José Cabranes: The Present Danger at our Leading Universities: What is to be Done?

Thank you, dear friends. I'm honored by your presence and grateful to Dr. Pauliakoff and his colleagues for the great work that they do to make American liberal education truly liberal and truly an expression of the best of the Western tradition. It is especially gratifying to be in the presence tonight of several of my heroes in the academic and public life of our country, Judge Mucasey, Judge Winter, Professor Kagan, and President Schmidt. I have observed each of them at close hand, and I know that each is an exemplar of rectitude in the face of dishonest challenges. To each of these personal heroes, my thanks for the honor of your friendship and for providing an example of courage in difficult places and difficult times. Now, I am a mere lawyer. I cannot offer you theory of philosophical insights, but as Holmes famously observed, the life of the law has not been logic. It has been an experience. So I offer some comments tonight based on decades of observation of major private universities to which we have entrusted the future of our civilization. I had long believed and often argued that true power in a university lies and should lie with its tenured faculty. My job as general counsel and under the benevolent leadership of Beno Schmid as a trustee of Yale and of other places for my sins was to protect the faculty as the continuing embodiment of the university. Over the last decade, however, a shift has occurred in university governance, which I think is largely well understood by all of you. Increasingly, policy is dictated by two new groups. One is a burgeoning non-faculty bureaucracy, including professionals allegedly endowed with the expertise to adjudicate interpersonal conduct. The other group consists of a growing number of full-time students who favor activism or education. Today, these groups, rather than the faculty, are driving some of the most dangerous developments in university life. These developments of which we are all aware include the following. The ascension of narrow ideological fields of study usually at the expense of the study of the great events and ideas of world history. An erosion of the due process rights of faculty and students, the rise of a pedagogy of grievance and denigration of America in place of appreciation for America, warts and all. Trigger warnings and ever more dangerous efforts to regulate the permissible limits of classroom discussion unwelcome ideas can then this hate speech. The confluence of these challenges and the rise of the groups that have promoted them is no accident. They are, I think, symptomatic of a single malady, a deep confusion about the university's purpose. Once we recognize that confusion, we can try to counteract its effects. Tonight, I'd like to offer a diagnosis and also suggest some pragmatic remedies within the reach of concerned alumni and trustees. The dual trends I have identified, a burgeoning non-faculty bureaucracy coupled with the recent surge of a new student activism, these reflect the powerful symbiosis. Ever-needy student activists assert demands that require expansion of the bureaucracy. In turn, this new bureaucracy encourages and facilitates the student agitation. Rinse and repeat. There is a profound historical irony embedded in this cycle. Previous generations of student activists demanded freedom from curricular requirements and parietal restraints. The current era of student activists, however, agitate for increased adult supervision. And so they demand, and yes, it is always in the form of a demand, new student life coordinators, more equity officers, more diversity deans, and more sexual climate professionals. Especially in elite institutions flush with cash. University leaders are all too happy to yield to students demands. After all, the creation of new offices and titles provides the simplest way to respond to constituent unrest. Is there a racial controversy on campus? Create still another diversity and inclusion committee or initiative. Our students protesting perceive failures in the sexual climate of the university. Expand the functions and the size of the Title IX office. Once embedded within the university, these insurgent bureaucrats return the favor to the students who invited them in. Through influence over academic evaluations and disciplinary processes, they shield student activists from the consequences of their own actions. Through anonymous leaks to student journalists who imagine themselves the new Woodward or Bernstein, they maintain controversy at a boil. And through influence over admissions decisions and a barrage of ever growing orientation programs, the insurgent non-faculty bureaucrats ensure a pipeline of new activists. Sometimes the new bureaucrats even promote activist causes directly. Consider, for instance, the astonishing jury verdict recently returned against a well-known Midwestan college and its vice president and dean of student life. This administrator was formerly the college's, I quote, special assistant to the president for diversity, equity and inclusion and total Title IX coordinator. She