Darfur and the Kalven Report: A Personal Journey

Unlike many other universities, the University of Chicago recently declined to divest from Darfur. The basis of this decision was the University's Kalven Report. (If you have not read the Kalven Report, see http://www.uchicago.edu/docs/policies/provostoffice/kalverpt.pdf).

The Kalven Report was adopted the year before I arrived at the University of Chicago in 1968 as a new law student. Those were difficult days. On March 31, 1968, President Lyndon Johnson shocked the nation when he announced, “I shall not seek, and I will not accept, the nomination of my party for another term as your President.” The anti-Vietnam war movement had driven the president from office. On April 4, 1968, Martin Luther King, Jr. was assassinated in Memphis, Tennessee. The nation suffered a convulsion of violence, with riots in more than 100 cities, leading to forty-six deaths and more than 200,000 arrests. Chicago’s Mayor Richard Daley ordered police to “shoot to kill” arsonists on the city’s burning West Side.

On April 23 came the mass student occupation of buildings at Columbia University to protest the university’s war-related research and its treatment of the surrounding black community. This event marked a turning point in the nature of student protest. For the first time, police were called in to evict and arrest student demonstrators with the use of force. Moreover, for the first time universities themselves came to be seen by antiwar protesters as part of the nation’s power structure and thus part of the problem. Richard Nixon, a candidate for the Republican presidential nomination, decried the Columbia event as “a national disgrace.” Columbia became the model of what was to come.

Over the next several months, the leading candidates for the Democratic presidential nomination battled across the nation for delegates. Then, on June 6, after winning the California primary, Robert Kennedy was assassinated. As one commentator put it at the time, the nation “sagged in ghastly stillness, as though the last lines of reason had been breached.”

Angry and impatient after years of seemingly futile protest, the antiwar movement shattered. The more radical elements fell into a spasm of nihilism and embraced tactics that were increasingly ugly, violent, and counterproductive. Heading into the 1968 Democratic convention in Chicago, the Yippies were determined to “overcome war madness” by disrupting the “Convention of Death” with a “Festival of Life,” replete with dancing bears and a 150 pound pig named Pigasus that would be nominated for the presidency and then devoured. In an effort to drive demonstrators away from his city, Mayor Daley armed Chicago to the teeth. All twelve thousand Chicago police officers were placed on twelve-hour shifts, more than five thousand national guardsmen were mobilized, a thousand FBI agents were dispersed throughout the city, and six thousand U.S. Army troops, equipped with flamethrowers, bazookas, and bayonets, were stationed in the suburbs. On August 28, after several nights of skirmishing, the police attacked. More than 1,000 people were injured and 662 were arrested as tear gas filled the lakefront. The entire scene was televised to a shocked nation.

A recent college graduate, I watched it all from my family’s home in New York, knowing I was headed to Chicago in a few short weeks. Needless to say, the war in Vietnam and the deep divisions in the nation were much on the minds of entering law students in the autumn of 1968. Many of us were deeply disillusioned with the nation and saw the law as a way to make a difference. As I plunged into my legal studies, more Americans and Vietnamese continued to die in the conflict, and the sense of frustration and anger continued to build. Antiwar protests intensified in violence. From the fall of 1969 to the spring of 1970, at least 250 bombings, about one per day, were directed at ROTC buildings, draft boards, induction centers, and other federal offices in an effort to “bring the war home.” On April 30, 1970, President Nixon announced that he had expanded the war into Cambodia. Protests exploded on campuses across the nation. At Kent State University in Ohio, students burned down the ROTC building. Nixon denounced “these bums.” Governor James Rhodes declared martial law and dispatched units of the National Guard to the Kent State campus. On May 4, these national guardsmen, without warning, responded to taunts and rock throwing by firing their M-1 rifles into a crowd of students, killing four, wounding thirteen. Student protests erupted on more than half the nation’s campuses. Within a few days, 1.5 million students walked out of class, shutting down a fifth of the nation’s colleges and universities. It was the most shattering protest in the history of American higher education. Thousands of students stormed the nation’s capitol to lobby for an end to the war. Henry Kissinger later recalled that “the very fabric of government was falling apart.”

I was one of those students who “stormed” the nation’s capitol in May of 1970, although “stormed” isn’t really an apt word. Students at the Law School held a mass meeting to elect representatives to go to Washington to try to persuade Congress to put a halt to the war. I was one of those elected. Our trip was financed by student contributions. Along with students from across the nation, as well as more than a thousand lawyers, a hundred corporate leaders, thirty-three university presidents, and many civic and professional leaders, we met with every senator or representative who was willing to see us. We were respectful, but determined to be heard. We made some progress, and the next month Congress withdrew the Gulf of Tonkin resolution, on which Lyndon Johnson had based his initial expansion of the war. But the war continued for several more years as thousands of soldiers and civilians lost their lives in the jungles of Vietnam and the United States dropped millions of tons of bombs on Southeast Asia, until there was almost nothing left to bomb.

I tell you all this to give you some sense of what the nation was like when I was a student. It will not surprise you to learn that, like most of my fellow students, I demanded that the Law School and the University take a stand. From my perspective as a student, these were powerful and influential institutions. It was unconscionable that they simply refused to condemn the war in Vietnam, the Nixon administration, and the draft. Certainly, by the spring of 1970 the overwhelming majority of students, faculty, and administrators regarded the war as immoral, or at least unwise. How could these institutions of higher learning, these institutions that were supposed to stand for something, stand silent in the face of this crisis? I argued strenuously about this issue with many of my professors, most of whom agreed about the war. I simply could not fathom how they could be so stubborn, so callous, so morally blind, and so irresponsible as lawyers and citizens to allow the University of Chicago Law School  -- an institution dedicated to truth -- to stand mute.

