Does a university protect free speech by staying neutral, or silence it? In this Heterodox Conversation at Indiana University–Bloomington, Tom Ginsburg of the University of Chicago and John Wilson, co-editor of the American Association of University Professors’ Academe Blog, take up the question. Ginsburg opens with what academic freedom means, from nineteenth-century Germany to the AAUP in 1915 and the University of Chicago’s 1967 Kalven Report, and argues that a university should be a home for critics, not a critic itself. Wilson says he is there to praise institutional neutrality, then pushes back on how it is usually understood, from an 1894 Wisconsin statement to Indiana University’s own neutrality policy.
The two agree on more than you might expect: neutrality is there to hold back administrators, not to silence faculty or students. They split on whether it should reach academic departments, on whether professors should hold back outside their expertise, and on how to read the pressure on universities now. More than half the event is audience questions from students, faculty and a retired professor, on divestment, departmental statements, state pressure on Indiana, faculty email, the Johnson Amendment and student protest. A transcript of the conversation follows below.
Tom Ginsburg: Well, thank you all so much for having us here. These are really important topics, and in my experience, they’re not very well understood. The term institutional neutrality, what does that mean? Academic freedom. I can tell you, many of you look like your students, but if you were to ask your professors, most of them have no idea what academic freedom is. It’s something that people only turn to when they are aggrieved, when something is, you know, when their academic freedom is threatened, and then even then it’s not well understood. So I think it’s really important to talk about these things, and what I want to do first in the first couple minutes is just get those terms clear.
So academic freedom in the Western tradition, and we are of course only one intellectual tradition, is usually associated with a German thinker, Wilhelm von Humboldt, from the early 20th century, 19th century, when he set up the Humboldtian University, as we say. And he said that everyone needed freedom to learn and freedom to teach. There were two components. The teacher should be free to organize the class as they wanted to, and they had the freedom to learn, but that also implies, by the way, that students might have some academic freedom interest, freedom to learn somehow.
As it came forward when the German research university was copied here in the United States, including at the University of Chicago, the idea was crystallized in 1915 by the American Association of University Professors, which John has some relation. And they basically said it was three things: freedom of research, freedom of teaching, and this is an interesting addition, condition, freedom of extramural utterance, by which they mean what we would call free speech. And that they did that because the ideas of free speech that we all hold so dear in this country were still very nascent at that time. The first Supreme Court cases upholding freedom of speech didn’t come until after that point.
And so they said, you know, the professor should be able to speak out about issues that they want to, issues of the day, and not suffer academic consequences. So if, as happened at the University of Chicago in the 1890s, a proto-socialist professor said, you know, socialism is the best thing and capitalism is bad. And, you know, when he did that, there was pressure from donors to come: well, what are you doing? You’re teaching godless communism. You have to fire that guy. And the theory of extramural utterances is such a professor cannot suffer an academic punishment for that. You can’t be fired. You can’t be removed from your classes. You get to say what you come to in the pursuit of knowledge as best you see it.
And that turns out to mean that we do have a lot of freedom, academic freedom, freedom to research and teach as we want, but it’s bounded by collectivity. So it’s somewhat of—this is why it’s so complicated. It’s a little bit of an individual right. I have a right against my dean from firing me if I say something, or if I’m teaching law in a way he doesn’t want me to. However, it’s also a collective right. My freedom is bounded by academic disciplines. So my example here is, I can teach constitutional law however I want, but if I went into my class and said I’m teaching the laws of physics every day, I would be fired. I could be fired, because that’s not the subject I was hired to teach. So it’s not a matter of academic freedom. In that case, the university, by firing me, is actually defending academic freedom. The university can be sometimes acting to defend academic freedom by preserving the collectivity, the right of the discipline, if you are, the power of the discipline to bound knowledge.
There’s also an important collective right, which is very relevant here, vis-à-vis politicians. From time immemorial, universities have faced external constraints: the church, politicians, others who say you shouldn’t do this, we want to regulate what you do. And in that case, the university has the duty of protecting academic freedom from such interference. So you can see it’s kind of a complicated idea.
Now, institutional neutrality. Let me get that on the table. It is typically associated with something called the Kalven Report at the University of Chicago, which was adopted in 1967. I think it’s a really great report, but it’s contested, as we’ll see. And what did that report say? Well, first of all, what brought it to life was that there was pressure from students to divest from the war machine in the Vietnam War: this is immoral, we have to remove the university funding from this. And so what the university president did is he appointed a committee, and the committee of faculty members. So that’s an important point. This was adopted by faculty. This wasn’t some top-down legislated imposition. The faculty kind of got together, looked at our own traditions at our university, and discovered that we had a long tradition of what we would call institutional neutrality. And they used that term.
The university itself is not the critic. It is a—the instrument of dissent and criticism is the individual faculty member. The university is the home and sponsor of critics. It is not itself the critic. So it’s sort of a conception of the university not taking positions on issues of the day, precisely so that every member of the university community can say whatever they want without being chilled by the idea of the center adopting an orthodoxy.
And it turns out that goes back actually to almost the founding of the University of Chicago. The incident I was referring to, with the proto-socialist professor saying, you know, we should all be socialists, and the donor saying, no, no, no, you got to fire that guy. The university president, William Rainey Harper, said, no, the institution—when the individual faculty member speaks, they speak for themselves. The institution does not take positions on the issues of the day. And that’s from the early 20th century or late 19th century he said that. So that’s kind of a conception of the university as just a very thin administrative apparatus. Its only role is to be a place where you get a lot of smart people to debate and discuss.
Now, are there any exceptions? Yes. And this is really important, and this is why I think it’s absolutely clear from my point of view that institutional neutrality both is very important for free speech on campus, but also is really important for academic freedom. What are those exceptions? Well, the most important one, and again, I’ll quote the Kalven Report here, is that from time to time, instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and values.
Okay, so that’s the main exception which is relevant here. In other words, the university is a very thin apparatus. Individuals debate things however they want. Any question that presents itself, they should be free to debate. But if we are threatened with an attack on the university itself or the free inquiry itself, a law, for example, that was trying to prohibit what you could say in a classroom, well, then it’s not just optional that the universities speak; it must speak. And that’s part of institutional neutrality too. Maybe the most important word here is institutional. We’re defending the institution of higher learning, of exchange, but we are not itself, as a university administration, taking positions on issues of the day.
