do to the grad student seeking funding? The junior professor who is told that there’s a right and a wrong on particular international issues. It doesn’t make sense to me. And I think we should pursue institutional neutrality, or whatever you call it, much more vigorously than we are.

Tomiko Brown-Nagin:
Wonderful, thank you. Robert, I want to go to you next. You’ve written in favor of institutional restraint. I wonder if you could explain the distinction and why you favor restraint over neutrality.

Robert C. Post:
Well, institutional neutrality is a phrase that has come into prominence in 2017 after a report by the Goldwater Institute. And the argument that was made there very strongly was that unless the institution is neutral, academic freedom of faculty and students is compromised. So, it was a principled argument, and it was used to say that university administrators cannot speak in ways that will compromise, necessarily compromise the academic freedom of faculty and students. And I myself think that, as Tom suggested, there are ways in which universities can speak, which can be quite contrary to the academic freedom of students and of faculty. But there are other ways that universities can speak that aren’t. So, it’s a contingent question not a principled question. And I don’t like to see the idea of academic freedom abused by being tied logically to things which it isn’t.

We have to be very careful with this idea because it’s the blood that makes the university go. And so, when we invoke it, we have to invoke it for really good reasons. So insofar as university administrators speak in ways that compromise academic freedom, it is for that reason inappropriate to speak that way. But the example of the Kalven Report is a good one because what happened with the Kalven Report is that the president of Chicago went to Harry Kalven and said, “SDS is asking me, asking the University of Chicago, to disinvest in South Africa. So I need a report.” And Kalven, very oddly, writes this report saying in a very vague way—it’s actually not strict the way it was revived in 2017—but in this mushy way said it’s connected to academic freedom, and University of Chicago doesn’t have to disinvest.

Well, since 1967, hundreds of universities have disinvested and there hasn’t been a peep about academic freedom. And I can’t imagine that there would be a logical connection. But as Tom says, there can be. And when you get down to departments, there’s more likely to be. So, I think we need to mark this difference in our terminology and say there are good reasons to be restrained. And those pertain not only to academic freedom but also to the stance of the university and the general public. Universities serve a mission—research and education—and we need to be autonomous in the serving of that mission. But when we speak outside of our lane, we invite reprisals, we invite regulations which we cannot defend in terms of our mission, by definition. So we want to be very careful when we do that. There may be reasons to do it, but they have to be pretty good reasons because we’re vulnerable, and we’re especially vulnerable right now.

Tomiko Brown-Nagin:
Terrific. And Janet, you recently wrote an opinion piece in the Harvard Crimson arguing against the adoption of principle of institutional neutrality on grounds that the goal is illusory. I wonder if you could say more about that view and the argument against neutrality as conventionally conceived.

Janet Halley:
So I was reading the Kalven Report, which has now been discussed a little bit here. It declares that the university will not take positions in its statements or in its corporate conduct on issues of the day or controversial matters of the day. It’s my view that it would be helpful to drive a wedge between university conduct and university statements first. And to acknowledge that university conduct has to happen on controversial issues of the day on a constant basis. So whether the University of Chicago was going to divest or not divest from South Africa, whether Harvard University is going to divest or not divest on the basis of climate crisis, in its conduct, whether it acts or leaves the dividends in place and collects them, it’s taking a position on a matter of current controversy. So that goes with students for fair admissions, the lawsuit about the use of racial classifications in undergraduate admissions. It goes for employment in the university: will SFFA holdings against affirmative action move over to the Title VII context and affect employment searches for employees and not just admissions? I, personally, as a family law teacher, think that the university financial aid policies hold that students under a certain age have to submit their parents’ financial positions, and they calibrate student financial aid according to an assumption that students will have access to parental funds, even though in fact they often do not. And for a family law teacher, that’s a really political matter, whether a young adult child is a member of the family of origin for family support purposes or not. And there’s a lot of controversy about that. It’s an issue of the day. And so I think that we are pervaded with many functions beyond your research and teaching—and some even in research and teaching—where political positions have to be decided just to run the place. So I would say that I welcome the language institutional restraint that would help me step away from the corporate conduct piece of Kalven.

On statements, I really like the idea of institutional restraint rather than institutional neutrality. We’ve seen issuance of statements has a politics of its own. The mere making of a statement is a political move, and a demand for a statement is a political move. It has been a downward spiral for many top administrators. And I like my own dean’s formulation here—now moving into the leadership in the university, where he has been aware that there’s a controversy within the law school—to the extent that he can, he will not take a position on it. And that seems about not about neutrality. He’s not saying he’s going to be neutral, he’s going to restrain himself from tying the institution to a position in a controversy. I think that’s probably core, but I think that there will be times when a commitment to neutrality will have to be overridden in the interest of making a statement on an issue of contemporary controversy. And we need to have a very careful and thoughtful discussion of what that would look like. So that’s where my thinking is of now.

