By Mike Dorf
In a speech last week at a Columbia University conference on academic freedom, University of Chicago President Robert Zimmer made a number of sensible points about the value of academic freedom, including the observation that the general principles of academic freedom shared by modern universities will be implemented differently at different institutions depending on their respective histories and cultures. In particular, he noted that for his own university, the principles articulated in a 1967 report by constitutional law professor Harry Kalven are especially salient. Zimmer pointed to Kalven's statement "that the University, as an institution, should take no political positions and should remain neutral on such matters (except of necessity those in which it is a direct party), in order to ensure that [it has] a maximally open environment." Here I want to suggest that, as applied by the University of Chicago, this principle is problematic.
Zimmer gives the following example as his chief illustration of the neutrality principle in operation at the University of Chicago: "The Kalven report was the basis for the University of Chicago not agreeing with requests that we divest from companies doing business in South Africa or Sudan." Now this hardly follows as an inevitable consequence of the Kalven statement. One could have thought that a university's management of its investment portfolio makes it "a direct party" in disputes about the propriety of those investments
Indeed, once one chooses to see a university's decision whether to divest as inappropriately political, it is hard to see why the University was not taking a political stand by NOT divesting. The position that moral considerations should not affect investment decisions is, after all, a political position. This is not to say that divesting would have obviously been the right choice. In these debates, there is always a question of whether divestment will be counter-productive or harm the people it is supposed to help. But choosing not to divest for that sort of reason would at least acknowledge the political character of the decision. The Kalven/Zimmer/Chicago view attempts to have it both ways: In declining to draw a distinction between what the university is saying versus what it is doing for purposes of using the Kalven exception for direct action, it potentially treats all university actions that touch on politics as the taking of a political position; but then it purports to disclaim any political position by drawing what appears to be a false act/omission distinction.
The false act/omission distinction says that divesting would be a political act, but of course one could as easily reverse matters and say that holding stock in the companies doing business in South Africa or the Sudan (or wherever) is the act, whereas maintaining a portfolio free of the tainted stock is the omission.
To repeat, I'm not taking a position on divestment per se. My point is simply that a great deal of what universities do is "political" in the sense that people can make a political issue of it. Here's another example: Reputable universities do not hire or tenure biologists who espouse crackpot theories about intelligent design (although academic freedom presumably protects a tenured biologist who newly endorses intelligent design in his work). External pressure might nonetheless be brought to bear on a university--especially a state university--to hire an intelligent designist and the university's resistance might well then be characterized as "political" or, more likely, "politically correct."
If I were applying Kalven's principle, I would want to defend the university's resistance to the pressure in this hypothetical case by saying that the application of the biology department's academic standards either makes the decision not to hire the intelligent designist apolitical or that, if it is political, it is political in a matter that directly concerns the university, and thus falls within Kalven's exception. But Zimmer's narrow conception of the Kalven exception, and his correspondingly broad notion of "politics," may make this approach unavailable.
In the end, it's not even clear to me that the core of Kalven's principle--which is justified in the name of not wanting to chill expression--is a principle of academic freedom rather than simply a prudential principle of governance. Consider one last example. Suppose that a private university in a state that does not recognize either same-sex marriage or same-sex civil unions voluntarily extends various benefits to same-sex partners of university officers, employees and students on the same basis that it extends benefits to opposite-sex married couples. Does this policy have any less of a chilling effect on a philosophy or Divinity professor who opposes same-sex marriage and civil unions than would an official university pronouncement unconnected to a benefits policy? Doesn't the actual provision of benefits by the university make the point that the University supports marriage/partnership equality even more strongly than would a policy pronouncement alone?
To my mind, more important than Kalven's principle of neutrality is a principle that even when the university takes a strong position--whether by acting, speaking or both--dissenting faculty and students are free to take contrary positions.