The timing made Gov. Spencer Cox look like an oracle.
A few days before presidents from three of the nation’s most elite universities testified before the House Education and Workforce Committee regarding freedom of expression on their campuses, Cox and the Utah Board of Higher Education adopted a resolution for all institutions within the Utah System of Higher Education, implementing principles of free expression on campus. One of the key features of that resolution, and the foundation on which subsequent policies within it are based, is an institutional neutrality directive. Adherence to the ideal of institutional neutrality at Harvard, Penn and MIT could have spared their presidents from the task of trying to explain why antisemitic speech on their campuses is protected speech.
The notion of institutional neutrality is not new. In the tumult of late 1960s, a committee at the University of Chicago was tasked with preparing “a statement on the university’s role in political and social action.” What emerged from the committee’s work, the “Kalven Report” (named for the chair of the committee, Harry Kalven Jr., one of the preeminent legal scholars of the 20th century), was remarkable for its recommendation, perhaps to the dismay of more than a few, that the University of Chicago should have no statement on the social and political issues of the day. The report’s reasoning was devastatingly sound and applies with just as much force today.
The committee recognized the “great and unique role” a university has to play “in fostering development of social and political values in society.” It emphasized that the mission of a university is defined and fulfilled when it acts as a community of “discovery, improvement and dissemination of knowledge,” and “all aspects and all values of society” should be subject to inquiry and scrutiny. In this community-creating role, the committee clarified that “(t)he university is the home and sponsor of critics; it is not itself the critic.” This was to “encourage the widest diversity of views” possible within the university’s community.
A university is not a voice of expression
Put simply, the university is not the voice of expression, but the forum for it. The voice, or according to the Kalven Report, the “instrument of dissent and criticism,” belongs to the individual faculty members and students.
Consider the wisdom of these ideas as applied to the current Israel-Hamas conflict as a case in point. If a university issues a strong statement in support of either side (ostensibly expressing the voice of a majority of faculty and students, though not necessarily so, and rarely with unanimity), the contrary minority view is set at an automatic disadvantage. To express that view is to speak against the institutional collective of the university, a towering barrier that creates an environment in which dissenting expression is hampered, if not completely squelched.
Now consider a university that adheres to a policy of institutional neutrality. There has been no priming or tone-setting with respect to what university faculty and students think or ought to think. If a group of faculty members features a pro-Palestinian speaker, the university community’s neutrality and commitment to viewpoint diversity will have set the groundwork for the event to occur. If a group of students invites a pro-Israeli author to campus to discuss her book, there will have been no preamble from the university to suggest that such views are invalid or unacceptable.
In other words, the neutral university will have accomplished much toward the Kalven Report’s ideal: that a university “sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures.”
Institutional neutrality
Some may argue that a policy of university neutrality is callous in light of the sensitive social and political issues of the day. Others may say that neutrality is tantamount to cowardice; that a neutral university is one that is afraid to weigh in on the most important issues. The Kalven Report anticipated these arguments and disagreed. “The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints.” After all, it is the university’s neutrality that sets a level playing field for faculty and students to have the “fullest freedom” to “participate in political action and social protest.”
Since the Kalven Report’s publication in 1967, the University of Chicago’s policies have set it as the standard-bearer for freedom of expression among institutions of higher education.
The same can’t be said for the universities whose presidents testified before Congress. Penn and Harvard occupy the second-to-last and last spots, respectively, on the Foundation for Individual Rights and Expression (FIRE)’s 2024 College Free Speech Rankings (out of 248).
None of the three schools has a policy of institutional neutrality and all have a record of issuing statements related to political and social issues as they have arisen. These institutional statements, even if clamored for by a critical vocal mass of faculty, likely pushed contrary-view holders on campus into silent submission. They also set a precedent for institutional statements in response to subsequent events, an expectation that went unfulfilled for Jewish and pro-Israel constituents at Harvard who expected an institutional unqualified condemnation of the Oct. 7 attacks and received something less forceful.
What’s worse, lack of institutional neutrality has contributed to an environment in which, as detailed in this Forbes article, all three universities have felt justified in censoring faculty, students (including prospective students), and their invited guests, that is, those who should be the true instruments for expression within the university community, for their speech.
Cox and the Utah Board of Higher Education have given Utah institutions of higher education an opportunity to recalibrate. With positions of institutional neutrality, faculty and students should feel empowered. They are now the voice of expression for these colleges and universities. Let them now speak on their merits without institutional endorsement, or even better for freedom of expression, without institutional opposition.
Eric Smith is associate dean and professor of taxation in the Goddard School of Business & Economics at Weber State University. He is also an adjunct professor of law at the University of Utah’s S.J. Quinney College of Law. The views expressed in this opinion article by the author are his alone and don’t necessarily reflect those of his employers or the Deseret News.