Balancing Academic Independence: Beyond Congressional Oversight

The scene was deeply troubling. Hundreds of college students proclaimed that Hamas’ October 7, 2023, assault on Israeli civilians was a heroic and justified act of liberation. It confirmed a level of ignorance engendered by decades of decay in our colleges and universities. But equally troubling is the fact that the United States Congress immediately intervened. If there is any social institution, along with religion, that should be insulated from political meddling, it is higher education.

Not long after October 7, the presidents of three of America’s most prominent universities were called onto the Congressional carpet by the House Committee on Education and the Workforce. When asked to explain their failure to condemn Hamas’ atrocities, all three offered what has been widely panned as evasive and inadequate responses. On December 13, the House of Representatives adopted House Resolution 927, “Condemning antisemitism on University campuses and the testimony of the University Presidents.” The resolution was approved in a 303-126 vote, with 84 Democrats and 219 Republicans in favor. The resolution condemned the presidents by name and called for their resignation.

After a brief effort at redemption, the president of the University of Pennsylvania, Liz Magill, was forced to resign. The president of Harvard University, Claudine Gay, resigned a few weeks later in the face of demonstrated plagiarism in her academic publications on top of concerns about her testimony in Congress. As soon as the plagiarism issue arose, the House committee demanded documents from Harvard’s internal investigation of the charges. Following Magill’s resignation Representative Elise Stefanik, who sponsored HR 927 and led the aggressive questioning during the committee hearing, proclaimed: “One down… Two to go… This forced resignation of the President of @Penn is the bare minimum of what is required.” After Gay’s resignation, Stefanik posted to X, “TWO DOWN.”

A few days after the adoption of the House resolution, United States Senator Dan Sullivan, writing in the Wall Street Journal, declared: “It is time for Congress to save these important and once-respected institutions from themselves and their weak leaders who have lost their moral compasses. I intend to work with my colleagues in the Senate to do so.”

The House committee and Senator Sullivan clearly believe Congress has a role in reforming our colleges and universities. But what would that role be? Hire and fire college and university presidents? Dictate course curricula? Mandate qualifications for faculty? Approve promotion and tenure decisions? Set parameters of acceptable research and scholarship? Establish speech and conduct codes for students and faculty? Instruct college and university presidents on what public policies to favor and disfavor? Create a new federal agency to oversee higher education? Any such interventions, even if within the constitutional authority of Congress, would compromise the academic freedom essential to democratic government and the academic pursuit of truth.

Federal or state government meddling in the programs and employment decisions of colleges and universities cannot be justified, even when institutions of higher education have clearly lost their way. But one thing the Senate and Congress can do, without question, is condition the many public funding sources on meeting federal mandates. In its demand that Harvard submit documents related to President Gay’s alleged plagiarism, the House committee reminded Harvard officials that “federal funding to Harvard is conditioned upon the school’s adherence to the standards of a recognized accreditor.” The reliance by Harvard, Massachusetts Institute of Technology, and the University of Pennsylvania on federal largess likely explains why the three presidents agreed to voluntarily subject themselves to a grilling before the House committee—that and a misplaced confidence in the rationality of political inquiry. Colleges and universities have gotten themselves into the political thicket by becoming dependent on direct government subsidies and indirect subsidies that fund student tuition. If they don’t kowtow to the members of Congress, they risk a significant part of their budgets.

Of course, the situation is different for public institutions created and funded—to a diminishing extent but with no less oversight—by state governments. In Florida, for example, the governor cut $120 million from the proposed higher education budget while allotting a record $50 million to New College, where he also replaced the Board of Trustees with members committed to his vision of what a college should be. Although such interventions are fully within the authority of the state government, they pose the same risks to academic freedom and the pursuit of truth. It is a hazard inherent to publicly funded higher education.

But it’s not just the funding that encourages and allows for government intervention. Universities and colleges have brought political meddling on themselves by embracing political and ideological causes. They have abandoned their historic mission of truth-seeking in favor of promoting and pursuing an assortment of social and political agendas. Although the formal mission statements of most universities and colleges proclaim a commitment to the pursuit of truth and the development of knowledge, they have embraced favored social policies, most notably diversity, equity, and inclusion (DEI) as constraints on that search. Candidates for faculty positions are screened through a DEI filter, while professors, students, and staff receive DEI instruction. At the same time, many classrooms have become training centers for activists recruited to pursue favored outcomes—a carbon-neutral economy, a more equitable distribution of wealth, healthcare for all, freedom for the Palestinians and all other victims of colonization, or any number of other causes.

