Remarks by AALS President-Elect Austen Parrish

Episode Transcript

Speaker 1 (00:03):
Welcome everybody again to this next plenary session of the
twenty sixth Annual Faculty Conference. This is kind of the
year of the newbies, because not only do we have
with us a new President of the Federalist Society, although

(00:26):
he had to go off to a meeting with a donor,
which is also important, but we also have a new
President elect of ALS joining us to say a few words.
Now that a new president of ALS is fairly normal.
President elect. Actually, that's fairly normal, that turns over every year.

(00:46):
But in addition, we also have the new executive Director
and CEO of ALS, and both of them are here
to say a few words to us. So let me, UH,
without further ado, introduce Uh uh Uh Austin Parish UH

(01:14):
who is, as I said, the President elect of w A.

Speaker 2 (01:17):
L S.

Speaker 1 (01:19):
He is also the third Dean and uh of of
the of U c Irvine and the Chancellor's Professor of
Law there.

Speaker 3 (01:29):
UH.

Speaker 1 (01:29):
He's had a distinguished career both as a scholar and
as an academic administrator.

Speaker 4 (01:36):
UH.

Speaker 1 (01:37):
His research as a scholar focuses on international law, as
national litigation and the role that national courts and other
domestic institutions play in solving global challenges. His career in
academic administration includes an eight year stint as dean at

(01:59):
Indiana More, which is the one in Bloomington where he
received i use uh uh By Centennial Medal and also
the Provosts Medal he which are you know, pretty big
medals for academic administration. And he also served stances intern

(02:21):
dean and Ystine at Southwestern UH. Most importantly, perhaps, however,
he is not Ashley Parish, as our new Federal Society
President Sheldon Gilbert found out somewhat to his chagrin when
he greeted him as a long lost friend at a
reception UH here on Tuesday. It turns out that Austin

(02:48):
and Ashley are identical twin brothers with both exceptionally distinguished
legal careers. Ashley is uh the head of the appellate
practice at King and Spaulding, and they even wear the
same glasses. So we are delighted to welcome here Austin

(03:13):
not Ashley Parish. To say a few words of welcome.
Kelly Testy comes to Als from the Law School Admissions Council,
where she served as president and chief executive officer for
seven years. Before that, she was dean of the University
of Washington School of Law and previously of Seattle University

(03:36):
School of Law. She previously visited this conference some years ago.
I think back in twenty sixteen when she was President
elective ALS, and she played an important role in institutionalizing

(03:57):
the relationship between ALS and the Federal of Society. So
we're thrilled to welcome her back in her new capacity
and her new and important capacity as the chief executive
officer of ALS. So we'll hear first from Austin and
then from Kelly.

Speaker 2 (04:24):
Willie. Thank you for that kind introduction.

Speaker 5 (04:27):
Just a small correction. My glasses are much more distinguished
than my twin brothers. It's a privilege to be able
to welcome you to the twenty sixth I know somewhat
late in the process, but the twenty sixth Annual Faculty Conference.
I believe this is the tenth year that it's been
held here at the ALS Annual Meeting and collaboration to
one another, and I think that's fabulous. I will start

(04:50):
my service, hopefully if everything goes well, this Saturday, as
the new president, and my presidency will last through the year,
and I'm pleased on behalf of the exis I Committee
of the Association to be able to congratulate you on
what looks like an absolutely fabulous conference. It's good to
see some friends on the panel and in the audience.
And I've actually read a couple of the papers from

(05:13):
other way and they look terrific. You know, this is
an important year for the association. It was founded in
August of nineteen hundred when thirty five members of law
schools joined together in Saratoga Springs to create the association.
And so this coming year we'll be celebrating our one
hundred and twenty fifth year anniversary. And it's interesting when
you look back at those historical documents from nineteen hundred

(05:35):
and I was complaining about my travel up here from
Los Angeles and a couple of flights, and then look
back at the people in nineteen hundred that had something
like an eighteen hour train ride to get to Saratoga Springs.
It's amazing how much the Association has grown. We now
have more than each year, one hundred and eight sections,
a thousand volunteers, more than nine thousand law faculty from

(06:00):
one hundred and seventy six members, and another eighteen feet
member schools. And each year, particularly this section, we have
more than a thousand speakers at the conference and more
than two hundred sessions and panels. It's really a great
coming together of the best I think of legal education
and the academy to come and talk about the key

(06:21):
issues of the day. And ALS seeks to be that
vital resource for faculty and staff from the start of
their careers all the way throughout their career at the
different stages, and also do your resource for law schools
and legal education and not only advancing law, but advancing
our reputation broadly. So I hope you guys will not

(06:43):
only be able to get a great couple of days
here in this conference, will also take advantage of some
of the other sessions. And if you're having trouble sleeping,
you should come to my Saturday address, which will be fabulous.
You know, the relationship between the Association and the Federal
Society has always been important. I think one of the
reasons why it's important is that ALS hopes to bring

(07:04):
together the broadest range of voices throughout legal education to
talk about the most pressing issues of the day. I
certainly know Lee and Sheldon and others are committed that
part of what makes federalist society good is having these
deep conversations with people with lots of different perspectives and
different backgrounds, and I think the mark of this conference
over the last twenty six years has been some really

(07:25):
interesting perspectives. So we're very we're very pleased to continue
to partner with you, and certainly this year it seems
the same that it's great to see you doing so
many workshop panels to hear some great new scholars, but
also some established scholars. So this coming years we celebrate
the one hundred and twenty fifth year anniversary, we'll be
focusing on the impact that legal education has had on

(07:48):
the world and on our communities. And I hope in
your next conference you consider whether you might also do
a bit of a retrospective and look back at some
of the impact that you've had over the last twenty
six years of this conference, to complement the broader themes
of looking back at our history and the impact that
legal education has had on the United States and abroad.
So one of the things I think is great about

(08:08):
this conference, and certainly about your next panel, I think
is that there's lots of disagreement or different views. The
one thing that nobody has ever disagreed with is a
shorter Dean speech is a good one, and so I
will now turn it over to Kelly Testy again from
behalf of the executive committee of the Association. Welcome and
thank you so much for a few minutes to welcome you.

Speaker 6 (08:28):
Thanks, good afternoon everyone. It's so nice to be with
you and Lee, thank you for the kind introduction, and
really appreciate you welcoming me and Anne Austin not Ashley
into the conference. We had a wonderful dinner. We have

(08:51):
a tradition on the first evening of having a president's
dinner for ALS, and I was so pleased that Lee
was able to join us, and so was Sheldon, and
it was really wonderful to meet him and to welcome him.
I want to just make sure you know that at ALS,
you're very welcome here. We love working with you every year,
so that this works out in terms of coming here

(09:11):
and enjoying the conference within the conference, so to speak.
I am very pleased to be working now as the
CEO and executive director of ALS. It's fun for me,
having been the president a few years ago, to get
reimmersed in ALS and back closer in a closer tie
to the Legal Academy again. At the Law School and

(09:33):
Mission Council, I was kind of a chief cheerleader out
there for all the candidates, you know, trying to encourage
people to apply to law school. But it's wonderful to
be back with all of the faculty and hearing the
ideas and understanding the different viewpoints. And that's something that
I have always treasured. There's no problem I know that
isn't better analyzed from multiple perspectives and a diversity of perspectives,

(09:58):
and so I really welcome that, and I look forward
to ALS continuing to be the big tent where ideas
from all perspectives are welcome, and that we really encourage
that plurality of viewpoint within the programs and sections and
all that we have. So, like Austin noted, I hope
you'll not only enjoy this event when you're here, but

(10:19):
that you'll be active participants within our many sections and
many programs. And I stand ready if there's any way
that I can assist anyone and work together to make
that happen. You need only be in touch. So thank
you so much again for having me here and I
want to not stand in the way of this panel.
It looks like a terrific one. So have a great

(10:40):
rest of the conference, and please do join us at
the other events that the Association is hosting, including a
reception this evening downstairs in the exhibit hall that takes
place I think right around five to six or so tonight.
Thank you and enjoy.

Speaker 7 (11:06):
Thank you very much. I appreciate all of you coming here.
My name is Stephen Sachs. I am honored to moderate
this panel on institutional neutrality in academia and beyond. This
is an increasingly pressing issue. As I am sure all
of you know, universes have taken a variety of approaches,

(11:29):
shall we say, to institutional neutrality.

Speaker 2 (11:31):
Over the last decade or so.

Speaker 7 (11:33):
There were periods when universities spoke out in their corporate
capacities only rarely.

Speaker 2 (11:37):
There were periods when.

Speaker 7 (11:38):
They seem to be speaking out quite frequently, and more
recently they have started to backtrack, with a number of
institutions newly adopting policies on institutional neutrality, especially in the
wake of October seventh, and the panel today will explore
a variety of issues regarding itstitutional neutrality and the various

(12:00):
dilemmas and opportunities that it presents. I'm honored to have
with us today Robert George, the McCormick, Professor of Jurisprudence
at Princeton, Andrew Crespo, my colleague, the Morris Welsterstein, Public
Interest Professor of Law at Harvard, Evelyn Dueck, Assistant Professor
of Law at Stanford, and Robert post Sterling, Professor of

(12:21):
Law at Yale. We will hear from each of them
for about six minutes or so. Then we will have
another round where we hear for them for four or
so for shorter comments, and then we'll have some cross talk,
and it opened it up for questions.

Speaker 2 (12:37):
So without further ado, Professor George, thank you very much. Steve.

Speaker 3 (12:41):
It's a real honor to be participating in this panel
and to be here with the old friends and new friends.
My job is to make the traditional case as it
was styled to me for institutional neutrality, and I'm happy
to do that because I happen to believe in institutional

(13:02):
neutrality is the correct policy for non sectarian colleges and
universities and units within universities, including not only arts and
sciences departments, but also professional schools. And the premise of
my belief and of any argument that I would make,
is that the fundamental purpose the mission of colleges and

(13:28):
universities is the pursuit of truth. That's as true for
law schools and modern medical schools and even business schools
as it is for arts and sciences departments. And if
universities and their internal units are to pursue truth, certain

(13:51):
conditions have to be in play. Some of those conditions
will apply even at sectarian, religiously affiliated colleges and universities.
And if anybody would like to talk about those institutions,
I'll be happy to do so later. But my focus
this morning is on non sectarian institutions, like the ones

(14:13):
that those of us up here on the panel are
affiliated with. I believe institutional neutrality is one of the
conditions that's got to be in place for non sectarian
institutions to pursue truth in the way that is best
suited to them. I also think freedom of speech. The
same premise of my argument for freedom of speech, my

(14:36):
so called free speech fundamentalism. My conservative and my liberal
friends now gang up on me and call me a
free speech fundamentalist. My free speech fundamentalism flows from that
same principle that the whole purpose of our enterprise, our
vocation as scholars, the mission of our institutions is getting
at the truth of things. Now I'll get to the

(14:58):
question of why institutional neutrality is an important condition in
institutions like those represented up here on the panel for
truth seeking. But first I want to clear away some
potential misunderstandings by saying what I think colleges and universities
and professional schools should not be neutral about and cannot

(15:21):
be neutral about. They shouldn't and can't be neutral about
whether the pursuit of truth is their mission. They can't
and certainly shouldn't be neutral about respecting freedom of speech.
There are a lot of things that are important to
the mission and the prosecution of the truth seeking mission

(15:43):
of the university that universities can't be neutral about. What, then,
should in my view, they be neutral about. Well, here
we'll go to the locus classicus of institutional neutrality, the
famous or infamous, depending on your perspective, to report issued
by the committee chaired by the great law professor Harry

(16:05):
Calvin in the nineteen sixties I believe it was nineteen
sixty seven in which it was articulated that the role
of the university is to sponsor and host the critic
for the critics, and not to be the critics. Individual

(16:27):
faculty members, individual students, guests who come onto the campus
to lecture or engage with students and faculty in seminar
and other discussions, they are the critics. They should be
able to advance any view about any topic, no matter
how controversial their view is, no matter how badly mistaken

(16:49):
from the objective point of view it is. They should
be able to advance and defend any point of view.
But the university should not take a perspective, should not
take a view hold of you on whose right and
who's wrong. The idea is that the truth can best
be pursued in institutions like these by the clash of ideas,

(17:11):
where orthodoxies can be challenged, where dominant points of view
can be subjected to critical scrutiny, even if only by
a minority of one, so that bad ideas can be
exposed as bad ideas, and good ideas can be shown
to be defensible all the way down and the way again.