was found to have been directly involved in a student effort to liable and injure a local bakery on fabricated charges of racism. Seeking to escape liability, the college insisted that student activists acted without the college's imprimatur upon hearing the evidence the jury disagreed. It delivered a verdict of more than $40 million. Now how do we get here? How do this new alliance of student activists and allied functionaries supplant the faculty? The answer reflects a far-reaching intellectual confusion. Today too many are either unwilling or unable to maintain a distinction that lies at the core of the liberal democratic project and at the core of the intellectual traditions of the West. I refer to the distinction between inquiry and action, between speech and conduct. Our first amendment of course is built on that very distinction. Long before our Constitution, Socrates stood before the people of Athens and swore that he would never cease from the practice in teaching of philosophy, but he also disclaimed any involvement in politics and in the struggle for power. At one time, not so long ago, it was obvious that universities were the embodiment of Socrates' distinction, that they would dedicated to reflection, not political action. We understood or thought we understood that their purpose was to teach students in methods and habits of free inquiry, in deliberation, assessment of evidence, and the expansion of knowledge. It was also clear, we thought, what universities were not. Universities did not exist to implement the conclusions of our social cultural moral or economic debates. Maintaining that distinction between inquiry and action has always been crucial to academic freedom. It is difficult, after all, to obtain the truth while you're being bludgeoned into submission. In our time, it is the totalitarian who rejects this distinction, who insists that a society may regulate opinion as it regulates action, that society may control minds as it controls bodies. And today, the idea that some speeches violence, the very conflation of inquiry and action, is no longer merely an obscure and obscurantist academic slogan. Today, that idea threatens the entire project of higher education. Consider, for instance, the rather remarkable recent change in Yale University's so-called mission statement. Before 1916, the statement asserted, and I think it's an important, simple quotation, Yale has a tripartite mission to create, to preserve, and to disseminate knowledge. The statement is arguably banal, but is just about right. But in 2016, the current president of Yale announced a new longer statement, and here are two representative statements from the Yale University mission statement as it exists today. Yale is committed to improving the world. Yale educates aspiring leaders worldwide who serve all sectors of society. These two new sentences reveal new priorities. The focus on knowledge is gone, replaced by leadership, practice, and world improvement. We are witnessing an evolution in the self-understanding of universities, a shift from institutions of inquiry and deliberation to institutions of assertiveness and action. This shift is at once both a cause and an effect of the astonishing rise of the non-academic bureaucracy. To be sure, universities always retained a small number of professional staff, of which I was pleased to be one, but this staff understood its role as a supporting role. Someone must ensure that the campus is secure, that the papers are in order, and that laws and university rules are obeyed, so that the university can perform its function as a place of inquiry. Indeed, when I served as the university professional, as the legal advisor to three great university presidents, Kingman Brewster, Hannah Holborn Gray, and A. Bartlett-Jermati, I was pleased to think that my job was to protect our faculty from undue risks and assault. But now the ambitions of our university staff are greater. The achievement of diversity, inclusion, and equity. And so it is that the non-faculty professionals who unlike the faculty are dedicated to doing rather than deliberating, so it is that they have taken the lead. The expansion of the Title IX bureaucracy provides a useful illustration of this interesting process. At first, universities treat a Title IX as a matter of legal compliance. Perhaps a lawyer or two would, among other things, review the allocation of athletic funds to ensure parity between the sexes. Now, however, Title IX has metastasized into a vast bureaucracy central to university's identity. Title IX and related offices oversee orientations, investigations, and mandatory bystander training. I repeat bystander training. Amounting to the re-education of the faculty that I once imagined were the heart of the university. Title IX compliances no longer a regulatory detail to be dealt with so that the university can get on with its core business. Surveillance and re-education are now a part of the university's business. And so the university has been pulled from its day job as a place of inquiry and conscripted into the service of social change. A similar conceptual confusion has facilitated the rise