Tomiko Brown-Nagin:
Terrific. I want to follow up on a couple of aspects of what was just said, but first, let’s talk about the notion of applying restraint. As I said at the beginning, universities are complex with multiple units. There are schools, departments, programs, institutes with different educational missions. And moreover, there are schools within a university like ours that are more deeply connected to the external world than others. So, I’m thinking about schools of education, schools of public policy, law schools, all of which by mission or methodology are taking stances all the time on public policy or they’re engaging in advocacy. And those are just some examples. The question is, if we assume that we’re endorsing the notion of neutrality or restraint, to whom or to what kinds of matters would it apply? How would those decisions be made? Who would make the decisions? And once again, Tom, I want to start with you in hopes that you can tell us about how things work at Chicago.

Tom Ginsburg:
Yeah, I’d be happy to do that. Right. So, it’s true that we have disciplines which are more connected to the outside world. The question is who does the speaking, us individuals who are members of those disciplines through our work, through our advocacy and such, or the institution as a whole. And one of the reasons in general, I’m so in favor of whatever you want to call it, restraint or neutrality, is if you don’t have it, you’re unleashing a politics of speech within the unit that everyone is trying to get the center to take their particular position. And that distracts from the core work of actually doing scholarship.

So, in general, I think it’s really important to separate the individuals who should be maximally free to speak, whatever their discipline, and the center. Now we do have some experience. Our last president, Robert Zimmer, decided after the Trump immigration restrictions came down, so-called Muslim Ban, he spoke out against that. Because how can you operate a university if you’re not recruiting students and faculty from all over the world? He thought it was a core threat to the university, which is when the Kalven Report says you not only can speak out, you must speak out. That was a critical point. In other instances, the leaders have spoken out. And I think we have a George Floyd statement, that was not so controversial, but we had another one about anti-Asian violence which was responding to a hate crime that occurred eight states away. And many of us thought that was the wrong time to do something like that. If there was anti-Asian violence, which there is, in our community because it’s in every community in America, you talk about what’s happening on your campus. So things that directly affect the university, you can speak out on. Internally directed things about resources. After the October 7th attacks, we have many traumatized students with family in Israel and in Gaza, we should make sure that they know what is available to them. But that’s different than saying there’s one right side in this foreign conflict, which we have seen many, many institutions speak out. So, we don’t have a strict system, it’s a matter of judgment. And I don’t think it could be any other way, but it is the case where it’s deeply imbued in a culture like it is at Chicago. If the president steps over or does something inappropriate, he’s going to hear from people, and they will be upset.

Tomiko Brown-Nagin:
Great. Robert, let me go to you next. You’ve described these decisions about when and whether units of a university speak as a matter of statesmanship rather than simply following rules. So, this resonates with what Tom has just said. I wonder if you can explain a bit what you mean and how institutional restraint would operationalize under your conception of the principle.

Robert C. Post:
The first thing is I want to emphasize a distinction that Tom drew, which is those who advocate for institutional neutrality say that, not that the university can’t say controversial things, but that it can’t not say controversial things that are outside of its mission. Outside of its tasks, outside of what it needs to do to educate students and what it needs to do to protect research of faculty. So that’s a very important distinction because what’s in and out of your mission is itself highly controversial. So, I follow this on the web, and I can tell you there are many people who say institutional neutrality means that universities can’t say anything about diversity, and yet many universities will define their educational mission in terms of diversity.

And that’s quite different than espousing diversity in terms of, say, social justice, which would be extraneous to your mission. So the distinction of what’s in your mission and out of your mission, that’s a matter of judgment and of statesmanship, and it’s crucial because that’s leadership. You’re defining what the university is, what it stands for—point one. Point two, education is, to my way of thinking, it’s a matter of leading students from where they are to where they have to go. Education comes from the idea of leading out from a position of not knowing, to knowing, to not having a mature independence of mind, to having the mature independence of mind, which it is the object of a university to create. And that means, always, when you’re educating students, you have to meet them where they are. You cannot say to them, know this or become this and imagine that you’re doing something. You have to meet them where they are, and you have to be with them and move them to where you want them to be. And as someone who is leading an institution, that may require statements of various kinds of reassurance, of the kind that Tom just suggested—with, say, students are being attacked in the neighborhood—you’re reaffirming the community and your solidarity with those who are being attacked.

When you do that kind of thing, it’s extremely important to create the community which allows education to happen. But it does create a difficulty. I was a dean, and I make a statement about this crisis, but then not about that crisis, and the people involved in that crisis say, “What about us?” And so, the more you say, the less you can say, because the more you’ve boxed yourself in, the less choice you have about things. So it requires judgment and statesmanship all along. This is worth playing that chip; this is not worth playing that chip. And it’s not a matter of rules; it’s not a matter of principles—it’s a matter of understanding the dynamics of the institution which you’re trying to lead.

Tomiko Brown-Nagin:
Thank you, Robert. Janet, I want to return to you and that Crimson op-ed urging against this principle of neutrality. You argued that such a principle is not only logistically challenging to implement but that the means are dangerous. Can you unpack that for us?

Janet Halley:
I’m working within the Kalven—

Tomiko Brown-Nagin:
Sure.

