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In this episode, John and award-winning journalist Jamie Kalven explore the complexities surrounding the idea of institutional neutrality within universities and its implications for promoting intellectual freedom and robust argument. 

They delve into the Kalven Report of 1967 from the University of Chicago. This landmark report sought to balance the preservation of academic freedom with the responsibility to uphold the university's mission and values. The report's nuanced approach is examined in the context of Harry Kalven’s legacy, a key figure in First Amendment jurisprudence. They also analyze the report's implications for addressing contentious political issues within academia.

Additionally, they discuss the gray areas and exceptions within the Kalven Report, which are brought about by the proactive engagement of students seeking to understand and promote the principles of academic inquiry. Emphasizing the importance of contextual application and disciplined discourse, they examine the university as a space for dangerous thinking and mutual engagement, aiming to promote deeper understanding amidst diverse perspectives.

Episode Transcript

John Tomasi: Jamie Kalven, welcome to the show.

Jamie Kalven: Oh, it's a pleasure to be with you.

John Tomasi: It's nice to have you here. I emailed you out of the blue after reading some of your work on the Kalven Report on some other related issues. When I emailed you out of the blue, I hear you Googled around about me and discovered we have some unusual, unexpected connections. Do you want to say something about that?

Jamie Kalven: Yeah, to my, I, you know, I, who's this guy who emailed me? So I usually Google search and found in one of the biographical, you know, capsule biographies of you that you grew up in Underhill Center, Vermont.

John Tomasi: That's right. And I have a deep connection to Underhill Center. We have, you know, conveyed to people what a tiny dot on the map this is.

Jamie Kalven: It is. You know the population. I don't know it offhand, but, you know, a small little Vermont hamlet on the side of Mount Mansfield. And my wife is from the same small town. And for the last 40 odd years, we've spent summers there and Christmas and really raised our kids both on the south side of Chicago and in Underhill Center.

John Tomasi: Nice. On the south side of Mount Mansfield.

Jamie Kalven: And on the south side.

John Tomasi: And I grew up on Pleasant Valley Road and you were, and you were, you were, your family, your wife's name was up on Mountain Road, which was just, just around the corner from us. So, so you drove by my house many times.

Jamie Kalven: All those times. I run a loop. I run a loop when I'm there that takes me down Pleasant Valley Road.

John Tomasi: I know that. I run that loop too. And I'll just add one more thing, if I may, that as I understand, as best we can understand. Well, my, so my grandparents moved to that tiny town when my grandparents were young in 1942. And they bought an old farmhouse. The barn had burned, the barn had burned down. So it wasn't very valuable. And they bought a farmhouse with, I think, 300 acres. And as I understand, my wife, sorry, my mother babysat your wife.

Jamie Kalven: She did and her siblings.

John Tomasi: Yeah. So, so that's, so that's, so that's, so that's, so that's our background. Yeah. Yeah. I want to talk with you about, about your experience with your father. And I know that I mentioned that the Kalven report, this, extremely important report, this gem, a two page, masterwork. And I, I tell some of my friends that the Kalven report has this strange feature in the academic world, kind of a great rarity of being, simultaneously beautifully written, extremely important and brief.

Jamie Kalven: Yes, it's unusual in the academic world to find some of that. I should say, I should say of my father that he was a very good writer. He was not a brevity.

John Tomasi: So this was an unusual, and, and to listeners who have not read the Kalven report, we, which I just highly recommend. That you Google it and check it out. It's, it's really a, it's a masterwork. It'll be 30 minutes, the best spent 30 minutes of your day. If you, read that, maybe you could probably read it and read it in 15. Your father, that reports about 1967, your father passed away, quite suddenly, in, in 1979, I believe.

Jamie Kalven: 74.

John Tomasi: Oh, I'm sorry. 74. And he was, I think, 60 years old or barely 16.

Jamie Kalven: Right.

John Tomasi: he died at his desk, as I understand it, with a heart attack.

Jamie Kalven: He died at his desk. He actually had had health problems starting at 55. He had a, had a heart attack. A couple of years later, a stroke. And then died at 60. And the last five years of his life, he devoted, to a sustained effort to write a book that he conceived of at the beginning of his career. And that talked about for years. And he was very prolific writer, but writing kind of in response to events and law review articles and general magazines. And he had, in 1964, given lectures at Ohio State University, the, the title of which was the Negro and the First Amendment, use of the word Negro, obviously of that time. Yes. which was really kind of fascinating to this day. It's an interesting, book to, to read, examining the contribution of the civil rights movement to First Amendment law. and so he had been actively, actively engaged with First Amendment issues throughout his career and as his health failed, he finally put other engagements aside to write the book he'd always wanted to write, which he conceived of as a sort of intellectual history of the First Amendment at the level of the Supreme Court written, obviously for lawyers, but also with some thought to a general audience. and he was in the midst of that book when he, when he died, he was actually, as you say, at his desk. And, you know, I was early in my career as a, as a writer was very close to my father. you know, had read the, the manuscript up to that point, while he was alive, we talked about it and ultimately together with some of his colleagues, it was decided that, the best approach with this extraordinary manuscript, and I should describe it a little bit, you know, it was, I think, 1200 pages and it was literally a first draft. So if I, if I gave you, John, if I gave you a first draft and said, would you look at, you know, it would be a fifth or sixth draft. And when I described it as a first draft, I would be saying, it's still open to change. You know, I'm still working on it. In my dad's case, it was literally a first draft. And what he would do is he was a very fluent writer. He would write, you know, he would immerse himself in, in a particular body of first amendment law. He would write. And then each summer, he was an academic, so each summer when he was on vacation, he would take his manuscript with him, read through it and write marginalia, you know, write a set of marginal comments to himself and the marginalia, you know, extended from like an exclamation part, an exclamation mark next to something to full pages on the backside of a manuscript critiquing his own work. Nice. You know, after he died, there's this kind of masterwork, but in a very vulnerable condition, not completed with gaps, first draft, and somewhat exotically, I undertook, you know, with the support of various colleagues of my dad's who helped and were kind of editorial sounding boards, I undertook to finish it. And, you know, more than a decade later, it was published under the title of Worthy Tradition, Freedom of Speech in America. And I should mention, just for listeners who don't know, that Harry Kalven was one of the most important First Amendment jurisprudence of the last century, and was, you know, party to a lot of these extremely important breakthroughs that were being made in that century about what is the scope of this thing, the First Amendment? How wide is it? How narrow is it? What is it? Where are the exceptions? How do you fill it out? So it was remarkable. And as I remember, you were in your 20s, I think, or late 20s. I was in my mid-20s when I started and, you know, had published a little bit and was really sort of rehearsing a career as a journalist rather than fully established. And this became my apprenticeship. I mean, you know, completely foundational experience for me. I was very, very close to my father, and I think my sensibility, sense of language sort of formed in conversation with him from childhood on. But the uncanny thing about this project was that the conversation, I mean, I don't want to minimize the grief and the sense of loss and the disruption, but the conversation intensified after his death through the medium of this very taxing and, you know, utterly consuming project.

