Harry Kalven Was Right, But Is It Too Late For Universities To Be Neutral?

Harry Kalven knew something about free speech when he defended Lenny Bruce, so it made sense when the president of the University of Chicago charged him with heading a committee to figure out what the proper role of a university should be in addressing social and political issues.

Chaired by Harry Kalven, Jr. — a leading First Amendment scholar, and the attorney who successfully defended comedian Lenny Bruce against Illinois obscenity charges — the committee produced the Report on the University’s Role in Political and Social Action (the “Kalven Report”). The report’s central conclusion was that neutrality is necessary to maintain a university’s fidelity to its core mission: “the discovery, improvement, and dissemination of knowledge.”

The self-serving excuse that “silence is complicity” had yet to be born to turn neutrality into a weapon. Instead, liberal values still prevailed, that reasonable people could differ and that dissenting from a view, whether majority or minority, wasn’t an inherent evil.

Kalven and his fellow committee members recognized that taking sides in the day’s debates would necessarily close the university to dissenting scholars and disfavored ideas, undermining its long-term, knowledge-discovering role. “There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives,” wrote the committee. “It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted.”

Is this some absurd archaic view that is itself deemed unacceptable in this current universe where most on campus assert with certainty what the “right side of history” will be and that anyone disputing it is evil and has no place in a university? The conflict arising from the actions of Hamas, on the one hand, committing atrocities against babies, women and others, and the progressive tenet that the Palestinians are oppressed and, therefore, are entitled to do rape women or behead babies, since the oppressed are entitled to liberate themselves by “any mean possible.”

When news broke of Hamas’ terrorism, universities were in a quandary.

Stanford’s administration had given students little reason to think twice before defending mass murder. On Monday, Richard Saller, Stanford’s interim president, and Jenny Martinez, its provost, issued a brief statement “on the Middle East conflict” noting they were “deeply saddened and horrified by the death and human suffering.” The university also issued a statement saying the pro-Hamas banners were fine but would need to be relocated to another part of campus. “These removals are based on the location of the banners, not the content or viewpoint expressed,” the university made clear.

Stanford is correct to stand up for free speech. But Stanford should have taken a stand more quickly and forcefully against terrorism, particularly against Jews, given a history of antisemitic incidents on campus. Most recently, in 2019, antisemitic cartoons were posted on campus.

While in a statement on Monday the university said that “Stanford University as an institution does not take positions on geopolitical issues and news events,” Stanford did in fact issue a statement in 2015 in support of the Paris conference on climate change and release multiple statements condemning the 2020 police murder of George Floyd.

Is there a major (or minor, for that matter) university that did not take a stand on Black Lives Matter and condemn the police murder of George Floyd? And yet, these same universities couldn’t find the courage to condemn the raping of women or burning of babies? Suddenly, when it’s Palestinians and Jews, they lost their nerve to condemn barbarity?

On Wednesday, Saller and Martinez updated their initial statement to say: “As a moral matter, we condemn all terrorism and mass atrocities. This includes the deliberate attack on civilians this weekend by Hamas.”

This sauce was so weak as to be tasteless, and yet it was the best Stanford’s administration could muster given that the campus climate was overwhelming supportive of Hamas because the Palestinians were in the oppressed column and the Jews were, well, Jews. Even in their update, which only came after much criticism about their failure to condemn Hamas’ raping, kidnapping, burning, beheading of women. children, babies and the elderly, this was as strong as they could be without traumatizing their progressive students for whom Israel was evil and deserved any atrocity done to them. Who knew that rape wasn’t a bad thing, provided it was the marginalized doing the raping?

The FIRE has called for a return to the Kalven principle of institutional neutrality, that no university administration speaks for all its campus voices, and that institutions taking positions chills those students and professors who disagree from expressing their positions. It’s a principled approach, particularly given that educations institutions, by their nature, exist to encourage “critical and dissenting voices.”

By clarifying the contours of its role, a university adopting the Kalven Report and committing to neutrality is better positioned to fulfill its mission of generating and disseminating knowledge. By not tethering itself to a particular position, the neutral university will welcome the fullest range of views — and reap the benefit of the wisdom produced by the resulting debate. By avoiding the push and pull of particular political and social commitments, the neutral university will confront fewer calls to censor critical and dissenting voices.

But after taking positions time and again on social issues, can universities go back to the Kalven ideal of neutrality?

Once a university proves its enduring and principled neutrality, it will be free to focus its attention more fully on supporting its students and faculty and cultivating the conditions most conducive to their success. And the neutral university will reestablish itself as a unique entity in our society’s array of public and private institutions, rebuilding trust in higher education as open to all.

Suddenly clutching neutrality to its chest now, when the people committing the atrocities are the people adored by the universities dominant social justice constituency, emits an unpleasant odor. But perhaps universities can prove its commitment to a principled neutrality when the next progressive outrage happens. Will institutions have the will to remain neutral then, or is will they rediscover their moral duty to express outrage to be on the “right side of history”?