(17:34):
Universities the sort represented here do that is by hosting
the discussion, hosting the critic, but keeping a thumb off
the scales. In such a university, there will be dissenters
from dominant points of view, because there will always be
dominant points of view, but there will not be heretics.

(18:00):
There will not be the orthodox and the heretical. These
institutions will not be churches, nor ministries of churches, nor
will they be political parties or organs of political parties.
If someone is considering majoring, a student is considering majoring
in political science or philosophy, or chemistry or women's studies

(18:24):
or whatever it is, that student will not be a
heretic because of that student's view on any particular issue,
whether it's abortion, whether it is economic policy, whether it
is the wars in the Middle East, no matter what
it is, because there will be no departmental or university
position on that matter. Under the institutional neutrality doctrine, the

(18:50):
only time the university or a unit of the university
should be speaking on a public issue is where the
issue pertains directly to the functioning of the university as
a truth seeking institution. So if a state, whether it's Florida,

(19:11):
or Massachusetts decides that there should be a law that
you can't take the pro palacet Anian position or you
can't take the pro Israel position in the Middle East.
There the university can and should speak out because that's
an issue on which the possibility of the university doing

(19:32):
its job is jeopardized by the potential for litigation that
would cramp or even shut down freedom of speech. So
that's the basic case for institutional neutrality. And we can
return to the nuances and counter arguments and so forth
as things unfold up here.

Speaker 2 (19:49):
Thank you, Prester Grisbeth.

Speaker 8 (19:53):
Thank you all so much for having me. And you know,
I am about maybe thirteen months ago I think would
have probably just co signed everything that Professor George just said.
So my starting point is actually very much in line
with the starting impulse that university should be the hosts
of the conversation and not the participants in it. And

(20:17):
I hope you'll forgive some sort of parochialism in these remarks.
I'm going to just be speaking in a kind of
grounded way from just watching this unfold at my own
university over the past year or so, because that's really
informed some of my thinking in a kind of concrete way,
So I offerate a bit as almost a bit of
maybe salient pro case study for the conversation. So about

(20:43):
maybe a few days after the somewhat maybe infamous congressional
hearing that then led quickly to the ousting of our
president at Harvard, we had a conversation with our our
president came by to speak to our school, and you know,
I was the one who sort of raised my hand
and said, just something to think about, maybe we should

(21:04):
adopt the Calvin principles. It seems like it would save
us a whole bunch of trouble. And I think that
my animating thoughts were both everything Professor George said. I
actually thought that my biggest concern were what I would
call essentially the virtue signaling emails that seems to sort
of come out in the immediate aftermath of events, that

(21:24):
seemed to be designed to just convey a kind of
psychological ideological affinity with a sort of you know, mass
of the campus community. And I found them both problematic
for the reasons Professor George says, and then also just
this was visceral at the time politically awful for a
university because you could just get boxed into all sorts

(21:45):
of things, and it was just, you know, you were
constantly going to be buffetted as a university. I thought
should just get out of the business of these sort
of virtue signal emails, and I thought the Calvin principles
seemed like a really great way to do that. And
as I said when I just started speaking, I actually
still agree with a lot of the core case in
favor of institutional neutrality. And yet, in watching this sort

(22:06):
of unfold over the past year or so, have come
to have a number of real, just sort of concerns
and pragmatic ones, mostly with what this starts to look
like in practice. So I'll just lay out three of
them and then hope that our conversation can just sort
of pick it up from there. The first is that
I actually think it's hard, if not impossible. I think

(22:29):
I'll just go out and say impossible for universities to
be neutral on a large number of hot button political questions.
And that is because, in addition to being the host
of the conversation, most modern American universities are massive and
massively complex corporate actors that move through the world and

(22:50):
move through an increasingly contentious and challenging world. They are landlords,
they are employers, they are investors, They are the literal
roll home to thousands of people who live on their campuses,
and as a result, policies and questions in the world
impact them. In the same way that it's very hard

(23:10):
to be a politically neutral corporation in the world, it's
hard to be a politically neutral corporation that happens to
be in the business.

Speaker 3 (23:16):
Of educating people.

Speaker 8 (23:17):
So I'll give an example of just something I heard
on a panel about this topic, institutionalutrality. A colleague said, Look,
an obvious example of something we the university cannot be
neutral on is immigration policy. Twenty percent of our students
are from overseas. We need them to be able to
keep coming here. They are as much Harvard as anywhere else.
So if there's policies that are changing visa requirements, we

(23:39):
need to be able to take a position on that.
In fact, you could take Professor George's point about litigation.
If we could litigate about it, we can speak about it.
And I guess what I'm saying is there's quite a
bit you could litigate about. In the same breath this
person said, you know, so immigration policy clear example of
something that we don't need to be neutral on it's
part of our core function, and clear example of something
that a university should be neutral about because it's a

(24:00):
hot button contested political question. Abortion and reproductive justice. And
I sort of thought, well, if twenty percent of our
students are affected by visas, and we not only have
relationships with a bunch of hospitals, but then also run
a university health services center that employs doctors to provide
medical care to our students, fifty percent or more of

(24:22):
whom may come seeking reproductive care and abortions, it actually
seemed like those were two examples that should be in
the same category.

Speaker 2 (24:30):
Either both out.

Speaker 8 (24:31):
You can't speak about immigration policy or these other or
reproductive justice or any number of land use policies, tax
There's the range of things that I think are the
core function of a university, or at least the essential functions.
I think my first point of departure with Fresser George
is I think that they actually are broader than just
the truth seeking function of higher education, simply because to

(24:54):
run a big university you have to do a lot
in the world, and you have to be able to
sort of take a stand things that are controversial and
then speak about them, which ties to just a related
sort of concern within my first bucket of worries, which is,
I think there's a sort of I don't know, harmonic
resonance between institutional neutrality and what I can at best

(25:16):
describe as a kind of duck and cover approach to
navigating choppy waters that I think many universities feel at
the moment, and I can understand it. At times, I
feel attracted to it. Universities are going through one of
the most challenging political climates they've had, certainly in my lifetime,
certainly my professional lifetime, and there's a question then of

(25:37):
whether to basically try to be quieter and more still
and more evading the conflict or leaning into it, including
leaning into it. I would say, I'm the core mission
and I have a worry, and I don't think this
sort of it's not like it follows you know, X
to Y, but that the arguments that tend to sort

(25:58):
of go hand in hand with the broad view of
institutional netrality seem to often also come up in the
same sort of register as ones that, look, let's just
try to be a quieter, smaller, stiller type of institution,
which to me is challenging at a moment when I
think higher education actually needs to be speaking much more.

(26:20):
I think that precisely because some of the core missions
of higher education are, in my view, under threat in
our political climate. There's a challenge between trying to say, look,
we need to be speaking a lot less and also
speaking a lot more about our core missions and our
core issues. Obviously, you can do both, as Professor George says,
you can sort of say, look, we need to be
quiet about somethings and maybe louder about the core things.

(26:42):
But it's a challenge to try to sort of pull
those both off at once, and that gives me some worry.
The second category of pragmatic things I've seen as a
challenge is I'm just not very confident that the policies
do the one thing that they promised to do. So
we adopted our institutional neutrality Institutional voice policy at Harvard
late summer. Since then, there have been at least I

(27:07):
think three statements that are clearly covered by what the
policy is supposed to get at. And I'll say this,
all three are about not just clearly within the scope
of the policy, they're all about Israel and Palestine, which,
as Steve says, is sort of you know, the moment
October seventh that created this latest wave about trying to
rethink when universities will speak. And one of the statements

(27:31):
was the classic version, you know, email to the whole
campus with the Harvard seal saying, we condemned the thing
that just happened off campus, but you know that affects
a number of our students, we condemn it. The other
two were interviews by our president with the college paper,
The Crimson that went something like, well, in my personal capacity,

(27:52):
I condemn the students who just said X or the
thing that just happened. Now I want to bracket the
question of like whether those things should be condemned, in
part because the whole point of these institutional policies were
to not have to answer whether they should be condemned.

Speaker 3 (28:11):
Right.

Speaker 8 (28:12):
The fact that within months of having this policy, the
gravity of going back to the condemnation meant that they
immediately kind of you know, the policy was not a
barrier made me think, okay, well, there was a lot
of effort to put something in place that doesn't seem
to have actually the capacity to stop the thing we're
trying to avoid felt like a paper tiger, or at

(28:32):
least one that's easy to get through when you want
to get through it. Now, that's maybe not so bad
if the hope is to just say, look, the point
of this is to just let the people who run
the university have the judgment about when they're going to
make these condemnatory statements or not. But the third bucket
of concerns I have are that the policy as I've

(28:53):
seen it, not just at Harvard at other places, seems
perhaps while still permitting these types of run arounds at
the top level to be designed to apply much deeper
into the org chart of a university than I would
have expected given the impetus for these policies. At the beginning,
I imagined that the point for these policies was to

(29:13):
basically stop what I'll call, you know, big university, you know,
president provosts, deans and just the school saying, you know,
we Harvard with the seal, have this statement that those
seems to be the issues that were causing the most trouble.
And I thought that was the point of the sort
of effort to speak, less to avoid those sort of
big university types of statements. As the policy has unfolded,

(29:37):
both at Harvard and elsewhere, it applies to basically anyone
who could be called a university leader. And you're a
university leader essentially if you are a faculty member who
seems to have basically any other title. So now the
worry is not just you know, what the president says,
but what the assistant director of undergraduate Studies is in

(30:00):
you know, the music department might say, or the director
of the center on you know, name your center, the
director of whatever clinic, and know it is if you
have a title that includes, you know, assistant dean, director
of or anything like that, you're covered by this and

(30:21):
don't necessarily have as much freedom to just say, well,
in my personal capacity or whatever, because presumably if you're
at that point of the org chart, there are people
above you who are concerned and observing whether or not
you're complying with the policy. The challenge here, of course,
is that the nature of university governance and administration is
it is faculty members who hold these positions. Faculty members

(30:42):
who have jobs both as researchers and as speakers, and
essentially as the core participants in the debate that Professor
George is talking about, right, that the individual faculty member
is supposed to be the one we're encouraging to take
the controversial view, to never be labeled the heretic, to
be the one who could mix it up. But I think,
I think, as you look at how these universities are structured,
a large chunk of our faculty hold these other titles

(31:06):
and are then covered by what I'm worried is essentially
a regime that has real chilling effects on speech. And
I say this as someone who falls into that category.
You know, when we had a discussion at our school
about whether to adopt this, the folks running the committee
came and spoke to us and they gave the presentation
about academic freedom, and I raised my hand and I

(31:27):
just said, this all sounds great. I'm curious how far
deep into the org chart are you going to apply this,
because you know, I've taught here for ten years and
I run a center called the Institute to End Mass
Incarceration And I just paused there, and you know, the
title's not neutral, you.

Speaker 2 (31:45):
Know, so what are you going to do with me?