Janet Halley:
—formula, where there’s corporate conduct, and there’s statements. If I’m right, and I think I am [laughs]—at least, I’m willing to change my mind, but right now I think it—that in running itself, the university must take many, many positions on issues of the day. If it also has a strong bright-line rule against making statements on the issue of the day, then one arm of the university could be deciding we should ramp down our investments in oil and gas, and the other could decide we’re not allowed to speak on a controversial issue like in disinvestment from oil and gas. So it could become—I’m going to borrow from Eve Sedgwick’s Epistemology of the Closet, one of my favorite books. There’s such of a thing as the speech act of a silence, and the speech act of a silence on divestment in that context would be misleading. And it might even be intentionally misleading. That is to say, done, a speech act of a silence—knowing that it is misleading with the intention of deceiving—that would be a lie. So I think some level of clarity and transparency has to enter into the discussion on institutional neutrality or an institutional restraint in order to preserve simple honesty. I will say, may I add one thing about something that Tom has said—

Tomiko Brown-Nagin:
Sure.

Janet Halley:
—and Tomiko has said? Universities are more like medieval cities than almost anything else that we know today. And it’s manifested when we put on our robes for graduation, we’re moving our status up. It’s a really medieval ritual, but it’s going on all the time. And the components of the university are so many, and they have distinctive purposes.

So I really agree with what Tom says about departments. Departments that hire teaching faculty and that tenure them and that design curriculum and allow curriculum to be taught must have a very high commitment to capacious debate within that space. I think it’s an entirely different question for a department chair than it is say for a clinic on preserving the right to life. Which if we have a clinic on preserving the right to life, I think they should be able to say we’re for the right to life. And so I think you really have to be granular about your institutional location when you’re making decisions about this.

Tomiko Brown-Nagin:
Okay. So that clinic, it’s engaged in advocacy, should be able to speak, but are you suggesting about particular issues that arise related to that matter? So this particular institute or program might speak out about Dobbs, which is controversial and has been a subject of controversy—

Janet Halley:
No kidding.

Tomiko Brown-Nagin:
—when university president or deans have talked about it. So are you saying that’s an exception for this program?

Janet Halley:
I’m not quite sure I know exactly what you’re asking. But if you decide that that clinic can have seven clinicians—no, it can only have six. You’re deciding on the strength of that clinic. And so you could be seen to be deciding on the value of the value of right to life. What I know is that distinguishing between a clinic that does advocacy on a particular social justice issue is different than being a dean of a, for instance, law school that decides how to allocate institutional resources across a community of controversy.

Tomiko Brown-Nagin:
Do you want to jump in?

Janet Halley:
Yeah. You’ve thought about this a lot, Tom.

Tom Ginsburg:
Yeah. Look, I mean your basic position is that there’s no neutral position from which to judge, which I think is commonplace now. And so I don’t want to get hung up on the word neutrality—you can call it schmoo-trality or something. But you’re basically saying that we have to make decisions about who to hire, and that will have an effect on who’s speaking. That, of course, is true in a university. That’s not the kind of institutional speech that we’re really talking about here. We’re talking about the things, essentially what universities have become is like major corporations—Coca-Cola speaks out on issues of the day sometimes; Disney got in a lot of hot water—and that’s how we’re acting. So that’s really the core domain in which we’re talking. Now, who does it apply to? Certainly units that directly affect people’s ability to inquire absolutely should—we agree on that.

Janet Halley:
Yeah.

Tom Ginsburg:
We actually struggle with whether it applies to centers. And we have decided, the university president said it does apply to centers. So we have a center on race politics and culture. They would like to make statements all the time, as corresponding centers do around the country, and they’re not allowed to and they don’t like that. From my point of view, I don’t think that’s a core case, and we could allow centers to do so because they’re not in the position of directly supervising the core scholarship. They’re collections of scholars, and collections of scholars can always speak out collectively. There’s one other thing I’d like to say, which is about this context of divestment. And we now have a movement: divest from Israel; divest from climate change. And the original Kalven Report, as you noted, came out in the context of a claim for divestment. To me, as I think about that, it doesn’t seem core to my basic concern whether the university divests or doesn’t.

You have to have some investment policy, nothing is neutral. On the other hand, it’s really a question of who decides that investment policy, and we delegate it now to professional advisors. You guys have a good one, we have a bad one apparently. Our endowment hasn’t done very well. Okay. So are they making those decisions, which clearly are not neutral in any sense, or is it somehow a decision we’re going to delegate to the community in a kind of democratic fashion? And you could imagine that we would take that latter step; we’d make a lot less money, we’d hire a lot fewer people, but we could do that. It doesn’t go to that core thing of inquiry. So I find it actually a difficult case, even though it’s the original one for Kalven. Still, I think, on balance, I’d rather not have these things decided by the community. I’m not so sure. If you view the neutrality point too extremely, then ESG funds would be off the table, for example—and that strikes me as wrong as well. So, I struggle with that one.

Tomiko Brown-Nagin:
So let me ask about issues of race and gender. There’s a lot of legislation that’s been enacted that bans the teaching of race- and gender-related topics. And I wonder about considerations that should inform whether universities—including presidents, or these units, like you mentioned, Tom—might speak out when these things are at issue. And let me start with Janet. As you are a distinguished scholar of sex, sexuality, gender, and the law, from your perspective, how should universities approach these kinds of actions, specifically restricting race- and gender-related topics?