Now, why is this important? Obviously, it’s important for ensuring free speech, because otherwise, imagine the alternative world, which is what we’ve been living in for about the last decade and a half, where university presidents see themselves as moral leaders who get to speak out on whatever issue they feel enough political pressure from inside the community to speak out about. What does that do when, for example, Harvard’s president, Larry Bacow, flies the Ukrainian flag when Ukraine was invaded? Now, I’m as pro-Ukraine as anybody, but what does it mean when the university—who elected him to tell us that there’s one right answer here in this conflict? When a president does that, it sort of discourages the incentive for each individual to go and apply. And by the way, if there’s some Russians on campus, they might feel pretty uncomfortable. They might start to hide their Russian identity, things like that.
It’s even worse, and this is a really important point. I think a lot of people now agree that the university president should keep their mouth shut about things that don’t affect the university. But what about departments? And here we get into somewhat of a battle, in my view. Many disciplines, which, remember, have a really critical role for ensuring academic freedom because they bound what you can say—what is law professor? What is anthropology? What’s not? Many disciplines have themselves become political entities in recent years, and they feel the need to speak out about all kinds of things.
And I don’t know if there’s any anthropologists in the room. Ethnography is a super important method, but boy, the American Anthropological Association has been ground zero for a lot of really silly stuff, all kinds of foreign policy statements: we, the anthropologists, condemn X and Y. Departments do this too. Oh, you guys are anthropologists? Oh, okay. I thought you were—I thought you were like, yes. You were either objecting or what. That’s great. So, and I won’t belabor the point, but it’s pretty embarrassing if you delve into that, what the association—not the actual anthropology as a field, not the scholars, but the association, the disciplinary association—is doing in terms of pronouncing orthodoxies.
Departments. There’s a question that arises in these discussions. Does institutional neutrality apply just to the university administration, or does it also apply to departments? And in my view, it’s more important that it apply to departments than the university president. Consider yourself a member of, let’s say, the Asian American Studies Department at Northwestern University, which, after the October 7 attack, announced that this was all the Israelis’ fault and got some factual errors in their statement, while also stating that they stood with a certain race of students and not others. That’s what they said.
Now, imagine you’re a graduate student in this department, Asian American Studies, as I said, who knows nothing about this conflict. What is your incentive to actually inquire and learn about what’s going on in the news? Not very much. And if you do inquire and you disagree with what the departmental leaders have voted on by majority vote, well, you’re going to keep your mouth shut. And so in a way, what that does is it sort of pre-decides issues for the most vulnerable members of the community, the graduate students who need the stipend, the junior faculty who need to get tenure.
So departments—it’s very important to me that departments not speak out about things that they don’t know about. And one of the problems with disciplines these days is you have some disciplines which have very expansive and capacious claims about their expertise. We are experts in power, says anthropology; we can talk about basically anything. That’s a problem. The disciplines need to be very humble about these things. And I think it’s very important that we remember that learning really happens at the level of the individual and the group, and scholars talking together and debating multiple positions. The idea that you would have sort of orthodoxies pronounced by university leaders has been a real mistake.
And I’m going to say one last thing, if I have a second. Now, institutional neutrality, which is kind of this University of Chicago thing—I sometimes call myself a Calvinist preacher. I really like the Kalven Report. But it’s spread all around the country, I think including Indiana University. And one of my problems is actually, I think a lot of places are adopting it, but without the sort of sense of the deep cultural structures which are necessary to make it work. And so it’s possible that these principles can be misused, in which case I would answer the question negatively. Institutional neutrality as misused, if it’s used to silence the individual student or the individual faculty member, that’s then bad for free speech and academic freedom.
But in the Kalven framework, I think it’s an unequivocal good, and it rests on this kind of commitment of every member of the university community to a few sort of basic ideas, the core of one of which is: I think this, but I might be wrong. And if I’m wrong, I need to learn from other people. And that just basic thing has been lost in many universities around the country. Thank you very much.
John Wilson: I wanna thank you all for having me here, BridgeUSA and Heterodox Academy. I want to thank Tom for doing all the heavy lifting of trying to describe some of these concepts that are very complicated. I do want to mention, on the issue of free speech in particular, earlier today, the Foundation for Individual Rights in Education, FIRE, released its annual free speech rankings. And Indiana University, which last year was ranked 255 out of 257, the third-worst university in the country, has now dramatically increased its ranking to 256 out of 261. You are now the sixth-worst university. Congratulations. The tiniest possible steps really was all the other universities somehow managing to be worse than Indiana.
And I should mention that I wrote a guest column this week in the Indiana Daily Student about the enormous attacks on free speech by the administration at Indiana in the past few years, from censoring art to firing—trying to censor the student newspaper, firing faculty for having a chart in their class about white supremacy—all of these things that are really terrible restrictions. And one of the things I also want to—and so I urge you to go to the Indiana Daily Student, or to my Substack, John K. Wilson, to read that. But I want to talk specifically about some of the dangers involved with the institutional neutrality policy at Indiana University, which I think is particularly terrible.
But I do want to begin by noting that I’m not here to bury institutional neutrality. I’m here to praise it. And so there may be people in the room, I hope there are, in the Q&A, who morally are opposed to institutional neutrality. I’m not one of them. I support the concept. But I want to deeply challenge the way that it is commonly understood, including the way Tom understands it.
And to do that, I want to go back, like Tom did, a little bit to the history, to what I see as the origins of institutional neutrality, which is one of these cases from the 1890s when universities were firing economics professors for being too left-wing. There was a case at the University of Wisconsin in 1894, when a professor named Richard Ely, economics professor, was accused of supporting labor strikes and boycotts and socialism by a state official. And so the Board of Regents at the University of Wisconsin investigated. They found that he hadn’t actually done anything wrong. He was falsely accused of these things. But rather than just dismiss the case, they issued this extraordinary statement. I’m just going to read you the primary paragraph of it. Quote: “As regents of a university with over a hundred instructors supported by nearly two millions of people who hold a vast diversity of views regarding the great questions which at present agitate the human mind, we could not for a moment think of recommending the dismissal or even the criticism of a teacher even if some of his opinions should, in some quarters, be regarded as visionary.” End quote.