Universities and colleges have also taken it upon themselves to issue public statements on issues of the day and to censure student and faculty expression of disfavored views.

When George Floyd died while being constrained by police, presidents, provosts, and deans issued statements of condemnation on behalf of their institutions. When the Supreme Court’s draft opinion in Dobbs v. Jackson—overruling Roe v. Wade—was leaked, similar statements of disapproval were issued from those authorized to speak for colleges and universities. It is, therefore, not surprising that students and the general public expected similar statements condemning Hamas’s brutal assault on Israeli citizens. Nor is it surprising that members of Congress wanted to know why the student defenders of Hamas were not censured. But neither statements of condemnation nor restraints on student speech were forthcoming.

And that is as it should be, but for the double standard now revealed to all. Colleges and universities have chosen sides on matters of wide public concern. They have privileged some speech while censoring other speech. They have dug themselves a hole out of which they have been unable to climb.

The solution, uncomfortable and controversial as it will be, is to admit failure and start afresh with institutional policies founded on two now familiar principles. First, colleges and universities should be strictly neutral on all questions, whether of science or public policy not directly relevant to institutional operations. The University of Chicago’s 1967 statement on institutional neutrality—the Kalven Report—is as sound today as it was over a half-century ago when activists pressed for university condemnation of the Vietnam War and for divestment in South Africa. “The neutrality of the university as an institution,” wrote the faculty committee, “arises … not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints.”

It will be objected that some acts and opinions are so self-evidently wrong that they must be condemned, and ‘incorrect’ views must be suppressed. But if a truth is self-evident, contrary opinions will be revealed as false in a free exchange of ideas. A recent essay by Tom Christina in Law and Liberty argues that the Kalven Report’s insistence on institutional neutrality in conjunction with unconstrained expression by students and faculty effectively embraces the relativism that feeds the rot in higher education. Christina contends that the Report’s failure to mention Oliver Wendell Holmes’ metaphor of a marketplace of ideas exposed a lack of confidence in the free exchange of ideas as a prescription for revealing truth. But no person was more confident in the power of free speech than Harry Kalven. Rather than accepting that relativism is inherent in unconstrained expression, institutional neutrality assures that the authority of the institution does not bias the inquiry. In stating that the university has the “obligation to cherish a diversity of viewpoints,” the Kalven committee was saying that openness to all viewpoints, not every viewpoint, is to be cherished.

The second principle that must guide college and university policies flows from the respect for free inquiry. 48 years after the Kalven Report, another University of Chicago faculty committee issued a report on freedom of expression now known as the Chicago Principles. After declaring that “the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it,” the faculty committee, giving credit to their former president Robert M. Hutchins, observed that “without a vibrant commitment to free and open inquiry, a university ceases to be a university.”

Those who would impose constraints on speech, issue trigger warnings, and establish safe spaces contend that speech can be hurtful and detrimental to the education of those harmed. But if we are educating youth to be productive and contented members of society, they must be exposed to rather than protected from the sometimes harsh realities of social life. The common law has long relied on a reasonable person standard to distinguish between actually harmful and merely offensive speech. Colleges and universities must do the same if they are to truly educate their students.

Only by committing to these two principles can the hundreds of institutions calling themselves colleges and universities warrant those appellations. Many, if not most, have wandered far from the historic mission of the university. They are, of course, free to do so. But if they seek to regain their status as institutions of higher learning, they must wipe their messy slates clean and begin anew with an unwavering commitment to freedom of inquiry and expression, bolstered by institutional neutrality. Hundreds of University of Pennsylvania faculty have set a good example by endorsing a proposed constitution for their university with these two principles at its core. That a written guarantee of institutional neutrality and freedom of expression is needed at Penn is evidenced by the large number of anonymous signatories.

Politicians will always seek to influence college and university curricula and policies. One need only look to the politicized universities that are the norm in many other countries to understand why American colleges and universities, long resistant to political interference, have drawn scholars and students from across the globe. As with the millions of immigrants attracted to the United States and other western countries by the prospect of freedom, the academic freedom that long characterized American higher education has been a beacon for those seeking knowledge and its rewards.

