At Prawfsblawg, my co-blogger Rick Garnett has a wonderful post discussing Prof. Geoff Stone's discussion of the Kalven Report and the role of the university. Let me add some unduly lengthy thoughts.
First, Prof. Stone's argument ultimately sets much store in defining "the university." A university, in his view, has a broad but ultimately static function: to create a forum for fearless speech and inquiry, and not "to proclaim the truth." Thus, "once a university takes sides, it is no longer a university." I have been thinking a good deal about universities and the First Amendment these days, and it seems to me that there is a tension between basing First Amendment rights inhering in and around the university on academic freedom, and the non-legal concept of academic freedom itself, which is hardly as fixed and uncontested as the courts' depiction of it might suggest. One way to resolve this is to just come up with a definition of what "the university" is for constitutional purposes, or of what "academic freedom" is for constitutional purposes, and stick with it. But I am not convinced the courts should simply draw a line around what they think the university is, or what they think academic freedom constitutes, and argue that anything beyond that definitional boundary is irrelevant. Rather, they -- and we -- ought to understand that within the broad grouping of institutions that we understand, family-resemblance-style, to constitute "universities," there will inevitably be different views on what the university mission entails, and how it ought to be carried out. An institution whose understanding of that mission, or of academic freedom, that falls sufficiently outside of that family may eventually lose the support of adherence of academics, students, and others. But within the fairly broad scope of our intuitive of what constitutes a university, there is surely room for universities to vary in their understanding of their mission. To say of such institutions that they are "no longer [ ] universit[ies]" seems to me to be unhelpful, and to settle by fiat what should be a productive discussion about the potentially plural nature of universities, and about whether there are core principles that unite the university or the concept of academic freedom. So I cannot agree with Prof. Stone that a university that opted to make a statement about Darfur through divestment would cease to have earned the title of "university"; rather, such a university would demonstrate that there is room in the academy for varied and conflicting understandings about what any individual university's academic mission entails.
I should add that I have conflated here, to some degree, questions about what courts should do about the university, and questions about how we, and Prof. Stone, should think about the university outside the courts. But the two are related and shed light on each other, I think: for if we are willing as academics to acknowledge that there is no fixed definition of "the university" and its mission, we might urge courts to proceed less on the basis that they are protecting some fixed definition of "academic freedom," and more on the basis that they ought to defer to the actions of universities as largely autonomous institutions, allowing them to proceed to determine for themselves what their academic missions require of them.
Second, I am guessing (though I might be wrong!) that lurking behind Rick's examination of Prof. Stone is a question that has been much discussed in certain academic precincts lately: the nature of the religious university (often the Catholic university, although such debates have also taken place at Baylor and elsewhere). Such institutions are, I would guess, used to the slings and arrows of comments from without suggesting that a university that has a religious mission in some sense is "no longer a university"; and those schools have also engaged in vigorous good-faith internal debate about what it means to be a religious university, and also what it means to be a religious university. Speaking from within the snowy and sunless grounds of Notre Dame, I can attest to the value and power of such discussions -- and I can attest with equal confidence that this is a university, albeit one whose mission may (and perhaps must) ultimately differ from that of the University of Chicago. So, like Rick (I think), I would hesitate to engage in line-drawing that says that particular recognizably academic institutions are not "universities." As he says, we may each argue about when, and whether, a university should take a stand, what its academic mission is, what academic freedom entails, and so on. But we should have that discussion rather than engage in a somewhat artificial act of boundary-drawing.
Of course, Rick also rightly points to Prof. Stone's argument that universities may "take a stand" on particular issues in "exceptional circumstances," including action where the university's "own conduct would otherwise directly and materially cause serious injustice." Prof. Stone's example of this is that universities "may appropriately refuse to allow employers to use its placement facilities if they would use those facilities to discriminate against students on the basis of race, religion, gender, ethnicity, or sexual orientation." Rick sees this as an argument jury-rigged to clear a space for the position taken by many law schools in the FAIR case, arguing against the Solomon Amendment. I am no fan of the Draconian nature of the Solomon Amendment, and I think the Court ought to have given far more serious consideration to the arguments raised by the FAIR plaintiffs than it ultimately did. But I also see Prof. Stone's effort to draw a distinction between Darfur divestment and the exclusion of military recruiters as unpersuasive. First, I am not sure that the direct/indirect distinction Prof. Stone draws is really present here. Second, I am not sure which way it cuts; after all, universities do not offer any choice to their students whether or not to participate in sending investment monies flowing to a region of the world in which genocide is taking place, but students to have every freedom not to participate in on-campus recruiting, by the military or any employer. Moreover, it is certainly arguable that the injustice involved in genocide, albeit it is a more indirect consequence of investment, is far more "serious" than the wrong involved in the military recruitment case. Third, as Rick has already suggested, it won't do to distinguish the two cases because the divestment crowd was urging the Univeristy "to make a statement about what is morally, politically, and socially 'right,'" as Prof. Stone writes. This sort of "message" argument was precisely what most of the plaintiffs in FAIR were arguing was at stake in the military recruitment context; if a university can make a "statement" in that context without losing the right to be called a university, it is not clear to me why it cannot make a similar statement in the Darfur context. Moreover, as many of the commenters to Prof. Stone's post suggested, there are other ways in which universities can send "messages" of this type which do not closely resemble what the law schools and universities did; most prominently, they could continue their policies of exclusion and accept the financial penalties.
I have much more to say about the relationship between Prof. Stone's views and the FAIR decision, which should be of some interest given past discussions of that case on this blog, but let me respect the usual word limits here by pointing interested readers to the full-length version here.