Universities in Public Debates

Institutional position-taking at Harvard and in higher education

Tom Ginsburg, Ned Hall, Janet Halley, Robert C. Post, and Tomiko Brown-Nagin

Clockwise from left: Tom Ginsburg, Ned Hall, Janet Halley, Robert C. Post, and Tomiko Brown-Nagin | Screenshots by Harvard Magazine

Should universities take positions on public issues? The Hamas terrorist attack of last October 7, and Harvard’s response to it, made that question far from an abstract one on campus. A March 5 debate on that question at the Harvard Radcliffe Institute centered on one possible response—institutional neutrality policies—and its connection to academic freedom. The discussion was more than theoretical: Alan M. Garber, interim president, will organize an examination of the merits of such a policy for Harvard. When he appointed Harvard Law School dean John Manning interim provost, effective March 14, Garber described him as “an ideal individual to advance several key University initiatives, including forthcoming efforts to explore institutional neutrality and how best to nurture an atmosphere of open inquiry, respectful dialogue, and academic freedom essential to academic excellence.” (In brief remarks at the Faculty of Arts and Sciences meeting the same afternoon, Manning confirmed that he will direct that work.) Tuesday’s conversation, jointly sponsored by Radcliffe and the Council on Academic Freedom at Harvard (CAFH, a faculty group organized last year to advance free inquiry, intellectual diversity, and civil discourse), took place against that backdrop.

Institutional Position-Taking

Vuilleumier professor of philosophy Edward “Ned” Hall, a CAFH co-president, introduced the topic by summarizing the two core missions of universities: research—“the production and dissemination of knowledge and understanding”—and teaching—“preparing students for lives of meaning, service, and purpose.” To advance those objectives, “What should Harvard and higher education do, or for that matter, not do?” he asked. Should university leaders not “put their thumb on the scales when it comes to issues of political seriousness or ethical seriousness?”

Radcliffe Institute dean Tomiko Brown-Nagin, a professor of constitutional law and of history (profiled here), who moderated, began by observing, “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.” She noted that universities are organizationally complex and accountable to many different constituencies. As recipients of federal funds, they are “a highly regulated industry,” and subject to legislation that is inherently political. And “universities are reliant on philanthropy,” she added, “which introduces another layer of complexity.” Launching the discussion, she asked the participants to outline their views on the concept of neutrality, starting with Tom Ginsburg, Spitz Distinguished Service professor of international law at the University of Chicago, which has a tradition of not taking a position on issues of the day dating to 1899, and which enacted an official policy of institutional neutrality in 1967.

Ginsburg, faculty director of the Malyi Center for the Study of Institutional and Legal Integrity and of the Forum for Free Inquiry and Expression at Chicago, explained that his university’s policy of “neutrality at the center” is designed to protect scholars and students, enabling them to take positions on controversial issues without fear of contradicting their institutional superiors. But partisan statements by departments within universities—“Russia is evil and Ukraine is good,” for example—are problematic, too, he argued: “What does that do to the grad student seeking funding, or the junior professor who was told there’s a right and a wrong on particular international issues…?” The result, he said, is that “We now have many departments with foreign policies,” and that “doesn’t make sense to me.”

Robert C. Post ’69, Ph.D. ’80, Sterling Professor of Law at Yale, agreed that official university speech “can be quite contrary to the academic freedom of students, and of faculty.” But he argued that while institutional neutrality at Chicago was adopted as a matter of principle, neutrality is actually a contingent question that depends, in part, on mission. Many institutions, for instance, “define their educational mission in terms of diversity.” Assembling a diverse class is part of their commitment to preparing students. “That’s quite different than espousing diversity in terms of say, social justice”—an “extraneous” consideration. “Defining what the university is, what it stands for” is the role of leadership, he argued—a “matter of judgment and of statesmanship.” He argued for “restraint” rather than neutrality.

Whether in teaching or research, Post continued, “Universities need to be autonomous in the serving of that mission. But when we speak outside of our lane, we invite reprisals. There may be reasons to do it,” he acknowledged, “but they have to be pretty good reasons” because higher education is “especially vulnerable right now.”

Harvard’s Janet Halley, Goldston professor of law, who recently argued against an institutional neutrality policy in a Crimson editorial, believes that universities implicitly take positions on issues of the day simply by dint of their daily operations—by investing in oil and gas, for example. If universities cannot speak out for disinvestment from these industries, that would imply endorsement, what she termed a “speech act of a silence.” By saying nothing, she argued, the institution’s investments alone might convey a message that was fundamentally dishonest. She advocated for “some level of clarity and transparency to preserve simple honesty.”

But she agreed with Ginsburg that departments, because they hire teaching faculty, grant tenure, and design curricula, must “have a very high commitment to capacious debate,” and avoid one-sided statements. She drew a distinction, however, between departments and the example of a law clinic devoted to preserving the right to life by litigating against access to abortion services: that type of entity with a distinct mission, she argued, should be able to advocate for its agenda. “So, I think you really have to be granular,” she said, “about your institutional location.”