of today's student activists. It may surprise some of you to learn that the faculty plays almost no role in the admissions process at our great universities. Instead, that process has been handed over to professional admissions departments. Relegated to toothless advisory committees, a faculty member is lucky if she is invited briefly as a spectator to glimpse the making of the sausage. Unsurprisingly, these admissions professionals are less interested in traditional academic criteria, quality such as scholastic talent and intellectual openness. Instead, they gravitate toward flashier virtues, virtues such as globalism, the need for change, activism, these role in quotation marks, leadership or overcoming adversity. Predictably, the use of such narcissistic and relevant criteria produces a student body that is ill-fitted to intellectual life. Students now arrive on campus having been instructed to promote themselves, you know this from experience with your children and grandchildren. They are instructed to promote themselves as social entrepreneurs, change makers. It is now widespread, if not universal, for applicants to claim to have founded some shiny sounding program or better still a platform devoted to beneficent acts. Upon arrival, these first-year students encounter a forning president or dean expounding on the fabulous records and unprecedented achievements of these future leaders of America. Compare, if you will, that obeisant attitude to the simple self-confident greeting of President Kingman Brewster at Yale to the freshman assembly, which I was honored to observe three years in a row. He began always as follows. Welcome to the privilege of Yale. The contemporary admission, in other words, you are very lucky to be here. Not we are very lucky to have you. Once you start telling students that we're so terribly lucky to have you, they may start to take you seriously. The contemporary admissions process thus reflects and advances a transformation of the university from a place of thought to an instrument for social action. Is it any wonder that students arrive on campus searching for windmills at which to tilt? As bureaucrats and student activists have come to dominate the university, they have reshaped it in their image. Whenever possible, they have sought to model the distinction between intellectual deliberation and political action, thus making certain thoughts like certain deeds, crimes, thought crimes as prefigured by George R. Woll and as referred to earlier by another of our speakers, thought crimes. When looked at in this light, many seemingly disconnected maladies of today's university appear plainly as products of a single affliction. Consider the proliferation of trigger warnings. What are these if not the actualization of the notion that ideas can be violence, or consider the ubiquitous appeals to the authority of identity and lived experience? I refer, of course, to the classroom comment or the essay that begins as follows. As a Puerto Rican, I'm allowed to say that because I am Puerto Rican. As a Puerto Rican, and declares that I know things that you cannot possibly know, that I understand things that you cannot possibly understand, and therefore that I must be agreed with. I am, after all, the leading authority on me. Such statements are not a form of persuasion. They may be verbal, but like a ruling from the bench by a judge, they embody an act of force, not a moment of inquiry or conversation. Consider as well the turn towards social ostracism and condemnation in campus controversies, even banishments for a time. This is a form of Siberia without the gulag, and there's the related phenomenon of forced public confessions, struggle sessions without chairman Mao. Here, too, we are witnessing a preference for those tools that will bludgeon one's opponents rather than those that persuade them, or consider the excesses that accompany the ever-expanding anti-harrismate efforts. Here, too, universities have sought to expand our definitions of actionable conduct. What was once protected speech, expressions of personal warmth, humor, political opinion, even the direct quotation of the title of an essay by James Baldwin? All of these are now causes for an inquisition, for apologies, and, of course, for re-education. Without the knowledge of where that concept of re-education comes from, or consider the obsession with sexual and ethnic diversity and contrast the apparent lack of interest and diversity of opinion. The contrast is no accident. It reflects a vision of the university as a vehicle for implementing social change rather than as a forum for deliberation. There is a pattern here. Each of these failures reflects a blurring of the line between inquiry and activism, between speech and conduct, between the process of understanding the world, and the attempt to impose our will on it, with clarity about the nature of the disease may come clarity about how to fight it. First, the current moment calls for a sustained effort to this lodge to scrape off these non-faculty barnacles on the backside of the university. In doing so, we should recognize that the present dangers offer opportunities