Janet Halley:
My thinking on this is pretty simple, I think that’s a direct academic freedom issue. It creates institutional non-neutrality, but I’m forcing it into that language. If the decision makers who make the curriculum, who make the faculty, if the faculty who become faculty think that it’s important to teach about sexuality, and race, and ethnicity, and nationality, and a lot of these hard issues, those are all legitimate areas for academic work. It genuinely shocks me and frightens me to see that legislation, but it’s an academic freedom concern. And so those are very politically motivated gag orders.

Tomiko Brown-Nagin:
And, Robert, do you have thoughts about this particular area? Race, gender.

Robert C. Post:
I just want to add an area and then get to race and gender. So: think of religion. One of the interesting things about American higher education is that we have different universities that have different spins on what their basic educational mission is. We have a market in universities. Most countries don’t. Most countries kind of centralize and nationalize their universities. So think of a religious university, and think of what a strong principle of institutional neutrality, the implications of that. For a religious university, it would mean you couldn’t be a religious university. And yet we have very strong traditions of religious universities, like Catholic universities, having academic freedom. Just to show you the wedge that exists between this idea of institutional neutrality and the reality of academic freedom.

On the diversity issue: we have this legislation now in Florida, for example, which is horrendous. But it is, as Janet says, a flat-out violation of academic freedom because it’s the state telling faculty what they can and cannot teach and what they can and cannot research and publish. That has nothing to do with neutrality, it has everything to do with the academic freedom of the faculty. But we have other forms of that. In the UC system, you have to submit a diversity commitment letter or something like that. And myself, I think that’s very close to the old days of the oaths under McCarthy. I think faculty need to have their own views on these matters. It’s a different thing to require of a faculty that, of course, they respect all students, they embrace all students, regardless. That’s a different issue because that goes to how they teach, but we’re getting very close to a boundary when we go beyond the mission in these statements.

Tomiko Brown-Nagin:
Great, thank you. And Janet, I know you have written about the difference between individuals and statements about these diversity issues and universities. Would you like to add anything to that?

Janet Halley:
I am horrified to hear that diversity statements have become mandatory in hiring and admissions in a lot of places and think it’s absolutely core to academic freedom that they not be criteria for those threshold decisions. One of my reasons isn’t only academic freedom and the oath, the sense that their loyalty oath is being asked for, but a certain kind of bureaucratization of a certain kind of truth about what that justice vision is. If you’re for the justice vision, why would you want it to be routinized in that way? And so, for instance, I know that in career centers all over the country, there are seminars now on how to give a good DEI statement. Well, that’s going to boil down to a five-part thing that you have to march through the little five parts in a certain way. And my students laugh out loud over how cynical they are over it already. That’s not good for social justice. But we’re talking right now about academic freedom. I think that that remains under that column for me. What about you, Tom?

Tom Ginsburg:
I’m in complete agreement. I think the question highlights that where we are now has been the result of a slowly and now very quickly metastasizing crisis in higher education. Thefire.org, which is a nonprofit, reports that we’ve had more professors fired in the last few years than in the entire McCarthy period. And that’s from both the left and the right. It’s often responding to pressures from below, from student demand, that this professor took this position, we can’t have this person here. It’s for things which, when I was studying with Robert, would’ve seemed normal academic behavior and such. And so that’s a source of threat.

We always have had the threat of donors. I mentioned the 1899 pressure, which led the University of Chicago to take the position—obviously, I know, where I am, that pressure continues. But now there’s new pressure from the state, and that is something we have not seen, I think, since McCarthy. This level of pressure from the state, as always, raises the canary in the coal mine, and we must stand together.

But part of that, to me, is that universities have abandoned part of their mission. The presidents have held themselves as moral authorities, in a pastoral way, to take care of their people, which is power we’ve never delegated to them, and on charged issues, that’s part of the mix of what’s gotten us to this situation.

To me, the remedy is recovering a sense of what’s the core mission? What is our bargain with society? Society’s got a lot of problems, if you haven’t noticed, and they’re not going to be able to solve them without universities really working hard on them. And that requires an internal culture of free expression, and that, in turn, requires that we don’t have orthodoxies.

Tomiko Brown-Nagin:
I’m going to turn to some audience questions momentarily, but I want to ask one last question of my own, and that is about whether, or how, institutional neutrality or restraint should apply in the classroom, whether it might influence how instructors facilitate discussions. Should faculty be obliged to present a range of views and arguments about a given topic in order to militate against indoctrination, as many people are talking about these days? Or does doing that raise issues of academic freedom?

Robert C. Post:
You see now many, many people insisting that there be balance in the classroom. I think nothing could be more inconsistent with academic freedom than this demand for balance because, typically, the criteria of balance is a political criteria, not an academic criteria. Let’s say, a third of the population believes in creationism, do you have to teach creationism to be balanced in a biology department with evolution? That would be allowing public opinion to override academic judgments, and the whole point of academic freedom is that you should be free from the pressure of such public opinion.