And to me, this is really the first statement by a university about institutional neutrality, about academic freedom, even though it doesn’t use those terms. It says the university, because we have all these diverse viewpoints that the state represents, we can’t take a stand on these politics. In particular, we can’t take a stand by firing professors who are deemed to have controversial views. In fact, we can’t even criticize them. We have to stay silent and neutral on these matters and allow people to freely express these views. And this is really an extraordinary kind of statement for the time. It’s extraordinary even today. I don’t think anybody’s ever come up with a better statement than this.
Now, 73 years down the road, you had the Kalven Report at the University of Chicago in 1967, which in my view sort of extends this principle, and it says, well, if you’re not supposed to fire professors for their views or denounce them for their views, maybe you shouldn’t affirmatively express some political views by the university, because that might have the effect of making professors who disagree feel silenced, feel like they don’t have the right to disagree, feel like they might be punished for disagreeing with what the university says. And even though I regard this kind of statement neutrality as very much the lesser part of institutional neutrality—the true lesser neutrality is you don’t fire professors for their political views. You don’t denounce students or professors because of their political views. The whole idea of raising a flag is something, frankly, I don’t care much about, and I don’t see as particularly important compared to those kinds of things.
Now, when universities abuse institutional neutrality to try and silence faculty, staff, and students and compel them to be neutral, they’re actually violating what institutional neutrality really means. They’re trying to impose a political perspective by imposing neutrality. And this is the case with the Board of Trustees at Indiana University and the institutional neutrality policy they adopted in 2024 in response to the State Act 202. And I should note, I think the Board of Trustees really needs to rewrite this entire institutional neutrality—first of all, because it has a spelling mistake, and someone needs to tell the trustees that when you use “its” as a possessive, it is not a contraction and you don’t put an apostrophe in it. So for that reason alone, there needs to be a rewrite of the institutional neutrality policy.
But there are the deeper, I think, political flaws in this kind of policy. One of the things is, it doesn’t actually talk about the institution being neutral. The policy actually says that, well, the Indiana University gets to say what it wants to its students and to the public, as long as it’s not breaking the law, which, of course, no university is doing that by saying—expressing its opinions. The sole focus of the institutional neutrality policy is not on the institution. It’s on the university community members, which includes faculty, staff, alumni, volunteers, and yes, you students. You are part of the problem, according to this policy, and you need to have neutrality imposed on you.
And so one really terrible aspect of this policy is that these kind of limits are placed on university community members. And the policy says that all of you, quote, “should assume that they are representing the university when they conduct official and assigned functions, responsibilities, and duties, including but not limited to communicating in university contexts, using university email accounts, websites, social media channels, public fora, and related channels of communication.” So this is really dangerous: the idea that anybody who’s teaching a class, anybody who’s speaking in a public forum or using a university email account, is automatically presumed to be speaking for the university unless they go through some incredible verbal gymnastics of proving that they’re not speaking for the university.
And so these kind of things—and the university actually says you need to use disclaimers. You need to say you’re not speaking for the university. And this is a problem also I see with the university’s free speech website, which I encourage you to go to and read, which includes an FAQ about institutional neutrality. And one of the things that it says in there, and I’ll read it for you—quote, if the faculty—it says, can faculty talk about their work? And it says, quote, “If the faculty member is expressing their personal views on a social, political, or moral issue, they should identify themselves as an individual.” End quote.
And this makes me wonder, maybe we could all get together and think of a way that we could all identify ourselves as individuals. I’m just spitballing ideas here, but what if we each had personal names and personal email accounts that when you—or if we were individual people, like me—so that when you saw a person or read their name or got an email from them, you would know they were an individual and not the university. For example, my name is John Wilson. I am not a university. In particular, I’m not Indiana University. But that’s true of everybody here.
There is also, you know—I think it’s even clearer when you’re up here speaking. For example, some of you might think, hey, is that Indiana University up there at the podium speaking? What a handsome and brilliant university we have. No, you’re thinking, who is this schlub giving his personal opinions up here? Because you, unlike the trustees, can distinguish between an individual and the institution.
Now, what are the dangers of this disclaimer, beyond the fact that it’s ridiculous, in my view, and a complete waste of everybody’s time to go around saying my ideas are my own, my ideas are your own? Of course your ideas are your own. How could it be any other way? Why would you need to issue disclaimers to say that? But these institutional kind of neutrality policies and requirements of disclaimers actually can get enforced in really terrible ways. There’s a case in 2021 at Collin College, a public college in Texas, where an education professor was fired because she had signed an open letter calling for the removal of Confederate monuments. And because she signed her name with her institutional affiliation of Collin College, they said, you’re trying to speak for the university, and therefore we’re going to fire you. So there are some incredible abuses that come about from badly done institutional neutrality policies.
So what’s the alternative? What else could Indiana University do in replacing its spelling-mistake-prone policy about institutional neutrality? Well, one of the things it could do is adopt what Purdue University did, which is to adopt the Kalven Report, which in my view is much, much better than what Indiana University has come up with. One of the reasons is, I think the Kalven Report has a lot of very good aspects to it that need to be recognized.
One is that the Kalven Report is not enforced by anyone. It doesn’t have an enforcement mechanism. It provides no pathway for people to use it to censor. It says, we persuade people. We have a heavy presumption against the institution speaking. It is an effort to persuade the administration not to speak out on this. In my view, in that sense, it’s not a tool to censor departments, as the University of Chicago has used it to censor websites, ban land acknowledgments, and all of these other things that are not actually, in my view, part of the Kalven Report. The Kalven Report also says that a faculty committee should oversee and interpret what institutional neutrality means, that it shouldn’t just be the administration dictating institutional neutrality to all of us. So I think that’s a great thing that Indiana University should do. There’s also a provision in Ball State University’s institutional neutrality policy which says that individuals are free to express themselves and identify as members of the institution. It just simply takes care of the whole problem. You don’t have to issue disclaimers. You don’t have to worry about who you’re speaking for, because you don’t speak for anyone except yourself.
