Institutional Neutrality or Institutional Deception?

In the aftermath of former University President Claudine Gay’s resignation, demands for institutional neutrality have sharpened at Harvard. We should not allow the present sense of crisis to foster hasty policymaking on an issue of this importance.

The Kalven Report, promulgated in 1967 by the University of Chicago, is the flagship institutional neutrality document and has been invoked in recent days as an example for Harvard to follow. It sets a presumption that the University will not express “opinions on the political and social issues of the day” or modify “its corporate activities to foster social or political values.”

The Kalven Principles also state, however, that the presumption of neutrality can be overcome in two instances: when the “very mission of the university and its values of free inquiry” come under threat, and when the institution “must act” as a corporate body, for instance when it owns property, receives funds, or bestows honors.

Thus, the goal of institutional neutrality is actually the achievement of political neutrality in the statements and decisions of top leadership. In reality, such neutrality can be vanishingly difficult to identify.

The Kalven principles can be swallowed by their exceptions. Under Kalven, both verbal statements and corporate activities should be kept free of political values and issues. But the University is making a statement about climate change when it fails to divest itself of stock in oil and gas enterprises. It needn’t go so far as to verbally refuse to do so. The problem cannot be avoided by adding a provision requiring that any decision that the University makes on this issue must be financially advisable: That narrowing of investment strategy is itself politically contested.

Thus, on climate divestment, there seems to be no politically neutral position. In Kalven’s terms, the University “must act” as a corporate body, on an issue involving “social and political values,” no matter what it does.

The same is true of the U.S. Supreme Court’s rejection of Harvard’s use of racial classifications in its undergraduate admissions processes. It is true of the institution’s handling of charges of antisemitism and Islamophobia on campus; of the scope of its diversity, inclusion, and belonging programming; even of its bargaining with worker unions.

Harvard as a corporate body has to take positions on all of these issues. These decisions thus fall directly in the second Kalven exception. And yet all of them have politics: They all make statements on “social or political values.” Any statement, and any silence — any action, any inaction — can be deemed political.

I would also argue that all of Gay’s statements on controversies set in motion by the Hamas invasion of Israel on Oct. 7 were aimed at defending the University from increasingly intense threats to its very mission. This is true whether the mission was merely securing the safety of all members of our community or the more academic goal of furthering teaching and research on the Israel-Palestine conflict, a difficult task given that an actual armed conflict is underway and members of our community have taken opposing stances on it.

An institutional neutrality principle for Harvard would give top leadership cover when they keep their lips sealed in the face of political forces demanding that Harvard take a stand on partisan issues. But complying with the Kalven presumption against taking a position could coincide with actions by which the institution does take a stand. Where the University both invokes a neutrality mandate and takes corporate action, the result will not be neutrality but non-transparency. Institutional neutrality could become institutional deception.

Finally, the Kalven Report provides that faculty, students, and administrators can “question” whether “the University is playing its proper role” through “existing channels.” Within Harvard, I have heard calls for a complaint procedure, albeit not one that could lead to sanctions. As anyone who has been involved in defending academic freedom on campuses in recent years knows, the investigation alone can be the punishment.

In Harvard’s current politically polarized environment, complaints are sure to be raised about the most “neutral” statement touching even tangentially on a politically divisive issue. If institutional neutrality is rendered enforceable, even by investigation and moral disapprobation, we will be inviting political conflict into the very heart of the institution.

Institutional neutrality will be weaponized, and the good faith of those who invoke it will be unverifiable. Any of this would be entirely counterproductive, given the apparent goals of those calling for neutrality at Harvard.

There are other things we can do to harden the University to the present sense of siege. We can urge leadership to remember that they represent an ideologically diverse community that is, at times like Oct. 7 and its aftermath, in need of compassionate representation across a wide range of views. They are empowered to run the University, not the moral lives of all its human and institutional members: They need to learn modesty in messaging.

We can revisit governance to make top leadership more accountable to faculty. We can reconsider financing strategies for the University that put it at the mercy of ideologically-driven outside donors. We can promote academic freedom and resilient listening in our community’s intellectual and political life.

That last is the goal of the new Council for Academic Freedom at Harvard. I urge the Council — and Harvard more generally — to refrain from making institutional neutrality part of their mission: The goal is illusory and the means are dangerous.

Janet E. Halley is the Eli Goldston Professor of Law at Harvard Law School.

Her piece is part of the Council on Academic Freedom at Harvard’s column, which runs bi-weekly on Mondays and pairs faculty members to write contrasting perspectives on a single theme. Read the companion to Halley’s piece here.