John Tomasi: I want to talk to you about the Kalven Report.

Jamie Kalven: Yeah.

John Tomasi: We can talk about the report itself. May I do that first just a little bit, and then we can talk about whether you found anything in the notes as you were working through them. So the Kalven Report, as you know, is this brief statement that stakes out a position on the question of what role universities should have in social and political action. And most of the weight of the report is to establish a heavy presumption against university presidents, for example, speaking out on controversial political issues on behalf of the university. And among the, you know, beautiful, famous lines from that report that your father was the chairperson of, is this line that the university is the home and sponsor of critics. It is not itself the critic. And that the university and this ideal is a truth-seeking organization directed at that mission of learning and teaching, but that the appropriate unit of the criticism or critic for the university is going to be the individual professors and all that students as well. Is that how, is that a rough, is that a reasonable explanation or summary of the report?

Jamie Kalven: I think that's a fair, I think that's a fair statement of the report. And presumption is the key word because there's also allowance for exceptions to this general principle, but the exceptions aren't spelled out. You know, so I can't remember the exact language. You may have it in front of you, but, you know, maybe worth quoting that.

John Tomasi: I'll read it, if I may, and I'll read, actually, well, I'll read two things, just at the very beginning of the report. So I should add that the Kalven report is being discussed so much now.

Jamie Kalven: Thank you.

John Tomasi: And there is kind of grown up around it, what I think of as almost a Kalven absolutism. Universities who sign on to this report or this ideal of neutrality as expressed in the report, there can be other, there can be other explications of institution and neutrality that are different than this report. Kalven's principle is basically the idea that university achieves neutrality by not speaking at all. Rival conceptions of neutrality might say the university can speak, but should do it in an even-handed way. That could also be a way to find neutrality. But this report emphasizes, the main weight of the report emphasizes the idea that universities should just, should not speak on these controversial topics so as to not crowd out the voices of dissenting professors and students who have different views. And a couple of lines I'll just read from the very beginning of the report, it says that the committee conceives its function principally of providing, quote, a point of departure for discussion in the university. At the very end, and it's framed at the very end of the report, we hear this, you know, this line that they've established a, quote, heavy presumption against the university taking collective action or making these kinds of statements. So it's reports framed with these, these very nuanced, short, powerful notices that this is an invitation to a conversation, the beginnings of a conversation. And now more substantively, the, the famous clause in the middle, I call it, I call it the Kalven clause. I'll read it aloud, if I may. So they've, they've established this ideal of the university as this, this place for this very special institution, for raucous conversations. It's not, it's not an act of cowardice for the university not to take stands, rather, it's an act of bravery. Because it's saying, the university, by being quiet, is, is making maximal space for the professors and students to, to speak their mind and their various, their various minds that they might have. And then we come across this Kalven clause, as I call it, I'll read it out loud. 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 to actively defend its interests and its values. It's not the clause, and I was saying, it's a heavy presumption about not speaking, but the clause says there may be times when the very mission of the university and its commitment to free inquiry and its interests and its values need to be defended. What do you make of that, of that clause?

Jamie Kalven: I think that's, I think that's key. So a couple of observations. One is, you know, every word in the report was written by my father. You know, it's his voice, it's his diction, it's his use of language. But the report came out of a committee process in which there were multiple tensions between committee members, you know, quite distinct, quite distinct viewpoints. One can imagine. Some of which track some of the current controversy about institutional neutrality. And so my dad was in the position of, it's something that he actually very much appreciated in, in sort of judicial craftsmanship. So, you know, we all can be stirred by a flaming dissent from a judge or, you know, a Supreme Court justice, which is the equivalent of writing a polemical essay, you know, in your own voice. But there is another form of what my dad called judicial statesmanship, where, you know, a judge is trying to build a majority in support of an important principle and has to accommodate contending views within the judges who will constitute that majority. And sometimes that produces internal contradiction and squishy language and, you know, bad writing in judicial decisions. I think this is an example where those tensions within this collegial group making a joint statement sort of forced the, both a level of abstraction, you know, it sort of forced them to a level of abstraction and to the, the kind of elegant formulations that you've, that you've noted. So, the idea that this is a presumption, it's not an absolute, it's not an absolutist stance. It's a strong presumption. There are exceptions that can be entertained to that, to that presumption. And, you know, in the law, principles are defined by their, the, the limits on their application. I mean, it's, it's, it's, you define the parameters of a principle, by where you don't apply it as well as where you apply it. So, you know, the, so, and, and I think that notion that it's a point of departure, inviting a conversation. And I think what my dad quite, and I think I, when I went back into his files with respect to the Kalven report, I found some language to this effect. There's a communication to other members of the committee saying, in effect, we, you know, we only have an opportunity to say something once. And we have a choice between strongly stating the, strongly stating the principle. And again, I can't remember the exact language, but the idea was, or trying to anticipate all the different forms that exceptions to the principle might take, like a lawyer writing a contract or something.

John Tomasi: I have, I have, I have that language. May I, may I read it?

Jamie Kalven: Yeah, please.

