Did the Harvard Placemats Abridge Free Speech? Why Great Universities Should Not Take Political Positions

In an interview with the Weekly Standard's William Kristol, Lawrence Summers, President Emeritus of Harvard University, decries what he calls "creeping totalitarianism" on many of America's college campuses.  (Go here for a video of the full interview.)  Examples, he said, include calls [by students at Yale] to fire faculty who question university policy as well as Harvard's "us[e] of placemats in the dining hall to propagandize about what messages students should give their parents about Syrian refugee policy[.]"  Explaining why he believes these actions were problematic, Summers invokes basic free speech principles, namely, that the "answer to bad speech is different speech [and] not shutting down speech."

Summers is certainly correct to decry both the particular events described above as well as the anti-academic trend that these events exemplify.  At the same time, this blogger respectfully suggests that Summers has identified two analytically distinct issues.  To be sure, firing someone for expressing disagreement with University policy abridges the sort of free expression that public universities are obliged to protect and that many private universities (including Yale) promise to protect.  Those who call for such termination instead of engaging in counter-speech thereby ignore the basic premises of a free society that inform the protection that a university accords free expression.

Ironically, even the Harvard administrators responsible for conceiving and distributing the place mats in question conceded, in a letter of apology, that distribution of place mats contravened "academic freedom."  However, distributing placemats containing political messages does not in the view of this blogger abridge free expression or contradict academic freedom.  On the contrary, the propagation of centrally-approved political messages left members of the Harvard community (and everyone else) perfectly free to express their disagreement with the messages in question or, for that matter, with the decision to create and distribute such mats in the first place.  Many, including Harvard's Undergraduate Council and College Republicans, did exactly that (see here and here), without suffering any penalty, whether formal or informal.  As Justice Brandeis explained, those who wrote and ratified the First Amendment believed that "liberty was the secret of happiness and courage the secret of liberty" and that "an inert people" was the "greatest menance to freedom."  Freedom implies the courage to exercise it, even in the face of dominant opinion.

None of this is to say that the distribution of such placemats was appropriate.  Such distribution offended a different but related principle, namely, that universities should not take political or ideological positions, even if taking such positions leaves members of the community entirely free to disagree.  Nearly five decades ago, a University of Chicago Committee chaired by Harry Kalven explained why great universities should remain politically and ideologically neutral:

"To perform its mission in the society, the University must sustain an extraordinary environment of freedom inquiry and maintain an independence from political fashions, passions and pressures.  A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.  It is a community, but only for the limited, albeit great, purposes of teaching and research.  It is not a club, it is not a trade association, it is not a lobby. . . . . A great university should not, therefore, permit itself to be diverted from its mission into playing the role of a second-rate political force or influence."

By taking political or ideological positions, then, a university short-circuits the process of inquiry, discussion and engagement that furthers the pursuit of truth and its dissemination in the classroom.   One might also add that, by rejecting neutrality and wading into social or political disputes, a university discourages individuals who might disagree with these positions from joining the university community in the first place, thereby reducing the extent of ideological and political diversity at such institutions.   Moreover, a university that takes such positions implies that there is an academic answer to vexing political or social controversies.  While the results of academic inquiry can of course inform public debate, such results can rarely settle such debate.  A university that suggests otherwise misleads the public (perhaps inadvertently) and, by trafficking in political or ideological disputes, undermines the perceived credibility and academic integrity of its own scholars, by signaling that politics, not free inquiry, drives their research.   This can be so even if, as often happens, administrators, and not scholars, determine a university's official position on (non-academic) matters of the day.  As the Kalvin Report properly explained, a "great university's . . . prestige and influence are based on integrity and intellectual competence" and not upon things like "political contacts or influential friends."  While taking political positions may further the short term interest of a university or those who lead it, taking such positions will, over the longer run, compromise the institution's reputation for integrity and intellectual competence, thereby (properly) weakening its influence and prestige.

Yale Really Does Protect Free Expression (For Now)

A recent essay in the Economist magazine addresses efforts to curb free speech on college campuses around the country.  According to the piece, students at 72 colleges have demanded that universities curtail free expression in one way or another.  The essay also notes that the University of Chicago has rejected such efforts and reaffirmed its commitment to "free, robust, and uninhibited debate and deliberation among all members of the University’s community."

Fortunately Chicago is not standing alone.  As the Economist reports, the Chicago statement has inspired similar or identical statements by a growing number of institutions, including Princeton, the University of Wisconsin, Purdue University, American University, Chapman University, Winston-Salem State and Johns Hopkins. (Click on each respective institution in the previous sentence for a link to the relevant policy statement.)  Like Chicago, some of these institutions are private and thus not subject to the First Amendment.  Nonetheless, each believes that protection for Freedom of Expression is essential if a University is to play its fundamental role of facilitating the search for truth.

The Economist also notes that support for the Chicago position is "not universal."    In particular, the Economist cites Yale University as an example of a university that has purportedly declined to embrace the Chicago approach.  The essay concedes that a 1974 report of a Yale committee --- the famous Woodward Report --- extols the "right to think the unthinkable" and "discuss the unmentionable."  Still the essay notes that one member of the Committee that prepared the report dissented and that a minority of those surveyed at the time expressed skepticism about whether certain forms of free expression should be tolerated.  The essay also claims that the report, "when read in full . . . is confused."