The question of what diversity of views should be presented in the classroom is a question of academic competence within the classroom. If I, say, present the spectrum of views on God, how many different things do I have to present? There’s an infinite number, and the only way to judge that is to judge it by reference to your competence in the field.

There is a distinction between educating and indoctrinating. As a matter of professional ethics, we’re not supposed to indoctrinate, but we’re supposed to educate. How do you know the difference? If I have a student who insists that two plus two equals five, and I say, you’re wrong, that’s not indoctrinating, that’s teaching math. But if I have a student that says God is not dead, and I insist that God is dead, that’s indoctrinating. And the only way you can tell the difference is by reference to the epistemological standards of the discipline being taught. And that’s why this notion of disciplinary competence goes into, and is at the root of, the very question that you asked, Tomiko.

Tomiko Brown-Nagin:
Other thoughts about classroom norms?

Janet Halley:
We’ve been having really great discussions in the Council on Academic Freedom, a group of about 180 Harvard faculty, and it’s exposed me to people in disciplines so far from mine. And I can see that the very nature of the educational mission is so different in, say, a basic mathematics class or in a basic economics class than it is in my class on feminist legal theory. They’re different animals. And so I think we have to approach this with just the very thing that Robert is talking about: a profound respect for the thoughtfulness that has gone into the construction of the cultures of knowledge that exist in a quite diverse ecosystem of cultures of knowledge in any college or university. No, I’m with Robert on that.

Although I do teach: Here’s one feminist legal theory; I’m not going to tell you what I think about it. Here’s another feminist legal theory; I’m going to not tell you what I think about that either. Here’s another; pick. Or say you don’t like any of them, that’s not my job to tell you which one, right? My job is to make sure that you understand each one. I’m very much committed to that diversity-of-views pedagogy. But I don’t think I’m entitled to tell somebody who thinks that learning basic organic chemistry has to be taught that way. I think we need to have respect for disciplines.

Tomiko Brown-Nagin:
Sure. Tom?

Tom Ginsburg:
Just very briefly, we all teach in law schools, and that shapes what we do, which is you’re trying to have students articulate the best argument, independent of holding that position. And I do feel like there are parts of the university where that distinction between: I’m making this argument but it’s not mine, that doesn’t hold. Where, if you make the argument, oh, my God, you’re going to be shunned. We’re in the social media era, we’re in the panopticon, and we do have instances where students say something in class in a kind of exploratory way, and then it goes out on social media. That’s happening all over the country, and it’s obviously deeply undermining of any kind of educational mission. I think we really collectively have to think about how we educate students, to take Robert’s point. If that’s what education is, how do we actually do it in this era? We’re just starting to work on that problem.

Tomiko Brown-Nagin:
Thank you.

Janet Halley:
One thing I do there is I ask students to channel the readings on the assumption that it’s not their own view. And then I can say that, when another student says X argument, I can say, you don’t know whether that person was saying their own view or not. And so, I’m trying to create a culture of articulating arguments without making confessional commitments to them. That, and we’ve adopted a modified Chatham House Rule for the law school, as well. That’s a rule that says that the things that went on in the classroom can be discussed outside the classroom, but without attribution and the various forms of it—but that, if that becomes a cultural norm, then there’s more room for students to try things out in a classroom where that’s the appropriate classroom contribution to be making.

Tomiko Brown-Nagin:
And I will say it’s significant that we all teach in law schools, where this kind of back-and-forth and expectation of being able to take multiple positions is standard. Of course, as you say, that’s not true across disciplines. We haven’t disagreed much, by the way, I’m noticing.

Janet Halley:
Sorry about that, everybody.

Tomiko Brown-Nagin:
Maybe some of these questions can generate some disagreement. Let’s see. Here’s one: Would more transparency, or collective deliberation about what university leadership says be helpful? In other words, is it less about public statements and more about collective process? Thoughts?

Tom Ginsburg:
It strikes me that it’s also contextual. We’re having a controversy now among the faculty about someone who was invited as a convocation speaker last year. The administration invites the convocation speakers and the Kalven Report actually says, “There’s some times when we must act when we invite a convocation speaker.” But that strikes me as an area where there’s no reason that couldn’t be subject to the collective input of faculty. More transparency in many areas would be quite appropriate.

Because I have the position that the president should usually keep his mouth shut—in our case, a him—on the issues of the day, I don’t necessarily think that we all have to discuss whether the exception is met or not. The way it tends to work is a leadership speaks, then there’s a reaction, positive or negative, and if they overstep their bounds, they’re going to be uncomfortably challenged by the community. But I don’t quite know what a mechanism like that would do. I do worry, in general, that all of this, as I said before, takes away from the core activity, which is learning and research, and all the time we spend lobbying the university to do X or Y is a distraction from that. That’s my general…

Tomiko Brown-Nagin:
Also, an incredible amount of time actually goes into crafting those statements. It’s extraordinary.

Tom Ginsburg:
And they’re very bland, in the end, usually.