John Tomasi: And it's, I found it in this just really fascinating piece that you wrote in 2006, which I also want to highly recommend to our listeners. It's called unfinished business of the Kalven report. Again, it's called the unfinished business of the Kalven report by Jamie Kalven, November 28th, 2006. And I'm not interested in, I'm interested in, and how you came to write this piece. And I'll ask you about that in a moment, but I'll just, but just the, the passage you were just referring to you, you, you quote him something. A memo he wrote to the committee, and I'll just read it out loud. And it's track, it's tracking exactly what, what you just described. He's, your father wrote, quote, he wrote to the committee, quote, it seems to me, particularly after struggling with the drafting, that we have a, we have a tricky choice of where to spend our emphasis, elegant phrase, or 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, close quote. And you go on to say that he opted and suggested the committee that they spend it once. And that was the resolution, but I think it also is tied to something that you highlighted in your initial framing, which is this notion that the statement of the Kalven committee is a point of departure.

Jamie Kalven: It's not engraved in stone, it's not a tablet handed down, you know, it is a point of departure for what I think he foresaw. And I think his First Amendment, his writing about First Amendment jurisprudence is relevant here. I think he foresaw a kind of common law process unfolding from this point of departure, the statement of a principle that there would be an ongoing dialogue, that events would present new questions, that successive generations would grapple with those questions. And, and that there would be a body of reflection and experience that built over time. And if I have a criticism of the, and I have several, but of the way in which the Kalven report has been deployed at the University of Chicago, and I imagine elsewhere, is too often it's been used as a kind of shield against having that conversation. It's sort of been used to shut down the conversation, rather than an availability to really, to really engage. And, and I think that's a fair reading, in the context of my father's work generally, of where that language was, you know, pointing. And the, there's a relevant, I described before the marginalia and his First Amendment manuscript, there's a wonderful passage, you know, all of this is sort of handwritten and there's tight handwriting. And I think it's on the back side of a manuscript page. And he was a great admirer of Hugo Black, Justice Hugo Black, who, who, particularly at times in the post-war period and anti-communist era, when other justices were kind of losing their bearings. And with the anti-communist anxieties, Hugo Black was just a kind of North Star of clarity, but Black had a kind of absolute reading of the First Amendment, right? Congress shall make no law means Congress will make no law, period.

John Tomasi: Yes.

Jamie Kalven: And so what my dad's note says, you know, acknowledging Black's sort of gallantry and all there is to admire in his performance as a justice, he, you know, there's a passage kind of critiquing Black in that vein. And at the end, he writes, as for my own view, I think of the First Amendment as being almost an absolute. And the almost means you have to win the argument by sweat every time. I think that was the way he put it. And I think that's the critical thing that has often been missing from the way in which the Kalven Report has been, or at least been perceived as using, you know, students and others perceive administrations as using it. That almost is critical, because that means you're open and available to grapple with whatever the particular issue being presented is. It isn't dispositive, the question. The presumption remains. But I think there's been something kind of miseducating about the way in which the report has often been used just to slam the door on discourse rather than, you know, rather than demonstrably allowing for it.

John Tomasi: Well, I'm going to ask you, I'd like to ask you more about that. So that's, that's my reading of Kalven as well. And it's also my reading of some of the way it's being deployed, you might say. The report does say, as I mentioned, that this position that they're advocating is not happening, it's not out of cowardice or lack of commitment. It's rather a daring endeavor to allow this freedom of speech to happen. And yet there are all, there are these questions that almost absolutely where so much of the action was in the last century that your father was very involved in, you know, what does it mean? Free speech. But does that mean you can have fraudulent claims on commercial products? Well, that's speech. Does it mean you can incite violence, you know, in an immediate case? Well, that's speech. And so there's a lot of work that was done to figure out what does this mean? And by, by carving out the exceptions, if we're going to call them that, one has to reflect and understand more deeply the meaning and value of the core principle. And you say something in this, on this beautiful essay of yours, The Unfinished Business of the Kalven Report that I'm going to quote, and this is you and I'm not your father. You talk about that almost. And you say that the tradition of freedom of speech takes the form of arguing about the content of that tradition. And now you say, 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.

Jamie Kalven: Yeah.

John Tomasi: Which I think it's a really beautiful and I think accurate description of the exciting path of First Amendment jurisprudence, especially over the past, say, 60, 70 years. And I wonder about the Kalven Report. I wonder about it. I mentioned this to you in an email. I wonder if there's an analogy that with First Amendment law, due to the work of your father and many others of his generation, and it's ongoing, of course.

Jamie Kalven: Yeah.

John Tomasi: We developed, we're developing an ever more sophisticated understanding of what the First Amendment is by carving out some of those exceptions. I wonder, I'm just sort of playing with this idea. Yeah, I kind of feel that with institutional neutrality in the university setting, or similarly in our infancy, in our understanding of what those interesting exceptions sketched out in the report. Is it being able to drive a truck through? You know, what kind of truck, what one trucks? And what do you think of that?

Jamie Kalven: Is it, do you think that- Yeah, I think what's been missing, at least, you know, I should be clear, I'm not an academic. You know, I'm a writer. I'm out under the broad umbrella of the First Amendment. I'm engaged in First Amendment controversies of various sorts. That's my work. So I have an almost ethnographic relationship to academia. You know, I'm here a few blocks away from the University of Chicago campus. I work, you know, collaborate with academics. But I'm really coming at these things from another perspective and, you know, as a journalist. And my observation is, you know, compared to the rigor and richness of First Amendment jurisprudence at its best, that the principle of institutional neutrality has not been subjected to that kind of process. And maybe now there's an opportunity for that, because, you know, it's been such a mess post-October 7th for so many institutions. This feels like there might be space when the dust settles for a kind of a reset and a kind of reconsideration of some of these questions. And I don't think the answer is just to push forward the Kalven principle, you know, absent other kinds of interventions. And, you know, because I think part of what may have been alienating for some students about the way the Kalven report has been used by various institutions is it's not sufficient in itself. You know, it states a principle. But if institutions are really going to make good on a principle of a commitment to robust debate and really a commitment to dissent, you know, a commitment to creating the conditions for vigorous dissent, for vigorous disagreement, I think that requires more of the institution than just articulation of the principle. And so I'm wondering if we're now maybe, you know, as so many university presidents and administrations are kind of reeling from these last weeks. If there's now not an opening for a richer set of conversations within individual institutions and more broadly about precisely these questions. The other thing, John, that I would emphasize is, you know, as I said, I sort of swim in these broader First Amendment waters. I think that's what I do, you know, and I'm an investigative journalist. I, you know, I get subpoenaed for my notes in court.

John Tomasi: I know. I want to ask you about that, too.

