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The Chicago Principles were framed in the early years of the so-called “cancel culture” era, and so are preoccupied with the need to repudiate censorship of disfavored views and the promotion of “safe spaces.” As the statement puts it, it is not the University of Chicago’s proper role “to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” The movement to adopt the Chicago Principles venerates this part of the document, particularly as it applies to disputes over race-conscious policies such as affirmative action. If the movement were a sports team, its mascot would be the embroiled critic of diversity, equity, and inclusion culture — a Dorian Abbot- or Joshua Katz-type of figure. The team’s leading cheerleaders include FIRE, the Academic Freedom Alliance, the editorial page of The Wall Street Journal, and the members of the Alumni Free Speech Alliance (including the Princeton University and Massachusetts Institute of Technology chapters). These boosters of the Chicago Principles tend to frame DEI practices as antithetical to free expression and academic freedom.
But the excessive focus on the travails of the disinvited speaker and dangers of “diversity bureaucrats” leads to distorted assessments. Take, for example, the late Judge Laurence H. Silberman’s claim that “cancel culture” is worse than even the excesses of McCarthyism. Judge Silberman is right that “toleration of all political speech is the crucial unifying factor in our country.” But no credible historian of the 1950s would agree with Silberman’s hyperbolic verdict on the contemporary American university.
No single statement can provide a theoretical and practical solution to the many different academic-freedom dilemmas that play out on campuses.
The truth is that no single statement, whether it is the Chicago Principles or something else, can provide a theoretical and practical solution to the many different academic-freedom dilemmas that play out on campuses. Context is too unforgiving of abstract principle, and lofty pronouncements about the evils of disinviting speakers provide precious little insight into the subtleties of teaching in diverse classrooms where the challenge is to turn disagreement into an occasion for learning. (The recent controversy at Hamline University is a case in point.) Grand statements of principle do little when dealing with specific cases, and exhaustive, civil-law-style codes that seek to detail which forms of speech are or are not permitted are also folly.
The challenge, instead, is to find ways to integrate free expression into all aspects of the curriculum. Free expression is a rich and complex learning process as much as it is a set of principles, and as such it must negotiate classroom realities. Professors are trying to instill confidence in their students, to promote a positive learning environment, and to advance the specific goals of their institution’s mission statements. They are attempting to build a classroom community while also fostering free and robust debate. They face pressure from administrators, student groups, and even parents — not to mention the toxic fallout of any classroom spats that hit social media. None of these concerns are adequately addressed by the Chicago Principles. It is why several institutions that have adopted the guidelines use personalized versions only loosely faithful to the original.
First, a meaningful process should include at least some education on the history of free expression and the related but distinct doctrine of academic freedom (which has free-speech affiliations but is grounded in the notion of scholarly expertise) — both in the United States at large and at one’s own institution.
Second, an engagement with the basic contours of First Amendment law (and its relevant state counterparts) is vital. The university is not the state, but as the late Harry Kalven argued, the First Amendment plays a “charismatic” role in American culture that goes well beyond legal doctrine. Its role offers us the best model we have for the open-ended deliberation, debate, and dissent that characterize academic learning at its best. Open-ended does not mean entirely without limits, however. American free-speech law, while more expansive and robust than European law, is still shaped by its complex intersections with other legal doctrines that define harassment, hate crimes, and discrimination on grounds of sex/race/religion, etc.
These are crucial early steps, but it is not enough simply to read a summary of the history and cases or have someone deliver an authoritative interpretation. The point is to debate the primary sources, to make them part of an active conversation in which university communities can ask questions about how the history is told and what the Supreme Court cases mean. These are not materials to be passively consumed.
Third, faculty and students, not administrators, must take the lead in promoting a culture of free expression on their campuses. Ceding this territory to administrators was one of the cardinal errors of the failed 1990s movement to erect hate-speech codes on some American college campuses. Paradoxically, the champions of the Chicago Principles do not seem to have internalized this lesson — the Chicago statement obligates a university to protect free expression when it is threatened. In practice, that “protection” can take the form of administrative overreach. Princeton University, for example, which was the very first institution to cut and paste the Chicago Principles, has assigned to its Office of the Dean of Undergraduate Students the job of providing “Free Expression Coordinators” to manage controversial events. But who is to define what constitutes a sufficiently important “controversy,” or a “threat” to free expression? This seems like a road to a great deal of difficulty.
Free expression is fundamentally a matter of education, not one of discipline or administrative oversight. The trenches of this fight are in the curriculum, and across the full range of learning spaces, from the lecture hall to the athletic field. When an argument between two student groups is resolved not by asking college administrators to declare the victor, but through dialogue between the students themselves, free expression has won the day. Administrators can play a constructive role in mediating some of these disputes, but ultimately their goal should be to empower students to talk to one another, by putting to work the education they should be receiving in free expression. If they are not receiving or using that education, administrative fiat will not provide an adequate substitute. By the same token, enthusiasts for the Chicago Principles would do better to focus their energies on what university curricula and instruction techniques can do to help students feel more confident in speaking for themselves.
Fourth, it is important to go beyond statements of principle and imagine hypothetical scenarios in which education and free expression intersect. The point of thinking through these scenarios is not to generate a body of common-law precedent for administrators to enforce. Rather, the idea is for teachers and students to understand how the day-to-day, humdrum activities of the college implicate free-expression concerns. When you visualize such scenarios, you start to appreciate that the faculty meeting, the hiring committee, and the patent-licensing agreement are opportunities for cultivating the ethos of free expression no less than the campus lecture or the editorials and articles that appear in the student newspaper or faculty newsletter.
Free expression is fundamentally a matter of education, not one of discipline or administrative oversight.
Fifth and final, American universities must come to their own understanding of the dilemmas raised by that other, much earlier, University of Chicago statement: the 1967 Kalven Report on the University’s Role in Political and Social Action. The Kalven Report stemmed from a Vietnam War-era controversy over whether the university ought to comply with a government request for the names of draft-eligible students in the bottom half of the class. In response to faculty and student demands that the University of Chicago shield its students and take a stand against the war in Vietnam, a committee led by law professor Harry Kalven concluded that the university had an obligation, in the name of “neutrality,” not to take positions on matters of public concern unless the university’s mission was itself implicated.
But neutrality is no longer a plausible framework for thinking about the political and social role of what Clark Kerr, former president of the University of California, called the “multiversity.” Major American research universities are simply too embedded in the work of government agencies, and too closely tied to the sustaining arm of industry, to be able to claim a position of independence from the state and the economy. Moreover, silence is not always the same thing as neutrality (though it often masquerades as such). At the same time, as a practical and prudential matter, university leaders and boards neither can nor should take a stand on every issue of the day.
Free expression in higher education is hard and unglamorous work. The work takes place in intellectually charged and thus complicated spaces: the classroom, the lab, the dormitory, the library. In these sites, what matters is not that institutions blithely declare their support for free expression. How colleges convey that support is equally critical: the choice of words, tone of voice, sensitivity to how the message is received differently by different students — all of these factors determine the success of a genuine effort to teach and practice free expression. This is the work of real educators, not culture warriors seeking to impose political litmus tests — are you “for” or “against” the Chicago Principles? — on the vast and heterogeneous landscape of American higher ed.
The evangelists of the Chicago Principles have done free speech a disservice by casting it as a Manichaean struggle between the Chicago way and the highway. None of our free-expression dilemmas have easy fixes, and their intractability is precisely what makes them susceptible to ideological capture and distortion. There are no panaceas to be found in this necessarily contested space.