Now, so why then do I support—and I want to bash neutrality a lot here. As a concept, I think neutrality is a scam. Objectivity doesn’t exist. This kind of whole idea that the university should be neutral is a fiction and a farce, but it’s a useful fiction. In particular, it’s useful because we live under the reign of corporate universities, where the president is the head of this hierarchy that has enormous power over us. And so to me, the question is, why would you want a university president, an overpaid professional fundraiser typically hired by a group of corporate executives and political hacks, to speak for you, to take away your voice and replace it with his own? Why do you imagine that our dear leader will be a better advocate of your values than your own? Why do you want to sort of give up that voice?
And maybe if we had truly democratic universities, there would be an argument for getting rid of institutional neutrality and expressing views. But until we do, I think institutional neutrality as a restraint on the central administration, and not when it’s abused as a tool of censorship—I think that kind of institutional neutrality is a valuable thing. Rather than turning to our corporate leaders, our presidents, to be our moral and intellectual guides, I think we should all speak for ourselves and listen to each other. And I hope we’ll do that today. Thank you.
Organizer: All right, we are now having time for Q&A. So if you would like to ask a question, or you have something for discussion, please raise your hand, and we’ll come to you with the mic.
Audience Member: So you said that the original—
Organizer: Can you introduce yourself?
Audience Member: My name’s Connor. I’m a student at Maurer, the law school. You talked about the original emphasis for the Kalven Report was student protests involving investments that ended up funding the Vietnam War. I’m wondering, then, if you consider investments that fund highly contested causes to fall within this scope of institutional neutrality. I think of examples like apartheid South Africa that were a big deal, where it’s like, does investment funding fit within that neutrality standard?
Tom Ginsburg: Thank you. That’s a great question. So I actually think investments are really distinct context, in which most of the logic I was giving doesn’t actually apply. There’s no neutral investment policy. You’re in Coke or Pepsi. You’re in X or Y, you know. So there’s—but then there’s the question of how pragmatically we go about doing it. Do we hire a bunch of professionals to maximize returns, which arguably nonprofit law might require, or do we use our investment policy to make statements about the world? And as you pointed out, there’s a lot of examples of movements that do so.
And I will say that if I’m a graduate student in East Asian studies and the university divests from fossil fuels or South Africa, that doesn’t really affect my incentive to inquire in the way that it would if my department issued an orthodoxy. So I think it’s quite a distinct context. I myself generally oppose divestment movements, for the following reason: I don’t want to spend all my time arguing with my colleagues about what our investment policy should be. If you want a politicized investment policy, you can choose. You can have higher tuition or lower salaries, or maybe both. But that’s just my personal view. And if the powers that be in the university came up with a different scheme, I wouldn’t really have a strong basis to criticize it, as I do for the other things, the statements.
John Wilson: I would say I also—along with Tom, I opposed divestment of any kind. But I don’t think it’s political to do—and it’s all—divestment policy and all investment policies are political. You’re not more political if you support divestment. Just because I disagree with you doesn’t make you political and me neutral. It’s all a choice that we make for various reasons. The important thing about the Kalven Report is it does have these very broad exceptions for the corporate activities of the university, the things that the university does that it has to take responsibility for, that it has to, in some sense, take a stand.
And so, for me, what—and it’s important to note, in the history of the Kalven Report, what actually was at stake at the University of Chicago were called the rank protests. These were where the Selective Service was demanding that all universities rank their students so they could make the lower half of the ranked students take a test in order to avoid being drafted in Vietnam. And so there were protests, because the University of Chicago did not rank its students. And so the protesters were not demanding divestment from the war. They were saying, just keep the policy the way it is and don’t serve the war machine by ranking students. And the university wanted to help serve the war machine, arguably take a stand, change its policies in order to do that, which it eventually did. And so the idea that the university was neutral and the protesters weren’t is actually the reverse of, in some ways, the way it really was.
These are all positions. And so in any kind of—all these disputes, these arguments about, for example, the universities making statements after George Floyd—in my view, that’s a perfect example of where the Kalven Report has a clear exception that allows for university statements. If you want to make a statement about police violence and racism, well, that kind of makes sense, because if you look at the universities, they actually have armed police forces. And so it’s completely relevant to their corporate activities that you would discuss police violence, for an institution that has an armed police force. And an institution that has an anti-discrimination policy against racism is perfectly entitled to talk about racism as a larger issue, in my view.
So the Kalven Report doesn’t solve these problems. It really opens them up, as to the question of what is really appropriate for the university. And that’s why the Kalven Report needs—institutional neutrality needs to be something that is not imposed on universities, that is in particular not imposed on departments or programs, because it is so ambiguous. You need to let people—even if you believe in this heavy presumption against making statements, which I share, you still need to let individuals, individual departments, individual universities, individual circumstances determine when you make those kind of statements.
Audience Member: Hello. My name is Michaela Wolfork. I’m from Detroit, Michigan, and I’m a law and policy major. My question is especially with Professor Wilson. You said that, why do we give our voice away, especially when it comes to neutrality? So my question is, what advice do you give to students who are at institutions where students aren’t being represented by their institution administration—yeah—along with administration who aren’t chosen by the students? How do we get them to act when the students do not want neutrality?
John Wilson: Well, I think that, first of all, I’m not a professor. No university is obviously going to hire a crackpot like me, or a visionary like me, to discuss these things. But I think that what students can do is make their voices heard. You can write for the student newspaper. You can hold events. You can speak out. You can hold protests. You can do all these different kinds of things to communicate with other people without making it a demand of the university, that we demand the university to speak for us. You can speak for yourself. You can have these student organizations and individual students expressing these ideas, communicating through groups like BridgeUSA to debate and argue some of these ideas. And I think that’s the most important thing. It’s not necessarily the idea that we need someone to decide this for us, what a statement is going to be for all of us to agree with. It’s that we need to continue having the conversation and having the argument. And that’s the danger of university statements, is that they can tend to squelch that.
Now, there’s also a danger on the other side, which the dean mentioned in the introduction, that sometimes silence can be a form of repression as well. If the university says, we never speak on these things, that can send a message to everyone else: you’re not supposed to take political stands, and you’re not supposed to speak. So what we need to do is we need to understand that the purpose of institutional neutrality is not to make the university more neutral. It is to allow everyone else at the university to not be neutral, to express their ideas.
