On Academic Freedom and Institutional Neutrality (Jacob T. Levy)

Regular readers know that Jacob Levy (McGill) and Shannon Dea (Regina) are my lode-stones in my unfolding understanding of academic freedom. They have an unusual capacity to speak to academic communities and wider publics at once. I suspect it is not a coincidence they work at Canadian universities, including stints in administration (Levy is the Chair of his department and Dea is a Dean). They are familiar enough with the intense partisan polarization on these matters Stateside, while remaining some dispassionate distance from it. Because of their leadership roles they have to balance a number of considerations, and perhaps this is a source of the practical wisdom in these affairs.

Today’s post is triggered by an upcoming visit by Dea and prompted by ongoing unease over a lengthy Op-Ed by Levy, “Campus culture wars are a teachable moment in how freedom of speech and academic freedom differ,” published in the Globe and Mail, in the aftermath of the “Dec. 5 U.S. House of Representatives committee hearing grilling the leaders of Harvard, MIT and the University of Pennsylvania, and the subsequent resignation of two of them, Harvard's Claudine Gay and Penn's Elizabeth Magill.”

Before I get to our differences, I agree with much of Levy’s analysis not the least his account of the difference(s) between academic freedom and freedom of speech. In particular, according to Levy a “university's core commitment is to the discovery, transmission and preservation of knowledge - paradigmatically, what is done in research, in teaching, and in publication and library collection. The principle that defends that commitment is not freedom of speech as such, but rather academic freedom.”

But I differ on two important points. Let me explain. After listing a number of important characteristics of academic freedom, Levy writes the following:

A rule that has traditionally accompanied and strengthened academic freedom is institutional neutrality. If academic freedom is the ability of scholars and scholarly communities or disciplines to work without having an orthodoxy imposed on them, institutional neutrality is the commitment not to declare an orthodoxy in the first place. Just like a professor at the front of a classroom shouldn't use it as a pulpit to announce their own political and religious views, so too should the university as a whole not adopt substantive political or religious opinions that would chill the freedom of its members to pursue their own ideas and arguments. A great deal of important political inquiry and debate happens at a university, but it's undertaken by students and professors with differing views pursuing differing arguments, not by the institution as a whole declaring official conclusions.

Universities sometimes need to speak up in favour of their own institutional interests or the general needs of higher education. A few university decisions unavoidably require substantive moral judgments about political figures: whose contributions are worth honouring with an honorary degree, whose career involved so much injustice that their name should be stripped from buildings. But when there's not that kind of necessary connection to university business, the institution should stay silent and neutral, to guarantee the freedom of students and professors to inquire, criticize and debate. — Jacob T. Levy (Jan 12, 2024) [emphasis in original]

Levy’s stance on institutional neutrality is a return to and re-affirmation of the principles of the (1967) Kalven Report at The University of Chicago. Levy has appealed to it (here) in the past; this has prompted some of my own writing on academic freedom (recall; and here).* Importantly, in the second quoted paragraph, Levy implicitly sides with the majority opinion of the report and distances himself from the then dissenting voice George Stigler (a future Nobel laureate in economics) who thought strict neutrality was even possible in the “few university decisions” that Levy thinks “require substantive moral judgments.”

I was surprised by Levy’s stance. Levy is a leading thinker of contemporary liberalism, who shows an unusual sensitivity to the significance of intermediate and (what are known as) corporate bodies in a pluralist society. (‘Corporate’ here does not mean ‘business,’ but an institution with a charter or authorized by the state to act as a single entity.) I use ‘corporation’ because these can have a personality and a mission-specific character. My reason for my surprise is that Levy proposes institutional uniformity here, which I think is at odds with his (and my own more skeptical) liberalism.

My first disagreement with Levy is this: as corporate bodies, universities do not have uniform missions. I don’t mean this as a hypothetical point. For, in many places we are familiar with universities that have their roots in some confessional or religious orientation. A number of other universities, public and private, have well known commitments to serve the needs of particular national, linguistic, or ethnic minorities (including some that serve speech or vision impaired), etc. Others serve particular sectors (agriculture, technology, theology, the arts) or are constituted by professional schools, etc.

