The University of California system issues an official critique of the Dobbs decision, chilling speech of those who disagree

July 7, 2022 • 9:15 am

I happen to be one of those who favored the Roe v. Wade decision; in fact, I’d go farther than the judges in that one by extending the term limits for abortion. Ergo, I think that Dobbs was a bad decision and that some way must be found around it. All American women who want an abortion should be able to get one without having to travel to other states.

This is my personal view, though I know many others disagree. Universities, in particular, which are supposed to serve as venues for debate, should not take official positions on such issues, as that chills or squelches the speech of faculty, staff, and students who disagree with those positions but fear reprisals if they disagree publicly.

This is why we have the Kalven Report at the University of Chicago, and, given my many posts on it, you should be familiar with it by now. Let me just quote a bit of that short report, which is one of our two pillars of free speech at the University of Chicago (the other is The Chicago Principles of Free Expression). I do recommend reading the short Kalven Report in its entirety, but here’s the most-quoted bit (emphasis is mine):

The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.

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.

The University of Chicago does not issue official statements about ideology, politics, or morality unless some aspect of society “threaten[s] the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.” But these “aspects” are only ones bearing on the “discovery, improvement, and dissemination of knowledge” within the institution.

The Dobbs decision is not such an aspect.  Sure, you can stretch nearly every issue into one that “threatens the mission of the university”, but we have a high bar for that, and the University does not—or is not supposed to—issue statements about issues like war, apartheid, abortion, guns, Palestine vs. Israel, and so on. (There have been violations here, and some of us are working on those).

The University of California, on the other hand, takes the opposite position, going full tilt by issuing statements about nearly every sociopolitical issue. These can come from either the UC administration or departments of various campuses. All of them should be taken down.

On June 24, the President of the University of California system, Michael Drake, took it upon himself to criticize the Dobbs decision of the Supreme Court overturning Roe v. Wade. His statement, as you see, is labeled as being a “UC statement” (University of California), not his personal opinion. It is thus the opinion of a huge and powerful educational institution, and a public institution.

Drake oversees the entire UC system; as his webpage notes:

Dr. Michael V. Drake is the 21st president of the University of California. He oversees UC’s world-renowned university system of 10 campuses, five medical centers, three nationally affiliated labs, more than 280,000 students and 230,000 faculty and staff.

Is he speaking for all of them in his statement? Click on the screenshot below:

The statement is short, and I reproduce it in its entirety:

University of California President Michael V. Drake, M.D., today (June 24) issued the following statement on the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization:

For nearly 50 years, people in the United States have had the right to make private, informed choices about their health care and their futures. I am gravely concerned that today’s U.S. Supreme Court decision removes that right and will endanger lives across the country. This decision overturns decades of legal precedent and could pave the way for other fundamental rights to be removed.

The Court’s decision is antithetical to the University of California’s mission and values. We strongly support allowing individuals to access evidence-based health care services and to make decisions about their own care in consultation with their medical team. Despite this decision by the Court, we will continue to provide the full range of health care options possible in California, including reproductive health services, and to steadfastly advocate for the needs of our patients, students, staff, and the communities we serve. We will also continue to offer comprehensive education and training to the next generation of health care providers, and to conduct life-saving research to the fullest extent possible.

This is a sobering moment for many of us at the University of California and throughout the nation. Today, we stand with California leaders and health care advocates who are taking critical steps to protect Californians’ human rights and their access to affordable and convenient health care choices.

As you see, he says that Dobbs decision is “antithetical to the University of California’s mission and values”. But where in its mission and values does it mention that its values include “access to evidence-based health care services”? That is a policy, not the mission of the University of California. And that shows that any social event, law, or policy can be stretched to warrant damnation by the University of California.

But what about those half a million students, faculty, and staff? Do they agree with what President Drake said? I doubt it. Dobbs is now the law of the land, but California permits abortions, and may, this fall, add a clause to the state’s constitution protecting the right to abortion. Good for them! In fact, Drake didn’t have to say anything, for his University and his state (and UC hospitals)  already allow abortion. What he’s doing here is giving official condemnation to the Dobbs verdict without having to do anything about it (he can’t; it’s the law for the time being). The statement represents another case of performative wokeness that shows Drake’s virtue—but at the cost of repressing the speech of those who are “pro-life”. (I hate to write that term, preferring “anti-abortion”).