Speaker 8 (31:50):
And I say that when speaking here at you know,
double als, because I think law schools in particular sit
at the front line at this level. If you define
the director of a clinic as someone who speaks for
the university and thus has to potentially be quieter, or say,
steer clear of hot button questions, it's actually quite challenging

(32:12):
to fulfill the pedagogic mission of a law school this
far into clinical education. As a major way that we teach,
we teach by teaching people how to advocate, and we
do it with live AMMO. We teach them by doing
it by being advocates in a blended practice pedagogical space.
It's again very hard to press for neutrality while also

(32:35):
teaching how to be advocates in an adversarial posture. And
so I basically have a worry that it has pushed
down to the point where it's quite easy for the
big university to evade the policy, but maybe enforce it
on the little university.

Speaker 9 (32:50):
Thank you, presser Jack, Thanks thanks very much for having me. So,
I guess I want to start by highlighting something that.

Speaker 10 (32:57):
Is implicit in what has been said here, which is
often how much agreement there is in debates around institutional neutrality.
I think sort of the stylized version of the debates
puts up these two polarized extreme positions that on the
one hand, university should make statements about all matters of politics,

(33:18):
high and low whenever their constituents, whether they be students,
staff or donors, call on them to do so or
think that they should, or on the other hand, that
university should never make any kind of institutional statement whatsoever.
And of course, as with any stylized debate, a stylized
version of a debate, once you push on it just
for a second, I think it collapses. And indeed I

(33:40):
doubt whether either of these extremes fairly represents anyone's position.
In reality, most of us live in the messy middle,
which is where the difficult questions are, and it seems
so far that everyone on this panel lives in that
messy middle as well. I don't think anyone thinks university
is as institution should be making statements on all manner
of things, to the extent that some have made statements

(34:02):
on high profile world events in the past. The Black
Lives Matter protests or the invasion of Ukraine are examples
that are often brought up in this context. I think
we are seeing a mass movement away from that approach.
That's what the twenty five or so universities that have
formally adopted such a policy in the last year seem
to be suggesting. But I suspect we'll see it much

(34:23):
more broadly than even those formal announcements that, as Andrew
put it, a duck and cover approach coming. But nor
to any of these formal statements made by universities announcing
these new positions of institutional neutrality suggests that universities will
never issue statements, And indeed, essentially every single institutional neutrality

(34:46):
statement that I have seen has a carve out of
some kind for what is commonly described as issues related
to the mission of the university or directly affect the
mission of the university or its core function some version
of that. The Calvin Report, the Professor George mentioned and
often pointed to as the platonic ideal of a statement
on institutional neutrality, suggests that statements will be necessary in

(35:09):
instances in which the society or segments of it threaten
the very mission of the university and its values of
free inquiry. Not possible, you may make a statement, but necessary.
It is important that the university stands up and makes
statements in such context. Now we are all lawyers here,
I hardly need to spend time spelling out all the
interpretive questions that these large, ambiguous terms raise. And Professor

(35:36):
Crespo gave some great examples about immigration abortion how to
think about those, and I'm sure that we as lawyers
could all make compelling arguments on either side of that
debate for those terms, whether we normatively agree that that's
correct or not. So what I think is really difficult
to do with these statements of institutional neutrality is exactly

(36:00):
what their goal was, which was to try and take
away the choice that administrators have to make, the discretion
that administrators have to make. And I think that is
indeed impossible because universities live in a political ecosystem and
are inherently political institutions of a kind, and there is

(36:21):
still room for much contestation about what institutional neutrality means
and how it will be, how it will play out
in practice. And so then in thinking about that question,
I think what needs to be kept in mind here
or the north star, is that all of these statements
of institutional neutrality don't see it as an end in itself,
but as a means to a particular end, and end

(36:44):
we might loosely describe as fostering academic freedom, the advancement
of knowledge, or what Professor George called the pursuit of truth,
and as Professor Post talks about in his writings on this,
that's an empirical claim. What advances those goals in any
particular case is going to pretend depend on the particular facts. Sometimes,

(37:06):
for sure, it might be institutional silence that advances the
goal of academic freedom, so that academics don't feel chilled
to take positions contrary to that of their institution. But
I want to suggest there are sometimes where that's definitely
not the case, and that university not making a statement
might be more chilling than not.

Speaker 9 (37:27):
And what is important is not that the.

Speaker 10 (37:29):
University is some sort of abstract idea of neutral, but
that it's institutional citizens or of whatever kind know that
the university has their back and will support their speech,
and that those situations we can't ignore the political context.
This does not exist in a vacuum. This is not

(37:51):
a question that we can interrogate about topic by topic.
In any particular case, it's going to depend on our
particular ecosystem and our particular context, and in a moment
where there are concerted attempts to undermine the idea of knowledge,
institutions and expertise, some of which may be warranted, much
of which is surely political, a university staying silent may

(38:13):
embolden these attacks and may indeed be chilling to those
being attacked. So, as one example, we can talk about
the congressional hearings that have already been mentioned on this panel, unsurprisingly,
where presidents of universities were called before Congress to answer
questions about anti semitism on campus. And when the president

(38:34):
of Columbia appeared before Congress, she was questioned about the
writings and statements of particular professors. Now, what President Shafik
did I think was worse than remain neutral. She denounced
particular statements and announced that there were investigations either ongoing
or going to take place, and said that one scholar

(38:54):
will never teach at Columbia again.

Speaker 9 (38:57):
But had she not done that, had she mained neutral, I.

Speaker 10 (39:00):
Want to suggest that that also would not have particularly
fostered academic freedom. I, as a junior scholar far on
the other side of the country, also felt chill watching
that hearing, and I've just been given a note on
time which is also very chilling, which I didn't I

(39:22):
didn't see get passed down before.

Speaker 9 (39:24):
But anyway, this.

Speaker 2 (39:25):
Is a edutorial environment.

Speaker 10 (39:28):
Okay, So my point is simply this, to the extent
that a university is acting just because of political pressure
from in certain constituents, from certain constituencies, or certain circumstances,
institutional silence may be as unp principled or problematic as
institutional statements. That is not necessarily itself neutral. A duck
and cover approach, if done for political reasons, is not

(39:50):
a neutral choice.

Speaker 9 (39:52):
And so.

Speaker 10 (39:54):
This abstract notion of neutrality. Again, we are a room
full of professors, it should not surprise you when I
make the claim that maybe there's no such thing as
completely neutral, and that a conception of neutrality that focuses
on whether a president's office has made certain press releases or.

Speaker 9 (40:08):
Not is a very thin one.

Speaker 7 (40:09):
Indeed, thank you, professor Post.

Speaker 11 (40:14):
Thank you, thank you Steve for the opportunity to be
on this wonderful panel. And after this eloquence, what's left
to say except to celebrate the messy middle a little
bit more so, maybe we'll start with a spoonful of history.
You may know that the Calvin Report, which Robbie mentioned,
is written in nineteen sixty seven. George Beadle, who's president

(40:35):
of Chicago, is facing demands by SDS Students for Democratic
Society that they disinvest from South Africa, and he doesn't
want to disinvest in South Africa, so he appoints a
really stellar panel. Stiglitz is on it and Harry Calvin
is the chair. And the Calvin Report, issued nineteen sixty seven,
basically says, look, we're here. We have a mission which

(40:59):
is truth and education. Not merely truth, but truth and education.
Those are our missions, and we shouldn't speak. We're a
community for purposes of these missions, and we have to
define what our missions are among ourselves, so we can't
be neutral with respect to our missions. But outside of that,
we really shouldn't talk because it will chill professors who

(41:22):
might differ from what the university officially says. That's the
basic theory of the Calvin Report, and it comes out
in nineteen sixty seven. It sparks a great debate among
American professors. There's a whole symposium set of issues at
AUP over it, but no other university adopts it beside Chicago.
Of course, Beetle uses this as a response to SDS

(41:43):
and says, if I disinvest in South Africa, I'm no
longer neutral. The Calvin report prevents me from doing it,
So go away, don't bother me anymore. That's Chicago. Nothing happens.
No university adopts this policy for more than forty years,
and then the Goldwater Institute issues a report on institutional
neutrality in twenty seventeen, and they have a different spin

(42:08):
on it than Calvin. The Goldwater Institute says, if the
university violates institutional neutrality, by which they mean, and they
say they mean issuing a statement about matters of present controversy,
it necessarily, inherently is the word that they use, will
violate the academic freedom of faculty. And then this becomes

(42:30):
a major political issue, gets politicized, and the next university
to act on this is the University of North Carolina.
Twenty twenty two, when the trustees adopted the reasoning of
the Goldwater institutent said, it's an inherent violation of academic
freedom if the university takes a position on a matter
of present controversy, they don't say, and as outside the mission,

(42:53):
they just say, on a matter of present controversy, what's
in the mission? What's out the mission? This is quite controversial.
So that's the background of the debate here. I should
say I'm a former dean and I would have very
much liked to have Calvin Report. You know, every time
there was an earthquake in say Tibet, I'd have to
issue a statement saying I feel for you. And then

(43:13):
of course, when the earthquake is in southern India, then
why aren't you issuing a statement?

Speaker 3 (43:19):
Is it that you care for those people?

Speaker 11 (43:20):
So if you're an administrator and you have to issue
statements like this, you're in an impossible position and you
do want something to cover you to say I can't
I'd love to, I love you, but I can't speak
because we have the Calvin Report or whatever. So they're
what we've discovered in Gaza. Where there are you know,
people who are quite vocal on all sides of the issue.
Is universities are now saying, gosh, we can't be in

(43:43):
the middle of this. We need a way out. Calvin
Report is a way out. So that's the present status
of the debate. I want to just say a few
words about the logical status of this debate. The first
point is, however you define it, a university cannot be
neutral with respect to its mission. Right. So it's one thing,
for example, if you have affirmative action for social justice

(44:06):
that's outside your mission. It's another if you have it
because it's necessary for education, that's inside your mission. You're
going to have a great set of debates about what
the mission is or not. And by hypothesis, you cannot
be neutral about what your mission is because you have
to be it, you have to do it, you have
to define it. You're a subject of great debate. So
whatever you say about institutional neutrality, a lot of the

(44:28):
most controversial issues will be about the mission itself. And
in that mission. Of course, we as institutions make judgments.

Speaker 3 (44:36):
All the time.

Speaker 11 (44:37):
There are lots of heretics in the university. If you're
a mathematician and you want tenure and you say two
plus two is five, you're a heretic. You do not
get a tenure for saying that. And now that's of
course easy for math, because everyone knows what math is
and what's right or wrong. But suppose you know, you're
in a pub you're the dean of the public health
and you say, we need this vaccine. We need to

(45:00):
vaccinate against polio or measles, and it's not going to
cause autism or whatever it is. It's a public health thing.
So the question of what the mission is is a
very complicated question when you come to different units within
the university and who speaks for what within those units.
It may not be the mission.

Speaker 3 (45:17):
Of Harvard.