Tomiko Brown-Nagin:
Yes, because they’re statements by committee, typically. Let’s see. Another question I have here is student organizations pose special problems (which is an understatement). Students should speak freely, but student organizations are funded often by the institution itself. How does institutional neutrality interface with supporting student groups?

Janet Halley:
Wow, that’s a great one. Yeah, that’s tough because the student organizations can be voluntary, or you join and you become a member. And then that can be a selective process in which people who agree with a certain thing will join the student group. People who don’t, won’t. And other student groups could be set up in order to be the umbrella organization for first generation law students, people who are the first generation to go to college and their whole family, and you’re attributed membership, whether you volunteer in or not.

And so I think that there’s a really distinctive problem—leave aside the funding issue—with the who is spoken for by a student group. As we saw, here at Harvard, student groups can also now, on social media, issue statements much, much faster than they can poll their members. This is pure politics. This is what we call extramural speech in the academic freedom lingo. But it raises very distinctive problems, and I don’t think we’ve even begun to crack them open. And I, myself, would not want to do that without the company of a lot of students who are very interested in the matter.

Tomiko Brown-Nagin:
Robert?

Robert C. Post:
I think the idea of transparency goes better to student groups than it does to the university, but there’s actually positive law on this question of neutrality and funding student groups. This would go for a state university, but it would also go for a private university in a state like California, which under the, I think it’s called the Cohen Act, is required to act as if the First Amendment applied to them.

A university often gives money to qualified student groups. And the positive law, the First Amendment, is they cannot distinguish on the basis of content which groups they will and will not give money to once they set up a rule that all student groups qualify for money. Now, if we back up from that, we can make two points. One is universities needn’t give money to student groups. There’s no requirement that they give the money in the first place. Why do they? Universities are fiduciaries for their resources. They can’t spend their resources on frolics and detours. They have to spend them on their educational mission. Why is giving money to student groups part of the educational mission? That needs to be fleshed out.

It’s gotten to the point where we just give them money and assume somehow that that’s okay. It’s not okay. You have to have a theory of why allowing student groups to pick their own speakers and creating a climate like that on campus is somehow educational, and that needs to be thought through. But that’s not a question of neutrality. That’s a question of education.

Tomiko Brown-Nagin:
Wonderful. Tom?

Tom Ginsburg:
I’m maybe the most pro-student on the panel in this sense. There’s this common way of thinking about the university. Of course, our mission is inquiry, but we have this collateral thing in a democracy, which is incubating students, incubating young people to join that democracy. And part of being in a democracy is you have organizations, civil society, you elect a representative. That representative sometimes does things that the membership’s unhappy with, and you deal with it. That’s something that everyone has to deal with. And in a way, just having an area in which that people get practice at that seems appropriate to me. Making statements is fine.

Now, we’ve obviously had a lot of this since October 7th, the student groups saying, we need the university to do this. They’ve become lobbying organizations, and in the case of some of the things—we want a statement on X or Y—they’re not going to succeed in that lobbying. But there’s some training there in terms of what works and what doesn’t? If you’re a member of Students for Justice in Palestine, of course, you want something to happen now, and I get it. What is the strategy that actually is going to effectuate change is part of the processes trying to work it out.

And by the way, a general point on that, obviously there have to be limits. And I’ve learned, in talking with other universities, that some universities don’t have very good disciplinary systems. Your right to speak obviously stops when you’re interfering with someone else’s right to learn. You can’t get up in class with a megaphone, but you can do a lot to protest and to make your voice heard without crossing the line. What happens when you cross the line? There has to be some limit there. A university without limits is also not going to be able to achieve any of its other function, the more core one of inquiry.

Robert C. Post:
Notice you’re putting in the educational function, the university, the creation of a democratic citizen, which I think is appropriate, but that has to be made explicit. And many colleges, for example, don’t take that as a mission.

Tomiko Brown-Nagin:
Let me get to some more questions, many of which are asking for clarification on some points that were made at the beginning. One is, if institutional neutrality is crucial to the research mission of a university, does this mean that religious universities are thereby bad at pursuing research and learning? Doesn’t Notre Dame or Calvin College or Yeshiva, let’s throw in HBCUs or other different kinds of formations of the university have the obligation to voice a particular mission?

Tom Ginsburg:
Yeah. That’s, I think, directed at my statement, the purpose of the university is inquiry. And Robert has already said that we have to let a hundred flowers bloom. There’s all kinds of different missions, and inquiry is really important for research universities, like Harvard and Chicago, University of California, but many others have very different purposes. And so, although it may sound like I’m being a real missionary here—a Kalvenist, as I sometimes call myself—I recognize that these things have to be tailored to individual contexts, and for some universities, part of the mission is to speak out on certain things. So I get that. I still think that the general point I’m making, and I call it a constitutional point, that when universities do this too much, or when they step into realms which are really outside either their core mission or outside the core mission as modified, they are inviting an internal politics of lobbying, which ultimately dissipates the energy that we all need for the core missions of universities.

Janet Halley:
So may I step in here?

Tomiko Brown-Nagin:
Sure.