And Drake could do this for nearly everything, though of course so long as the Left is ascendant at his University, his statements will always be pro-Left. Another state’s University system could issue a completely different statement: one approving Dobbs and damning Roe v. Wade.

But the point is that none of this has anything to do with the mission of a university. Drake and others could write as individuals, but they should never write as if they represent everybody involved with the University of California. (Of course were I Drake, I’d keep pretty much to myself, like a judge, because he has professional cachet even when writing as an individual. But that is his choice.)

Eugene Volokh, writing at his site “The Volokh Conspiracy” at Reason, agrees with me. Click the screenshot to see his take:

Volokh adheres to our Kalven Report and even quotes it, but you can read that for yourself.  Here’s his take on Drake, and I heartily agree:

I don’t think that a public university’s “mission and values” should be to promote a reading of the Constitution as securing abortion rights, or as not securing abortion rights, as opposed to promoting research on this and related questions. And while of course a public university that runs hospitals should generally perform legal medical procedures, and train doctors with regard to legal medical procedures, I don’t think that justifies the university taking a stand on whether such legality is determined by state legislatures or by Supreme Court Justices.

That’s especially so when, as the UCLA Chancellor’s follow-up letter points out, “The decision is not expected to affect women’s reproductive rights in California,” so UC doesn’t even have much of a direct interest in the outcome of Dobbs as it affects its own operations. (There may be more room for statements by a public university president as to political decisions that do directly affect the operations of the university, such as changes in funding, statutes related to student admissions, and the like.)

It turns out that the University of California has its own version of a Kalven Principle, issued in 1970. Volokh quotes it:

More broadly, I tend to agree with the 1970 statement by the Office of the UC President:

There are both educational and legal reasons why the University must remain politically neutral. Educationally, the pursuit of truth and knowledge is only possible in an atmosphere of freedom, and if the University were to surrender its neutrality, it would jeopardize its freedom. Legally, Article IX, section 9, of the State Constitution provides in part that “The University shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs…”

And yet here we see Drake violating the very principles of his own university system!

Volokh then points to the Kalven Report, including the famous excerpt I put above, and then reproduces an email written by Professor Leslie Johns of UCLA’s political science department to the UCLA chancellor—an email that includes this:

Abortion is not a simple matter of access to health care. It is a complex moral and political question that involves balancing fundamental rights to life and physical autonomy. By denying this reality, you are asserting a political position. Yet your employment as a public employee explicitly prohibits you from using your office for political purposes. It is both inappropriate and illegal for you (and for me) to use our official capacity to make claims that specific abortion policies or constitutional interpretations are “antithetical to the University of California’s mission and values.”

In effect, she’s underlining the Kalven Principle that a university should not issue statements that will chill discussion, nor should it issue definitive proclamations on debatable issues. I’m not sure if Drake is, as Johns asserts, doing something illegal by issuing the “UC Statement.” But Kudos to Professor Johns for taking the Chancellor on a trip to the woodshed!

Like freedom of speech itself on campus, the Kalven Principle is always under assault by those who want to control political discourse at universities. It’s a never-ending fight, even at the University of Chicago which, like the University of California, professes political and ideological neutrality—but doesn’t hesitate to violate it when it professors or administrators want to flaunt their virtue.

11 thoughts on “The University of California system issues an official critique of the Dobbs decision, chilling speech of those who disagree

  1. The Kalven Report makes an exception to its neutrality requirement for matters that “threaten the very mission of the university[.]” And in its introductory paragraphs, the Report references the government requirement that the university “furnish[] the [class] rank of male students to Selective Service” to determine male students’ eligibility for the draft during the Vietnam War.

    Do you think that it would violate the spirit of the Kalven Report for a university located in a state that has enacted legislation prohibiting abortion entirely to take a position not on the Dobbs decision itself but as to whether its women students and faculty should be subject to prosecution for violating these laws by obtaining an abortion?

    If such women have their education or careers interrupted by an unwanted pregnancy, or if they become ineligible for employment or to continue their studies due to a felony conviction incurred as a result of obtaining an abortion state law deems unlawful would that not “threaten the very mission of the university”?

