There are actually two principles of free speech that should be proclaimed and adhered to by every college and university in America, whether they be private or public. (Religious schools, of course, must exempt themselves.)
1.) There must be freedom of speech for all as that freedom is described by the First Amendment and construed by the courts.
2.) The university must remove itself from making official pronouncements on morality, ideology, or politics, except when those statements affect issues that could impinge on the mission of the university itself: teaching, debating, and learning.
The second principle is there to protect the first one. For if the University makes political statements, like the one we’ll discuss today, that chills or quashes the speech of other people who might fear punishment from the administration for their opposing stands. If an administrative or departmental website puts out a statement supporting the goals of Black Lives Matter, or that the Kyle Rittenhouse verdict demonstrates white supremacy in action, or that science is structurally racist and misogynist, what student or untenured professor is going to contradict that in public? We already know that about 55% of college students feel that the climate on their campus prevents them from saying things they believe. That goes for professors as well, though the percentage would be lower. Ideally, the figure should be 0%.
The University of Chicago has adopted both of these principles. The first is the famous 2014 “Report on the Committee of Free Expression” headed by Law Professor Geoffrey Stone, with the committee convened by the then President Robert Zimmer. Now called the “Chicago Principles“, the statement has been adopted in its entirety or near-entirety by over 80 American colleges and universities.
But the plural use of “Principles” is erroneous, because the free-speech statement is not the only one of Chicago’s Foundational Principles about free speech. It doesn’t take care of item #2: speech-chilling official statements. But that was already covered by a lesser-known principle, The Kalven Report from 1967, which prohibits official political, ideological or moral statements by the University or its constituent departments. (I’ve written a lot on this site about Kalven.)
While the free-speech provision is highly enforced, as in the case of Dorian Abbot, the Kalven Report is often honored in the breach rather than the adherence, especially after the murder of George Floyd when departments felt compelled to make anti-racist statements (you can see our Kalven-violating statements here, here and here, though there are several more). Apparently, the University isn’t willing to enforce that important principle, at least insofar as making departments remove official statements that violate it. I’m still working with others to get Kalven properly enforced, even though that would removes some debatable political statements that I happen to agree with. But the point is not to make any statement at all to avoid chilling the speech of dissenters.
The University of Californa at Irvine (UCI) doesn’t adhere to anything resembling Kalven, and so, over at Reason, The Volokh Report shows UCI’s Vice Chancellor weighing in officially on the Rittenhouse verdict. Vice Chancellor Douglas Haynes doesn’t like it!
I’ll quote from Eugene Volokh’s article (indented) which itself quotes both the Vice Chancellor’s statement and the Kalven Report (doubly indented). I can’t find a link to the statement, but I trust that Volokh quotes it accurately.
From Douglas M. Haynes, Vice Chancellor for Equity, Diversity and Inclusion and “Chief Diversity Officer” (as well as history professor, but speaking in his official capacity and not just as a faculty member):
The trial of Kyle Rittenhouse versus the State of Wisconsin concluded earlier today. The jury returned not guilty on all five counts of the original indictment (a sixth count was previously dismissed by the judge), including the murder of two people and the wounding of a third on August 25 in Kenosha, Wisconsin. The relief of the Rittenhouse family in this verdict was met by the heavy burden of the families mourning the absence of loved ones and the continuing trauma of the lone survivor.
The conclusion of this trial does not end the reckoning about systemic racism in the United States. If anything, it has simply made it more legible. Kyle Rittenhouse did not live in Wisconsin, but in Antioch, Illinois. He traveled to Kenosha during protests against police violence in the wake of the shooting of Jacob Blake while in police custody. Blake was shot seven times in the back. The Kenosha event continued protests in response to the killings of George Floyd on May 25, 2020 in Minneapolis and Breonna Taylor in St. Louis on March 13, 2020 in Louisville. These multi-racial protests were grounded in a call for racial justice and the end of police brutality. Rittenhouse imposed himself on the protests in Kenosha. His assistance was not requested. It was as much about resisting the calls of protestors as it was to defend property and render first aid.
For this reason, the verdict conveys a chilling message: Neither Black lives nor those of their allies’ matter.
UCI will continue its whole university approach to recognizing and responding to anti-Blackness as an existential threat to our mission as a public research university. Learn more on the UCI Black Thriving Initiative website.
The debatable statements in this Diktat (beyond the fact that it shouldn’t have been issued) are that there is systemic racism in the U.S. highlighted by the trial, that Rittenhouse somehow “imposed himself” on the protests in a way that targeted the protestors themselves (not true; at least one of the white men he killed made racist statements at the protests). Most contentious is that the verdict conveys a chilling message: “Neither Black lives matter nor those of their allies’ [sic] matter.” That may be the message that some people get from the verdict, but I doubt the jurors were sending that message, or that they would say that they voted “not guilty” because they didn’t think Black lives matter! (Both of the men Rittenhouse killed and one that he injured are white.) It’s no business of Haynes to make a statement like that—a statement about which one could argue endlessly. But what faculty or student would go up against the Vice Chancellor and say that the verdict was justified given the evidence. (Was Haynes in the courtroom?)
Well, Volokh did, though he’s not at Irvine.
I would think that the verdict conveys a message that:
- There’s a right to self-defense, whether against the “allies” of blacks or against the enemies of blacks or against anyone else.
- That’s particularly so if a person is pointing a gun at you, or reached for your rifle.
- The prosecution has to disprove claims of self-defense beyond a reasonable doubt.
- Twelve jurors unanimously concluded that the prosecution hadn’t met its burden.
Perhaps Rittenhouse should have nonetheless been convicted. But it seems to me that universities should be places where such matters are honestly, freely, and thoughtfully debated, and I don’t think that universities’ taking an official stance on them is conducive to that.
And then Volokh quotes the Kalven Report, which you can read for yourself; but he does reproduce its most famous declaration:
The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.
Good for Volokh and bad for UC Irvine. We have to remember that provision #1 is severely weakened unless provision #2 is in place to keep the university itself from chilling speech. In contrast to our “Chicago Principles”, I don’t think that any university has adopted the Kalven principles. All of them should.