Threats of the withdrawal of federal or state funding should be dismissed just as early defenders of free speech rebuffed alumni threats to withhold support. Principle must trump pragmatism when it comes to the core mission of the university, even if it means the loss of funding. This does not mean that alumni and other private philanthropists should be ignored, however. When complaints are to the speech or writings of particular faculty or students, adherence to principles of academic freedom requires polite dismissal. But when the objection is that the university has abandoned academic freedom and the pursuit of truth to activism and indoctrination, university leaders should engage in some self-reflection. The efforts of alumni organizations like Princetonians for Free Speech, MIT Free Speech Alliance, and the umbrella group Alumni Free Speech Alliance may yet garner the attention of university leaders. The appropriate influence of alumni and other individuals is categorically different, however, from the influence of government. The former have only money and persuasion at their command. Government has the power to regulate, prosecute, and ultimately disband for whatever reasons those in power think appropriate.

There can be little question that higher education has compromised the pursuit of truth to activism and indoctrination. The members of Congress and other government officials are not wrong to see a serious problem. But it cannot be for the government to fix the problem. The fix must come from within. With a history of issuing statements on matters of public concern and a record of speech codes declaring what views are acceptable, colleges and universities have established expectations they must find the fortitude to disappoint. Students, professors, deans, and presidents must demand that their college or university deliver on the promise of education for the sake of knowledge and the pursuit of truth. Looking to the government for a fix will only ensure that politics, not principle, guides the future of higher education.

 Photo by New Africa — Adobe Stock — Asset ID#: 662449850 & eskay lim — Adobe Stock — Asset ID#: 79389519 — Edited by Jared Gould


  • James Huffman

    Huffman is Professor and Dean Emeritus of Lewis & Clark Law School and a graduate of the University of Chicago Law School.

4 thoughts on “Balancing Academic Independence: Beyond Congressional Oversight

  1. “Looking to the government for a fix will only ensure that politics, not principle, guides the future of higher education.”

    On the other hand, we could get government completely out of higher education…

    The first thing that comes to mind are the Normal Schools and Land Grant Colleges of the 19th Century which were created to meet real needs then (and arguably now). The Normal Schools (teacher’s colleges) were established to “normalize” (standardize) the training of elementary school teachers. Before then, the town selectmen went out and found teachers for their schools. John Adams “taught school” for a year in Worcester before he went into law, but by the early 19th Century teachers were usually daughters of the social elite who taught for a few years before they found a husband and got married.

    Horace Mann thought that it would be helpful if these teachers knew something and hence what are now state colleges were born. A generation later, Senator Justin Morrill of Vermont wanted to teach young men “Scientific Agriculture and Mechanical Arts” so that they could make a living tilling the rocky soils of Vermont instead of going out to Ohio — it didn’t work, but not only did “scientific agriculture” become an important subject in farm states, but “mechanical arts” (now known as “engineering”) is what literally built America.

    Before the Land Grant Colleges, the only place one could learn engineering was at West Point, and they taught how to build forts, not bridges — which is why so many of the early railroad bridges collapsed, with horrifically tragic results…

    So let’s go back to 1924 when a very spartan form of the state colleges and universities existed, but nothing else…

    No Federal money at all — a college sank or swam (with its faculty paid or not) depending on the combination of student tuition and alumni donations. There weren’t the six-figure salaries of today — while professors didn’t take formal vows of poverty, they definitely weren’t prosperous and hence the tradition of sports jackets with elbow patches.

    Let’s look at law schools — getting the government out would include eliminating the mandate that one graduate from an ABA-accredited law school — which was *not* the case in 1924. Much as Massachusetts disestablished the Congregational (Puritan) Church in 1855, we could disestablish academia as a gatekeeper for governmental licensure.

    Not just letting anyone take the bar exam but also the nursing exam, the CPA exam, and the various engineering exams. Instead of the various educational qualifications of surgeons today, we could go back to the 1950s when, in the words of Richard Hooker (MD and author of MASH), learning surgery from a father who didn’t know any himself was considered the equivalent of graduating from medical school and passing the various boards. (He was describing the character who became Frank Burns.)

    I’m not sure we want to do this, but it is what it would mean to get the government out of higher education…

  2. I absolutely agree that Congress should not be getting into affairs of universities, and you are absolutely correct that the problem is the massive government subsidies that are showered upon universities. Yet, that’s an inevitable consequence of taking the money in the first place. The deeper problem is who that money empowers. Unfortunately for faculty, it has empowered administrations and non-academic barnacles, with the consequence that faculties and the interests they are supposed to embody, are rendered powerless.
    The difficulty is how you get from now to a better future, and the logic of the situation dictates that governments get out of the higher ed business altogether. Imagine the screams! But we have to get there somehow anyway, or higher ed will simply be yet another expensive corporate welfare scheme.

