POSTED BY JOHN K. WILSON
Last week University of Chicago president Robert Zimmer wrote a letter, later posted online, to the University of Chicago community about President Trump’s proposed executive action addressing free speech issues on college and university campuses.
To: Members of the University Community
From: Robert J. Zimmer
Subject: Federal Action Regarding Free Expression on Campuses
Date: March 4, 2019
I am writing in light of news about a potential Executive Order concerning free expression on campuses.
As president of the University of Chicago, I have spoken forcefully and frequently about the importance of free expression, open discourse, and ongoing intellectual challenge as a necessary foundation for a truly empowering education and a research environment that fosters creativity and originality. Students, particularly, need and deserve an opportunity to develop the intellectual skills and habits of mind derived from such an education—to confront the complex challenges they will face in their futures, to give them the capacity their ambition should demand, and to reflect the courage of which they are capable. Failing to provide an education of deep intellectual challenge supported by an environment of free expression is selling students short and would fail to live up to our highest aspirations as educators.
The University of Chicago has embraced this perspective throughout its history, and the statement by the Faculty Committee on Free Expression articulated this long-held position in what is now widely known as the Chicago Principles. These principles have been adopted by over 50 higher education institutions since they were articulated in January 2015. However, the difficulty many institutions of higher education have in cultivating an environment of free expression on their respective campuses remains a serious challenge.
The question of whether this problem should be addressed through additional Federal legislation or executive action has been raised in multiple situations in recent years. In 2017, I testified before the U.S. Senate Committee on Health, Education, Labor, and Pensions, chaired by Senator Lamar Alexander. Senator Alexander asked me at that time whether I thought Congress should address free expression on campus through federal legislation. I replied unequivocally that I was opposed to any such federal legislation. The question of federal intervention in this arena arises again today, not with Congress, but with the Executive Branch. As was my position with respect to Congress, I believe that any action by the Executive Branch that interferes with the ability of higher education institutions to address this problem themselves is misguided and in fact sets a very problematic precedent.
There are two related features of potential Federal engagement on this issue that would threaten the mission of institutions of higher education. They would do so by creating the specter of less rather than more free expression, and by deeply chilling the environment for discourse and intellectual challenge. The first feature is the precedent of the Federal government establishing its own standing to interfere in the issue of speech on campuses. This opens the door to any number of troubling policies over time that the Federal government, whatever the political party involved, might adopt on such matters. It makes the government, with all its power and authority, a party to defining the very nature of discussion on campus. The second feature is the inevitable establishment of a bureaucracy to enforce any governmental position. A committee in Washington passing judgment on the speech policies and activities of educational institutions, judgments that may change according to who is in power and what policies they wish to promulgate, would be a profound threat to open discourse on campus. In fact, it would reproduce in Washington exactly the type of on-campus “speech committee” that would be a natural and dangerous consequence of the position taken by many advocating for the limitation of discourse on campuses.
Therefore, rather than improving the situation, further legislative or executive Federal action has the potential to reinforce and expand the difficulties regarding education and free expression that we are confronting now. It would be a grave error for the short and the long run.
Mr. Zimmer appears to misunderstand, perhaps be unaware of, or deliberately obfuscating the actual context of the Executive Order. The AAUP is also institutionally in petition, but that, along with Zimmer’s public relations actions, may be as misplaced as the new executive order is compensatory. Let me explain.
I do agree that it is an unfortunate State intrusion into higher education (but merely part of a much more profound one, and to complain now, a rich hypocrisy). But I would point out at least two complications that led to lobbying efforts directed at a motion for executive action, that Zimmer unfortunately is not explaining as an educator (or leader): 1. the Obama “Dear Colleague” campaign that effectively served an ex-ante warrant on university administrators concerning much broader, and in some cases utterly ambiguous, definitions of cause of action, vis-a-vis Title VI of the Civil Rights Act (among other Titles)–whereby speech acts can be construed as hostile or exclusionary and thereby discriminatory–and with it, their notice of effective forced compliance subject to financial sanction (merely the Democratic Party analogue of the new GOP order); 2. the unconstitutional bypass language the Obama letter (and through other channels) contained, concerning both the categories of accusation (complaint and proof standards) and adjudication (presumption standards). Even at the University of Chicago where it is fairly well-known in retail public relations as establishing some notional institutional independence, there are entrenched, potential latent administrative abuses readied against defendants (especially students and faculty), in tort and even criminal law because of lingering Obama-era special interest influences, and in some cases, extra-legal privilege assertions.
Moreover, the threat of financial withholding already existed in the Campaign letter from the previous administration; it was just more cleverly (or more deceptively, or even mendaciously) applied. Trump uses a hammer; Obama used coercion. Both serve ideology, although the abuses due to the Obama-era
interests created a breakdown in constitutional law to such an extent that universities (not all) generally are out of control in civil standards. Hence the Executive Order is deemed restorative (isn’t law symbolized by a scale seeking balance?). Universities have only themselves–and the previous administration–to blame.
