November 28, 2006

Unfinished business of the Kalven Report

I was recently contacted by several University of Chicago students active in the campaign to persuade the university to divest from companies doing business in the Sudan. They sought me out because of my last name. My father, Harry Kalven, Jr., a professor of law, was chair of the faculty committee that in 1967 produced the “Report on the University’s Role in Political and Social Action.” Universally known on campus and beyond as the Kalven Report, this two-page document has for the last four decades been at the center of a succession of debates occasioned by student demands that the university take stands on public issues. Currently it provides the framework for discussion of the merits of divestment as a means of pressing the Sudanese government to cease the genocide in Darfur.

The students requested my permission to consult my father’s papers in special collections at Regenstein Library. They hoped his notes, drafts, and correspondence would deepen their understanding of the Kalven Report. I found the students—and their questions—engaging. They moved me to revisit the document myself and to consider the several contexts in which it was drafted.

At this point, I should enter two caveats.

First, I possess no special knowledge of my father’s intentions. Although we had many conversations about the issues that occasioned the report, I don’t recall ever talking with him about the process that yielded it. I do, however, have some feel for the larger context of his thought about matters of intellectual freedom. After his death in 1974, I spent more than a decade immersed in his papers, completing a book on the First Amendment he was working on when he died. Titled A Worthy Tradition, it was published in 1988. (An unexpected pleasure in going through the Kalven Report files has been to encounter again his vigorous, compact pen strokes. That is perhaps the only special knowledge I can claim: after a lifetime of practice, I am able to decipher his handwriting.)

Second, although my father wrote the report that bears his name—his conversational style and rhetorical élan are evident in every line—he was not its sole author. Like the Supreme Court decisions to which he responded with such critical energy, it is a collegial document. As a legal scholar, he appreciated a strong dissent in which a judge gives full-voiced expression to his own views, but he was, above all, moved to celebrate what he called “judicial statesmanship”—the personal qualities and craftsmanship required to locate common ground and build consensus in support of an institutional statement.

The files testify to the statesmanship he exercised in steering the process that produced the Kalven Report. The committee included John Hope Franklin of the history department, Jacob Getzels of education, George Stigler of economics, and Gilbert White of geography. It appears the members of the committee quickly reached, as the report puts it, “a deep consensus” on the principle at the heart of the report:

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.

It follows that the university “cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness.” When the university takes a position on a public issue, so the argument goes, it inhibits the freedom of those within the institution who disagree with that position.

The committee recognized that circumstances may arise in which it is necessary to depart from this principle in order to defend it. The classic example, pressed by Jacob Getzels, is the Nazi rise to power. The report expressed the point this way:

From time to time instances will arise in which the society, or segments of it, threaten 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.

The committee was divided about a second category of exceptions. In areas where the university necessarily acts as a corporate entity, such as its ownership of property, are there times when it may be called to account on moral or political grounds? Gilbert White argued that whenever university policies have an impact in the larger community, “it has a responsibility to consider the ethical implications of its stand.” George Stigler countered that anything short of complete autonomy for the university as corporate entity would have a chilling effect on the freedom of faculty and students.

My father proposed a strategy for managing the unresolved issue between White and Stigler. He wrote the committee:

It seems to me, particularly after struggling with the drafting, that we have a tricky choice of where to spend our emphasis. I think we can only spend it once effectively, and the question is whether we spend it in stating the general principle against collective action or spend it in sketching the exceptional case in which collective action may be appropriate.

At his urging, the committee opted to emphasize the core principle, while acknowledging but not discussing in any detail possible exceptions. The report states:

In the exceptional instance, these corporate activities of the university may appear so incompatible with paramount social values as to require careful assessment of the consequences.

The committee thus framed the issue but left it to the future to resolve on a case by case basis. (This reading of the report is supported by a statement appended by Prof. Stigler in which he dissented from the proposition quoted above and suggested alternative language that would allow no exceptions.)

Implicit in the strategic decision that shaped the Kalven Report was the expectation that a process akin to common law development would over time give precise definition to the reach of the principle. This is very much in keeping with my father’s style of approach, as reflected in his work on freedom of speech. He distrusted First Amendment absolutism. He thought it reflexive, flatfooted, and miseducating. In a penciled note in the margins of the manuscript that became A Worthy Tradition, he expressed the view that freedom of speech is “almost an absolute.”