Speaker 11 (45:19):
To serve public health, but as sure as hell is
the mission of the public Health Department, And it's going
to be the mission of the Social work department or
the education department, you just name it. And in a
law school we have clinics, etc. So how this works
out when you go to the mission, that's a complicated question.
So let's bracket the question of how can you be
neutral with respect to what you do every day? Because

(45:41):
you can't be. Now, let's talk about the question of
can you be prevented? Because the appeal of the idea
of institutional in neutrality is it seems like a clear rule.
If it's in the mission, you can talk about it,
if it's outside the mission, you can't. So why is
it that you can't. The Goldwater Institute argue that that
was an inherent violation of academic freedom because it would

(46:03):
chill people who disagreed with whatever the university says, to
which a response is, well, you know, the Calvin Report
was about disinvestment in South Africa about I don't know,
two three hundred universities disinvested in South Africa after nineteen
sixty seven, and to my knowledge, there wasn't a single
complaint that any professor felt chilled about it. That is

(46:25):
to say, there are a lot of ways of saying
things and doing things which can affect academic freedom, which
can chill faculty speech, in which case it's bad not
because it's not neutral, it's bad because it chills the
academic freedom of faculty. A good example of that would
be Nicholas Mury Butler. You might remember him, the eminent
professor of Columbia during World War One, and we declared

(46:47):
war and he said, any faculty member who opposes this
war is fired, and he fired two or three faculty
members who opposed the war. That's a statement that's non neutral,
that's meant to chill and successfully chilled faculty. Bad thing
disinvesting in South Africa, which the Calvin Committee report considered
to be a violation of institutional brutality. I don't know

(47:08):
how that chills anyone's academic freedom. It hasn't been any
empirical evidence of that to mine.

Speaker 2 (47:12):
Not.

Speaker 11 (47:12):
So we have a spectrum and the operative question in
that spectrum is does it or doesn't it chill? If
it chills, it's a very bad thing because we want
to preserve the freedom that a Robbie was talking about.
We want every faculty member to feel free to say
what they believe to be true. That's what we are
in a university. We are free to speak our minds

(47:32):
and publish our research. That's what we do. Of course,
we get judge for that. Some of you may not
be tenured. You'll find yourself being judged for what you say.
We judge the quality and competence of what we do.
We don't judge it because it has political content. That's
the meaning of academic freedom in a university, and we
don't want that to be judged. So we're in a

(47:53):
messy situation in terms of institutional neutrality and my own
position that I have been arguing now for thirty forty
years is that academic freedom has two meanings. One is
how we govern ourselves in a university. We want to
be free to do our research and to publish. But
academic freedom has a second meaning, which is the freedom

(48:14):
of the university visa be the state, visa be the government.
And lots of times we see statutes like the Florida
Dei statute where the university should say to the state,
you cannot tell me what to do. That's a different
sense of academic freedom of the university as an entity
visa be the state, and we can say that to

(48:34):
the state because we produce goods that the state needs.
We produce education and we produce truth. That's what we do.
And if you want those goods, you have to give
us the freedom to do those things. That's the argument
of external academic freedom. And if we then start making
statements that are irrelevant to our mission, we call this
external notion of academic freedom the claim against the state

(48:56):
into question. We undermine it. So we want to be
very careful when we do that, very careful, because we
don't want to undermine our ability to say to the state,
don't tread on me. We need to be free to
do what we want to do. So institutional constraint restraint
seems to be a really wise policy here. That's the
policy for example, Princeton University. So I'm chilled, right, that's

(49:19):
it gone, thank you.

Speaker 7 (49:22):
So we're going to do another quick round of sort
of four minute statements. But I want to introduce it
by posing sort of two questions. So, for one, many
people have seemed to recognize on the panel, the institutional
neutrality is not some magical formula. It's more like, it's
not some cut and dried rules, henceforth we shall be neutral.

Speaker 3 (49:44):
It's more a regulative ideal.

Speaker 7 (49:46):
It's something that one would try to implement in various
ways in trade offs with various other values.

Speaker 2 (49:54):
And how do we pursue that?

Speaker 7 (49:56):
And the second thing that I want to raise is
the distinction between an institution's actions and sort of defense
of those actions and its positions in general. So for
example of this might be, you know, like the examples
that Professor Crispo noted, you know, at my university they
serve meat in the cafeteria. That is more controversial perhaps then,

(50:19):
or is less controversial than it ought to be. There
is no official policy that I know of that states,
you know, per Harvard, meat eating is morally permissible, but
they clearly think that it is, or else they wouldn't
do it. And yet we can understand that if the
Dean came out tomorrow and said, by the way, everyone,
I just want you to know meat eating is morally permissible,

(50:41):
that would be seen as a sort of unusual kind
of act that is distinct from the choice to serve
meat in the cafeteria, even though that clearly sort of
presupposes at least some level of permissibility. So how do
we think about this disjunction between the positions that the
universe and its corporate capacity takes and the actions that

(51:04):
it undertakes, and might need some sort of underlying justification.

Speaker 2 (51:08):
But with that, Andrea will go to.

Speaker 3 (51:09):
Almost four minutes. Okay, Well, starting with Steve's last point,
which I think is a very very interesting one. As
a defender of institutional neutrality, I have to admit concede
it allow that there are certain sorts of issues like

(51:30):
serving meat in the cafeteria, whether our hospital, if it's
a university, that hospital is going to perform abortions or
sex strate modification surgeries or things like that, or whether
our insurance policy for students is going to cover abortions,
and so forth. There are certain immigration relation related decisions

(51:50):
andrew that the university is going to have to take.
But I think Steve's onto something here when he says,
you know, it's one thing to take a position when
you have no choice, but to take a position we're
we're gonna we're gonna have meat in the cafeteria. Well,
we're not gonna have meat in the cafeteria. But it's
another thing to take an official position about the morality
of meat eating. If that's a subject that you really

(52:12):
think should be debated robustly on the campus, and on
which there should really be no orthodoxy, no thumb on
the scale. So that's something really worth talking about and
thinking through, I think better than any of us have
so far. Now to Robert's excellent point, you've got to
keep the focus in these debates on the mission, on

(52:33):
the mission. If we deviate from that into other considerations,
I think we're going to go astray, and that will
structure how we debate what is and isn't permissible when
it comes to borderline questions. Even within the principle of
Calvin neutrality, if we keep focused on the mission, it's

(52:53):
not going to mean that the answers will always be obvious.
Is this inside or outside? May we issue a statement
on this or may we not issue a statement on that?
But it will enable us better to argue about it,
and I think probably overall, in the long run, more
often reach good decisions than we would otherwise. Then to

(53:15):
a very good point that Andrew made, and this is
really important to me, we must never allow institutional neutrality
to become the enemy of freedom of speech or of
academic freedom. And Andrew's right. If you restrict people from
expressing their opinions publicly because they are director of the

(53:40):
Mass Incarceration Clinic or director of the James Madison Program
in American Ideals and Institutions or whatever it is, you're
actually taking people in the university out of the debate.
We don't want to do that. I think where there
are legitimate institutional neutrality question again within the framework of

(54:02):
something like Calvin about individual speaking, it's at the very top,
and even there, I guess my free speech commitments if
push comes to show outweigh my institutional neutrality commitments. Even there,
I don't want to prohibit the president of Harvard or
Princeton from speaking so long as they're not speaking for

(54:26):
the university. Our President Prince is a very distinguished constitutional scholar.
There are issues of content Christophers group, there are issues
of constitutional law in which he has strong opinions. Having
his opinions out there is very valuable to the debate.
I want him to be able to do that, but
I'd like him to do it on his personal blog,

(54:48):
not speaking for purporting to speaker in a way that
could be confused by people, are misunderstood by people as
having him speak for the university when he just with
the example of Chris Asgruber spoke out on the October
seven massacres, you know, we're opposing the idea that what

(55:09):
was done to those people at the Nova festival was
a legitimate warfare of some sort. Even there he spoke
on his personal blog. Than when I wrote him a
note expressing my agreement with what he had said, he said,
I thought you would be pleased that I put it
on my personal blog, and I wrote back and said, yes,

(55:31):
as a matter of fact, I was pleased that you
put on because although I agree with you, our university
should not have a position in the debate that is
raging on this campus right now about exactly what how
we should think about those issues. So I've probably exhausted
my four minutes, but there are some things that I

(55:51):
think deserve further debate and scrutiny.

Speaker 2 (55:55):
Thank you.

Speaker 8 (55:57):
So a hodgepodge of just for responsive thoughts to the
whole conversation to or about economics, one about heresy, and
one about blogs on economics. I agree that the action
and speech distinction is useful conceptually. Steve, I think it's
hard when many of these institutions are also major investment actors.

(56:20):
I don't think it's an accident that Calvin is responsive
to a divestment call, because it's very easy, just given
the structure of sort of modern finance and investing, to
say the university is acting on everything. Every hot button
issue is in its portfolio, and so divest from X
is an action claim, and it's just really hard to
sort of tell the set of students as a university, well, no, no, no,

(56:41):
this is our action zone and this is our speech
without action zone. When you're implicated in action through investment,
and when that's the way to grow an endowment, to
be able to support all the things that we want
to do, just an economic challenge that relates to it.
A second economic challenge. I think Robert's point about professor
posts point about the challenge of empirics on whether a

(57:01):
statement chills or not is going to be tied to
the trend in the economic structure of the profession more
and more away from teaching through tenured professors, because I
actually think it is my guess again it's an empirical
guest that it's an empirical hypothesis. Is that statements from
a president that says, you know, well, I think X
is a bad idea will be felt differently by someone

(57:24):
who's on a six month contract renewable every term than
someone who, like many of us, are either tenured or
aspiring towards tenure and may get it. So the economic
structure implicates the empirics based on just vulnerability and even
if you wouldn't lose your job, your perception of whether
you might can do all the self censoring and sort
of chilling that we're familiar with in these debates. Okay,

(57:45):
a quick on heresy. I just want to pick up
on professor postpoint about you know, the mathematician can't get
tenure if they say two plus two equals five and
to just draw from that. One of the things I
think is conceptually most challenging about this debate, which is
that there are I think this is maybe it'sself a
controversial claim, recognizable heresies outside of mathematics that we just recognize.

(58:10):
I was told a friend before walking over here that
I would try to make it through this whole panel
without talking about Habermass in the life world. And now
I'm going to break that. But like, you know, if
I had a nickel, the basic idea here is, let
me try one out. The United States ought not legalized slavery,

(58:30):
all right, Like, there are certain statements that at this
point in our country's development actually are just sort.

Speaker 2 (58:36):
Of within our broadly share.

Speaker 8 (58:38):
Like you could get people across a spectrum, but I
think we could all name them as Like, no, you're
outside of the debate of sort of shared community people
in the type of debate we're having.

Speaker 2 (58:46):
If you're just.

Speaker 8 (58:46):
Someone who says, look, you know, enslaving people based on
their race is great, we should do more of it
right now. Look, maybe at the maybe the absolutest would
actually say, like, no, look, we want to sort of
allow the broadest range. What I'm trying to say is,
culturally and socioloze, we can identify certain claims that actually
are outside of our shared life world of things that
we have consensus around that form what it means to

(59:08):
be part of a shared community having a discussion together.
I think university should have very broad boundaries on that.
I'm just saying conceptually, there is a boundary. Part of
why this debate is so fraught is the fight is
almost always about whether to put something inside that or not.
Because when you're having a politically contentious debate, you not
only want to win it, you want to win it
and then declare it unrevisitable. You want to declare it

(59:29):
as now my position is in the life world. And
one way to do that within a campus setting is
to get the university, the state, essentially in your local community,
to now adopt your proposition and declare it inside the
life world. Because now you've not just one, You've won forever.
That's why the fight is always on the boundary. But
it means that this question of heresy is a moving target.
And then the last point very small on the blog,

(59:50):
I worry that it's just a loophole you can drive
a truck through.

Speaker 2 (59:53):
You know.

Speaker 8 (59:54):
I worry that it's very similar to the interviews I
mentioned that make me anxious if the whole point of
these states was to get the President of US to
stop condemning student group for doing acts, and now it
just means you have to say, in my personal capacity,
I condemn these students. You know, it's sort of I
don't know. For me, it does less and less comforted
by the personal blog distinction, just because it feels too

(01:00:15):
easy to manipulate.

Speaker 3 (01:00:16):
Thank you.

