Over the last year, nearly 20 schools across the U.S. have adopted rules on “institutional neutrality,” restricting statements by university leaders about current events. Yale could be next: a committee on the use of “institutional voice” is meant to deliver its recommendations by the end of the month. Before Yale heads down this same road, we should take a hard look at the arguments, and think about how any such rules would be applied — particularly given the recent wave of partisan attacks on higher education. These include a broad conservative campaign for so-called neutrality rules and nearly 100 new bills around the country directly targeting higher education, including seeking to curb speech on campus, particularly about race and gender.
The central argument for “institutional voice” restrictions is that they will protect speech. There is an irony here that should not escape us: rules that literally restrict the speech of academics by prohibiting some forms of collective speech are being described as protecting academic speech. (Presidents and department chairs are also academics too.) The argument is that silencing leaders on campus will promote the speech of others because faculty and students will be afraid to speak in a way that contradicts official university positions.
Implicit here are two ideas that are highly problematic. The first is that we do not need any kind of collective voice from our leaders across the university. But that cannot be right. All of us expect our leaders to speak, especially when our mission is at stake. Defending this involves speaking collectively at times, because individual speech is not a replacement for collective institutional voice.
For example, last year Connecticut considered a state law banning the use of legacy preferences in admissions. It would be silly to argue that we should just have faculty express their views on the matter, and not allow the university to speak. In fact, Yale’s representative testified against the law. But Yale’s testimony did not prevent faculty or students who disagreed from taking an opposing view. (Several students in fact went to Hartford to testify against Yale’s view.) As a general matter, institutional voice simply doesn’t chill campus speech.
What does chill speech are rules against speaking — rules, unfortunately, like those narrowing the use of institutional voice. Those rules, unlike official statements, do come with an implicit promise to punish. They also create a new weapon for those who don’t like university speech: the argument that the speech is not just substantively wrong or misguided, but that it’s breaking the rule against “institutional” speech.
How could rules or norms against institutional speech chill speech on campus? Note that those who are most vociferously demanding these rules want them to apply not just to university presidents but also to deans, department chairs and even academic centers. You see the problem: if centers cannot speak, then a center on free speech on campus would not be allowed to make a statement about new laws being passed to attack tenure or to ban the teaching of critical race theory. Moreover, it’s easy to argue that all kinds of things are “speech” and implicit commentary on the events of the day. If deans, for example, are meant to avoid taking positions on issues, especially in the current environment, expect a chorus of attacks any time they do things like choose a “campus community book project,” or convene a departmental lecture on a controversial matter. If there is a dean’s lecture in the law school by someone who criticizes election denial, would there have to be one in favor of election denial for balance? If the public health dean hosts a speaker who defends vaccines, would they have to then convene one who attacks them?
And if we have rules against institutional voice, what about the collective speech of faculty — for example, a resolution of the Faculty Senate, or a statement by a department that faculty have asked the chair to make? Would this too be restricted? These too would be direct restrictions on academic speech. Speech restrictions also have what courts call “chilling effects” — causing self-censorship for worry of violating the rule.
The problem is all the more acute when you consider the current moment of politicized attacks on universities. If you doubt it, note that we have already witnessed a local example of “neutrality” rules being used to target speech: the recent memo from the administration to the Yale Women’s Center asking that they be “neutral” in their programming. The aim, it seems, is to prevent events like last year, when the Women’s Center offered to co-sponsor a panel on Palestine and some students, as well as an off-campus conservative group, objected.
There is no mystery about what kinds of speech will be seen to be risking “neutrality.” We doubt that centers for religious life will be encouraged to provide equal programming promoting atheism, or that career services offices will be asked to promote not just employment but also student debt repudiation. If rules around institutional voice are encouraged or adopted, we should expect them to be used disproportionately against dissenting or unpopular speech, precisely because mainstream speech is seen as neutral to begin with.
Our committee should recognize these problems — and instead of offering proposed rules against institutional voice, should affirm that we want our leaders to speak, primarily to protect our mission. Yale’s mission is broad: “improving the world today and for future generations through outstanding research and scholarship, education, preservation, and practice.” That mission is not only implicated — contrary to what other universities have suggested — by actions that directly affect the university. Protecting it can sometimes mean, even, speaking out, wisely, about the events of the day.
Institutional voice is not simply a problem. It is essential to the pursuit of the mission of the university. To be faithful to the breadth of our mission requires, among other things, active work in the world, including protecting academic values, but also educating and influencing practice. Limiting institutional voice to a narrow set of issues concerning the legislative or policy interests of the university — admissions policy or taxes on the endowment — betrays our shared obligation to advance this mission in practice. Consider the professional schools, for example. They study and speak about vaccines to support better public health and study and speak about the Constitution to defend a democratic form of government. Sometimes our leaders might even speak on these matters; for example against laws that threaten free speech everywhere, or against a proposed FDA commissioner who is anti-vaccine. So it should be, particularly in perilous times.
The Kalven principles, authored in 1967 at the University of Chicago, and the genesis of many “neutrality” rules, even have an exception for speech on matters that “threaten the very mission of the university.” But as many have recognized, including Kalven’s own son — those exceptions have not been protective enough. The principles are treated as a rule and they give cover to leaders who often prefer not to speak, especially when matters are controversial and might anger powerful constituents, whether donors, politicians, or alumni.
The problem, in fact, is not universities being too ready to wade into areas beyond their mission. It is that universities as institutions are generally far too reluctant to use our voice to define and defend our mission when it is under attack. We are witnessing profound attacks around the country on the teaching of critical race theory and gender studies. Should we leave faculty individually to speak against those bans, or stay silent about them because they are happening in other states?
Instead of rules or guidelines against university speech, we should recognize that institutional voice can be important to achieving the university’s mission — and encourage leaders to speak when our mission is threatened. We should be clear that there are bad reasons not to speak — for example, for fear of angering donors or politicians. We should urge our leaders to use good judgment and not cheapen the impact of statements by making them all the time, or always running them through PR professionals. We should recognize, finally, that silencing our leaders creates risks to the university mission, including free speech on campus.
AMY KAPCZYNSKI is a professor at Yale Law School. She can be reached at amy.kapczynski@yale.edu.
DANIEL MARTINEZ HOSANG is a professor of American Studies and Political Science. He can be reached at daniel.hosang@yale.edu.