On student protests as a feature of academic freedom

As regular readers know, I defend the idea that student protests can fall under academic freedom. (For the most up-to-date version of my argument prompted by some work of Jacob T. Levy see here.) My argument for this starts from the fact that while many universities can have mission specific interpretations of the latitude and constraints on how they interpret academic freedom (constrained also by local juridical context), all universities share a mission in being committed to knowledge discovery, transmission, and preservation of knowledge.

That being so, student protest can play a two-fold role in furthering this mission in light of scarce resources (not the least time): first, they are means of articulating what is worthy of academic attention and what ought to be the focus on discovery. Most student protests fit easily under this role. This fits quite naturally with Max Weber’s account of how to think about the philosophy of social science (and the vocation of a scientist). Second, student protests can themselves be seen as experiments in living and as such they can have epistemic benefits to the academic community.

If this much is correct, then universities have a defeasible obligation to be respectful of students protests and, perhaps, even to facilitate student protests in light of their academic mission. It’s defeasible because the epistemic benefits of student protests may come in conflict with other projects on campus with non-trivial and potentially much higher epistemic benefits—say research labs or regular instruction. It’s also defeasible because some protests may be prima facie at odds with the particular mission of the university as such—in this way academic freedom is very unlike freedom of speech! So, ideally, a code that governs student conduct on campus recognizes the need to accommodate the possibility of student protests (without trying to regulate it in fine detail).

In a recent unpublished paper she kindly shared with me, the distinguished Canadian scholar, Shannon Dea (who also is a Dean now), reminded me that arguably, at The University of Chicago, the famous (1967) Kalven report already comes close to treating student protests as a feature of or at least allied to academic freedom. Let me quote the crucial passage from the report while adding some highlights:

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. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest. It finds its complement, too, in the obligation of the university to provide a forum for the most searching and candid discussion of public issues.

I don’t think the natural reading of this passage is to claim that social protests are a part of academic freedom and, therefore, welcome it on campus. I think the more likely interpretation is that the university won’t punish students for engaging in protests as such. The reason why I think that is that I doubt that the obligation to provide a forum for discussion is not the same as providing a forum for protest. But, the Kalven report can be made compatible with my view if, as I have suggested, protests are themselves at least sometimes a form of free inquiry (at least in part).

What’s nice about this is that the Kalven report starts from a premise I reject (“the neutrality of the university as an institution”) and yet can be shown to reach similar conclusion(s). As regular readers know, I think Kalven’s stance is illiberal, when uniformly adopted as a kind of ‘best practice,’ because it prevents distinct corporate missions and homogenizes universities unnecessarily. (Obviously, in some juridical contexts this commitment may be required.) If I understand Shannon Dea correctly she thinks Kalven’s neutral stance is actually impossible. (I am sympathetic to that position.)

As an aside, Noah Feldman and Alison Simmons, while presenting Harvard University’s official guidance for a policy on university statements in the New York Times, point out that Harvard’s policy also explicitly rejects Kalven’s premise (despite being pragmatically not far from it in practice):

Rather, our policy commits the university to an important set of values that drive the intellectual pursuit of truth: open inquiry, reasoned debate, divergent viewpoints and expertise. An institution committed to these values isn’t neutral, and shouldn’t be.—New York Times, May 28, 2024.

While I suspect that all the authors/signers of the Kalven report would have thought they are also committed to the first quoted sentence. What’s important about the second sentence, is that it makes clear that academic speech is a distinct kind of activity imposing constraints on speech. Non-trivially, it also means that a lot of academic speech is rule-governed. And that there are distinct disciplinary variants and functions (as I have also argued); the Harvard report partially recognizes this explicitly when it notes that different fields “translate knowledge into action through reports, white papers, and client representation.”

I do want to make two observations pertinent to my present interest in student protests. First, unlike Kalven, Harvard’s report is silent on protests. Second, Harvard’s approach pretends that the values that drive the intellectual pursuit of truth are, as it were, homogeneous at some level of generality and not mission specific. I don’t think this can be maintained once scrutinized. So, for example, in medicine and many areas of engineering universities (and grant agencies) in some countries routinely require adherence to ethical guidelines or ethical codes of conduct. It’s not obvious how a university can take a stand on this in Harvard’s approach going forward.