Jamie Kalven: So, you know, so that's one, you know, that's one zone of the First Amendment. And, you know, and I expect to be a tax and I, you know, it's just, you know, it's a rugby scrub. The the I think part of what sometimes gets conflated in a problematic way is universities are a different space. You know, I mean, they have a deep and a profound relationship to the larger discourse of a democratic society. But there's an opportunity within universities to do something that, especially in this current climate and this era we're living in, is all but impossible to do in the broader public sphere, which is really asking what are what are the necessary conditions for people to fully inhabit their intellectual freedom? What are the necessary conditions for robust argument that doesn't devolve into people want to tear each other's heads off?

John Tomasi: Right.

Jamie Kalven: And there's always been that. I think the person I most associate among thinkers with that sort of distinction is Alexander Meiklejohn. I don't know if you're aware of Meiklejohn's work.

John Tomasi: Very well. Very well.

Jamie Kalven: Yeah. I think I was the president of Amherst and I think provost at Brown. But he, in the post-war period, became passionately and really bravely, courageously engaged with First Amendment issues.

John Tomasi: Yes.

Jamie Kalven: For Meiklejohn, the question was always, what are the requirements of self-governing, of being self-governing citizens?

John Tomasi: That's right.

Jamie Kalven: And so, you know, the broad principles were key to that, but also education was key to it. So, you know, and I think if we could get back to that sort of basic set of questions and thinking as a journalist, and I've promoted this idea with some folks at the University of Chicago, what would we learn if we did a really rigorous institutional audit? Asking people, you know, in a well-designed kind of inquiry about their lived experience within the university in terms of their freedom to think, to dissent, to, you know. I think, you know, there's a danger with First Amendment discourse and certainly with the Kalven, you know, the discourse around the Kalven report, to live wholly in a sort of abstract conceptual realm in how we debate and inquire and engage. And I think, especially post-October 7th, the possibility of really doing a rich kind of diagnostic inquiry, you know, how's it working for you? How's it working?

John Tomasi: I should mention at this point that at Heterodox Academy, we work on the cultural piece. We're interested, so we work closely with organizations like FIRE, which is an essentially legal organization that defends the rights of individuals or speech rights, the rights to due process on campuses and beyond now. HXA partners with them, not so much on the legal side, but rather we ask, well, once you have free speech protections at a university, what's the quality of conversation? How brave are they, and we run a big survey every year, a large national survey called the Campus Expression Survey, the CES, which examines these things. We find, you know, in the most recent report this year, one of our findings, a trend line we've been watching is that students often report that they self-censor, not because they're concerned about the ideology of their professor. They self-censor because they're concerned about their fellow students.

Jamie Kalven: Yeah.

John Tomasi: In particular, what they're going to say on social media, they float an idea in class just to try it out, and they're worried about being quoted. I want to go.

Jamie Kalven: I do think that that line of inquiry, especially now, would really elevate the discourse about the Kalven Report and that constellation of questions. You know, and I've done some report, I did some reporting years ago where that involved some issues around the University of Chicago closing down access to the emergency room. And, you know, there were, you know, an urban university situated on a largely Black South Side. And there were ER doctors who were more frightened to speak to me as sources than whistleblowing cops I've reported on and, you know, wrongfully convicted individuals caught up in the criminal. You know, and I think we can't look past that, you know, both the peer culture that people fear and not just students, I think faculty increasingly, you know, and the more institutional dynamic. If your department head is taking a strong position on this, that, or the other, and you're, you know, junior faculty.

John Tomasi: Right.

Jamie Kalven: Does that inhibit you?

John Tomasi: That's right. And there's also a lot of attention now that we're now really working on to think about what are the academic freedom rights of students? Can students stay out? If they do, are they vulnerable for being doxxed? How does that, how, what's that realm of protections there? I want to ask you just up again, stay on the Kalven reports, just a little bit more. You know, when the attacks happened on October 7th, one of the striking, one of the things we observed that was most striking was that there was a lack of statements made by college presidents in the immediate aftermath. The Chronicle of Higher Education wrote a piece on October 10th and their informal survey, they can only identify 14 university presidents that have made statements on the topic and the context in which university presidents have been making statements on every imaginable at an ever increasing rate, you know, in recent years. And that now is taking a big kind of speech by itself. And, you know, some people that started thinking about some of these university presidents, well, maybe they should take a principled position and not. Now, the timing is, and the transition is a difficult question. What's the right moment to make that decision? I'm not sure that was the right time to do that because it looked like it was the Kalven report of convenience. It was Kalvenizing for convenience, but there was a sense, I think, I know on some university campuses and some administrations that, you know, the Kalven is the cavalry. It'll come over the hill and say, oh, good, here's our way out of this. We don't need to speak anymore. And I think there's something important about that. And I'm grateful that universities are now actually thinking seriously about this report and about the principles within it. But I want to ask you a little bit more about what those exceptions might be. And I was going to give you, I'll just share, I'll share some with you that you may, you may find interesting. I was, I did a podcast, HXA sponsored a, well, we, I've been involved in two podcasts in the last week. One was co-sponsored between HXA and FIRE to talk about the Kalven report and the idea of institutional neutrality. And then HXA sponsored one just last week with, that I hosted. It was with Nadine Strossen, former head of the ACLU, and Keith Whittington, a really distinguished professor at Princeton. Keith and I actually have a, I've been working on an edited volume on the Kalven report. And you may enjoy, you may enjoy this because when Keith and I decided to put together this volume of critical essays on the Kalven report, we decided this last winter, I think, we actually had to kind of, had kind of a hard time getting people to agree to, to, to write chapters for us. And we also shopped the, we also shopped our book idea to a variety of presses, including one press that's very close to you. And at the time, I'm not naming names, I'm just saying, we, we, we, we found a press that we're, we're very happy with, but it was kind of interesting to find, well, this, this is not a hot topic. But now, of course, it's on everyone's mind, but in, just going back to that clause, then I think Kalven clause, the bit that says, there may be, there may be instances will arise under times of crisis, when it has an obligation to speak, to defend its interests and its values. On that, on that call I had just recently with Nadine Strossen and with Keith Whittington, I asked them a couple of test cases. So they both endorsed the Kalven report in a strong version and the, and the fire people also endorsed a very strong, what I view as a very strong reading of the rigid, the rigidity and the strong strength of that neutrality principle and the non-speak principle. And I said, well, what about, for example, a recent Supreme Court case that says that the, which decided that universities may not engage in affirmative action and admissions. And I asked both Nadine and Keith, do you think the Kalven clause would kick in in that instance? Is that the kind of thing that the university president should speak out about? And they both said, it's not. They both said, no, Kalven would say, let that be out there for the, for the students and professors to talk about. And the university should take no stand on that. And I pressed a bit more. I said, well, what about, what about administration which starts taxing endowments? Is that the kind of thing they should speak out about? Or what about an administration which puts a ban across people coming from, say, Muslim countries, students and faculty too? Or as you now see in the House, there's a bill that's been talked about, a ban perhaps on Gazans coming to the U.S. Those all seem to affect the essential functioning of the mission. I didn't ask them about all those questions, my colleague, but my sense was that a lot of people would say, well, Kalven says we don't get involved in that. What do you, what's your take on that?