Tom Ginsburg: Can I just add one little point, which is, it’s an orthodox idea of academic freedom that academic decisions have to be made by academics. In other words, a political appointee at the center who happens to be running the place can’t decide, and shouldn’t really decide, who’s going to be hired and fired on the basis of their scholarly work. Academia is a profession, and indeed, these ideas we’re talking about emerged at the same time as many of the American professions emerged as well: medicine and law and such, accounting. Academics were self-judging because we had expertise. Now, the modern university has, as was referred to, has become a very big corporate thing. And it’s interesting that most of the governance systems reflect basically boards of trustees who are technically the sort of responsible for the direction, and often picking the leaders without much input, even from the professors, much less the students. So I think there’s better and worse ways to run these processes, but the core idea is that you have to have academics—you have to have the ideas, the people who produce the ideas, represented.
The other point I want to make is that academia, if you think about it, is not something that—we don’t decide which ideas are correct by majority vote. We don’t. We don’t want to have a vote about, you know, I don’t know, what’s a controversial idea, you know, is climate change real or something. It’s important to preserve the ability of dissident scientists in every field, because sometimes those dissidents turn out to be right. An environment of very open communication is what has allowed some major discoveries to happen. And so we have to tolerate the dissident, if you will. And so you can’t be thinking of the university like a democracy, but it certainly needs input from those who are stakeholders, if I could use the term.
Audience Member: I’m from West Lafayette. I intend to study public policy analysis next year. I’m currently a business student. Professor Ginsburg, earlier you mentioned this point where the Harvard president raised the flag of Ukraine during the Russian invasion of the country. Would you say the same thing—would you say that would be also wrong if it was for the raising of the Polish flag during the Nazi invasion of Poland? My question is essentially, where does the line for this neutrality actually get drawn? This is the question that can be extended to Professor Wilson as well.
Tom Ginsburg: Yeah, I sometimes get the question, you’re like, well, shouldn’t the University of Chicago issued a statement about the Holocaust? And my answer is no. What does a statement do? You think—let’s take Netanyahu. You think that Benjamin Netanyahu reads a condemnation from some department somewhere, said, oh my God, you know, now the anthropologists have told me I’m wrong, I’m going to change my mind? We need to—universities need to act in ways that are serious. And what we happened to do at the University of Chicago during the Nazi regime is open up our campus to scholars who were fleeing Nazi Germany. And that’s important. That’s an action, which, by the way, many of the big, East Coast, important universities didn’t do. We did that because that was consistent with the values.
Now, I think your question raises a really important point: the word neutrality. It’s very triggering now for a lot of people. There’s no neutrality. You know, everyone has read their Foucault, and we’re really suspicious of that term. And so I guess—I’m actually thinking a lot about that, because I think, you know, we’re not neutral in our actions. We’re pursuing knowledge, and we can’t be neutral about that. We need to protect our values and such. We have values. I’m now actually experimenting with another term, which I think might be better than institutional neutrality. And the one I’m using, and you guys are the first to hear it, is impartiality. That is, the university should be impartial with regard to external things that don’t affect it.
You wouldn’t want a judge in a case to be flying the Ukrainian flag in the courtroom, right? And you want the judge to be neutral as among the parties, who then present evidence, and the best evidence wins. And that’s kind of like what a university is. We already have values of impartiality in many of our processes. A tenure process is to be decided on the basis of the academic merit, not on external considerations, not on, you know, your politics or something like that. And so I think it’s maybe a better way of getting what we’re doing. What we’re really talking about is institutional statements. And so no, I don’t think we should have flown the flag or issued a statement when Poland was invaded in 1939.
John Wilson: Yeah, I sort of like that idea of impartiality. I’m—again, I think neutrality is not a great thing, but there are things that you can sort of come close to in terms of neutrality. The concepts of academic freedom and these things can approximate a kind of neutrality. You’re never going to achieve a perfect neutrality in assessing, but it is the idea that the university lets all of these ideas be expressed and doesn’t take a stand by trying to suppress those views. So that’s a kind of neutrality. Where it becomes dangerous is when it then becomes used as, well, nobody’s allowed to take positions, should be taking positions about anything; nobody should be expressing views. The point again, as I said, of neutrality as an institution is to try and protect these structures. I wish everybody was focused more on not firing faculty rather than not flying flags. But I hope that people can move on to that and understand that’s the essence of what institutional neutrality should be: that it’s liberating us to express our ideas.
Audience Member: So, yeah, my name is John Summerlot. I work here at the university, adjunct faculty member. I’m also one of the university historians, which would be apparent here in a second. So in 1861, when South Carolina seceded, the South Carolina secession flag flew over the university campus that morning. And the president ripped it down, and the faculty marched downtown. They burned the flag, and they denounced secession, taking what was probably the first political stance of the university, in 1861.
So that being said, moving forward: I came in the early 2000s. There was a lot of anti-military sentiment on campus. On a weekly basis, there was an anti-military, anti-war march that occurred through campus. We had deans and departments all the way up to the provost sending out messages saying that we understand the military is not welcome on campus as recruiters, or the ROTC program, which we also had on campus, but we have to let them because of federal funding. The university remained neutral. President, Board of Trustees took no stance on this. But across campus, including the department I worked in as a veteran, having recently come out of the military, they said, military and veterans aren’t welcome here, because we know how you feel about LGBTQ people because of Don’t Ask, Don’t Tell—which was a pretty broad assumption on who I was.
So, but anyway, listening to what you’re saying, I understand the idea that the institution not having an opinion is one thing. When groups of faculty, when groups of students get together through their own free associations, as a student organization, as a student body, as a department, and the tyranny of the majority kicks in, and they say, we don’t want these people in our department anymore, we don’t want these people in our school, we have an opinion about these people—how, to each of you, does that differ from your individual right as a faculty member or student to say, I have this opinion, versus, we have collectively voted as a department or an organization to say we don’t want these people in our organization?
Tom Ginsburg: Yeah, I think the basic principle is the university keeps its mouth shut. Individuals and groups get to contest things. And there will be many illiberal groups in a pluralist society. And so you can’t help a group of students who are intolerant and even coming together. The question I sometimes get is just about statements. What if all the faculty members of the Department of X sign a statement and then put it up? Is that different than the department putting it up? And I do think that formal distinction does matter, because when the formal department puts it up, then you really are endorsing it as an institution, whereas if every faculty member does, not so. You know, the method—the remedy for what you’re talking about is really counterspeech and organizing, in your case groups of veterans, perhaps, that say, no, you guys are treating us unfairly and unjustly.