  3. The plague of antisemitism in academia didn’t start on October 7th, and the incidents cited by the students suing Harvard date as far back as 2020. While accusations, their complaint deserves reading and can be found here:

    As to the parade of horribles, of having Congress “Hire and fire college and university presidents? Dictate course curricula? Mandate qualifications for faculty? Approve promotion and tenure decisions? Set parameters of acceptable research and scholarship? Establish speech and conduct codes for students and faculty? Instruct college and university presidents on what public policies to favor and disfavor? Create a new federal agency to oversee higher education?”

    Congress already does all of that, and has done it for over 75 years!!!

    There already is a Federal agency to oversee higher education — actually several — within the US Department of Education. The more than somewhat controversial Catherine E. Lhamon is the Assistant Secretary for Civil Rights and head of ED’s Office of Civil Rights (OCR). It’s OCR that wants to mandate that colleges and universities use the “preponderance” standard to determine the guilt of male students accused of sexual improprieties. Here is a list of her top staff:

    There’s also an Office of Postsecondary Education and an office on Federal Student Aid: — along with smaller offices, such as ones for HBCUs, Tribal Colleges, etc.

    As to establishing speech codes for colleges and universities, ED actually tried that 30 years ago, going so far as to post regulations in the Code of Federal Regulations — and quickly rescinding them when the Republicans swept Congress in the 1994 elections. (They never really gave up, but that’s a longer story…)

    As to the larger parade of horribles, Congress already does that via the “recognized accreditors.” It’s the accreditor’s blind mandate for terminal degrees that forces accounting to be taught by someone with a PhD in Accounting, as opposed to the MBA with CPA experience who could do a much better job of it. The same mandate creates a shortage of nursing professors and hence nurses. It’s the whim of the recognized accreditor that’s already mandating all of the other stuff as well — Betsy DeVos attempted to introduce competition to accreditation — to create new and less ideological accreditors that were also recognized — but she failed.

    I realize that law schools are different — that they are instead accredited by the ABA and hence somehow exempted from the other stuff, but with the exception of Hillsdale and Grove City Colleges, Congress is already imposing such mandates….

    The students suing Harvard are, essentially, asking Harvard to enforce its own rules. That’s not an unreasonable request and to the extent it becomes burdensome, it’s long been said that the best way to get rid of a bad law is to enforce it.

    But I’d like to go further and extend the Hatch Act to higher education. To make it a violation of Federal law for anyone on a college or university payroll to be involved in or advocate for (or against) any political issue or candidate. To make Higher Education a political Switzerland, high ground which both sides can accept not having as long as the other side doesn’t either. The Left would be free to establish its own versions of Hillsdale & Grove City Colleges, refusing all federal monies, but otherwise no more politics.

    As to Florida’s New College, it was badly damaged by Hurricane Ian and some of that money is probably intended to address storm damage. And like alumni, legislators can send messages via annual allocations.

    But there is a larger issue regarding public universities — I’m using round numbers to keep the math simple, and presume all numbers are adjusted for inflation.

    State U has an annual budget of $3M, of which the state provides $2M — 2/3 of the budget.

    State U goes on a spending spree and the next year its annual budget is $6M, with the state still providing the same $2M (in inflation-adjusted dollars, so the real amount is probably $2.2 M, but it’s the purchasing power of the $2 M it allocated last year).

    The state is now only providing 1/3 of the university budget — even though it’s providing the same amount of money. This causes a great angst so the next year the legislature gives State U $3 M — 150% of what it had contributed the prior year.

    But State U’s budget is now up to $9 M, so the legislature is still only contributing 1/3 of it.

    More important: even though the legislature is now contributing the entire university budget of three years earlier, the portion of the budget it now contributes has dropped from 2/3 to 1/3. And this is because State U continues to spend like a drunken sailor. (When State U’s budget goes to 12 M the next year, the state will only be contributing 1/4th…)

    I’m compressing 40+ years of higher education spending at a rate that vastly exceeded inflation into just three years, and I’m using inflation-adjusted dollars to keep the math simple. State allocations do wax and wane over time in response to state revenues and economic conditions and I’m compressing all of that. I’m also ignoring the point that John Silbur used to make about the off-budget state contributions to State U, including state pensions and better bond rates.

    The affordability problem is the spending…

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