Jamie Kalven: So I actually, I think that the latter example is, is particularly striking because here at the University of Chicago, one instance of the former president, Robert Zimmer, taking a public position was in response to restrictions on immigration that would affect the students' ability to access. I remember, I remember, that seems to be very plausible, you know, as an exception. I mean, there you have something that is directly affecting the functioning, you know, the core functions of the university. And, and also something on which there's real competence to speak as a university president. I mean, I think the, you know, I think you said something earlier that suggested this. I think, you know, people now have spoken out on so many things and particularly in the post-George Floyd era, you know, you get this kind of performative, almost branding operation that is completely unedifying. And I, and I think it's rendered. There's something corporate about some of the statements. Yeah, it's, you know, it's like corporations giving, you know, millions of dollars to Black Lives Matter, but not changing any of their underlying practices. And, and I think the vulnerability of any number of university presidents in this moment, you know, to now invoke the Kalven Report as a shield is just not credible when you're pronouncing on all these other things. And I think, you know, I think one of the things I wanted to come back to is I'm troubled, I find myself troubled by the term neutrality, which I think is part of how students and others who are kind of disposed to misread. And they, they, they, they underline values and play. It's just, you know, it just seems morally intolerable to be neutral as to what's happening in the Middle East right now.

John Tomasi: Right. That's right.

Jamie Kalven: To me, it seems to me, it seems to me there can be moral dignity in being silent about it. And especially when the silence is generative, when the silence is allowing for other voices and for other processes to fill the, the public sphere or the academic sphere. And, but I think the other advantage of silence is it lends gravity to your speech when you do speak.

John Tomasi: That's right. That's right.

Jamie Kalven: So I think, I think Zimmer in a certain sense got it right. You know, that, that was a, you know, you could argue it both ways, but there was certainly a plausible exception to the Kalven report.

John Tomasi: Right.

Jamie Kalven: And it, it resonated because of silence on any number of other issues that the president was invited to speak on. There was another, there was another instance, I don't know the details well, but I know the outline at least, again, at Chicago, while Zimmer was president of a department, I believe it was the English department, making it in the wake of George Floyd, making the decision to, again, as I recall, to only admit graduate students for the next year or two who worked on issues of race in America. So they made a decision and some people, some critics, so wait a minute, this is a violation of neutrality. They're now taking a position as a unit within the university. And Zimmer actually came down in favor of the department's ability, right to make autonomy, to make that kind of a decision. They said, this is a decision units make. They may get it right. They may get it wrong. But we empower them to make these decisions themselves, not endorsing their decision or criticizing, just saying that's, that's the bet they're making. But, but it was, again, one of these kind of moments where Kalven didn't just answer all the questions.

John Tomasi: It required, and there's another term you used before, I want to bring it, bring it back around to the Kalven principle I'm reading. I just read a really fascinating draft of an essay by Robert Post, a very distinguished law professor at Yale. It's a draft of an essay writing for the volume that Keith Whittington and I are working on. And one of the things he talks about is he worries a bit that the Kalven principle taken strictly, do not speak, it obviates or it anticipates and makes, it disables an ideal of, a certain idea of statesmanship.

Jamie Kalven: Yeah.

John Tomasi: A part of university presidents. Now, cynics will say, we don't want statesmanship from university presidents. Thank you. We've had enough other attempts to do that in the corporate way. But I think the idea there is that there should be some space, I think, in a principle to be principled, to express the educational content of this ideal as an important piece of act of bravery, while also allowing the space for something like presidential statesmanship.

Jamie Kalven: Yeah, I think it was a different, I like the term statesmanship, but I would really use something, a term more fundamental, which is judgment. So, you know, one of the things I found fascinating as a non-lawyer about my immersion in constitutional law, working on my dad's book, was sort of the question of what makes a good judge? You know, what makes a great judge? And there are many ways to go at that question or answer it. But one of the things that struck me was that the life of the society will continuously generate new and difficult, new and difficult issues. And what you ideally want are judges who are immersed in and have absorbed and, you know, the collective experience with related issues and with all the competing values in play. And it's not that they have a recipe or that they have an a priori answer. It's that that body of experience informs their judgment.

John Tomasi: Yes, yes.

Jamie Kalven: And I think that in a curious way is what I mean, if you were going to be harsh, you would say is missing from the interpretation over time and the development of the Kalven report. If you were being generous, you would say is sort of embryonic at the stage and can still happen. That's what I think. But, yeah, I mean, I think that and I think especially if there's a kind of we're at a kind of watershed moment with respect to these issues in light of what's been happening in recent weeks. I think one thing that would be interesting, just like our exchange of a few minutes ago, talking about particular instances of exceptions or your hypotheticals, would be actually to go back and look at the body of experience at the University of Chicago and elsewhere. They, you know, there have been a number of occasions when students, faculty, some combination have pressed the university to take an institutional position. There have been a handful of instances where they have. There are circumstances elsewhere, you know, and other institutions. And I think it just would be very instructive to kind of gather that almost like, you know, a casebook. It would be fascinating. And then begin to make some, you know, is there real, at Chicago and elsewhere, if you really look at this cumulative body of experience, is there a coherent kind of common law? A thread that runs through it? Right. Or is it more transactional and maybe not so satisfying intellectually? And if that's the case, can we almost retroactively discern, you know, a more refined set of guidelines? I think it's a fascinating exercise at this point.

