Opponents of the Wisconsin Campus Free Speech Act, a bill based on model legislation I co-authored with Jim Manley and Jonathan Butcher of the Goldwater Institute, have recently focused on the bill’s institutional neutrality provision. That provision reads as follows: “the [university] shall strive to remain neutral, as an institution, on the public policy controversies of the day.”
Claims by opponents of the bill that the institutional neutrality provisions will prevent professors from teaching biology to students who oppose evolution or prevent the university from lobbying for a tuition increase are unfounded.
This is so, first, because the neutrality provision applies only to the university at the official institutional level, and therefore in no way prevents professors from teaching as they wish in the classroom. Second, the flexible, aspirational language means that the university can always argue that while it generally “strives” to remain neutral, certain issues (like a tuition increase) front so directly on its everyday institutional functioning that it must speak out. The annual report of the council on free expression created by the bill will comment on these judgments and put them up for public discussion. But the law itself is quite flexible in this regard and designed to be so.
The model for the Wisconsin Campus Free Speech Act’s neutrality provision is the University of Chicago’s Kalven Report of 1967, widely recognized as one of the classic statements on campus free speech. The Kalven Report argues that the university ought to work to remain as neutral as possible on issues of public controversy so as to avoid pressuring faculty or students to follow any particular political or ideological line. According to the Kalven Report, “the neutrality of the university as an institution…has its compliment in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.” In other words, by working to stay neutral at the official institutional level, the university allows its faculty and students, as individuals, the maximum amount of freedom to express and explore their own views.
The Kalven Report recognizes that in some selected cases the university as an institution may be forced “actively to defend its interests and its values,” especially in the case of its commitment to freedom of speech itself. So the call for neutrality at the official institutional level is not absolute. Nonetheless, the Kalven Report established a predisposition towards institutional neutrality as a key component of campus free speech.
The Wisconsin Campus Free Speech Act draws on the Kalven Report, not only in calling for neutrality at the official institutional level, but in recognizing that the stance of neutrality cannot be absolute. That is why the language of the bill (and of the model legislation it draws upon) says that the university shall “strive” to remain neutral on the public policy controversies of the day. To “strive” to remain neutral means to “try” to remain neutral. In other words, the bill’s institutional neutrality provision is aspirational. It is intentionally written to allow for exceptions, and is more in the nature of articulating a goal and a principle than in drawing a hard and fast line.
The Wisconsin Campus Free Speech Act also puts the issue of institutional neutrality in play as a topic to be taken up in the annual report of the council on free expression. The council is charged with commenting on any “substantial difficulties, controversies, or successes in maintaining a posture of administrative and institutional neutrality with regard to political or social issues.” Keep in mind that the council’s annual report has no power other than that of sunlight and persuasion. It cannot force the University of Wisconsin administration to change its handling of institutional neutrality issues. It can only point out problems for the consideration of the public, the trustees, the legislature, and the governor.
So the purpose of the institutional neutrality provision of the Wisconsin Campus Free Speech Act is to articulate the principle of institutional neutrality, to allow it to be handled flexibly, and to help to make it part of the public discussion on freedom of speech within the university system. And the provision leaves professors in the classroom entirely free to teach as they like. In fact, it facilitates this freedom.
For these reasons, the attacks on the Wisconsin Campus Free Speech Act’s provision on institutional neutrality are unjustified.