Publication Date
2023
Publication Title
Public Law & Legal Theory
Abstract
We live in an era of the academic corporate statement, in which university leaders issue pronouncements on various issues as if they were political figures. Like their counterparts in large corporations, they apparently feel the need to state institutional values publicly and often. Commentary on the issues of the day is seen as projecting pastoral empathy and solidarity; silence is viewed as complicity. We want leaders who can craft the perfect statement satisfying all, and in the right font size.
Such trends cut directly against the intuition behind the Kalven report, which is that academic institutions should remain spaces of intense internal debate, even or perhaps especially on issues on which the outside world seems to agree. While the Kalven report has assumed iconic status in the national conversation on free expression in universities, it is sometimes contested even at its home institution. Some believe that if it were submitted to a faculty vote today, it might be withdrawn. Is it outmoded?
In this essay, I provide what I call a constitutional justification for institutional neutrality. Just as constitutions, to underpin and facilitate democratic conversation, provide norms that are not themselves up for regular reconsideration by ordinary majorities, so certain foundational principles may be built into the fabric of a university, and not be left open for question. Academic freedom is one such norm (and one that is under grave threat in our current environment); institutional neutrality is another.
Universities, of course, are not democracies, and not every policy is subjected to faculty vote in any case. But academic freedom demands a good deal of self-governance by faculty. Some might argue that academic freedom in its corporate sense actually allows collective speech on issues of the day, if the faculty wants to do so. Why shouldn’t the faculty be able to speak collectively by majority vote?
The constitutional perspective provides an answer. I explain the logic of constitutionalization as a form of institutional pre-commitment, and argue for its particular importance in the context of the university. Neutrality on issues of the day concentrates the energies of the community into questions that can be best resolved through the academic enterprise, and away from those which will waste or dissipate those energies. I then go on to describe the history of this principle at the University of Chicago, where institutional neutrality is constitutional in a more descriptive sense: it is drawn, not from the mid-1960s, but from the very earliest years of the University of Chicago in the 1890s. The committee chaired by Harry Kalven was merely restating a constitutional norm, not setting out any new principle in the crucible of the 1960s. The idea of institutional neutrality embodies a set of progressive and pragmatic commitments from the late 19th century, which are worth sustaining and reviving in our anxious and repressive era.
This perspective helps to contextualize the enduring value of institutional neutrality as a core norm, constitutive of at least one great research university. Whether others adopt similar commitments, of course, is up to them. Not every polity has an enduring constitution; but those which do are richer, more peaceful, and better able to protect the rights of their citizens. Perhaps the same general principle applies to universities trying to generate deep insights into the myriad problems facing society.
Number
845
Recommended Citation
Tom Ginsburg, "A Constitutional Perspective on Institutional Neutrality", Public Law and Legal Theory Working Paper Series, No. 845 (2023).