John Tomasi: And I'll also just mention that in this essay of yours, which again, I just think so much of the unfinished business of the Kalven Report, you describe that you're getting your involvement as because you were approached by some students at Chicago who were concerned to see whether, I think it was a divestment in Sudan, right? Right. It was a Darfur situation. And you just described how you saw the students, you charitably, I think, I'm going to assume accurately, the students who approached you, as I recall, and they asked, could they look at your father's papers in the library? Because as I understood it, you said, they were like, they were seeking to meet that burden. They were accepting, okay, there's this burden. And now we're going to see whether we can meet it, which is playing within the rules of Kalven. And yet also thinking, well, let's take the exception seriously and see whether this is such an instance.

Jamie Kalven: And they were, I mean, they were so serious and really rigorous and rhetorically, you know, very effective. So it was really the students who moved me to go dig into my father's papers again and, you know, occasion that essay you referred to. And I think, you know, again, I don't know, you know, I think they got close at the level of the board of trustees. There was real discussion. I don't know what the right answer was, but it felt like the right process. You know, it felt like the right process.

John Tomasi: That's nice. Something you might also, just an experience I had recently, you may find interesting. You know, I wondered whether Kalven applies equally at every university or does the context matter? So in that clause that I mentioned, they talk about actively defend its interests and its values. But different universities had different kinds of values. A whole variety. I was giving a talk two weeks ago in Madrid for a large group of academics, our European HXA members. And I was talking about the Kalven Principle and the Kalven Report. And I was, you know, describing it with considerable enthusiasm. And one of the questions I got from the audience was from a priest who runs a university in Rome. And he said, well, does this mean that Catholic universities should not speak out on matters that are essential to the faith? Does Kalven not allow that? Do you have a thought about that?

Jamie Kalven: No, it's interesting. I think, you know, once you, when you said it, I was thinking of just the variety of, of the plurality of universities. And so again, I think every effort should be taken to engage with the principle without rigid application of the principle. You know, and it just feels to me at this point, like there's an opportunity for within institutions and maybe in a kind of broader discourse, like your academy, you know, promotes. And for kind of, kind of going back to that point of departure that my dad plotted and the initial utterance and renewing the conversation, you know, renewing the conversation, paying some attention to empirical realities and differences within different institutions and maybe within different departments. I mean, they're, they're, they're, I think that, you know, one of the things that distinguished my father's, first amendment, scholarship was just attention to the particularity of first amendment issues, as opposed to looking for a grand unitary theory. Interesting. That you could bring, you know, that you could bring, you know, and again, a way of being intelligent, a way of exercising judgment, not coming with an a priori template for, for how you manage things.

John Tomasi: Yeah, it's, that it's fascinating. I think that was like an important value here.

Jamie Kalven: And I think the other thing that is important to be mindful of, and I'm, you know, I have, I have a small organization and my colleagues are all, you know, incomprehensibly younger than I am. some of the products of the university of Chicago. And these are some of the most intelligent, morally sensitive young people. I know, they are almost all, except for their, you know, affection for me and regard for me. They are almost all alienated from the first amendment. They see the first amendment and by extension, the Kalven report as tools of the power structure.

John Tomasi: I was going to ask you about that.

Jamie Kalven: And they have reason to, I mean, I think they have, they have reason to, in terms of various, trends and, and society. and I think that is a really critical factor on campuses that should be taken into account. And I think, that those advocating for institutional neutrality for the Kalven report for, for this constellation of values should also acknowledge some degree of failure.

John Tomasi: Right.

Jamie Kalven: And, and, and, and having students of, of great moral seriousness be as, as reflexively alienated and distrustful of these, what we regard as core values.

John Tomasi: They were tools of power.

Jamie Kalven: And obviously they can be tools of power. And obviously they can be tools of power, but they can also, you know, empower the disenfranchised, empower the, folks at the margins. And so how to kind of address that matters a lot. And again, if there's an opening coming to renew some of these conversations, I think it's important to be mindful that if this is a tradition, you know, and, and the key, you know, I gave you the title of my dad's book, A Worthy Tradition. Really central, I titled it, but based on language I found in his papers, the really central animating idea in the book is that the first amendment in American life is really a tradition that transcends, positive law. You know, you know, that's really been hugely important to, to me and my career. So I don't, you know, I am guided by an understanding of the first amendment as a practitioner, you know, as a kind of frontline journalist, I don't regard the parameters of first amendment as being defined by the latest decision of the Roberts court. You know, for me, you know, you know, all of that informs my, my sense of, of the first amendment, you know, and you, in your opening description of your academy, you know, you were talking about the responsibilities of successive generations. And I think, I think we have to acknowledge some really serious degree of breakdown in the transmission of these values across generations now.

John Tomasi: Clearly, clearly. And it was in the 1960s when Marcuse wrote his essay against toleration, repressive, repressive tolerance, which is a classic essay saying that these ideals of neutrality are masks for power and they reproduce what came before them, which has been a really, just on the intellectual level, a really powerful challenge, and thinking that in my, in my own view, calls on us, those of us who love our universities to be ready to stand ready, not just to repeat John Stuart Mill and give them John Stuart Mill's book again and again, but it's not going to, I used to, I used to assign it to Brown and they say, well, you know, we're kind of tired of hearing John Stuart Mill from you. Can we hear something new? And, and, and, and that's what they mean then as sir, I think, and just the way you said, you know, some people are not serious, but many of the students who would say those things are really, they're wanting to hear why the first amendment matters. They wanted to hear why institutional neutrality might, might matter. there's so much more I want to talk with you about regarding Kalven. there, you, you, I've, I've been following it minutely as you can probably guess. And several of the universe, a number of universities in the past week or two have made statements in favor of the neutrality ideal. Most, most notably Northwestern, where they took on, I think they explicitly said, this is a Kalven generated, set of ideas. Then another one striking was at Williams and the president of Williams, Maud Mandel. She said in her statement to the community that I've made lots of statements on lots of topics. You all know that, but my thinking's evolved. She said, an evolution to me suggestive, you know, a growth and a progress. Now evolution could, I'm going to keep on evolving, you know, a month from now. I'll go back to my whole life, but evolution suggests something like, you know, I, I did that now I'm learning. And then another, another striking example that a lot of us are talking about at Stanford, where Stanford came out for early for neutrality, but then released a statement condemning the attacks, a few days later. And is that a contradiction? I'm not actually sure that it is a contradiction, but it's a lot of people sort of think of it that way. So there's, there's much more to be said about Kalven. But it's, it's kind of wonderful to see it on the agenda, the way it is.