I will add one other thing here, which is, all of academic freedom and free speech and all the stuff we talk about is constrained, of course, by Title VI and by anti-discrimination law. And the courts have set a very high bar there. You really have to show a persistent and pervasive kind of harassment in order to meet a test for holding the university liable for such a thing. But the kind of ordinary give-and-take, if you will, that you describe, I think, is part of life in a plural society, unfortunately. We should all be tolerant, of course.
John Wilson: Now, I would say that I think there’s some important distinctions to be made between what is a person’s opinion—people can have anti-military opinion. What happens if they use their power to enforce their opinion in a way that violates the rights of others? For example, a professor saying, I don’t allow military cadets in my class to take my classes; I’m going to give them a failing grade if they wear an ROTC uniform to class. These kinds of things are illegitimate, in the sense that they’re taking what might be your personal opinion as a professor and they’re intruding it into your professional work. And that would be kind of the distinction that’s made.
The question is, are statements and that kind of thing a part of the professional work? And I don’t think so, particularly because in this case, I think people were generally objecting to the discriminatory aspects of recruiting, and not to the fact that there are military on campus. Then maybe there are some people who object to that, but I think those were—at least what I know of the protests against Don’t Ask, Don’t Tell in the 1990s, they were about discrimination by the military and the university’s obligation to not allow discrimination on campus, rather than being forms of discrimination against the military by departments. In that—now, you can have dangerous elements where sometimes that can extend over. That’s true of whether it’s anti-military speech or speech about Israel or all these other things, where people can express their views strongly, even views that are hostile or even hate speech in some ways, as long as they’re not implementing those views in a way that discriminates against people in their educational activities.
Audience Member: Hi, my name is Heather Reynolds. I’m in the Department of Biology, and thank you for this conversation. It’s very productive and helpful. My question is, I’ve been trying to figure out where you two disagree, if at all, because it seems like there’s a lot of overlap, productive overlap, between you. And—but I’m wondering if a place you might disagree is in the area of boundedness. Whereas, if I’m hearing you right, John might say a faculty should be able to say whatever they want, whereas Tom might say, no, your expressions need to be bounded by your expertise. So regardless of whether you’re affiliated—if you’re affiliated yourself with the university, well, when you are part of the university, your speech needs to be bounded by your expertise. Is that an area of disagreement? Am I picking up that right? And can you clarify how we should think about this?
Tom Ginsburg: Why don’t you say why we disagree? We used to disagree about departments.
John Wilson: Oh, we still disagree about departments. Now, the issue is departmental—well, I’ll get to boundedness in a second. Departmental academic freedom is what I call it, that departments have the right to express themselves. And so Tom has this idea that departments are covered as part of the administration under the Kalven Report. I argue that institutional neutrality policies in the Kalven Report applies to the central administration alone. It does not apply to all the constituent elements of the university. It is the central administration alone that has the supreme power, and much greater power than departments have. The central administration gets to fire you, gets to ban you from campus. The departments can’t do that. It gets to deny you tenure, even. The administration does that technically, not the department. They just make recommendations. The power in the university is in the hands of the central administration. That’s where the real danger is.
And if you have this concept of departmental neutrality, which I actually would support—I don’t like collective statements. I don’t sign group letters. I don’t like this stuff. So I would prefer departments not to do that. But you need to persuade them to do it, just as the Kalven Report says you need to persuade the central administration to do this. So what becomes dangerous is when the Kalven Report, institutional neutrality, is misused, in my view, by the central administration to control faculty speech. The purpose of the Kalven Report is that the faculty are free to speak. And so that includes collective statements, just as individual freedom of religion includes the right to be part of a church and to express yourselves as part of a church. The right of individuals to speak also includes the right to get together and say things. And while there may be some limits to the departments on what they can do, and while I would urge departments not to speak out so much and not to say so many stupid things, I think the Kalven Report says we have to persuade them to do that, not have the administration control them to do that.
Tom Ginsburg: So, I mean, that’s obviously a point of disagreement. I think the departments exercise much more power, and thus are more suspect, and also the site of disciplinary orthodoxies, which have crystallized. And actually, a lot of our disciplines are in big trouble over some of these things. You know, another area—I don’t know if we disagree about this, but here’s the dirty little secret: professors have more speech rights than anyone in the society, in the following sense. You are perfectly free to say David Reingold is a schmo and the university’s a colonial institution, and attack it very viciously. And that is understood in our tradition as being part of the internal ability to critique for the governance of the university. If you worked at, let’s say, Wendy’s, and you said your boss was, you know, a fool, you could be fired tomorrow. We’re in a country of at-will employment.
And the reason I think this is important is because at this moment—you know, back in 1890, when the socialist professor put something in the newspaper, well, a few people in Chicago read that newspaper. Now, a professor who says something really stupid that has nothing to do with their expertise, that doesn’t just stay in the university. That goes viral globally. And it’s endangering us in some sense, right? And I’m not saying that those professors should have more limited rights at all. I am saying that I think it’s time for us, self-governing professionals, to insist on a little bit of professionalism from our colleagues sometimes. Like, if you’re not an expert in something, maybe you shouldn’t be on Twitter all the time like you’re a 15-year-old living in their parents’ basement.
You know, just—and I think we need to do that because professions are in trouble, not just our profession. Lots of professions are in trouble. They’re under attack. Think about what’s going on with the military as a profession right now, law firms. Professions are very fragile in our polarized country, and I think it’s time for us to return. We can’t survive unless we return to some ideas of, yeah, we have the right to speak and to inquire, and we’re going to insist on that. We’re going to fight you to the death for that right. But it’s also the case of, if you don’t know something about something, maybe you ought to keep your mouth shut. Let the students act like the students.
John Wilson: I disagree with that. I think we shouldn’t be discouraging people from expressing their free speech. And faculty have academic freedom in the sense that they get to speak in the classroom and have this special freedom on the job that maybe a lot of other people don’t necessarily have, that’s essential to their work. But they also have to have the freedom, the same rights as anyone else, to speak out, to exercise their freedom of speech without being punished for their political views, which is what the University of Wisconsin realized back in 1894. Not only do we need to protect the rights of people to speak up, but we also need, as universities, to avoid the danger of intervening to fire controversial faculty, as well as we need to stop criticizing them and telling them to shut up.