Speaker 10 (01:00:18):
Yeah, well, so I just agree with that last Steve,
And I mean I think that many of these are
loopholes that you can drive your truck through, and that
the speech conduct distinction in some sense is relevant. But again,
in a room full of lawyers and a number of
First Amendment lawyers know just how unstable that that.

Speaker 9 (01:00:41):
Particular line can be.

Speaker 10 (01:00:43):
And I think it is important to talk again about
how if we are just talking purely about the statements,
maybe we would have a lot of agreement, But there
are so many things subsidiary to that which is which
are super important. I love, I love the example of
serving meet on campus, but there is there so many others.
Of course, the most controversial and prominent that gets talked

(01:01:03):
about is the investment and divestment decisions.

Speaker 9 (01:01:07):
But there are many, many others.

Speaker 10 (01:01:09):
Scholarships, affiliations, university partnerships with foreign universities in certain regions,
conditions on funding, what kind of financial aid to foreign students.
While we're talking about foreign students, more than I think
nearly two dozen universities have released statements in the last
few months urging their international students to get back on

(01:01:31):
campus before inauguration day. Now that's not a statement about
a political issue, but it's a statement about a political issue.

Speaker 9 (01:01:38):
I think.

Speaker 10 (01:01:39):
And you know when you pick the date January January twenty,
you are clearly making a statement about politics. There was
a story yesterday in Reuters about how several university UK
universities are shuttering their x or former Twitter accounts and
moving to other social media platforms, which also I think

(01:02:00):
the insinuation was there was some.

Speaker 9 (01:02:02):
Political valance to this decision.

Speaker 10 (01:02:07):
And so I think it is totals all the way
down and to the extent that these statements of institutional
neutrality were intended to bind anyone's hands, many in any
meaningful sense, I doubt they'll be effective, thank you of us.

Speaker 11 (01:02:25):
So I'm going to use Steve's question as an opportunity
to introduce a distinction here between academic freedom and freedom
of speech, because there's a tendency among us all to
use these interchangeables. So just take the simple example we
talked about before. You're a mathematician and your big tenure
piece has two plus two weequals five, and you don't

(01:02:46):
get tenure right. Content based judgment, viewpoint discrimination violates every
rule of the First Amendment, and yet we do that
all the time. That's the meaning of tenure decisions. So
the way in which the speech is governed in a
university is totally different than freedom of speech. And freedom
of speech we make no judgments in universities. We constantly
make judgments. We make judgments when we greade students, we

(01:03:07):
make judges when we give grants, we make judgments when
we hire, etc.

Speaker 2 (01:03:11):
Etc.

Speaker 11 (01:03:12):
What is the difference here. It goes to exactly what
Steve was talking about in his question. It goes to
the difference between a managerial system and a system of
freedom of speech. In a system of management, we are
gathered together and we organize our resources to attain an end.
What Professor George talk about is the mission. So if
you're in a bureaucracy, say you're in the Social Security Administration,

(01:03:34):
you organize the speech of your employees to give out
social Security checks. And if your employees decide to stand
on their desk and seeing the star spangled manner, they
get fired because even though they're talking, they have to
talk in the right way. They have to say you
get a check, you don't according to the rules, etc.
We within a managerial domain, we manage speech to attain
the mission. A university is a managerial domain. We exist

(01:03:58):
in order to have a mission. Mission is to educate,
which is why when you go into class, if you're
supposed to be teaching First Amendment and instead you're talking
about the super Bowl for three hours, there's going to
be a problem with you and your dean. And that's
appropriate because we have a mission and the speech is
regulated in order to serve the mission. That's academic freedom.

(01:04:19):
Academic freedom are the principles by which speech is regulated
given the mission of research and finding truth and of educating.
And there's a whole set of understandings of how those
freedoms unfold. They unfold according to a completely different logic
than freedom of speech. And then the issue that's been
put on the table is what's the boundary if you

(01:04:41):
happen to be an employee between your private speech as
a citizen who wants to talk about Gaza and your
speech as an employee who speaks for the university. This
is a well known First Amendment problem, which you see
in the government employee speak speech cases, some cases like
San Diego vers Row. You might know it. If you're

(01:05:01):
a policeman and you, on your private time do pornography,
you can be fired because of its reflection on the
police department and other cases. If you're a teacher in
a school district and you write an editorial against the
bond issue, the court will say it doesn't reflect because
your interest in regulating the speech of the employee is
no different than your interest in regulating the speech of

(01:05:23):
any member of the public. These are judgment calls, you know.
It turns out most of law or judgment calls of
this kind. And what we need to do is understand
the principles at stake so we can correctly make the
kind of judgments that Steve puts on the table with
his question.

Speaker 2 (01:05:40):
Thanks all.

Speaker 7 (01:05:41):
We're going to have a few sort of questions to
the panel and cross talk, and then we'll open it
up for questions from all of you. The first question
I want to pose is trying to get a sense
of the issue that's come a number of times, sort
of faculty hiring. So there is some a field where
we at the same time recognize sort of a strong

(01:06:03):
need for a neutrality of certain sorts by the university.
You know, we think that there's a reason why, for instance,
non religious institutions do not as the first question in
the you know at the job talk ask well what
do you think about the Philly oqua clause?

Speaker 2 (01:06:19):
But the you know we.

Speaker 7 (01:06:22):
Do on a hiring committee try and make assessments of,
you know, well, how good is this person?

Speaker 2 (01:06:27):
Is there work useful? Is it productive?

Speaker 7 (01:06:29):
Is it in a field that is going to be
generative of useful stuff? And what I what I am
wondering about from the panel is recognizing that these are
not sort of finely easily defined distinctions. How do we

(01:06:49):
articulate what is the attitude that members of a hiring
committee or of people voting on a tenured decision should
take with respect and and you know, anyone who wants
to answer can do so.

Speaker 11 (01:07:05):
I used to have do you all know Judy Butler,
who's a famous kind of feminist postmonis there is? I
used to have a dog and pony show with her
where we would go to different venues and she's being
very postmodern, would always say everything always has to be
open and thing. Yeah, but how are you going to vote?
You have to make a decision. And as you make
a decision, so you define what competence is for you

(01:07:27):
when you hire someone. And that's a debate we have.
And the interesting thing about debates is they unify us
because we're debating the same thing, and we talk to
each other and hopefully between us we construct some common
denominator about what should and shouldn't count as competence among
ourselves as a faculty.

Speaker 3 (01:07:48):
Well, for reasons I articulated earlier, I really worry about
orthodoxies and heresies because I think having those things really
does undermine the truth seeking and educational mission, the truth
transmission mission of the university. I don't want it to

(01:08:08):
be the case that when I am asked to vote
on hiring a new assistant professor in politics, or philosophy
or whatever at Princeton, or when I'm asked to vote
on a candidate that is up for tenure, I don't
want it to be the case that I have an

(01:08:29):
institutional incentive to wonder whether that person is a Democrat,
a Republican, a liberal, a conservative, a socialist, a libertarian,
or what have you. But if my department is permitted,
and in some departments it seems to be not just permitted,

(01:08:50):
but expected to take public stands on issues that break
along those ideological laws, then am I not being asked
to make political judgments about whether I want that person
to be voting down the line on what our department

(01:09:12):
stance is going to be. That looks to me like
the road to hell, the thorough politicization of the university. Now,
we obviously have to make judgments of competence, you know.
And or if I had a distinguished mathematician at Princeton,
someone who'd made it through all the hoops to get

(01:09:35):
to the top of what my math colleagues at Princeton
tell me is the greatest math department in the world,
and one of them said, you know what, two plus
two equals five, I'd wonder maybe these guys got something
interesting going on, or maybe he just lost his mind,
or you know, maybe he's playing me, or you know,
having fun or what have you. But we do have

(01:09:58):
to make judgments of competency. But then when we get
beyond those into issues, even an issue like slavery, I
would not want an orthodoxy even today. I wouldn't want
an orthodoxy. I wouldn't want that heresy to be the
grounds for excluding some. I have colleagues, and you, I'm sure,
in your philosophy department and elsewhere at Harvard have colleagues
who are moral subjectivists, moral skeptics, moral relifice. They argue

(01:10:20):
that there's no such thing as right and wrong. Slavery
is not wrong, it's not right, it's not wrong, there's
nothing that's right or wrong. That all so called moral
judgments are our projections of emotion or what have you.
That's not my view. I hold in the opposite of that,
views of arisk It, the alien medethical realist. But I
think they have an important place on it. I want

(01:10:41):
them to be there to make that argument. I have
utilitarian college. I have a colleague who famously defends infanticide,
not just in the hard cases, but justice in any case,
anyone wants to get rid of a baby up to
one point, he said, twenty eight days after birth, even
a perfectly healthy baby. I support that guy's being on

(01:11:02):
my faculty, even though I would not want his views
to be enacted into law, and I wouldn't want our
university condemning his views while leaving him on the faculty.
I want to be able to debate him, even Stephen,
no university thumb on the skills in the debate between us.
Let our students, let our colleagues hear what he's got

(01:11:24):
to say on his side of this is one I've
got to say on my side of the issue, and
then let the chips fall where they may.

Speaker 11 (01:11:29):
Would you vote for him if he were like an
untenured person with that thesis, And if so, why.

Speaker 3 (01:11:35):
I believe I did? And why because I think he's
making a contribution to the debate, because he's made arguments
that challenge me and make me think it makes good arguments. Yeah,
I don't think they're successful arguments. If I thought there
were successful arguments, I'd change views and have his view.

(01:11:56):
But that's when I'm writing a pape. For example. You
know how to get an aim with it from me.
It's not to agree with me, it's to make me think.
It's to challenge. You can argue something that's absolutely anathetical
to everything I'm well known to believe. But if you'd
make me think, if I think, gosh, this and I
think we need more of this in the academy, I
think this is the fundamental I think this is the
reason we don't have viewpoint diversity. And nobody here is

(01:12:17):
going to kid themselves and say we've got viewpoint diversity
in contemporary ACADEMI I mean, clearly we don't, all right,
so why don't we It's because I think the most
fund number of reasons multivariate. But I think the fundamental
reason is it's so hard. We human beings, we original sinners,
we frail, fallible creatures, find it really hard to distinguish
on the one hand, work that I really disagree with

(01:12:41):
and think is really wrong, from on the other hand,
work that I think is wrong. But you know, it's
really interesting and challenging, and it's making me think, and
you know, gosh, maybe there's something to this, and maybe
I'm the one that's wrong. It's that's how knowledge is
properly pursued. That's how though we move the ball forward.

Speaker 11 (01:13:01):
It's a really important point here, the distinction between a
good argument and a successful argument, right, And there's some
areas of knowledge where that distinction does not hold. It
turns out in law it's a big debate. But my
own position would be we very much turn on the
distinction between good and successful argument, so otherwise we couldn't
have law as a debate which includes people with different views.

(01:13:24):
Hard to do that in math.

Speaker 7 (01:13:26):
Well, I would say, in some ways it might be
easy in math because you can just do the contrapositives.
I mean, I think that's the greatest thing you could
have for a philosophy professor who produces sort of unacceptable conclusions,
like ah, it's a great demonstration of why the premises
must be false. So just put a not sign in
front of the whole thing and then you know it's gold.

Speaker 11 (01:13:47):
The philosophy department in Davis wanted to be moved to
the Department Division of Natural Sciences for that reason.

Speaker 3 (01:13:54):
So no, Robert, when I've made this argument in front
of science colleagues, amazing how many times people have from
the sciences have said to me, you are overestimating the
measure of agreement in the sciences, or even the measure
of agreed terms on which we judge right and wrong
in the science. We're not sure about math, but certainly

(01:14:16):
I've heard that from people in physics, chemistry, bile Steve.

