Harry Kalven, Institutional Neutrality, and the “Charisma” of the First Amendment

By Leslie Spencer

As concern mounts about the status of those principles that preserve and honor freedom of expression in American higher education, Princeton’s James Madison Program recently launched the Initiative on Freedom of Thought, Inquiry and Expression.  It held its first day-long conference, entitled Institutional Neutrality and the Mission of the University, on November 11 in Aaron Burr Hall on Princeton’s campus.

The event hosted an all-star line-up of nationally recognized luminaries and authorities on academic freedom and its aims are ambitious. The panelists took a deep look at the principle of institutional neutrality as articulated in the Kalven Report, a 1967 University of Chicago statement prepared by a committee charged with creating “a statement on the university’s role in political and social action.” The committee was chaired by the late Harry Kalven, who was among Chicago’s most legendary professors of law.

After two open panels explored the Kalven Report’s institutional role in a university’s mission, as well as its legal ramifications, a closed session then took on the work of editing it for the purpose of update, to become the Princeton Statement on Institutional Neutrality. Professor Bernard Haykel, the event’s organizer, says its ambitions go well beyond Princeton. The organizers hope it will be adopted by colleges and universities throughout the country, to accompany its twin pillar, the Chicago Principles. (See PFS’s summary of the panelists’ remarks by Princeton undergraduate Abigail Anthony here.)

A spare document of just 1100 words, the Kalven Report modestly presents itself as a “point of departure for discussion in the University community of this important question.”  It soon became, and remains to this day, a foundational principle, central to Chicago’s mission to protect the “academic freedom of faculty and students in the face of suppression from internal and/or external entities while also insisting on institutional neutrality on political and social issues.”

Except regarding narrowly defined instances of threats to its mission or actions required in its corporate capacity, the policy that emerged restrains the university and its departments, offices and units from taking official positions on political, moral or ideological issues of the day. Created in response to widespread student pressure on the University of Chicago’s administration to protest the Vietnam War, the Kalven Report articulates the centrality of institutional neutrality to the proper functioning of a university’s mission. At its heart is this distinction: “The instrument of dissent and criticism is the individual faculty member or the individual student. The University is the home and sponsor of critics; it is not itself the critic.”   The distinction serves to emphasize the report’s purpose: a university should not take collective action or positions on issues of the day for fear that by doing so it would undermine the university’s commitment to free and open inquiry by faculty and students on those very issues.

It’s fair to say that this principle has been overshadowed by the so called “Chicago Principles” created in 2015, also as a corrective, at that time to an upsurge of speech codes, campus speaker shout-downs, cancelations, and censorship attempted by vocal but effective minorities working to radically narrow the confines of acceptable discussion and debate. It's no surprise that the Chicago Principles have become the standard for free speech protection in higher education and have been adopted in some form by 87 colleges and universities since 2015, 15 of them since 2020 – although not by thousands of others. As colleges and universities struggle with forces of orthodoxy, the Chicago Principles help articulate a commitment to “free, robust, and uninhibited debate and deliberation among all members of the University’s community.”  

But a crucial relationship between the two principles – one of free speech and the other of institutional neutrality – has been lost.   Whereas the Chicago Principles articulate what a university committed to freedom of thought and expression is obligated to allow, the Kalven Report’s commitment to institutional neutrality articulates what such a university should forbid. 

To perform its mission in the society, a university must sustain an extraordinary environment of freedom of 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.

This passage defines the unique qualities of a university community, and resolves that to be true to its mission a university should never compromise the imperative of institutional neutrality, even in the name of what are thought to be just causes. That means a university, including its academic departments and other units, if true to its mission, should refrain from official statements about supreme court decisions, elections, wars, legislation, or social protests of the day.  It should not endorse or condemn Black Lives Matter or Critical Race Theory. It should resist pressure to boycott disfavored countries or industries. It should not impose mandatory diversity statements in hiring and promotion, it should not weigh in on the acceptability of speakers or events on campus, it should not impose speech codes or safe spaces.

At Chicago over the years a commitment to institutional neutrality has provided a bulwark against pressures to condemn Communism and the Vietnam war, to divest from South Africa and Israel, and to influence investment policies. This restraint has satisfied no one all the time, but has served well in maintaining a culture of academic freedom. (It is interesting to note that according to the Princeton Alumni Weekly, as recently as 2015 President Eisgruber strongly defended Princeton’s “presumption against taking political stands” in investment policy, declaring that Princeton’s “reputation as an unbiased forum for teaching and study must be protected.” This commitment apparently changed last week when Princeton’s trustees voted to divest from fossil fuels.)