The University of Chicago limits the speech of such focused, internal organizations, including its center on race, politics, and culture, Ginsburg reported. But he dismissed that as “not a core case” because “collections of scholars can always speak out collectively,” and because such centers “are not in the position of directly supervising core scholarship.” He engaged with Halley’s argument about investments as implicit speech by noting that no investment policy is neutral, and investment decisions are delegated to professional advisers, not faculty or administrators.

Protecting Speech

Brown-Nagin asked the scholars what they think about recent legislation that has banned the teaching of race and gender-related topics in certain states’ universities. On that point, all three agreed that such interference was not a question of enforced institutional neutrality, but instead a straightforward threat to academic freedom: what Halley characterized as “politically motivated gag orders.” But Post warned that legal constraints are not the only manifestation of recent attempts to silence speech: “in the [University of California] system,” he said, applicants seeking faculty positions “have to submit a diversity commitment letter….I think that’s very close to the old days of the oaths under [Senator Joseph] McCarthy…. Faculty need to have their own views on these matters.” Requiring that faculty respect and support diverse students is a different issue, he added, because that pertains to how they teach.

Ginsburg said that the Foundation for Individual Rights and Expression, a non-profit, reports that more professors on the left and right have been “fired in the last few years than in the entire McCarthy period,” often in response to student demands: “This professor took this position, we can’t have this person here.” The complaints typically involve academic behavior that “would have seemed normal” a generation ago. But he agreed that “the current level of pressure from the state is something we have not seen, I think, since McCarthy.”

“The remedy,” he believes, is recovering a sense of “the core mission: what is our bargain with society?” Given that “Society has got a lot of problems…and they’re not going to be able to solve them without universities really working hard on them,” he said, “requires an internal culture of free expression” which in turn, “requires that we don’t have orthodoxies.”

The distinction between speech made from positions of academic or administrative power and speech within classrooms, and thus in service of the educational mission, was a unifying theme for these scholars. Post in particular spoke forcefully against the idea that faculty should be obliged to present a range of views on a given topic, arguing that this demand for balance is a political rather than an academic criterion and therefore inconsistent with academic freedom.

But students are vulnerable not only to the sense of constraint that may be imposed by institutional speech; in the social media era, Ginsburg stressed, expressing minority viewpoints in the classroom without fear of retribution may be the more challenging problem. “We’re in the Panopticon,” he said. “And we do have instances where students say something in class in an…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.” Articulating an argument that does not reflect one’s own view is a hallmark of legal education, he noted, and confers the ancillary benefit of protecting students from personal attack (because their own views remain unclear to other students) but that pedagogical approach doesn’t always apply in every corner of the university.

•     •     •

After the formal discussion, a question from the audience underscored the subtleties that divide proponents of institutional neutrality from those who regard it with skepticism, or who prefer policies better characterized as “institutional restraint.” Does neutrality work as an unintentional cover for majority preference and privilege, the panel was asked, at the expense of vulnerable and disempowered communities?

Ginsburg argued the opposite. In the internal politics of universities, he said, those poised to win battles should not want institutional neutrality. But “If you’re marginalized, if you’re not traditionally represented in universities, if you’re taking a minority position on a scholarly issue, then you should be in favor of neutrality.” Illustrating the point, some University of Chicago faculty members who previously were very skeptical of the policy, he said, have “come around a bit since October 7,” because any statement by the University’s leadership “would have been pro-Israel.” “I think neutrality is exactly what preserves the right of the dissident, the minority, and the marginalized.”

But Post pointed out that the most recent adoption of such a policy, at the University of North Carolina in 2022, was implemented to suppress speech, not protect it. “Chicago has pursued institutional neutrality rigorously since 1967,” but “since then,” he said, “no other university adopted this…until 2022.” Institutional neutrality was adopted by UNC," he maintained, “pretty plainly as a right-wing effort to get [UNC] not to say certain things…in support of minorities.” Recent embrace of the term, he added “has had a particular political valence…very much associated with conservative initiatives that view universities as left-wing…. That’s one reason I think we should disassociate this term—institutional neutrality—from the deeper policy questions,” he concluded, “which go more to [institutional] restraint and to the practical problems of governance rather than this appeal to principle, which has been a mark of the right.”

Upon appointing John Manning interim provost, Garber said that “despite polarization in the wider society, John and his colleagues have developed several successful initiatives at HLS that nurture a culture of free, open, and respectful discourse.” Clearly, in his new role, Manning will need to bring his considerable legal and administrative experiences to bear in sorting out for Harvard the right policy on taking institutional positions on pressing public issues that extend beyond the mission of the University itself.

Read more articles by: Jonathan Shaw

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