Janet Halley:
I want to say that I think that it is a crucial part of academic freedom that institutions be able to have messages, and a religious institution has to be able to have a religious message and to carry it out in its mission. In answer to the audience member, the difficult thing, in my experience, has arisen when a college or a university with a religious mission right at the core also has a commitment to academic freedom in the faculty manual and the student manual and the basic operating. And I don’t think enough thought has gone into really working out what it means for faculty in those institutions. Not being in one of them, I haven’t been in a position to observe it, but it strikes me as a really, really interesting problem when you have that dual commitment, and I’ve seen it in many academic freedom cases I’ve handled in the Academic Freedom Alliance. It’s a continually recurring problem.

Robert C. Post:
I used to be the general counsel of the AAUP and see this a lot. So think of a seminary whose function is to train priests. So the priests don’t get academic freedom to deny Christ. You can’t do that. It contradicts. And there have been law professors—like you might remember Paul Carrington, probably before your time—who said, “We have to teach people faith in the rule of law. And if we don’t do that, we’re missing our seminary function.” So there are cases in which academic freedom is limited or incompatible with the function. Most religious universities will say, “We have a religious purpose, but you have academic freedom in all other respects, and we try not to interfere with your research.” It is a problem, though, and typically, is handled by saying—the AAUP will require such institutions to say, “We are a university, except in this unit with this purpose,” et cetera. In which case, you don’t expect academic freedom because you’re being trained to be a particular role, and you have to have that role.

Tomiko Brown-Nagin:
There’s a question asking why an external university statement would impact internal, departmental harrowing or teaching? If academic freedom is preserved and safeguarded, why not have deans and presidents speak to the public more openly?

Tom Ginsburg:
This is something where Robert and I have engaged, I guess, in print a little bit. I would say that it doesn’t necessarily affect the academic freedom. So let’s give a concrete example. You’re in a university hypothetically where the university president pronounces that there’s one side that’s correct in the Ukraine-Russia war, and it’s the Ukraine. Now, your research is on NATO expansion or the deep histories of the conflict or Ukrainian identity. You’re basically being told that, “Don’t go down that route because the president has taken the other position.”

Now, it’s true: the president doesn’t really affect you, and you still have the academic freedom to pursue your research, no doubt. But notice how it’s raised the cost. It’s disincentivized inquiry, to what end? These statements, I’ve studied them around the country. There’s a lot on Ukraine. There’s none on Ethiopia. There’s none on Yemen. There’s none on conflicts where US foreign policy is not really well implicated. So there’s a certain sense in which where we get the statements, it’s not neutral itself. It’s political, and we don’t need them. They don’t help. No one in the university changes their mind, I don’t think, because Larry Bacow says something, but it might lead many people to fail to learn more. And that’s why I don’t like them.

Janet Halley:
You have to have come up for tenure sometime in your life to know how hypersensitive junior faculty are to the possibility that their research agenda, which you would predict, I would say, inevitably has some political content to it if they’re in one of the more social academic disciplines and very possibly when they’re not as well. They’re hypersensitive to messages of political expectation or conformity or non-flouting of norms. And it can stunt a person’s research mission for life. And I think that the idea of bringing in new voices with the new generations and then tenuring them and that probationary period, you can really wreck a scholarly career by implying that there’s a correct thing, that you have to toe the line only for five years and then—no, it’s going to have downstream consequences.

Tomiko Brown-Nagin:
Let’s go to another one. And it asks, “Does neutrality work as an unintentional cover for majority preference and privilege at the expense of vulnerable and disempowered communities?”

Tom Ginsburg:
So, I actually think it’s the opposite.

Tomiko Brown-Nagin:
Yes.

Tom Ginsburg:
As I say, there’s an internal politics about these things in the university, and if you think you’re going to win those battles, you should not want institutional neutrality. You should want institutional vocality because you’re going to win those fights. If you’re the marginalized, if you’re not traditionally represented in universities, if you take a minority position on a scholarly issue, then you should be in favor of neutrality. It’s interesting. At Chicago, we have our own internal discussions about this. We have some faculty who are really very skeptical about the whole thing, don’t like it, but they’ve changed their minds. I don’t want to speak for them all, but they’ve come around a bit since October 7th, because any statement we would’ve issued would’ve been a pro-Israel statement at the university center level. And they think, “Wow, that would’ve squelched our position on this side.” So I think neutrality is exactly what preserves the right of the dissident, the minority, and the marginalized. That’s my view. It’s ultimately an empirical question.

Robert C. Post:
Well, one thing to be said about that is that Chicago is a very special case. Kalven comes out in 1967, and Chicago has pursued this institutional neutrality rigorously since then. No other university adopted this. This came up for debate in many councils in the AAUP and otherwise. It was never adopted until 2022 at the University of North Carolina, and it was adopted in the University of North Carolina pretty plainly as a right-wing effort to get the University of North Carolina not to say certain things, which would have been characterized by this person asking the question as in support of minorities.