Speaker 8 (01:14:19):
The appointments question for me teases out actually a maybe
interesting point about the speech action thing that you put
on the table, because one of the unique things about
appointment actions I think we'd all say the appointment is
in action, right, is it's one of the ones that
is through the norms supposed to be when you don't
have to justify broadly, you have to just fight internally
within the faculty. But that's like the behind the curtain conversation,

(01:14:40):
and you don't then usually come out and say, and
we denied tenure to that person for these reasons, or
we hired that person for THESS, unless it comes out
in discovery.

Speaker 3 (01:14:46):
And some sort of.

Speaker 8 (01:14:49):
Which is different from your meat example. I think actually
one of the challenges, and this is my fear about
the duck and cover, is especially in a reason giving
profession of universities and law schools, and particular if the
dean gets a question at you know, one l section night,
Why do you have meat in the cafeteria.

Speaker 3 (01:15:05):
This is terrible.

Speaker 8 (01:15:06):
It's a moral atrouscty. Presumably he would be a bad
embodiment of a lawyer and a law professor to tell
them I'm not going to engage with this in any
recent way. I have silence as my response to you.
He'd want to, he'd feel an urge to give a reason.
But the whole point then is he'd be moving into speech,
and that's a challenge from the institutional Chellie bit, which
for me is where then the chill on duck and

(01:15:27):
cover comes from. Because the flip is he worries, okay,
I should just avoid all places where I might be
called into, you know, have to account for my actions,
or I might have to try to take actions differently
because of the fact that I might later be called
to give reasons for them, and I just you know,
that's that's for me a the worry that the speech
action thing has slippage to it and maybe is not

(01:15:49):
as avoidable as or not as as clean of a
way out of the dilemma.

Speaker 7 (01:15:54):
Though it may be that there are institutional reasons that
a dean in that position would cite that would be
in applicable on a sort of individual level, you know,
so you'd say in some says, look, I know that
lots of people disagree about meeting the cafeteria, but lots
of people eat it. And sort of as a sort
of in our pastoral role, this is something that the

(01:16:14):
institution has decided is the right, you know, way to proceed,
although we take no sort of official position on the merits,
you know, there there's a there's a way of giving
that speech which we can imagine our deans all doing
in that context, and in.

Speaker 2 (01:16:33):
Some ways that would sort of be the divestment speech too.

Speaker 7 (01:16:36):
That sort of there's an agreed upon rationale of you know,
maximizing risk adjusted returns, and then there are lots of
other rationales that are sort of competing, and that it
an institution may be more or less willing to to iconments.

Speaker 8 (01:16:53):
As I would classify that as what maybe Robert was
calling an academic freedom protecting and unciation of a non
neutral position. Other words, I don't think that would be
a neutral statement. That would just be a way of
explaining why this particular non neutral view on this controversial
issue is one that we've taken and that I'm going
to explain it in a way that tries to create
as much space for now a bunch of dispute about it.

Speaker 11 (01:17:15):
Another way to say that is what you're saying, Steve,
is that every action requires a reason, right, and then
the question is the reason consistent or in consistent with
the mission of the university? Yes, in a story.

Speaker 7 (01:17:26):
So I want to ask another question of the panel
about the org chart question, which is what do you
think is the right level of org chart for these
principles to apply it?

Speaker 3 (01:17:36):
If any?

Speaker 7 (01:17:38):
And the the I want to add with us, I hope,
and not abusing the privilege of the moderator, that I
think that the position of law school clinics is fascinating
because here we have an official arm of the school
that takes explicit positions on lots of things that you
know ten and A should win in their lawsuit against

(01:18:00):
landlord B, that various acts of legislation should be adopted.
There are lots of legislative clinics that write sort of
policy papers that advance positions, and so trying to figure
out what is it about an arm of the university
that either makes it or does not make it appropriate

(01:18:21):
for this purpose, I will say just you know, as
a thinking back to my undergrad days, I would have
been much more worried about a blog post, frankly from
the assistant director of undergraduate Studies in the history department
than I would have from you know, President Rudenstein, that
you know that that person actually affects me in my thesis,
whereas you know I'm never going to meet Rudenstein. So

(01:18:43):
it's a real question what is the right role institutionally
for these principles to operate.

Speaker 11 (01:18:49):
What would you say about medical clinics. I mean, the
doctor says take pexlovid dot, not evermectin.

Speaker 7 (01:18:54):
I think the thing is that everybody thinks that you know,
livers are good, and you know, we're all agreed that
the patient should live, I mean most of the time,
but we are not necessarily all agreed that the tenant
should win.

Speaker 11 (01:19:08):
But we disagree about what the appropriate remedy is, right.
I mean, it's a political issue what the remedy is
for COVID, right, But the physician is taking a position.

Speaker 3 (01:19:19):
Yes, Well, let me just maybe I'm not understanding within
the medical school. I'm assuming it's not a political issue.
It's not the clinic.

Speaker 11 (01:19:29):
You have a clinic where the students are giving advice
or your faculty is giving advice to a patient comes
in from.

Speaker 7 (01:19:36):
The But I guess I want to say, is in
those circumstances it is in some sense the position of
the school that X is a permissible remedy for Why
so the school, you know, as a med school, it teaches,
you know, the leg bone really is connected to the
knee bone, and this really you know, you should take
two pillars of this kind and call me in the morning.

(01:19:57):
Like those are things that actually teaches. I don't think
the law school teaches all of the position, you know,
as sort of the correct thing, all the positions that
its clinics take. That's whether the sort of distancing I
find very interesting.

Speaker 11 (01:20:11):
So what do you do in a mood court? When
you teach a mood court?

Speaker 2 (01:20:15):
What do you guys think?

Speaker 3 (01:20:21):
I'm lost on the question. I wanted to get back
to Robert, and just so I'm understanding correctly. It's one
thing to have a position as an institution, says a
clinic or a hospital, on whether a particular computative medication
is effective or not. That seems to be different to

(01:20:41):
me than having a position on a contested moral or
political matter, so that you're making a judgment of a
person based on that person's moral or religious beliefs.

Speaker 11 (01:20:53):
I gave the example of a mood court. So in
law school, we teach a mood court, and we say,
you have to defend this person who you find horrible,
and you have to attack this person.

Speaker 3 (01:21:01):
Who you love.

Speaker 11 (01:21:02):
Maybe generally try to mix up the politics.

Speaker 3 (01:21:05):
From that's right.

Speaker 11 (01:21:06):
And we teach them not whether the position is correct.
We teach them how to take a position, how to
argue it in law, how to translate a legal position
into an effective argument. That's what we're teaching.

Speaker 3 (01:21:19):
That's rights, and so in the moot court, if I
understand it correctly, certainly I do them in my constitution
interpretation class. I assume law school the same way everybody
understands that when a student is being asked to take
a position, he's like an actor in a play. It's
not necessarily a position. He's assigned that that position. So

(01:21:40):
we don't have a compelled speech issue, although at the
margins I can imagine a student will say very very
powerful conscientious objections. You would say, okay, well look you
know if you if you just can't in conscience stand up,
even play acting.

Speaker 10 (01:21:52):
I just say, I'm a surprise at the level of
acceptance that there is such a thing as like a
political medical truth.

Speaker 9 (01:21:58):
Where we were politicizing.

Speaker 10 (01:21:59):
To us two equals five, but the idea that a
doctor's advice exists as a matter of medical expertise without politics.
When we've just gone through a pandemic, whether the very
idea of whether you should get a vaccination or whether
eibomectin or bleach is an effective cure for COVID nineteen

(01:22:22):
was whether you believed those claims as true or false
became a highly politicized issue.

Speaker 3 (01:22:30):
I think that's very unfortunate. You know, what we should,
I hope what medical people, including medical educators do is
try to figure out whether a medication is effective for
its purpose or not, and not make a prescription based
on a political view. I mean, I don't think it's

(01:22:51):
naive to say doctors shouldn't do that. They shouldn't allow
politics to influence their care of their patient. Correct.

Speaker 11 (01:22:59):
I mean the point is it's a classic liberal position
separation of powers, the sphere of politics, the sphere of knowledge,
and when these two get combined, says claud Before the
French political theories. That's when you have a dictatorship or tyranny,
when Stalin gets to say there's no genetics because everything
is environmental, because Marx tells us that everything is right.

(01:23:20):
So when you combine the sphere of knowledge and the
sphere of power, you have a problem. We exist in
the sphere of knowledge, and so when we make these judgments,
which we do all the time, and their judgment calls
and they're influenced in all the ways that judgments are influenced,
they're supposed to be within the sphere of knowledge. We're
supposed to rationalize them and justify them the way we
would justified any knowledge claim. In the clinic question which

(01:23:42):
you're raising, it's not a knowledge claim, it's an education claim.
The way we have clinics to educate our students in
how to be lawyers. And so we're not educating them
in the truth of the claim that they make. We're
educating them in zealous advocacy, which is part of the
lawyer's role.

Speaker 7 (01:24:00):
I think what really reads the distinction, perhaps is it
when you have amicus clinics or sort of legislative clinics,
to what extent are the students play acting for a client.
And to what extent is this supposed to be the
authentic expression of the student's views.

Speaker 11 (01:24:16):
And you know, when I was a lawyer, I was
always confused about that.

Speaker 3 (01:24:20):
I ask a question to my law professor colleagues, is
it the case that at your law schools, or at
law schools generally when it comes to the clinics, and
that the law schools allow there to be clinics, as
it were, on both sides of controversial questions. So there

(01:24:43):
could be a clinic that operated on a pro life
view and a clinic that operated on a pro choice view,
and both would be allowed under the institution's basic commitment
to some sort of neutrality on that issue. Is that correct?

Speaker 8 (01:24:58):
I think I missed the last bit, but think that
the general idea that within the ecosystem one ought to
not only tolerate, but I think the idea would be
invite a kind of plethora of different perspectives and sort
of you know, sort of ideological valances for lack of
a better word.

Speaker 11 (01:25:15):
On there is a bias though, because you can't have
a clinic for a client who can pay.

Speaker 3 (01:25:21):
Oh that's interesting, okay.

Speaker 7 (01:25:23):
And also it's based on what faculty members and the
institution want to support. So I know of very few
death penalty enforcement clinics that you know, argue in favor
of the state's position.

Speaker 8 (01:25:34):
But that's going to enforce the death penalty.

Speaker 2 (01:25:35):
You have to be the state.

Speaker 7 (01:25:36):
Well, but but you know the state, it's a public entity.
You know, it's a charitable purpose to support what the
you know, what the people are trying to do, and so,
but you don't, you don't tend to see that where
you do see clinics sort of hand in hand with
public actors and other in other environments.

Speaker 3 (01:25:51):
But could a public could a religious liberty clinic? I
know there's one. The kind of religious liberty clinic. Is
it free to defend not only a same sex couple
that was wanting to buy a cake, but also free
to defend the baker who didn't want to sell the cake?

Speaker 7 (01:26:09):
Yeah, A very interesting legal ethics question is whether universities
and their clinics can be adverse to each other in
the same proceeding. Oh, interesting, be adverse to each other
in the same proceeding. Why don't we at this point
open the floor for questions from the audience. I'm sure
that you have many. Please approach the microphones. I believe
that they are operational.

Speaker 12 (01:26:30):
Yes, so I have a question.

Speaker 4 (01:26:32):
But first, as a point of information, is the answer
to the question. When I was a Harvard law student,
there was a Landmorre tenant clinic that exclusively represented tenants.
I wanted to represent small landlords and I was treated
as very odd and had to fight, but they let
me many years ago.

Speaker 12 (01:26:49):
My question is this. There has been in this entire discussion.

Speaker 4 (01:26:55):
Discussion of the university as a singular the university, and
I wanted to raise several different types of questions about
diversity between universities.