Jamie Kalven: you know, I think, I think that the, it, it's been exciting for me and sort of fascinating, you know, pulled into the conversation. I, I think that the challenge now is, and maybe your organization has a key role to play in this, is maybe to be somewhat less prescriptive and more, kind of thinking strategically about what processes would look like within universities to build, understanding within the community. And, you know, and, you know, and, you know, and I think that's the key thing I don't, given the degree of student alienation, given how reflexive and polarized so much discourse is, you know, for, for other reasons. I think there has to be, maybe the best way to put it is to go back to what I said a moment ago. What if there were a way of inviting people to go back to my father's point of departure?

John Tomasi: Right.

Jamie Kalven: You know, to sort of acknowledge that this has been a, I don't want to use too strong language, but, a sharply instructive period of these last, this last month. and sometimes messes, you know, sometimes messes and the collapse of a paradigm is a really creative space. Yes. And I, but I think the question is how to inhabit and activate that space and not just leave the wreckage and people even deeper in their entrenched positions.

John Tomasi: Nice.

Jamie Kalven: That's a process question. It's not simply asserting the principle.

John Tomasi: And you'll, you'll, I think you might be glad to know that there are a number of our, we have groups of professors all around the country. And some of those groups are actively working on this now, often with their administrations thinking, well, how can we craft a set of principles based on neutrality, based on Kalven? That is nonetheless, correct for that university and that, and this time and to provide some spaces for statesmanship while also really trying to be true to that ideal that the university is this sort of daring experiment of, of allowing diversity of thought and not crowding it out and not, not having those endless statements that assume that everyone thinks the same way. I've spent, we've spent more time on Kalven than I intend to spend less time on another really important topic that I just really want to talk with you about and share with our listeners, just about your experience as a journalist. You know, one of the many lines that I've, of yours that I've read late, that I really enjoyed in the last week preparing for this conversation, a line you say, I'll quote you. I can't remember where I found this, but I just wrote down on a piece of paper because I liked it so much. You said, I believe ultimately in defending the first amendment by practicing it.

Jamie Kalven: Yeah.

John Tomasi: And I want to ask you about that. So you, you, you had this experience as a young man, you know, father tragically dying and picking up his, his manuscript and a remarkable, I read Owen Fiss's review and then in the New York times, describing it as a, an act of heroism of a certain, a certain type of really beautiful, beautiful, a P into you and what you, you had done. As, as a young man, for your father and for the country to do that, to, to finish that book. you had a difficult experience with your, your wife had an extremely difficult experience that I think around that time sort of turned, turned your attention. Would you share something about that? Would you?

Jamie Kalven: Sure. So my wife, Patricia Evans, a wonderful documentary photographer and we collaborate, you know, I have collaborated over the years. you know, really soon after the publication of my father's book, was out running on the lakefront in Chicago training for a marathon in the middle of the afternoon, beautiful September day. and was brutally attacked, and could easily have been killed. It was a sexual assault that she was ultimately able to escape, but was really brutalized in the course of it. And it happened at a point, we emerged from the book, we had two small children deeply invested in our community on the south side of Chicago. And I have to say in this, that I was really guided by my wife. And this relates to our point of departure in talking about Underhill, Vermont. Certainly her family and friends in Vermont saying, well, why don't you just move back? Move away from this harm and this kind of threat. And as I say, we were mature. We weren't kids when this happened. And her sense was that the real injury, and she, as I say, as a documentary photographer, traveled all over the world, has been in, we've been in the middle of essentially race riots together reporting on them. She's done incredibly sort of courageous work as a photographer, traveling alone in the world. And her sense was that she had, by way of something done to her physically, to her body, she had been robbed of her ability to be in the world and move through the world. It was the theft of her freedom in the world that was the injury. And we talked a great deal about it. And ultimately, it wasn't my idea. Actually, it was an editor in New York who knew us during those years, who actually had been the editor of my father's book, who had been watching us go through this process over a couple of years. That suggested, well, why don't you consider writing a book about it? And so I, you know, the book really is, grows out. I mean, I'm the author and it's my voice, but it grows out of ongoing conversations over a period of years with my wife. So the book is Remind me of the name of the book. The book is titled Working With Available Light. That's right. You know, which has multiple levels of meaning. And it's the kind of photographer she is, but also is meant to acknowledge my, at best, partial knowledge of her experience, the person closest in the world to her, but still not to presume more than partial knowledge. And, but in the context of, of, you know, working on the book, a major theme for us became, where did this happen? I mean, we knew the precise place on the lakefront where it happened, but what, what world did this happen in? And, you know, the book explores that, but it also was, you know, sort of propulsive for the kind of work we both do. And so, you know, I, I didn't mention this before, but both of us, you know, led very adventurous lives before we met. And now, you know, I've mountaineered all over the world, beyond Mount Mansfield, beyond Mount Mansfield, or 4,000 feet of it, but I've climbed everywhere, you know, and I, I, a friend and I drove a motorcycle from Paris to New Delhi when we were in college and lived in the foothills of the Himalayas for a year and a half. My wife similarly traveled, you know, all over, often alone. And what, what happened is that that energy, once I was released for my father's book and, you know, with our, our focus and sense of occasion, I think, sharpened by the violence that entered our lives, I undertook and, and Patsy, you know, very energetically joined me in bringing that same kind of energy to exploring my native place. And my native place isn't Underhill, that's the South side of Chicago. And, you know, is that when you, that when you founded the Invisible Institute? No, the, you know, it, I, what happened is over a period of years, I was involved in various initiatives around the South side and I became increasingly involved in high rise public housing in Chicago. So in those years, we're talking the nineties, Chicago, you know, close to where we live had the biggest concentration of public housing and the biggest concentration of poverty in the country, a kind of Soweto like city within the city that was visible everywhere and these high rises, but nobody ever went there. And there was all sorts of folklore about these places. And, you know, I became more and more involved in that world first as an organizer, you know, developing employment programs, working with the resident leadership and, and then reporting out of that environment. And so, you know, that really was that experience over more than a decade until the buildings all were demolished and the, the, residents forced to relocate is kind of the, the, the foundation of the reporting I've done. I've done since, and we, in about 2000, we began to report from high rise public housing. And that was a period when, you know, you could publish online and get into anybody's email box. So there was, you know, there weren't the spam filters and all the, and so we were doing reporting. My wife's a great photographer. We had a good graphic person, you know, I'm a mature reporter. So we were doing reporting from a vacant unit and a public housing high rise with the, with the drug dealing marketplace right outside the door. If you'd come to visit me there, you'd, you know, somebody dealing, you'd say, where's Jamie? And he would be, he would direct you to me. Right. and so we started publishing something called the view from the ground. The idea being that, you know, that we're sort of recruiting reality on behalf of the residents, attacking the disconnect between public discourse and observable reality. Fascinating. When we started publishing, I, as a kind of a, you'll forgive me, but a mild sneer towards academia and, and obviously I said that this insurgent thing was being published under the auspices of the Invisible Institute. It was a vice. And the name just sort of followed us around. And ultimately many years, many years later in 2014, we won a big lawsuit in which I was the plaintiff that resulted in. This is Kalven v. City of Chicago. Yeah. Which resulted in, in, a ruling, which has been very impactful that police disciplinary records are public information in Illinois. So citizen complaints against the police and the investigations that are undertaken along to the public in Illinois, which is, you know, and there are very few jurisdictions with that level of, of transparency. Once we had broken down official secrecy and had access to this body of information, we actually, you know, it's against my nature. I really prefer the kind of loose open conspiracy way of operating. We need to create a real organization to be worthy of that moment. And the name was inevitably the Invisible Institute.