I think that whole approach of, well, please shut up on Twitter, is wrong. I think we need to have the perspective, let’s encourage more people to speak up, and let’s try and persuade people to adopt a position of academic freedom and free speech, and start saying, well, if someone says something offends me, maybe I should argue with them rather than try to get them fired. I think that’s the kind of ethical position we should be promoting, rather than the position, you need to shut up and go to work, shut up and teach. I don’t regard that as being the message we need to send to professors. I think we need to, as much as possible, expand the freedom to speak.
Tom Ginsburg: Well, it’s very hard for ordinary Americans. Is Debbie Cohen here? And I grew up in Berkeley, California, and there was a restaurant there called Top Dog—you’ll remember that—on Durant Avenue, a hot dog place that was open all hours of the night. Turns out that there was a guy who worked at the Top Dog who was later—who was in the Charlottesville antisemitic, anti-Black, racist, you know, march, and that person was fired. Now, ordinary employees of Top Dog can be fired for things they say and do. How can such people—first of all, I think that seems appropriate. You’re going to act like a fool and bring embarrassment to your employer? That seems appropriate. I’m not saying that universities should do this. I’m saying that we professors should have a standard of professionalism, that if we’re going to claim the benefits of being a profession, and having academic freedom is grounded in ideas of professionalism, you’ll agree, then we ought to encourage our colleagues to act like it. That’s all. I’m not saying that the administration gets to fire you like the Top Dog boss.
Audience Member: I don’t need a microphone. Okay. Hi, I’m Caroline Smothers. I’m a law and public policy major. Recently, the high school that I attended was put on Facebook for having different inclusivity flags hung, and it was specifically called out by the Attorney General of Indiana. I also want to connect this to—the Indiana trustee board was recently replaced by all people that might be unappointed. How can we as students feel like we can be represented by an institution claiming neutrality whenever opinions are expressed and the government above us suppresses them?
Tom Ginsburg: Yeah, well, I think John said very well that this is a misconstrual of neutrality, that, you know, this isn’t about neutrality at all. It’s about taking one side of political aisle and enforcing its views on everybody else, and there’s nothing neutral about that in any sense of the word. What do you do about it? I don’t—I’d be interested if you have ideas for what people in the room can do in such an environment that is really, you know, one of the most repressive in the United States in this regard. Texas, Indiana, Florida: these are the states in which the legislatures are competing to adopt the most repressive set of rules for academics.
John Wilson: Well, yeah, and it’s important to note that we’re seeing in America the worst attack on academic freedom in the history of American higher education, what you have had from the combination of the Trump administration, state Republican officials in various states trying to repress free speech, as well as universities themselves engaging in amazing amounts of repression. One thing that—so it’s an incredibly difficult environment. One of the things I think we can appeal to, we can try to appeal to, is this idea of a principled academic freedom. Because even though a lot of the Republican officials, a lot of university administrators, have been repressing academic freedom left and right, they still pretend that they support it. And so I think there is a pathway by which you can say, let’s enact real policies that protect academic freedom. Let’s have universities speak out in defense of academic freedom.
You know, the whole issue of institutional neutrality: it’s not that you can never speak out, is that you only should speak out about your values. And so the university presidents, administrators, should be speaking out and saying, we don’t punish professors for their speech. They should be adopting things like the 1894 Wisconsin statement and saying, we don’t dismiss faculty for their political views. We don’t criticize them, even, for their political views. That, I think, is one way in which you can do that.
Another concept I want to bring up is the concept of shared governance, the idea that one thing we need to have at universities is not this hierarchical system where the political hacks run the board of trustees, they order the university administrators to do things, and the administrators order everybody on campus to do this. Not only do you need freedom, but you need a system where students have a voice, where faculty have a voice, where staff have a voice, where they’re involved in making policies. Because if you have faculty and students and staff involved in making an institutional neutrality policy, maybe you wouldn’t have had such a terrible policy enacted by the Board of Trustees. Maybe somebody would have spotted the spelling error, among other things.
So I think that’s one thing that’s essential for the universities, to have those kind of protections, as well as protections like tenure and having explicit policies that say universities protect these values. That, I think, is part of what you can do. Part of it is about changing—about bringing, you know, inviting university leaders to speak to events about these things, so that you can communicate that you want to have these kind of free—to have this free speech, or whatever your other values are, to express that. Try and do that directly to these people. Invite the board of trustees to your events, and invite them to campus to debate these ideas, and challenge them to argue about it rather than to impose it on you.
Audience Member: Hey, I’m Carl Weinberg, ex-professor from History and PACE, happily retired, but glad to be here. Thanks for the conversation. In spring of 2013, a group of IU students staged a protest strike, and they recruited some faculty to do a series of sit-ins about the history of protest activity on campus and things like that. I was one of a bunch of faculty who took part. We communicated about this on the faculty email listserv. And in the middle of that conversation, the dean then of the College of Arts and Sciences, Larry Singell, stepped in and told us we were not allowed to use the faculty listserv to talk about being part of this strike movement. He was wrong. There was no policy against this. A number of us pushed back, and he was then forced to walk back this statement and say, never mind. Although in his email, he said, “I was actually quite heartened by the willingness of faculty to confront what they believed to be an incorrect or unjust application of policy.” I don’t believe really he was heartened. I think he was kind of humiliated and bummed out that we actually stepped forward and asserted our rights.
Now, one of the policies lurking behind this episode, and some of the policy that John very helpfully quoted from IU, hasn’t been mentioned, so I just wanted to throw it into the mix. It’s called the Johnson Amendment, passed by U.S. Congress in 1954. It does say that tax-exempt organizations, including IU, public universities, may not endorse political candidates for office. If they do, they will lose their tax-exempt status if the IRS acts. And basically, I think the former dean was somehow imagining we were doing that, when we weren’t. Although that’s currently the law, from what I’ve read, it’s not being enforced, and even the IRS itself has weighed in in a recent case to basically say, we don’t even believe in this. I don’t know what the future of it is. I think it’s worth knowing about, because it may be invoked by the administration, and any students here, anybody involved in organizing, should know what that legal terrain is, so they can’t be bamboozled. Any comments on this would be welcome.