as well as challenges. The absurd growth in university non-faculty bureaucracies presents a threat first and foremost to faculty. Yale, for instance, recently revised its faculty handbook to expand the authority of administrators in university disciplinary proceedings at the expense of the faculty. Now, here I'm going to turn to a footnote, the only footnote in my remarks, but it's a footnote worth, which is worth the reading aloud. In small print. From the Yale University handbook, which in an earlier time I helped to invigorate, as of August 22, 2019, quote, if the provost decides that a matter can be resolved by a responsible administrator, or through another university process, the provost may refer the matter for appropriate disposition. Quote, unquote. Just in case you thought I was making it up. With the faculty's core interest threaten, the current moment presents an opportunity to enlist important allies. Beseech faculty and concerned alumni, regardless of differences on other matters, share the goal of eliminating this bureaucratic bloat. And if faculty are not interested in defending their historic centrality in serious universities, no amount of help by trustees in alumni can possibly rescue them. It is sadly true, of course, that too much of today's faculty is oblivious to the danger, or simply hiding in place when they are not actively collaborating in their own disempowerment. But while faculty power has been eroded, I still believe that the faculty can exercise substantial influence even if only in self-defense, if they would only wake up. I remember vividly, my concern years ago, when a great Yale president faced the prospect of a no-confidence vote from an unrepresentative but active band of disaffected faculty. Others here may remember this as well. I need not have worried. Minutes before the faculty meeting, a troop of science and engineering professors entered alerted to the danger of that moment by Professor Donald Kagan. And although rarely attentive to issues of university governance, these science faculty members could still recognize facts. And when called, they were still willing to rise to the defense of the university. Now, there is no one, of course, quite like Donald Kagan, but perhaps there are some in this next generation who can follow his example. Trustees must also awaken to the threat and recall their considerable legal authority. It is worth remembering, for example, that unlike faculty, the coderies of deputy deans, associate provost, associate vice presidents, and assistant directors lack the protections of tenure. Trustees should therefore demand detailed justification for each and every one of these positions. I note that administrators are especially skilled at making, at masking the accurate figures. So trustees must remain wary of obfuscation. Alumni must also become wiser in their philanthropy. In our flagship institutions, bureaucratic bloat is made possible by immense endowments and endless fundraising campaigns. The coin of phrase, if you hear the word, campaigns, reads for your wallet. For too long, the exchange has been very simple. Donors provide funds, and in return, they receive recognition and celebration. But no influence, much less control. This actually should come to an end. Alumni should decline to provide single lump gifts. Instead, donors should provide annual reports for specific programs, but only as long as criteria are met. Gifts with strings attached, that's the famous phrase. Usually in the form of, please, no strings attached. No, no. Strings attached. A good thing. Gifts with strings attached and gifts renewed periodically are to be encouraged, not denigrated. I was pleased to see in one of your programs, one of the documents with your materials, a quotation from Beno Schmitz, great provost Frank Turner, and Professor Kagan's co-author and friend, which is drawn from a famous, to some of us obscure and this famous op-ed piece in the Wall Street Journal, in which the former provost of Yale, Frank Turner, the John Hay Whitney Professor of the Humanities, actually called for giving gifts with strings attached as a way of assuring that are helping to assure that the donors' expectations were met. Importantly, we must also insist on something else, which is much feared by University Council, of which I was one. We should insist that state officials actually enforce the restrictions on charitable gifts that now cannot be enforced by a donor's lawsuit. You will be astonished to learn, but you might as well learn it now, that in fact under a famous, long-standing common law principle, the donor of a gift to a charitable institution, including universities, does not have the right to bring a lawsuit to comply with the terms of the donation. Next, concerned trustees and alumni should focus their efforts on the administrative, on the admissions processes. Some concrete suggestions include these, the elimination of the narcissistic personal essay, greater faculty involvement in admissions decisions, and the requirement that admissions directors publicly announce heavens a reduced emphasis on leadership and activism in favor of increased focus