A great deal hangs on that “almost.” It gives rise to an ongoing dialogue between the society and the courts about the meaning of the First Amendment. The tradition of freedom of speech takes the form of arguing about the content of the tradition. And a key measure of our stewardship of First Amendment values is the quality of that argument. On this view, a principle is not diminished but clarified and deepened by the process of mapping its boundaries.

The period of the Kalven Report—the turbulent years of the late 1960’s—was an intensely productive time for my father. He responded passionately to his times. In 1965, he published The Negro and the First Amendment—an examination of the contributions of the civil rights movement to First Amendment doctrine. He wrote several seminal law review articles on freedom of speech. He also wrote for magazines on, among other things, the Chicago Seven conspiracy trial and the police raid that resulted in the deaths of Black Panthers Fred Hampton and Mark Clark.

He felt the tensions on campus acutely. He was fiercely opposed to the Viet Nam War and committed to the civil rights movement. As a First Amendment scholar, he was a student of dissent, protest, and civil disobedience. He was at once sympathetic to the substance of students’ advocacy and disturbed by what he saw as their coercive tactics and blindness to the nature of the university as an institution.

Perhaps his single most relevant utterance during this period is a speech he gave in 1969. In the two and a half years following creation of the Kalven Committee, student activism on campus had grown more intense and disruptive, culminating with the occupation of the administration building for fifteen days in January of 1969. At commencement that spring, a large number of students wore black arm bands. In June of 1969, my father left the traumatized U of C campus to travel to Providence to give the commencement address at Brown University.

Conditions were no more settled at Brown. Henry Kissinger, Special Assistant to President Nixon, was awarded an honorary degree that day. When he stood to receive the honor, three-quarters of the student body turned their backs to him. (“What they don’t understand,” Kissinger whispered to my father, “is that if there’s a revolution in this country, it’s going to come from the right.”)

Titled “The Right Kind of Anarchy,” my father’s speech returned, in another key, to the themes of the Kalven Report. He vividly expressed his ambivalence:

There is much to admire in the students’ anger at the weaknesses of society, there is much to deplore in their excessive self-righteousness and moral simplicities; there is much to applaud in their energy and desire to get reforms moving, there is much to regret in their blind distrust of existing institutions, their wild impatience and their indifference to social costs. They seem like angry children; we seem like angry parents. They have presented us with what is certainly at once the most exhilarating, challenging, promising, infuriating, expensive, frightening phenomenon of our time.

After making a series of points that echo the Kalven Report and considering some of the free speech issues raised by student protest, he closed with a hope addressed to the future:

The current troubles are not simply a passing fad like jeans or hair styles, and there will be adjustments on all sides. With you I look forward to the day when the university will again be regarded by the young as their natural ally in what will still be an imperfect world.

What, I wonder, would he make of the current debate over divestment as a strategy for resisting the genocide in Darfur? I have a hunch he would see the student advocates—in their demeanor, rhetorical skills, and respect for institutional values—as embodiments of the hope he voiced in 1969. The Darfur activists have embraced the premises of the Kalven Report. They have sought to meet the presumption against collective action by making a narrow, well-researched argument that “paramount social values” are implicated in the University’s investment in companies doing business in the Sudan. This argument, as I understand it, does not hinge on the efficacy of divestment. It is, rather, that we have a moral obligation to do whatever is within our capacity to resist crimes against humanity. (That is not to say divestment might not have a significant impact on other institutions, precisely because of the U of C’s rigorous tradition of academic freedom.)

Would my father agree with the argument for divestment? I can only raise the question. I cannot presume to answer it. It is telling, though, that the one surviving member of the Kalven Committee, Professor John Hope Franklin, has unequivocally stated that “the desperate situation in Darfur is so tragic that it qualifies as the exceptional instance where I have no difficulty in concluding that divestment is consistent with the core values of our report and the mission of the University.”

The burden is now on the administration and board of trustees. I urge them to consider the possibility that this is an instance in which failure to make an appropriate exception weakens rather than fortifies a cherished principle.