Tom Ginsburg: Yes. So it’s a classic authoritarian tactic at public universities to kind of get in and say, well, you can’t use your email for this. All of us are using our email to shop on Amazon, and no one seems to be bothered by that. I’m telling you a story just to tell you the stakes. I have a friend named Benny Tai, who was a Hong Kong university professor, who is in jail for the rest of his life. And the charge was using his university email account to help organize the Umbrella protest there in 2014. And so what I would caution—and I think the students probably know this better than you and me—is, if you’re doing stuff in this environment, it’s not bad to be on Signal. It’s not bad to have, like, some group things. Just, why not? Because everything you put in text and did in bytes is always gonna be there.
And at the same time, I wanna respond to one of the earlier points and say, it’s not clear to me that this attack on higher ed is particularly popular. I don’t know if this is really gonna keep going. You know, they tried to cut the NIH budget. It turns out most people like cancer treatment, you know. Even oligarchs might get it. And so I don’t know. It depends, obviously, what happens with politics, but I think a lot of this might just be the overplaying of their hand, in some sense. And that internal organization stuff is just something, you know—is a pragmatic matter. Not bad to be careful. But I can see no principled reason why a university would not allow such things.
I should say one other thing about protests. Protest is a critical part of democratic governance. We talk a lot about freedom of speech. We don’t talk very much about freedom of assembly, and it’s not very well developed legally. Really, there’s, like, time, place, and manner restrictions are essential to the functioning of an institution. A university can put on time, place, and manner restrictions. But I would always advise, as a matter of policy, to be very generous in recognizing that you want to facilitate student protest and freedom of speech, and not do things like say, you know, there’s no expressive activity between the hours of 12 and 8 in the morning on the quad—something facially illegal, which was the earlier policy. So, you know, it’s a matter of developing policies that facilitate people to have this conversation. That’s the other side. It’s not just a negative thing, that the university has to keep its mouth shut. It has to actively cultivate the ability of all of us to speak. I often say free speech isn’t free. It’s actually really costly to develop such structures and to encourage people to do it and help understand what the principles are. So that’s what I’d like to see our universities turn to in this fraught moment.
John Wilson: Yeah, and I would recommend people look at the University of Chicago Center on Free Inquiry and Expression, which Tom runs, as a model for what you should do at Indiana University. You should create your own, ideally faculty-run, even student-run institution that is devoted to expanding free speech, defending free speech, talking about free speech. And so I think that’s one practical thing, and ideally try and get the university to pay for it. But, you know, a lot of these things, conversations you can have, that are actually not—they don’t require a lot of institutional investment to engage people in argument and debate.
Now, I would say, on the politics of the matter, I am much more cynical. I think a lot of people like censorship. They like repressing the views that they oppose. And so I am not—and it doesn’t really matter, even in terms of the Trump administration, whether it’s popular or not. They’re going to repress free speech no matter what. They don’t care if it’s popular, if they think they’re going to pay a political price. They want to defund and destroy their enemies, and they regard higher education as one of their enemies.
The popularity of it, I think, is important. I think it is important. Some forms of free speech are very unpopular. People use hate speech. It’s very hard to defend a lot of those people. I spend a lot of time defending horrible people who say horrible things, and it doesn’t really make me popular. But I think it is important, and it is important to have these kind of principled stances. I think there are some forms of free speech that are very popular. For example, one of the things I work on is Banned Books Week, which is coming up October 4th through the 10th. I would encourage everybody—because this is one of the most popular aspects of free speech, is opposing the banning of books. And so you should get together and do readings of banned books and speak out and do events that students can do. You can make your voice heard by doing this kind of thing, and you can contribute to that kind of culture of free speech that you really ought to be creating, and not wait for the administration, not wait for some program to give you permission to start speaking out in favor of free speech and organizing. Go to groups like BridgeUSA, create your own groups to do these kind of things. That, I think, is very much a feasible thing.
Tom Ginsburg: By the way, it’s okay to try out ideas you don’t agree with, you know, just for the sake of argument. It’s a kind of—we’re in the social media era. The social media is basically—a lot of it, not all of it, obviously, but a lot of it is just like, you know, let’s mob on someone who said something that was inappropriate, or we think was. And that spread into universities. We had cancel culture in universities that led to more firings before Trump than during the entire McCarthy period. And don’t get into the denominator, boy. That’s a serious thing. That was happening within our own culture, and social media really pushes it. So it requires, like, you guys just get together and talk to people without the phones and try out some ideas and, you know, just see what happens. It’s a little bit—requires some trust, right? But it’s really important.
John Wilson: Yeah, and I think one of the—and this goes back to the listserv and all of that—the danger is that we’re all living under a panopticon. We’re under surveillance now in ways that had never been possible before. Professors are on Zoom getting recorded. Video phones are recording everything you say. You’re on social media. People are spouting this. There’s a lot more information being spread, which is a good thing, contrary to what Tom says. It’s a good thing to express all these ideas, even if they’re stupid. But the danger is, we have a system that sort of was built up on privacy: the idea that professors wouldn’t get fired because nobody could prove what dumb things they said in the classroom. And now they can be proved to have said something dumb in the classroom, and a lot of them are getting fired, or say some dumb thing on Twitter, whereas a private conversation in the past would have never happened like that.
So we need to be much more careful. That applies even to your listservs. I strongly defend the right of people to use university emails to engage in political activism, to endorse political candidates, which is all perfectly legal. But I would encourage you to maybe use private emails, because there are people using the emails of public university professors to spy on organizations like the AAUP, where they will just look for keywords about anything they want to investigate. The Manhattan Institute has been doing this. And they will literally use Freedom of Information Act requests to get all the emails from a professor who would mention a particular topic or have talked about something. And so there is that real danger there, that you’re under constant surveillance. And maybe you want to reserve a personal privacy by using a personal email to engage in these kind of activities.
But what’s more important, I think, is for all of us to try and create a culture where we’re not going after people just because they said something stupid, where we’re not trying to get them fired, we’re not trying to get them punished by the university, we’re not turning them in to the authorities because they said something we don’t like, where instead we should try and educate and counter what they say rather than seek to punish them for it.