on intellectual virtues, even such relatively modest steps would transform the expectations and priorities of incoming students and thus help to reshape the culture of the campus. Above all, concerned trustees and alumni must get over their inferiority complexes, when dealing with academic leaders. They should not shy away from using all available levers, including financial and political incentives and pressure to reassert the university's true mission. Universities have long enjoyed a somewhat rarefied position in American social and political life. Invoking principles of academic freedom, academic leaders, misapplying the principles of academic freedom, have tended to successfully resist attempts by governments, courts, and even trustees to influence their internal affairs. It all seems rather obvious, or it seems to be obvious, into one reflex on what the game is. But as the university wanders from its mission, this deference will evaporate, and it has begun to evaporate. In a series of recent rulings, for instance, courts have declined to defer to politicize university disciplinary decisions and employment decisions. At the same moment, legislative deference to our universities is also rapidly dissipating, as reflected, for example, in new proposals to tax university endowments. To be clear, I comment on these legal developments simply as a descriptive matter. I intimate no views on any particular case. But as a citizen, I cannot help but draw a lesson from these legal trends. The father universities venture from their traditional role, as incubators of knowledge, the less deference they will be shown, whether by legislators, by judges, or by trustees, and alumni. Now then is the time for those who once hesitated the second guest's decisions of academic leaders to recover their voices and to speak with confidence. After all, the reforms I have suggested today are not an infringement on the rights and responsibilities of the faculty, quite the opposite. They are aimed at supporting faculty by clearing out the mass of activism and bureaucracy that threatened to overwhelm the intellectual mission of the university. In essence, I suggest that we begin with tenacity and appropriate circumspection to remove the barnacles and to allow this ship to sail. Allow me to end up to wrap up by noting what isn't many ways the central target of the new bureaucrats and the new student activists. That target my friends is America itself. Those who seek to politicize the university to collapse the distinction between inquiry and action are undermining a foundational principle of our democracy and they are doing so in the service of dismantling the American project, turning scholars into soldiers to advance their cause. They claim of course that America and America's institutions are simply irrevocably tainted and so we must abandon all that we have inherited. The tainted so great my friends and the cause so origin we are told that we cannot bother with niceties like due process free speech or the idea of the university as a place for inquiry and deliberation, which in any case are merely shields for the privilege. We are instructed that the demand for justice is paramount. Indeed the new activists and the new bureaucrats who seek to transform our universities also seek with the help of Confederates in the media to reframe our country's past in the service of morose self-loathing to recast our constitutional and academic principles in the service of enlightened power, their power. These efforts will fail. Beyond the echo chambers of elite academia, the hopes of millions around the world demonstrates the lunacy of American self-loathing. Consider for instance the continuing testimony of millions of immigrants and would be immigrants. They are anxious to vote. They are anxious to vote with their feet in favor of America and in favor of our storied educational institutions. Now to be sure, those who denigrate America and its traditions simultaneously claim to be the champions of America's newest ethnic minorities, this is what the Marxists call a contradiction. But our newest arrivals like the generations that preceded them are eager to learn and to embrace our national traditions, not destroy them. Indeed, it is in my view a form of bigotry to suggest that those of us who are newly arrived, some of us newly arrive from the very fringes of the American Empire. The Empire that Jefferson described as the American Empire of Liberty. It is a form of bigotry to suggest that we are irrevocably different, that we must be protected from debate, that we have no choice but to denigrate the very institutions that drew us here in the first place. But of course, we newly arrive flocked to American institutions for the very same reasons that we flock to America, not because America's principles and institutions are beyond repair but precisely because they are a source of hope. So let the example of the newcomers be a source of strength to all of us. Let us proceed with courage and confidence, with the assurance that our efforts to defend the true purposes of the university are part and parcel of the defense of the country we love.