Harvard Law School Professors Talk Academic Freedom, Institutional Neutrality at Panel Discussion

Harvard Law School professors Janet E. Halley and Jeannie Suk Gersen discussed the state of academic freedom and institutional neutrality at Harvard in a panel discussion on Tuesday.

Moderated by HLS professor Noah R. Feldman ’92 and sponsored by the Harvard Julis-Rabinowitz Program on Jewish and Israeli Law, the panel touched on topics from the specific language of the Law School’s disciplinary policies and the October “doxxing truck” incidents to the feasibility of a University-wide institutional neutrality policy.

Harvard recently announced that longtime HLS dean and interim Provost John F. Manning ’82 will lead efforts to explore institutional neutrality — a University policy that would avoid official statements on contentious political issues such as the Israel-Hamas war. Interim Harvard President Alan M. Garber ’76 and Manning have said considering institutional neutrality is a priority for the University.

Moments before the start of the event, a protester began distributing pamphlets rebutting Feldman’s recent article in Time Magazine titled “The New Antisemitism.” The pamphlet included an X thread by third-year HLS student Tala Alfoqaha, and quotes from Palestinian activist Mohammed El-Kurd, who has been accused of antisemitism by the Anti-Defamation League.

In an emailed statement to The Crimson in response to a request for comment about the professor, Feldman only wrote: “Free Speech!”

At the beginning of the panel, Gersen noted how difficult it was to define what sort of speech should be allowed on the University’s campus.

“It’s really hard to figure out what are the things that are offensive, which are obviously supposed to be tolerated on an academic campus,” she said, “versus things that make people feel like they’re not equal members of our community to such an extent that they will not be able to enjoy the benefits” of educational opportunities.

“We have to have a really robust and stringent way of thinking about that,” she added.

Gersen — a co-president of the Council on Academic Freedom at Harvard — has written extensively on academic freedom in columns in the New Yorker.

She noted the expansion in the use of “harm” as a criteria for disciplinary action, which she described as a “disturbing” shift in the positions of her colleagues who had previously been “champions” of free speech.

Halley referenced her time consulting on Title IX enforcement, saying there were certain questions to be answered when dealing with speech that could make someone uncomfortable.

“Was it severe or pervasive? Would a reasonable person find that to be impeding of education?” Halley said. “That’s how the thinking is done in that doctrinal space.”

The panel also spoke about the generational shifts in perceptions of safety and offense.

Feldman questioned whether students today respond to challenging speech differently than those of older generations.

But Gersen took a more hardline stance, arguing that “it wouldn’t have occurred to me to put it the way you do, as if it’s a question.”

“The students these days are very different from what we were like,” she said.

Today’s students, according to Gersen, are “more likely to feel unsafe” from speech that her generation could have tolerated.

In response to a question from Feldman on whether Harvard should consider criticisms from “outside actors” — such as alumni, Congress, and social media personalities — when deciding University policies, Halley said some external voices share a desire to harm the Harvard brand.

“Harvard Law School and Harvard University are some of the prime brands that exist in the entire branding landscape that we inhabit,” she said. “It’s super meaningful to bring them down.”

Still, she said, “the brand will be fine.”

Instead, Halley argued, the Harvard name and image should belong to those at the University.

“It’s worth preserving some aspects of the brand, which is that important decisions about what goes on in this community are made within this community,” she said.

Halley previously wrote about the history of the Law School’s brand in a book about Isaac Royall Jr., a Massachusetts slaveowner whose donation helped found HLS. Halley held the Royall Chair at the Law School until Manning retired the chair in 2022.

Gersen added that Harvard’s excellence is “about our putting certain values first, which is academic research, teaching, genuine exploration of ideas, and being truly open minded to new ideas and to disturbing ideas.”

But Gersen said outside pressures put Harvard’s core values at risk.

“These are exactly the kinds of things that are going to be negatively affected, that we’re at risk of losing, if we pay too much heed and let outside influences really shape the decisions” of the University, she added.

The discussion turned toward institutional policy shifts currently under consideration in Massachusetts Hall.

Feldman asked Gersen and Halley whether they would support Harvard adopting a version of the institutional neutrality policy already in place at the University of Chicago.

Though Gersen and Halley agreed that they would prefer the University avoid issuing statements on certain political issues that can be divisive, Halley argued that the Kalven Report — which established the model at UChicago — is “impossible” in today’s climate.

“So many aspects of the running of the University involve controversial issues of the day,” she said.

Halley, a professor of feminist legal theory and critical legal studies, spoke earlier this month on an institutional neutrality panel at the Harvard Radcliffe Institute and penned an op-ed in The Crimson in February arguing against the rapid adoption of institutional neutrality at Harvard.

During Tuesday’s panel, Halley argued that “institutional neutrality is a bid by a certain number of people to gag a certain number of other people for a short period of time while they are still in power.”

“I think it’s reactionary, and I am going to fight institutional neutrality,” she added.

Corrections: March 30, 2024

A previous version of this article incorrectly stated that Janet Halley holds the Royall Chair at the Law School. In fact, she held the chair until its retirement in 2022.

A previous version of this article incorrectly stated that the panel discussed the Law School’s speech codes. In fact, the panel discussed the language of the Law School’s disciplinary policies.

—Staff writer S. Mac Healey can be reached at mac.healey@thecrimson.com. Follow him on X @MacHealey.

—Staff writer Saketh Sundar can be reached at saketh.sundar@thecrimson.com. Follow him on X @saketh_sundar.