Speaker 12 (01:27:06):
First of all, the religious.

Speaker 4 (01:27:08):
Universities where there is heresy and orthodoxy, and in some
places to get tenure you need a n imprimator and
anihil upstad if they are the only ones that can
take positions, I, as a secular person who wants to
take positions, worry, And so I have this.

Speaker 12 (01:27:29):
I'm reproducing what.

Speaker 4 (01:27:30):
I said at Michael McConnell's conference about five or six
years ago on.

Speaker 12 (01:27:35):
Freedom of speech in the university.

Speaker 4 (01:27:38):
Why don't we think more about diversity between universities so
that there can be the Tibu hypothesis For I mean,
you know, the university is far less of a demanding
environment for students to choose where they want to go.
It's you know, four years out of their life. Even
faculty have more mobility. And if people can be expected

(01:28:00):
to choose a place of residence based on its attitudes
and its services, why isn't there more room for diversity
among universities, including on the question of what kinds of
speech and what kinds of positions are tolerated. That said,
I'm glad I'm at the University of Chicago. I chose
it because I value the Calvin principles. But I can

(01:28:21):
easily imagine other well developed ecosystems for universities.

Speaker 12 (01:28:27):
Why don't we have that?

Speaker 9 (01:28:28):
And yeah, thoughts.

Speaker 11 (01:28:31):
Internationally speaking, the US higher education is notable for the
fact that we have a market in different forms of
higher education, different colleges. Some are secular, some are parochial,
some are states, some are private, mostly private.

Speaker 3 (01:28:45):
So we do.

Speaker 11 (01:28:46):
Actually celebrate that in the United States. And it would
have implications for what the theme of the panel was,
which is, what's the mission different?

Speaker 2 (01:28:54):
Now?

Speaker 11 (01:28:55):
What the things you cannot do and be a university,
which is to say, as a universe that means you're
dedicated to truth. You can't know in advance what the
truth is. So the idea if you are an institution
of higher education and you already know the truth. Many
theological seminaries are like this, then you will be regarded

(01:29:16):
by the AAUP as the language that they used in
nineteen fifteen was flying under a false flag. You pretend
to be a university, but really you are indoctrinating people,
not educating them. That would be the theory of the thing.
So you can have different missions, but the mission must
be if you're going to be understood to be a
university aimed at truth, which requires a certain degree of

(01:29:39):
academic freedom. For the reasons that the panel members have said.

Speaker 3 (01:29:44):
I lecture a lot at religious universities. I'm myself a Catholic,
and I get invited to Yeshiva and Bergham Young and
Baylor and sat Tuna, the Muslim Liberal Arts College in
Berkeley and Notre Dame and all sorts of other places.
I'm considered a friend. I'm welcome, But my message to
them every single time is yes, the norms of academic

(01:30:04):
freedom and certainly the norms of institutional neutrality that apply
in faith based universities with their dual mandate will be
different to some extent than those that apply at non
sectarian institutions. This is the point I made at the
very beginning and said I would talk about if somebody asked,
and you made the mistake of asking. But I say
to every single one of them, not all that different.

(01:30:28):
If you're indoctrinating, then it's not education. If you let
me go to Notre Dame, for example, which is a
great university, a true university, and it's got a wonderful
tradition of philosophy there. If students majoring in philosophy at
the University of Notre Dame have not read and seriously

(01:30:48):
engaged and seriously considered and felt the force of Nietzsche's
arguments against Christianity and against religion, you haven't educated them.
You have failed. That's a disgrace. So you've got to
make sure that you're exposing students that the best to
the best that has been thought and said. Now, there
are lots of things you can you can do. I
don't For example, I don't object in principle if a

(01:31:10):
place like Brigham Young University says, look, this is a
university where to be a member of the faculty, you
have to belong to the Church of Jesus Christ of
Latter day Science says, hey, fine, okay, you've got you've
got a mission here. It's a dual mission. It's truth seeking,
but you're also of course promoting your faith. But even there,
if your students are not confronted with serious arguments against

(01:31:33):
Mormon doctrine, not educating them.

Speaker 11 (01:31:36):
There's a famous argument by Paul Carrington against Critical Legal
Studies who said lawyers in law schools have to be
indoctrinated into the importance of the rule of law, where
like theological seminaries. So he was saying anyone in critical
legal studies shouldn't be tenured in a law school for
this reason. Exactly.

Speaker 2 (01:31:55):
Yes.

Speaker 13 (01:31:56):
So I think one thing gets missing from the discussion
that's triggered by the conversation you were just having about
clinics is the role of institutional neutrality in making curricular decisions.
And there are very few schools that just say to professors,
teach whatever courses you want. Right at least the title
is typically given to us, even if you have some
academic freedom within that. And so I was running, if

(01:32:17):
you can various views, share your views on sort of
what is institution or try to look like when the
university is choosing yes, offer this course, don't offer this course,
and in certain departments especially, that can be a highly
content specific and controversial choice.

Speaker 11 (01:32:36):
Well, I mean the typical way, and we have David
Riband in the audience who's like the world's expert on
this very problem. But the typical answer would be so
long as those judgements are made by peer faculty as
opposed to administrators who are imposing it on faculty, it's
consistent with academic freedom because every department has to make
its own judgments about what courses to teach, you, to hire, etc.

(01:32:57):
If this is done at the faculty level by those
and to make those judgments, presumably that's the theory of
academic freedom, then it's okay. But if an administrator is
saying I don't want to teach that because it's going
to displease the donors, then you have a serious problem.

Speaker 3 (01:33:12):
Just a very quick comment. I think at many universities
today you have a problem, a skewing of the course
offerings that reflects the underlying problem of the lack of
viewpoint diversity. So certain subject matters that really should be covered.
A great university should have a course in the history
department on the American Civil War, should have a course

(01:33:33):
on the Revolutionary period, whatever. Sometimes those courses aren't being taught,
and if you look at what's going on back there,
the lack of viewpoint diversity means that there aren't people
interested in those topics. So it's a problem. If we
could solve the viewpoint diversity problem, a lot of what
we're worried about in universities today would not be a problem.

Speaker 10 (01:33:52):
I just say, someone that did my first degree in
another country. One of the things that remarkable amount American
legal education is the amount of discretion that professors get
in not only what courses they get to teach. I
get told they have to teach a seminar and no
one gives me munch instruction beyond that, but also the

(01:34:12):
content of those courses. This quarter, I'm teaching constitutional law,
and I think I'm like roughly aware that I'm not
allowed to do the rights and I have to do
the structure. But beyond that, I seem to have a
remarkable degree of discretion about what makes that up.

Speaker 9 (01:34:28):
This might be an.

Speaker 10 (01:34:28):
Instance where I mean, obviously if there was a suggestion
that there was, you know, restrictions placed on what people
could do based on viewpoint discrimination.

Speaker 9 (01:34:38):
That would be extremely worrying.

Speaker 10 (01:34:39):
But this might be an instance where institutional neutrality is
not serving a broader goal of viewpoint diversity at the university,
where if faculty are having lots and lots of discretion
in what they teach, and then Robbie is suggesting that
there are all sorts of holes in the course catalog
that could be filled by the university going out and

(01:35:00):
finding other professors, other instructors to fill those slots, then
maybe that would be a better solution than the university
just washing its hands of the problem.

Speaker 11 (01:35:08):
First faculty meeting I ever attended, when I went to Yale,
Guido Calibrezi stood up and he said, the glory of
this place is that we have two professors teaching torts
and they will not read a single case in common.
I thought, I am not in Kansas anymore.

Speaker 8 (01:35:25):
One small but important point unique to the clinics is that,
unlike other classes, they're very expensive. And so the question
of who's going if you know, if any one of us,
if evidence is all I want to teach a seminar
on X next year. You know, they can just sit
and write the syllabus and all it cost is a
pen and a paper, and then the students show up
and the students buy the books. You know, there's no
cost to you other than sitting with your word processor

(01:35:47):
and your thoughts. Building a clinic, I can tell you
from experience is expensive, which means then as a result,
actually the faculty does The faculty doesn't have purse strings,
so the questions of what you're going to build are
at this messy mid spot. Actually it's a resource deployment
question in addition to and curricular design question and faculty
among you know, all the things that they have, and

(01:36:08):
faculty governance varies by schools, but they rarely can just
vote to redirect a million dollars from here to over there,
which makes it a challenge, which.

Speaker 3 (01:36:17):
Means correct.

Speaker 14 (01:36:26):
As a as the panelists raised multiple times, universal talk
into the mind. As the panelists raised multiple times, UH
universities are not just engaging the core mission of generating
and transmitting truth. They are embedded economic actors that have
to make decisions about catering or health or provision of
dormitories that require them to make decisions that put pressure

(01:36:50):
on a commitment to institutional neutrality. I wanted to ask
whether we could just pull the contrapositive the Steven move
on that so well. Is that not an argument in
favor of slimming down the economic footprint that universities have.

(01:37:10):
With some not very creative organizational restructuring, you could have
universities get out of the catering and the dormitory business
by chartering out or contracting out those services to third parties,
providing some insulation between whatever message those third party contractors
are sending and the university would be sending if they

(01:37:32):
had engaged in those.

Speaker 3 (01:37:33):
Actions on their own.

Speaker 14 (01:37:34):
So, maybe, going with Steven's example about providing meat, you
don't have to have a university catering service. You can
have a third party caterers are us hired by the
university to provide food for the students. Is that a
solution or is it another one of the loopholes that
you could drive.

Speaker 2 (01:37:52):
A try through.

Speaker 8 (01:37:53):
I think my own view is it sort of neither.
It doesn't strike me as quite a loophole, but also
not a solution in that in the ten years I've
been at Harvard, I think we've gone back and forth
between whether SIDEXO run, whether we've outsourced the cafeteria or not.
And I don't think it actually does one wit of
a difference to the meat question. You either directly have

(01:38:13):
employees who are cooking meat or you have decided to
hire a company that you know will cook meat and
will do it on the building that you own. So
I'm just I think it moves where the decision is.
But this is why I say that I think the
investment portfolios are such a challenge. There is action occurring
that is normatively inflected on salient and controversial questions. And
whether the action is Harvard employee serves meat or Harvard

(01:38:35):
contract d serves meat, I don't think gets you out
of it. I think in the same way that Look,
the divestiture is one of the hot button things, and
there the causal chains are actually more attenuated.

Speaker 5 (01:38:46):
Right.

Speaker 8 (01:38:46):
The claim is never the president just signed a check
to buy a bomb and drop it somewhere, Right. The
claim is it's attenuated in certain ways in the same
way that the contracting is attenuated. And yet still clearly
the force of the claim that this is action that
you ought not take is going to be made no
matter what I think. I think it's just inescapable that
the universities cannot be simple actors, even if they can

(01:39:07):
outsource things, that itself is an action that is controversial.

Speaker 3 (01:39:11):
Potentially, Evelyn, I ask, in the country where you received
your undergraduate education, I'm guessing what country that is. But
would it be Is it the case that universities do
not provide the kind of student life generic student life
that we have here in the United States, that there's
a private market for housing, as a private market for
food healthcare is not on the universe that would if

(01:39:34):
we had a system like that, it would disentangle us.

Speaker 9 (01:39:38):
Yeah, so I mean completely.

Speaker 10 (01:39:39):
So I don't know if this is your guest, but
it was Australia surprise, gid Ah, And I mean, I
think it goes back to this. These questions can't be
divorced from the political context, the political and economic context.
I mean, the universities in Australia just leave in a
completely different context. They are largely public funded and see

(01:40:00):
magnificantly so very few students live on campus because they
are universities are in the capital cities, which means that
most students don't leave home.

Speaker 9 (01:40:11):
When they go to university.