Be that as it may, if student protests fall under academic freedom, it doesn’t mean anything goes. My colleague, Joost Berkhout, prompted me to reflect on this. On his view, which I will state informally with a nod to Hohfeld’s schema, a claim to academic freedom also involves obligations to upholding its standards. If we don’t take this too strictly or as a box-ticking exercise — since I think it’s important to insist that academic freedom is intrinsic to the distinct corporate mission of the university (rather than juridical in character) — this is a useful way of framing what follows.

A few things follow from Berkhout’s observation. First, student protestors do need to articulate a shared (or overlapping) platform or set of demands/principles so that it is clear what they stand for/against and whether the cause they support is, roughly, not at odds with the corporate mission of the university. (Obviously, some such missions are explicitly revisable, and these may well welcome challenges to its core identity—others less so.) This means that it may be quite reasonable for some protests to be wholly unwelcome on campus. (Again this is very different from freedom of speech.) And also that sometimes administrators may prohibit a protest provisionally until there is a platform.

For example, a platform that demands divestment from an activity or investment may be usefully construed as a demand for a university to live up to its existing mission or to change it in some way. If the former, this is very worthy of the attention of the academic community; if the latter then it really depends on local circumstances if that’s to be welcomed or not. (In some places, one may well come to the conclusion that it does not fall under academic freedom, but does fall under freedom of speech, or vice versa. Contextual judgment cannot be ruled out.)

Another reason why a shared platform or shared principles/demands is needed is that it helps justify the protest as a form of (potentially rumbunctious) academic speech. This allows one to distinguish a protest from a party and a riot. And, more subtly, also usefully distinguishes the manner by which student protestors communicate their speech at least in part from its content. (I qualify this below.) In particular, it also means that not anything is permitted: for example, physical threats to other members on campus, permanent property damage (especially to the library, labs, and teaching facilities), disruption of other member’s research and teaching are hard boundaries on the manner of protesting in an academic context.

Obviously, some student protests are not really about challenging what is worthy of academic attention and what ought to be the focus on discovery. Much is expressive in different ways say, in order to express moral indignation or social solidarity. But functionally these do often communicate to other members of the academic community what is worthy of attention and that the topic/issue may require more research or education. In addition, if expressive it may well play the role of an experiment in living; that is, as a way in which an academic community (and the wider society) learns what is valuable as such. This process may be messy — so very unlike a controlled lab/field experiment — and presumably often not very successful, but that’s a feature and not a bug of social experimentation.

Crucially, here the manner of protesting may well be what’s instructive; sit-ins, teach-ins, and encampments are also ways of exploring ways of communal living. What’s especially nice about teach-ins is that they also may advance the mission of the university in the most direct ways. They are then a form of instruction, and they often provide a perspective that risks being marginalized otherwise. Obviously, in practice, teach-ins often have a slanted agenda (students rarely invite intellectual opponents of their platform into a teach-in), so the epistemic signal they provide could be rather weak.

In some academic campuses (the California UC system) and cultures (say France) student activism is already highly ritualized. By this I mean that student and campus (and political) authorities are quite familiar with each other’s boundaries and practices. In others, academic freedom as such may well be under-acknowledged or undervalued by all parties involved. (I started Digressing on academic freedom when I realized how rarely Dutch academic authorities understood or reflected on it.) So, I really don’t mean this to be thought of necessary or possible in all academic contexts.

However, in so far as student protests do fall under academic freedom it also means that by itself it isn’t a route to, say, licentious rioting (although for all I know it’s part of the French ritual). In particular, it means that non-protestors may well legitimately ask for a list of demands or a platform and evaluate it in light of their expertise and their understanding of the academic mission. It may also mean that a wider academic community may come to conclude that a particular student protest is or has become incompatible with its academic values.