Readers may appreciate a Wall Street Journal opinion I wrote, specifically on this matter, and in reference to the University of Chicago: https://www.wsj.com/article. And relatedly on campus free speech complications involving faculty and administration, in the University of Chicago Magazine: https://mag.uchicago.edu/university-news/readers-sound-30# and in the Chicago Maroon on Zimmer’s particular administrative complications concerning his office’s actual position on free expression, among others (it has little to do with Constitutional law): https://www.chicagomaroon.com/article/2018/2/27/free-speech-complex-issue-proponents-claim/, and https://www.chicagomaroon.com/article/2017/10/27/shoot-messenger/.
Last, in addition to the ideological and structural ironies of Zimmer’s complaint, the University of Chicago, perhaps more than many R1 peer institutions, maintains a deep, nearly integrated unity, including financial, with Federal government. These are in operational, contractual joint ventures including its management of Federal DoEnergy/DoDefense institutions: high energy research platform Fermi Lab, and nuclear research/weapons installation Argonne. Moreover, UChicago’s highly unusual relationship with foreign institutions and state governments, especially its relationship with the Israel defense construct, and its penetration into UChicago’s pedagogic and financial priorities and governance (including its Trustee Chairman’s investments in foreign IDF weapons corporations) does make one wonder the actual substantive basis of his complaint over “federal engagement” in the university domain. In Chicago’s case this also includes active CIA governance in University Institutes, and the active formal extension of faculty, into lobbying and committee consulting, on behalf of federal political party and related special interests. This Executive Order is small beer, and Zimmer’s protest merely part of maintaining the public impression of free speech advocacy.
Thank you and Regards.
Matt Andersson, ’96, The University of Chicago.
I’ve been critical at times of Zimmer and the University of Chicago for failing to fully protect free speech. But I think your defense of Trump’s Executive Order is misguided. The claim that “Obama was terrible too” is both untrue and not a logical reason to endorse Trump’s actions, which are much broader than the Obama Administration’s misguided Dear Colleague letter. The Dear Colleague letter was about interpreting already existing rules. The Trump Executive Order is a brand new and potentially broad imposition of government authority into a vast number of campus policies.
I do not endorse the new Executive Order. I simply seek to put it into some potential context, while underscoring the inherent nature of “Federalization” in higher education, and in Chicago’s case, an especially deep Federal integration that puts the EO in a perhaps different ordinal ranking of broader university contentions and priorities-unfortunate as the Order is. As for the previous administration’s DCL, it sought not to interpret, but rather to re-interpret certain legal and other language in the image of special-interest activism, and thereby (perhaps unintentionally but otherwise) over-stepped constitutional bounds. The new EO is indeed fairly imposing, but one need not be a paleo-conservative to appreciate the progressive radicalization of too many American university and college campuses, and in several dimensions, which ultimately impinges on free expression (and thought); but that is somewhat outside this post. In both cases otherwise, universities would probably be better served (that is students and faculty) by the dislodging, extraction and exit of all federal policy intrusions–except that the Golden String is attached and thereby a carefully navigated university administrative obedience, or coyly framed protest. With Regards.
While Zimmer’s letter is certainly welcome, personally I do not think it’s appropriate for this blog to post it in full, giving him author credit. As both John Wilson and I have pointed out previously (see, for instance, https://academeblog.org/2018/12/21/from-the-history-of-the-university-of-chicago/), the University of Chicago administration’s hypocrisy around free speech can be breathtaking. This is a school that has considered “free speech deans” empowered to police student behavior in a spirit uncomfortably close to the Trump order and has consistently taken an excessively aggressive posture with respect to student protesters who are exercising their own free speech rights. As Wilson has argued, the university’s disruptive protest policy not only provides inadequate protection for student expression but in fact objectively would censor it (see https://academeblog.org/2017/03/19/disruptive-conduct-and-the-university-of-chicago/). Most important, perhaps, Zimmer’s administration has consistently and belligerently resisted efforts by its graduate students to obtain union representation. Indeed, the Chicago graduate students union is affiliated with the AAUP. Therefore, simply to post this message from Zimmer without comment may be taken as neglectful of their efforts.
I think it’s important to post Zimmer’s views on the Trump Executive Order, not because Zimmer is a model of intellectual freedom but precisely because he is not. If Zimmer, a darling of the far right, is opposed to Trump’s order, that’s an important fact to publicize, since it will do more to persuade undecided people than anything I can say about the subject. I also think it’s important to post Zimmer’s letter because he makes some very thoughtful arguments against the Trump Executive Order, which deserve to be heard no matter who says them. I think it’s possible to strongly disagree with someone on one matter (such as the right to unionize) and still find common cause with him on another matter. I think it is important to comment on Zimmer’s record and his hypocrisy. That’s why we have a comment section so that people can do that.
It’s possible to do that without making him a guest blogger.