In my view the liberal position here is that as corporate bodies, universities and colleges should interpret academic freedom in light of their particular corporate identity which involves the general commitment to discovery, transmission and preservation of knowledge. In my first disagreement with Levy, I am not relying on the idea that such particular corporate identities may well shape how one understands what knowledge is. (But see below.) But rather that such identities shape what knowledge is worthy.

This may sound ‘woke,’ but is actually uncontroversial. For example, much research on humans and animals is subject to ethical scrutiny and pre-approval— a clear constraint on discovery of knowledge. In many contexts, there is a requirement to teach or publish in a particular language. That is, a clear constraint on transmission and preservation of knowledge. (Even if these constraints do not always prevent other activities, they do involve huge opportunity costs.) Universities have to make all kinds of substantive moral and political judgments about sponsored research — should one accept tobacco money? — that do not involve its political/social survival.

I understand that this itself may be a source of unease. It is undoubtedly the case that this means that some universities will interpret their mission rather restrictively, whereas others will actively and intensely give the widest freedom to some kinds of research. Obviously, it also means that private universities will have more room for idiosyncratic understanding of academic freedom whereas public universities may well feel much more uniformly constrained by public regulation/jurisprudence.

So, rather than promoting a uniform stance on academic freedom, we (qua liberals) should welcome institutional diversity, even if it involves the thriving of some illiberal corporate identities. (I put this very much in the spirit of Chandran Kukathas’ Liberal Archipelago.) Such intellectual diversity may well have epistemic pay-offs for the discovery, transmission, and preservation of knowledge.

Okay, so much for my first disagreement with Levy. And this is the disagreement that is most fundamental. But there is also another disagreement about what falls under academic freedom.

My second disagreement is based on the thought that what constitutes academic knowledge is itself shaped by academic context: disciplinary or methodological. I don’t view this as controversial. In fact, I think it is common ground between Levy and myself, and it probably informs his commitment to institutional neutrality. In the advanced cognitive division of labor of hyperspecialized modern research it’s probably best that University administrators and corporate officers like Trustees are kept at arm’s length from judgments about details that are are only fit for specialists.

But lurking here is a further thought that how one understands academic freedom, thus, has to fit the particular needs of knowledge discovery, transmission, and preservation of knowledge. This, too, will involve departures from neutrality. Let me explain. Levy writes, the following:

For example, the odd thing about the centrality of student protests to important moments in university life is that they are so irrelevant to the university's mission. There is very strong protection for the freedom of protest, not because protest is important to a university the way it is to a democratic society, but because it's academically irrelevant. It's wrong to question a student's (or professor's) standing in the academic community because of what they say at a protest - or on social media, or in any other non-academic setting. The only appropriate limits are not about the content of what's said, but about the conduct of the protest action; the university has to protect not only the safety of its other members but also the security of its academic functions. It can't rule against the language on a sign, but it must intervene to prevent violence between students, or occupations and blockades that would prevent a class from meeting, or an invited speaker from speaking.

Let me start by saying I actually agree with Levy what he says about conduct here. I also agree that protest is not especially important to the academy relative to, say, its importance to society. But I am open to the idea that protests have some significance to discovery and transmission of knowledge.

In particular, protests are very informative about what questions are urgently worth asking according to an academic community. (Sometimes protests are about the manner of teaching, and so then it may impact transmission of knowledge.) One can derive this idea from Max Weber’s view on the vocation of an academic, “the capacity to distinguish between empirical knowledge and value-judgments, and the fulfillment of the scientific duty to see the factual truth as well as the practical duty to stand up for our own ideals constitute the program to which we wish to adhere with ever increasing firmness.”

In addition, in so far as there can be knowledge of society, then experiments in living and social protests (which for students are often an education in citizenship) are partially conducive to it. Some social knowledge is itself partially constituted by and the effect of a particular process (think of price formation in markets).** The same can be said of political life. And while as sources of knowledge experiments in living and social protests also have non-trivial epistemic limitations, one need not be a formal decision theorist to agree that more information is better than less. So, rather than treating campus protests as evidence of institutional indifference (or as Marcuse might call it repressive tolerance), one may well understand it as falling under academic freedom and as such even compatible with Levy’s institutional neutrality.

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*See also my earlier related posts, here and here. For the significance of Kalven’s own contribution to the evolution of free speech doctrine recall this post.

**I think Nick Cowen and Aris Tranditis for sharing a paper with me pertaining to this idea.