Closer inspection, however, reveals that the Economist's characterization of Yale's official position on Freedom of Expression is unwarranted.  Instead, Yale's policies, contained in the Woodward Report, are for all intents and purposes identical to those contained in the Chicago statement.  For instance, the Woodward Report, which begins with a quote from Milton's Areopagitica, provides that:

“The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” (emphases added here and below)

The Report also recognizes that Freedom of Expression supersedes other important values, including harmony, civility and mutual respect.  Thus the Report provides as follows:

“Without sacrificing its central purpose, [the University] cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect.  To be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends.  But it will never let these values, important as they are, override its central purpose.  We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox.” 

The report also makes it clear that each individual who voluntarily enters the Yale community thereby takes on the obligation of protecting Freedom of Expression, “above all.”

"By voluntarily taking up membership in a university and thereby asserting a claim to its rights and privileges, members also acknowledge the existence of certain obligations upon themselves and their fellows.  Above all, every member of the university has an obligation to permit free expression in the university.  No member has a right to prevent such expression.”

The Report recognizes that there are "slurs or epithets" that "no member of the community with a decent respect for others should use" and that individual members of the community have "ethical responsibilities" to refrain from certain forms of expression.  This language, while certainly correct, may well be the source of the "confusion" the Economist alleges.  However, this language does not ambiguate or detract from the Report's endorsement of unfettered free expression.  Instead, after noting these "ethical obligations," the Report expressly "reject[s]" the "argument that behavior which violates these social and ethical considerations should be made subject to formal sanctions" as well as "the argument that such behavior entitles others to prevent speech they might regard as offensive." Allowing such institutional or private censorship, the Report says, would contradict the "conviction that the central purpose of the university is to foster the free access of knowledge."  As a result, the report concludes "even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be enforced by appropriate formal sanctions."  Such "secondary social and ethical responsibilities," the Report concludes, "must be left to the informal processes of suasion, example and argument."  

In sum, the Woodward Report, issued more than four decades ago, is a classic articulation of the virtues of Free Expression in the University context and an unqualified rejection of calls to censor speech, even speech that is offensive.  Like Justice Louis Brandeis, the Report recognizes that the expression of noxious ideas that all good people will reject out of hand is a possible but unfortunate byproduct of robust protection for free expression.  Presumably the authors of the Report also believed that members of the community have an ethical obligation to denounce and condemn such speech. 

To be sure, support for Free Expression was not unanimous at the time within the Yale Community. One member of the twelve person committee that drafted the Woodward Report dissented, and numerous members of  Yale community apparently disagreed with portions of the Report.  But then the main student newspaper at the University of Chicago objected to the Chicago statement. Such dissent, itself an example of Free Expression, does not undermine the clarity of Yale's or Chicago's commitment.  Perhaps more to the point, Yale has codified the Woodward Report in its "Undergraduate Regulations." (See here, pp. 47-49).  The same regulations prohibit faculty, staff or students from interfering with the "orderly conduct" of a lecture, meeting, or "other public event."  (See id. at 49).

It thus appears that the Economist has inadvertently misinterpreted Yale's policies on Free Expression.  Instead of diverging from Chicago's recent statement, the Woodward Report presaged it. Indeed, Yale is not alone in anticipating Chicago's statement.  A little more investigation reveals that, while not "universal," support for Freedom of Expression within American Higher Education is perhaps broader than many suppose.  Here in Virginia, for instance, three universities  --- George Mason, William and Mary, and the University of Virginia --- have received the very highest rating for protection for Free Expression from the Foundation for Individual Rights in Education, a non-profit organization that “defends and sustain individual rights at America’s colleges and universities”  Many other major universities have also received FIRE's very highest rating, including UNC Chapel-Hill, Arizona State University, Carnegie Mellon, the University of Florida, the University of Pennsylvania and the University of Utah,  (See here for a full list of schools that have received FIRE's highest rating.)  

Of course, formal policies do not always suffice to protect Freedom of Expression or other liberties. Even the 1977 Soviet Constitution --- 177 articles long --- included protections for "freedom of speech, of the press, and of assembly" (Article 50) as well as "freedom of conscience" and the right "to profess or not profess any religion, and to conduct religious worship or atheistic propaganda."   (Article 52)  As Judge Learned Hand famously explained, in a 1944 speech to over a million citizens: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it."  In the same way, no university policy, no matter how eloquent or widely embraced when adopted, can ensure continued robust protection for Free Expression, unless there is sufficient support for this value within the relevant community.  Those who hope to preserve Free Expression in America's colleges and universities must do more than invoke standing policies authored generations ago.  They must, in addition, continually affirm and defend the paramount value of freedom of expression.  In this spirit, universities may wish to sponsor programs or workshops for incoming students explaining the origin and rationale for robust protection of freedom of speech on campus as well as any alternative perspectives on the matter.