Speaker 10 (01:40:12):
I lived at home all the way through my undergraduate
degree and was not like particularly clinging in doing so
that was very normal, and so you don't have the
student life.

Speaker 9 (01:40:22):
And then I think also just the broader political context.

Speaker 10 (01:40:25):
I mean, part of the underlying current here is so
many things have been politicized in a way that makes
everything suddenly all of these little choices have political valence
and political saliens in ways that I mean, I haven't
been in Australia now, I haven't lived there for a decade,

(01:40:45):
but weren't true at least when I was when I
was there.

Speaker 7 (01:40:49):
I think part of the construction of certain choices as
political also depends on them being matters of controversy. So
you know, if Harvard divested from junk bonds, nobody would
see that as a big deal because it's not sending
a message about this is how you want to think
about junk bonds. But if they divest from Israel, that

(01:41:12):
is sending a message. It's done to send a message,
and so I think it's very hard to there the
action and message sending component of said action are very
closely related to one another, whereas another context it might
not be.

Speaker 2 (01:41:27):
Yes.

Speaker 3 (01:41:28):
Yes, this is not a new issue.

Speaker 15 (01:41:31):
I have a chapter on it in a book published
a little over fifty years ago after I spent four
or five years at University of Chicago overlapping the Calvin Report.

Speaker 11 (01:41:42):
I'm an economist.

Speaker 15 (01:41:43):
I think in terms of trade offs, and I think
the right way to think about it is that for
a university to take a position on anything at all
undercuts its mission in terms of education. But unfortunately you
can't avoid doing it, and that therefore you want to
take positions only where it's unavoidable, which includes whether you

(01:42:05):
have meet in the cafeteria, and it also includes who
you hire and what courses you have. But because it
is very costly, you don't want to do it in
the form of making statements about the university says that
the country should do x or y. In the case

(01:42:26):
of investments, speaking as an economist, whether the Universe of
Chicago invests in South Africa has essentially no effect on
South Africa economically speaking, because there are lots of other
people who can invest in South Africa. The reason SDS
was pushing that was to get the university to make
a statement that it was against South Africa.

Speaker 11 (01:42:47):
And you can't prevent.

Speaker 15 (01:42:49):
Them from doing it because it is or isn't investing it.
It's a decision they have to make. But I would
have said that the right policy for everybody who can
is to downplay that as much as possible, to get
as little attention to it as possible. But nonetheless it's
an honest argument you can't do anything about. I would
say that I strongly disagree with Professor Crespun about his

(01:43:12):
support for enforced orthodoxy. I don't think there should be
any positions at all where the official position of the
university is X is true, and we will proclaim to
the university that the universe that X is true. Because
in the real world you will observe that there are
often departments which are ninety eight percent of some political

(01:43:34):
or ideological view. And once you take the position, it
is legitimate to say discussion is finished on this issue.
They are going to use it. So I think the
right policy is to say that there are no orthodoxies. Yes,
the university has to.

Speaker 12 (01:43:52):
Make some decisions.

Speaker 15 (01:43:53):
Unfortunately, it's making the decisions has a bad effect because
it means that if you are against meat, you have
an incentive to try to get vegetarians hired, so you
lit me more votes for banning meat from the cafeteria.
That's a bad thing, but you can't do anything about it,
but you can avoid any place where it's unnecessary to

(01:44:15):
raise those issues.

Speaker 11 (01:44:16):
So that would be my view at least.

Speaker 8 (01:44:18):
So I was going to try to jump in when
there was a cross talk before with Professor George, because
I actually, I think agree with you and want to
make sure I'm clear in what I'm saying about my
point about heresy. I actually agree. I don't think that
a university ought to enforce even the outer boundaries of
what I'm calling. You know, when you said two plus
two the two plus two put five point actually had
exactly the same thought when Professor posts, I think that

(01:44:39):
you know, a university, if it has a tenured professor
who's saying two plus two equals five, there shouldn't be
any sort of enforcement about that, and in fact it
should be I think, as you say, inviting that please
say more. I want to hear more about this because
that sounds to me initially kind of crazy, but you
are the expert. Let's hear right. The point I was
trying to make was a sociological point, which is that

(01:45:01):
I think it is just definitional about a society that
they have at least some things that they have some
sort of shared agreements about. And that's true about various
subcommunities that are trying to have in exchange with each other.
And that is what makes it hard. Given what you're saying,
that the university can't avoid action, that it has to
act within that setting, which means that it's going to
constantly run into these boundaries of what are our sort

(01:45:24):
of given absolutes upon which we take action, what are
the basic sets of institution devis up bepond which we
then move and act in the world, including who we hire,
including where we put money like. There are hard questions
that relate to the educational mission in which it has
to take action. But I agree completely in the almost
ideal type version of the university as forum for debate

(01:45:46):
that once the people who you've decided are your institutional
citizens are having debates about controversial stuff, there's no role
for the university to say that particular speech act that
idea is one you're not allowed to say or engage in.
The hard part for me is they have to take
action where they don't have that liberty exactly as you say,
and that they're doing against a backdrop in which a
society does have identifiable heresies. The university can't enforce them,

(01:46:10):
but it has to move through a world where there
exists some edge of shared knowledge.

Speaker 15 (01:46:15):
I should say, by the way, that of course you're
correct that the university should not penalize professors who happen
to have other positions for taking positions that that's what
they're supposed to be doing. It's the university as a
corporate body that should take as few positions as get
away with.

Speaker 3 (01:46:32):
Essentially, you know, I think we professors would do very
well to be better, become better at modeling, especially for
our students and for graduate students and for young professors.
The virtue of intellectual humility it is so critical to
the pursuit of truth, and yet I think as a
class we're not very good at it. And I'll declare

(01:46:53):
myself as guilty as anyone else on this. I think
perhaps the way to remind ourselves about the need for
that intellectual humility if we are to be determined truth seekers,
is just to think of all the instances throughout history
in which the consensus has been wrong, and then just

(01:47:15):
ask ourselves, Okay, what are the consent Let's look at
today's consensuss which ones of those will turn out to
be wrong.

Speaker 11 (01:47:24):
Just as a counterexap mean, first of all, I want
to say about the two plus two equals five? Are
you going to hire that person? That's the first question,
and we're not talking about tenure. Second, we all have
had colleagues who are reaching my age and kind of senile,
and they're incompetent and they can't really talk to the point.
How do you know that? It's because they're telling their class.

Speaker 3 (01:47:45):
Two plus two equals five.

Speaker 11 (01:47:47):
So I was chair of the Academic Freedom Committee of
the UC Berkeley, and I had someone come to me
with a complaint, and the complaint was, my work is revolutionary,
it's paradigm shifting in the field that this was architecture,
and my academic freedom is being denied. Why because the
department won't let students major in me me because my

(01:48:12):
work is so paradigm shifting. Now, how am I supposed
to as an academic freedom person? Is your academic Well,
that's intellectual humility. I have to say, are you that great?
Are you not who's going to make that decision.

Speaker 2 (01:48:24):
I believe you have time for one last question. Oh well,
I feel bad, not that bad.

Speaker 16 (01:48:29):
So look I've only been in academia two years, so
maybe I'm naive, but I just think there's a disconnected
with reality. We have all these platitudes about preserving diversity
of opinion or protecting people.

Speaker 12 (01:48:41):
But if that's true, it's really happening.

Speaker 16 (01:48:42):
Why are universities still seen as bastions of liberalism and
they are that way seen by the American public. Robert,
you talk about doctrination. A lot of people see universities
as indoctrinating our kids and anti capitalism and anti business.

Speaker 12 (01:48:56):
Now I know they graduate.

Speaker 16 (01:48:57):
Learn better, but the point is is this is really
not the kind of diversity. I can tell you it
ain't there at Cornell. As a Republican, I feel ostracized.
So and I know there's liberty university and stuff like this,
but this is a problem with universities and how they're
perceived in this country and all let's talk about diversity.

Speaker 12 (01:49:14):
I just don't see it. I don't see it happening.

Speaker 16 (01:49:16):
I just see and maybe it's because conservatives don't like
to be in academia because they don't make enough money
or something.

Speaker 2 (01:49:21):
But there's something else going on.

Speaker 16 (01:49:23):
But I don't see the talk living up to the reality,
at least in major universities across the country.

Speaker 3 (01:49:33):
Well, what first thing I'd say to that is, as
someone who's himself a conservative, I'd like to have the
old liberals back. Those were the days when I began
back in the Middle Ages, arrived in prince in the
fall of nineteen eighty five, the old school liberals who

(01:49:55):
really did believe in, you know, free speech and viewpoint diversity.
I couldn't have been higher because out of the closet,
I mean, I did not hide my views about things,
even on controversial issues. The only reason I got hired
is because there were old school liberals where the dominant
force on the campus, and I just assumed naively that
that would be the case forever. That's just the way
it is, not just at Princeton, but at Harvard and

(01:50:17):
Ohio State and Temple and every place else. The thing
that I find most surprising now as I enter my
fortieth year in academia is that that old school liberalism,
which was so overwhelming when I began, is now pretty
much gone. There are more conservatives now, certainly at Princeton

(01:50:43):
than when I began. That's certainly true. And when I began,
I was sort of the only out of the closet one.
Now there are a couple of dozen, at least, you know,
very publicly conservative professors. But what has really diminished are
old school liberals.

Speaker 11 (01:51:01):
See, I think you're speaking from a certain paradigm of
what the university is. There isn't an economics department in
the country that I know where people are being doctrinated
against capitalism, not one. So when you say what you
just said, I'm guessing you're generalizing from English departments or
maybe history departments. Less so, so, there are certain people

(01:51:23):
in the humanities, certain departments in emanages where what you're
saying may be true. It's certainly not true in the sciences.
It's certainly not true in the biological sciences. It's not
true in many social science departments. I don't think it's
true of most government or political science departments. It may
be true in certain humanities departments, and you're metonymically substituting

(01:51:43):
the university for those departments. That's a mistake. If you
look at the university as a whole. It does not
have the properties that you're describing.

Speaker 3 (01:51:51):
There's a good deal of data on party affiliation and
ideological self.

Speaker 11 (01:51:56):
Here we're talking about what people are being educated to do.

Speaker 3 (01:51:59):
No, that's true, but if you if you do look,
I mean, economics has the closest number of Democrats. For example,
are Republicans to Democrats, but it's sort of six Democrats
to one Republican, as opposed to sociology, where it's forty
to one or anthropological.

Speaker 11 (01:52:16):
Do you know people in the economics department too, we're
teaching kids to overturn capital.

Speaker 3 (01:52:20):
Of course, that you could look at what you're there
is a viewpoint in balance, but it's it's not that
you know there are Marxists in economics. We want to
find a Marxist, You got to go to some other
Northeast artment. Yeah, well, no, you can find them at
a university. I mean you can find them at Harvard,
you can find them at Princeton, but not in the
economics part.

Speaker 8 (01:52:39):
I think you could look at what you're educating to do,
and you can also look at what they are doing.
I mean, you know, the vast majority of our students
are going to go work at large law firms that
are not anti capitalist institutions, so I don't think, and
we are preparing them to do that work, so I
think again it goes a bit to Robert's point that
I tend to agree. But also it's just not what

(01:53:00):
we're educating to do, it's what is the actual role.
We're I think, very actively building the continuation of a
profession that is, of all the things you could describe it,
I don't think trying to tear down American capitalism.

Speaker 7 (01:53:13):
What one might cynically describe the push for institutional statements
as in some ways an attempt at expiation of the
sin of preparing people to.

Speaker 2 (01:53:24):
Enter the capitalist economy.

Speaker 7 (01:53:27):
But with that, thank you all very much for spending
your afternoon with us, and thank you all to the
members of the panel.