John Tomasi: Lovely. It's lovely. yeah, I read about that case long before I know I'd be having this conversation with you. So it was kind of fun to come around and to hear about that. I want to close with something. I, I'd love to talk with you for hours and maybe we'll meet in Underhill and have a cup of tea. But I, but I want to close with something else that I have yours that I read. it's an op-ed. I haven't seen the title on it. It's about libraries. I'm sorry. So it's about, it's about bookstores. And it's this lovely piece you wrote. I can't answer the title here. It was published in the Chicago Tribune, December 27th, 2022. And it's an account of what bookstores are like. And you may remember some of the things you say, you talk about how you just, you capture the, the, the civic importance of a bookstore in a way that I found really striking. You say that you wander among the, among wander amidst the endless possibilities of the books. Shells containing books written just for you, books that are portals to take into a deeper world, books with the power to change your life, books that, as you say, deepen the quality of your attention. And then you say this, and as a heterodox note that I was just struck by, so I'll read the whole paragraph. Again, you know, you're describing, you're describing the experience of the waning, perhaps experience of walking around a bookstore and spending time there among, among the books. And you say, I'll quote you, there were no guardrails in a good bookstore, no trigger warnings, just as there are titles within reach that would enrich your life. There are others that would appall you. A bookstore is in that sense of violent place. You can see with the books on its shelves as engaged in civilized conversation with another, with one another is half truth, half delusion. War, war, not conversation, is the mode of interaction between many books. Yet the place that houses these contending visions and impassioned quarrels represents the possibilities of understanding and conciliation. And then you close by saying it encompasses our divisions and holds the promise that we may yet recover the democratic knack for arguing constructively with one another, close quote. Do you want to say anything more about that?

Jamie Kalven: Yeah, it actually, I so appreciate you, you know, excavating that. I think it relates deeply to what we're talking about with respect to what universities are. And, you know, this language, I think when I said no guardrails, I was implicitly referencing Hannah Arendt, who says somewhere, one of her titles is without banisters.

John Tomasi: Yeah. You know, the idea being that thinking is actually dangerous.

Jamie Kalven: Yeah. Thinking is a dangerous activity. If we're seriously engaging The serious questions that bear on the human condition and the human prospect, This is, you know, this is dangerous stuff. And, and universities at their best are uniquely places dedicated to that essential and dangerous practice, you know, of thinking and of the sort of discourse with One another that enlarges our thinking. Nice, nice. You know, it's in debate with one another that we enlarge our thinking. And, and I think, you know, I, I really do appreciate you landing on that passage. You know, what's always struck me is the husbandry and management and stewardship of the sort of underlying energies that can issue as violence, you know, and the discipline and the care and the mutuality of real argument and real engagement is, you know, it's kind of like, it's kind of like the binding of the atom. You know, the, the atom becomes unbound and this immense destructive force is, is released. And I think we're actually experiencing some implosion of that nature right now on campuses where people are, you know, where discourse, vigorous argument is being replaced by lobbying, coercion, threatens, threats of violence, fear of violence.

John Tomasi: That's right.

Jamie Kalven: Well, and I think there's, there's, I was grabbing, I was groping for it in that passage. There's some way of sort of dignifying the, the academic enterprise in recognizing that we're working with radioactive materials, so to speak, working with things that people kill each other over.

John Tomasi: That's right.

Jamie Kalven: And the, the, the discipline and the, the covenant with one another is to do that in such a way that we aren't engulfed by violence. And right now, you know, we're getting some sense of what that looks like.

John Tomasi: That's right. And I'll, I'll, I just need to add that your metaphor of the atomic dangers, it's energy. It's energy, right. It could be used to build.

Jamie Kalven: Completely.

John Tomasi: let me just, let me just thank you for, for this conversation, for taking time to, to come on on the show to talk with me and my listeners about this. you know, we're, we're, we're thinking about the Kalven report a lot. And I minded reminded again of the expression you did from the bookstore piece about it about deepening the quality of one's intent, but the deepening the quality of one's attention. And I hope that this conversation with you will have the same effect on my, on our listeners as it's having having on me, which I think it's helping deepen the quality of my attention on the Kalven report, not just to see it as a inherited doctrine that some people at Chicago wrote back in the glory days, but rather to see it as a report that invites us to deepen the quality of our attention to what it might mean to make space on a university while being a leader, but also making space for multiple voices, even when the, when the, when the stakes are high and the feelings are radioactive. So, Jamie Kalven, thank you so much.

Jamie Kalven: Oh, it's been my pleasure.

John Tomasi: It's been a great pleasure. Thank you.