Who was Harry Kalven?  A “genius”, an “original”, “the kindest man” were among the recollections of those who knew him well. His stellar intellectual capacity was complemented by unusual personal qualities of generosity, enthusiastic love of his students, and energetic mentoring that changed the lives of those who were lucky enough to apprentice under him. He was active against McCarthyism as a young professor in the 1950s, and it was that tumultuous era of civil unrest that forged his liberal credentials. He taught legendary courses in torts, the First Amendment and constitutional law over a 29-year career at University of Chicago. He was a baseball fanatic and took pride in the number of baseball cases in his torts casebook. In 1965 he wrote The Negro and the First Amendment, still considered a key resource for understanding the impact of the civil rights movement on US law. In 1972, when his ill health became known, enrollment for his First Amendment course increased so dramatically that the law school was forced to find a bigger venue. Perhaps above all, he saw free speech as the most important core value of constitutionalism in the United States.

He was writing his magnum opus, A Worthy Tradition: Freedom of Speech in America, when he died at his desk at the age of 60, in 1974.  In a singular demonstration of fraternal and stand-in paternal devotion, Sterling Professor Emeritus of law at Yale Owen Fiss invested 10 years in close collaboration with Kalven’s son Jamie shaping the rough, disjointed, marginalia-filled, 1000-page manuscript into something publishable -- a story in itself.

Kalven often spoke of the First Amendment’s “charisma” that sets it apart as more than a rule of law.  Fiss explains that Kalven read the First Amendment as a principle not bound by the technical wording, but one that permeates beyond government to all of society. For Kalven the First Amendment’s “charisma” has to do with its “overarching ideal of personal and governmental behavior.”  He said: “It binds the executive branch, the courts, down through state and local governments, and also down to universities, even private universities, including faculty and students, to the principle.” For Kalven, the “charisma” described “not just the intensity of the loyalty to the principle, but to its institutional permeation, the breadth of its embrace, without which the republic might not survive.”

In a 1968 article, Kalven pointed to the language in the landmark free speech case of New York Times v. Sullivan, which turned a corner in the civil rights struggle. Through its “daring, unconventional selection of adjectives” and its “gusto and enthusiasm,” the decision guaranteed that debate on all public issues be “uninhibited, robust, and wide open.”  It is that enthusiasm for “uninhibited, robust, and wide open” debate that he thought needed to bind to university culture.

There was at least some gusto and enthusiasm for free speech expressed during freshman week on Princeton’s campus this fall. President Eisgruber accompanied current students speaking at an orientation event mandatory for freshmen. Senior Myles McKnight seemed to be channeling Kalven in his plea to freshman to rise to the “personal responsibility incurred by each of us at the very moment we arrive on campus” to foster an “intellectually open and diverse culture.”  Princetonians for Free Speech lauded it as a welcome development.

Eisgruber’s remarks, although encouraging, were devoid of any mention of the role that institutional neutrality plays in Princeton’s mission. Princeton has never adopted any version of the Kalven Report, nor have most of the universities that have adopted the Chicago Principles.  Are they being evasive, perhaps half-hearted, in their free speech guarantees, by not committing to institutional neutrality? Or is it that today they are not being pressured to abandon the principle? Hard to say. But when one looks at Princeton’s recent breaches of free speech principles and their consequences, Eisgruber’s omission is glaring.

In the wake of the Dobbs decision overturning Roe v. Wade, the Office of Diversity and Inclusion (ODI), a unit of Campus Life, and the Gender and Sexuality Resource Center (GSRC) released a joint statement condemning the decision. No doubt this political agenda finds widespread support at Princeton among faculty, staff and students. But with this official declaration, University offices marginalized and discouraged dissent.  It is not hard to imagine the chilling effect on a student or professor, not to mention a few of the 300(!) Campus Life staff, whose thoughts or convictions might differ from the Campus Life pronouncement, or who may have complex feelings that derive from a reflection on the fact of conflicting interests central to the abortion debate. One can be unwaveringly ‘pro-choice’ and yet feel that Roe v. Wade as a legal and constitutional matter deserves robust discussion. And because ODI signed on to this official statement, the pall of orthodoxy that resulted could well, ironically, be felt most acutely by a non-conforming administrator, student or professor who is “diverse.”

In another relevant instance that caused a stir, Amaney A Jamal, Dean of Princeton’s School of Public and International Affairs (SPIA), felt justified in publicly decrying the Kyle Rittenhouse verdict, sending a memo to the SPIA community that claimed the outcome “sets a dangerous precedent.” Perhaps distracted by emotional pique, her memo “Our Moral Duty” mistook the jury verdict for a “ruling.” Dean Jamal could have used the opportunity to promote a full airing of perspectives on the complex issues arising from the case. Instead, her declaration effectively cancelled discussion. Again, it is not hard to imagine a professor up for tenure refraining from expressing a dissenting view.  Eisgruber became embroiled when a student group spoke up to object that SPIA’s position indeed does inhibit and stigmatize students who disagree. “[M]y academic colleagues need to make their own judgements about when it is appropriate for them to speak, and they retain their academic freedom to voice opinions about matters of public concern,” he said in a responsive letter that defended Jamal’s leadership style and confused her personal rights with her official role.