So the revival of institutional neutrality—and I’m not speaking here about the University of Chicago—but the way it’s been picked up since the Goldwater report, which I mentioned earlier in 2017, has had a particular political valence. It’s been very much associated with conservative initiatives that view universities as left-wing, and “universities” meaning supporting left-wing means. And I take it that the questioner meant referring to and supporting minorities and those who are out of the mainstream now, out of the MAGA mainstream.

And so, in that sense, the university neutrality has been fighting words from the right. And so we have to understand that that’s one reason I think we should disassociate this term institutional neutrality from the deeper policy questions which go more to restraint and to the practical problems of governance rather than this, I think, appeal to principle, which has been a mark of the right.

Tomiko Brown-Nagin:
Tom, do you want to speak to this question?

Tom Ginsburg:
Yeah, I think that might be true sociologically. It is true sociologically that we do see the revival of this term, and yet it might be a useful policy—we can call it restraint, that’s fine—to protect academic freedom when it’s under, obviously, as we both agree, the most severe threat in decades. The idea that we run our own house, if you will. And part of that is that we’re not going to be directly as a unit. It goes back to the 1899 statement of Harper. The university itself doesn’t take positions on the issue today. We do have these scholars who are speaking out for x, y social justice, and it’s our job to protect them, but that’s not us.

And so that’s something that I think all state university presidents have dealt with for decades. They’re always trying to convince the legislature to keep the money running and saying, “Well, we’re not political.” So that kind of conceptual separation, it’s an argument. It’s an idea, but it’s a powerful and useful idea to allow us to protect ourselves in these fraught times.

Tomiko Brown-Nagin:
So, there’s a question here that I believe is coming from a student, which is a plea to broaden the scope for everyone: “The world is a big place. Harvard is small. Can we ask the panel about how young people should face the new troubled world of college life?”

Tom Ginsburg:
I love that question.

Janet Halley:
Whoa. That’s pretty core.

Tomiko Brown-Nagin:
Well, it’s a plea for teaching, right? Do you want to start?

Tom Ginsburg:
Maybe I can jump in. I think about this a lot. The world is a messed up place.

Tomiko Brown-Nagin:
Yes.

Tom Ginsburg:
It’s an awful place, and you want to do what you can to fix it. In one channel, you might say, “Well, God, if I could just get this person down the hall from me to make a statement, that would be doing something.” It’s a speech act. That’s action in an era of Twitter, right? And Twitter is not action. Twitter—it’s evil from my point of view, but that’s another point. Right? That is mobilizing to effectuate change is really, really, really hard. And it requires learning. It requires being able to separate good and bad arguments, to make good arguments and to figure out how to do that. So I feel like universities can do that, but my only advice is try to stay optimistic because if you guys aren’t optimistic, then we’re really doomed in my generation where we haven’t left you the best world.

Janet Halley:
I think I want to express compassion for young people coming into the situation that we face today. Whoever sent us that question, I do think that you’re facing a sense of great crisis, a sense of rapid change, a sense of rapid normative disorientation. I think that the change of the political landscape after October 7th surprised people very profoundly, and they really haven’t gotten their balance in the new normal yet. But you’re in a university. You’re in a place of learning. You’re in a place of questioning. You’re in a place of changing your mind every now and then in a place that’s relatively safe for that. So I would ask you to look to the strengths of the university setting. You have so much to offer it as students—we count on you. And try to help us in a partnership to make the robust intellectual response to these immense demands that we need. So I want to express an alliance with that question but also to say the tools are on the table.

Robert C. Post:
Another thing to say about that is the world is very large, and going to college, you don’t have to take on the whole world. You have a community here, and sometimes being in the community is a wonderful thing. It’s a precious thing. You may not have it after you graduate. And so community gives you advantages of support and solidarity and being able to change your mind, as Janet said. And these are things to take advantage of. And part of the challenge, I think, of going to college now isn’t, not really, the miserable state of the world, which is pretty depressing. But because of the internet and because of social media, you lose the sense of community, and it bleeds out into the whole world so quickly that it’s hard to get the advantages of the solidarity and the mutuality and the fraternity and the sisterhood, which you could get in a place like Harvard.

And so my advice, if you ask advice, is take advantage of that while you have it here, and there’ll be plenty of time to take on the world. The world will come to you. Here, it’s a privilege. Use it well.

Tomiko Brown-Nagin:
That’s a great note upon which to end. Thank you so much to our panelists.

Heather Min:
That concludes today’s program.

Ivelisse Estrada:
BornCurious is brought to you by Harvard Radcliffe Institute. Our producer is Alan Grazioso.

Heather Min:
Anna Soong, Kevin Grady, Lily Roberts, Sky Jung, Cabin 3 Media, and Max Doyle provided editing and production support.

Ivelisse Estrada:
Many thanks to Jane Huber for editorial support. And we are your cohosts: I’m Ivelisse Estrada.

Heather Min:
And I’m Heather Min.

Ivelisse Estrada:
Our website, where you can listen to all our episodes, is radcliffe.harvard.edu/borncurious.

Heather Min:
If you have feedback, you can e-mail us at [email protected].

Ivelisse Estrada:
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Heather Min:
Thanks for learning with us, and join us next time.