    1. Ken, do you mean position statements based on hypotheticals or on events that have actually happened in the state in which the institution is located? I’m interested in your line of thinking. Thanks.

      1. Not on hypotheticals, suzi, but where such prosecutions become a clear and present danger to women on campus.

        Further, I am not advocating that universities should take a public position under such circumstances, but am merely inquiring of our host whether he thinks that, should a university choose to take such a position under such circumstances, it would run afoul of the principles set forth in the Kalven statement.

    2. I’d suggest that they shouldn’t make such a statement, even if they were in a state that had banned abortion. It’s not akin to the Vietnam War situation, where the university was being required to supply information.

      There are all sorts of political issues that can affect a student’s ability to study, legislation on minimum wages, provision of healthcare, legality of drugs, etc. A student convicted of any criminal offence will have their ability to study affected, so by extension your argument would cover statements on most laws.

      1. Was refusing to furnish the class rank of male students to Selective Service during the Vietnam War era draft such a stretch?

    3. Ken, what states have indicated in their abortion laws that the pregnant woman is guilty of any offence if she obtains an illegal abortion? The legal penalties fall on the providers. That is the whole point: to destroy the business model of abortion. Some zealots have called for prosecution of women who go out of state—President Biden has played on this fear—but if the abortion law grants immunity from prosecution to the “victim” of abortion, the fear is thin enough that Kalven-breaching university position statements could surely wait until such laws appear.

      A Kalven-observant university could respond to that eventuality by pointing out that just because a law-breaker might be a member of a university community, the university should not form an official position on the justness of the law that the member broke. University health service records and doctors are as much subject to search and subpoena as any other medical records and doctors.

  2. From a letter from Glen Loury to Brown University’s administrators:

    First of all, what makes an administrator (even a highly paid one, with an exalted title) a “leader” of this university? We, the faculty, are the only “leaders” worthy of mention when it comes to the realm of ideas. Who cares what some paper-pushing apparatchik thinks? It’s all a bit creepy and unsettling. Why must this university’s senior administration declare, on behalf of the institution as a whole and with one voice, that they unanimously—without any subtle differences of emphasis or nuance—interpret contentious current events through a single lens?

    They write sentences such as this: “We have been here before, and in fact have never left.” Really? This is nothing but propaganda. Is it supposed to be self-evident that every death of an “unarmed black man” at the hands of a white person tells the same story? They speak of “deep-rooted systems of oppression; legacies of hate.” No elaboration required here? No specification of where Brown might stand within such a system? No nuance or complexity? Is it obvious that “hate”—as opposed to incompetence, or fear, or cruelty, or poor training, or lack of accountability, or a brutal police culture, or panic, or malfeasance—is what we observed in Minneapolis? We are called upon to “effect change.” Change from what to what, exactly? Evidently, we’re now all charged to promote the policy agenda of the “progressive” wing of American politics. Is this what a university is supposed to be doing?

  3. The Kalven principles follow from its definition of the academy: “The mission of the university is the discovery, improvement, and dissemination of knowledge. ” In practice, however, universities serve other missions as well. For example, the Seattle Times illustrates a major one here: “There are multiple reasons why the U Village area is booming, starting with its proximity to the UW’s campus, which has 45,000 students and 25,000 employees, said Aaron Keeler, a regional managing director for the development company Greystar.” Maybe a political monoculture at the university is useful in its economic function of helping along the real estate development business. For one thing, the more the university monoculture “centers” on the current clichés of the pop-Left (e.g., patriarchy, decolonizing STEM, the menace of misgendering pronouns, etc. etc.), the less attention it pays to the socioeconomic environment the university inhabits.

  4. One of the advantages of a university education is that, unlike high school, it potentially draws people from all different areas and backgrounds — including political ones. Late night dorm debates or just polite interactions help students recognize the ordinary humanity of those who don’t agree with their cherished beliefs.

    What statements like those made by UC amount to is “If you don’t agree, you don’t belong here and we don’t want you. Go find a place where others agree with you.” It’s bad enough that the internet seduces us into single-minded enclaves. Education is meant to broaden our horizons, not pull up a drawbridge.

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