Two recent examples that reached the level of scandal further demonstrate this confusion on the part of Eisgruber, which might have been avoided had the Kalven Report’s principle been embedded in Princeton’s free speech rules. Princeton’s Carl Fields Center, housed within the Office of Diversity and Inclusion, a unit of Campus Life, created a document about the University’s racial history from its founding in 1746 to the present, which was used as a teaching tool for Wintersession and 2021 freshman orientation. As an example of alleged present-day racism, it targets then-tenured classics professor Joshua Katz, implying he is a racist, misquoting him in a way that distorted his meaning, and publishing this perspective on an official Princeton website. When challenged by faculty to stop using administrative channels to defame Katz, Eisgruber claimed that his intervention would undermine the free speech of the administrators responsible. In a letter to Eisgruber on behalf of the Academic Freedom Alliance, Princeton politics professor Keith Whittington made clear the consequences of this failure of distinction: “If the Office of the Vice President for Campus Life uses its administrative position on campus to organize official university programming for the purpose of heaping opprobrium on faculty for expressing disfavored personal political opinions, the risks of chilling speech on campus are severe.”

The second, less public but equally consequential example, is of administrators creating boundaries to acceptable academic content. It dates from last year, when head librarian Anne Jarvis teamed up with Vice Provost for Institutional Equity and Diversity Michelle Minter and disallowed artifacts central to an exhibit of 19th Century Jewish American art, justifying the decision because two featured artists had confederate ties. The donor cancelled the exhibit in protest. Eisgruber again defended his subordinates’ act of censorship on the basis of their personal free speech rights.

Could Eisgruber, a graduate of University of Chicago Law School who studied under Geoffrey Stone, who chaired of the committee that produced the Chicago Principles, be genuinely confused by the difference between an individual’s protected speech on the one hand, and his obligation as President to maintain the mission of the institution he serves as a home for intellectual freedom?

Perhaps not. Lately there are calls to take back universities from the grip of administrative overreach. Evidence shows that rapidly expanding activist bureaucracies not only drive up costs but police classroom activity and impose speech, values and behavior guidelines on students and even on faculty. Indeed, the sheer power of this interest group, rather than confusion, may account for Eisgruber’s apparent collapse of principle when it comes to institutional neutrality. But how to address the question of the free speech rights of administrators in their individual capacities? Perhaps when updating the Kalven Report, the conference panelists can find language that draws a clear line, protecting a university’s integrity against administrators’ misusing the authority and prestige of their offices to amplify their personal or any moral or political view.

Princeton’s conference has come at a dark time for academic freedom. FIRE’s recently released free speech ranking of 45,000 students at 203 colleges and universities includes a survey revealing that overall, 64 percent of students surveyed worry about damaging their reputation if they speak freely; 21 percent say they self-censor “very” or “fairly” often both in and out of the classroom; and 60 percent say they worry about publicly disagreeing with their professors. Most notably, fewer than one-third of all students surveyed say that the administrations at their colleges make a clear commitment to free speech principles. All ivy league schools save Dartmouth and Brown are in the bottom quartile, as are most of the selective private colleges. Princeton ranks “below average” at 169 out of 203. Tellingly, Chicago ranks #1.

 Skeptics point out that it is one thing to pay lip service to free speech principles, but quite another to achieve an effective free speech culture. Stanley Katz, a former colleague and friend of Harry Kalven who is an emeritus history professor at Princeton and among the distinguished panelists at the November 11 conference, has doubts about Princeton’s and other universities’ capacity to live up to the challenge. “What counts is the way speech is received and respected in institutional terms. It’s all context. And that was Harry’s point. It is not a question of abstractions, I don’t care how many Kalven Reports you administer, if it is not in a rich and receptive institutional context it is not worth squat.”

There is little doubt that Kalvin’s shadow hovered over the closed session, as the assembled scholars hashed out revisions to the report’s spare, crystalline prose.  What would Kalven think of their updates? Considering their lofty aims, he might point to the closing warning of his report, that “a great university can perform greatly for the betterment of society. It should not therefore, permit itself to be diverted from its mission into playing the role of a second-rate political force or influence.”  Or perhaps he would recall the Chicago Principles’ warning that “without a vibrant commitment to free and open inquiry, a university ceases to be a university.”

Speculation aside, with his generosity of spirit, his passion about the role of free speech protections in furthering a more just society, and his optimism about human capacity to do the right thing, it’s a fair guess that Kalven would be cheering on the conferees, wishing them luck.

Leslie Spencer ’79, a former journalist, is a member of the Princetonians for Free Speech Board of Directors