Now, almost forty years later, I understand. In 1973, I joined the faculty of the Law School as an Assistant Professor. In 1987 I became Dean of the Law School, and from 1994 to 2002 I served as Provost of the University. I suppose I have become an organization man. My current views may perhaps be dismissed as those of one who has sold out to the “establishment.” I prefer to think of my change of mind as the product of understanding, experience, and even wisdom. I now know what my professors knew then.

The Kalven Report has it precisely right. Universities – most especially this university – exist for a very special reason. They exist to create a forum in which students, professors, and researchers may explore every issue from every side without fear of official condemnation or judgment. They exist to enable talented and committed individuals to seek the truth. They exist to serve as a safe haven in which even the most controversial and despised views may be aired, confronted, and considered. They do not exist so students, faculty, researchers, and administrators can vote to determine the truth. They do not exist to proclaim the truth. For a university, it takes much more courage to stand silent, then to yield to the pressure and temptation to take sides. But once a university takes sides, it is no longer a university.

The issue today is Darfur. Well-meaning and admirable students demand that the University divest itself of any investments it may have in corporations that do business in Darfur. Certainly, their concern with the tragic events in Darfur is warranted – indeed, compelling. But the University is right not to take a political, social, or moral position.  It is for the students, faculty, trustees, alumni, staff, and friends of the University to take their own positions. It is not for the University to do so for them.

The Kalven Report recognizes that there may be exceptional circumstances in which it is appropriate for the University to take positions on public issues. It may do so in order to protect the fundamental interests of the University itself. For example, the University may legitimately oppose government efforts to curtail freedom of inquiry within the University or to dictate who may or may not be a student or professor here.  The University may also legitimately act on the basis of political, moral, or social judgments if its own conduct would otherwise directly and materially cause serious injustice. For example, the University may appropriately refuse to allow employers to use its placement facilities if they would use those facilities to discriminate against students on the basis of race, religion, gender, ethnicity, or sexual orientation.

What the Kalven Report forbids, however, are decisions of the University designed expressly or symbolically to proclaim “right” moral, political, or social positions. That is the issue presented by those who insist that the University should divest from Darfur. The University’s investments in corporations that may do business in Darfur cannot in any meaningful sense be said directly and materially to have caused the tragedy in Darfur. Those who demand divestment want the University to make a statement about what is morally, politically, and socially “right.” And that is precisely what the University should not do.

Lawyers know all about slippery slopes. If the University divests from Darfur, then others will surely insist that the University must then divest from corporations that manufacture cigarettes, perform abortions, sell arms to Israel, and pollute the environment. Of course, there are degrees of right and wrong and degrees of evil. But it is not the role of the University to take positions on such questions. Indeed, the University should no more divest on the basis of these sorts of issues than it should prohibit students and faculty from speaking freely on campus in support of tobacco subsidies, the moral legitimacy of murdering abortionists, the right of Palestinians to destroy Israel, or even the morality of genocide. The role of the University is not to "decide" such questions, but to create and nurture an environment in which we may freely and openly debate them, without fearing that the University has already resolved them on our behalf.

Comments

[Frederick Hamilton]

LAK, I am not trying to find hypocrisy where none exists. I contend it is hypocritical to claim you should not allow employers who discriminate on the basis of sexual orientation, claim the DOD does just that and then not hold to your beliefs because of a loss of money. Sorry, that is hypocritical. Now I agree with you that it is not a huge hypocrisy issue (a small one if you will), but it does exemplify how everyone (well not everyone, there are some law schools who have forgone federal funds to keep the DOD recruiters off their campus) will sublimate their standards if enough money is involved. That's all.

Again, I in this instance agree with the University of Chicago. The amount of federal funding for research at the university would amount to hundreds of millions of dollars and the Solomon Law is constitutional.

It is just the old addage that now that we determined you can be bought we just have to decide on the amount. That to me is hypocrisy. But I like you consider it a small hypocritical sin.

[LAK]

Not really when you are talking about collective action, a law school and not one individual. There are many interests at work. Take it from someone who sepcializes in colelctive action issues. If you have problems with teh lawschool buddy, I have a few large corporations I'd like to show you.

Nor is it hypocrisy to subject certain ethical considerations to cost benefit analysis. It is not the willy nilly suspension of ethics you make it out to be. I don't like to break laws, but I'll J-walk sometimes too, especially if I'm in a rush. There are cost bounds to all ethical and moral considerations as well. That the cost comes in cash shouldn't cloud your reasoning.

[Frederick Hamilton]

LAK, Agreed. It would be interesting to know how the decision making to allow the recruiters back on the law school campus like any other recruiters once the FAIR v Rumsfeld SC decision came down upholding Solomon. Did the university have to tell the law school to get in line or did the law school admin simply change their policy on their own regarding DOD recruiters.

[NShah]

I'm pleased to see that this debate is going on, but all of the commenters show an ignorance of the specifics of the issue which is hobbling a real discussion of the merits of divestment.
The issue is not "companies active in Darfur," but *certain* corporations active in Sudan. This is why there is a direct chain of causation: Sudan has no economy to speak of, and is entirely dependent on its oil sector, which is in turn entirely dependent of foreign capital. Each year that oil revenues have increased, the military budget has increased in lock-step. You can see this plainly in IMF reports from 1999-2005. The presence of these corporations is based on a contract which provides royalties to the Khartoum regime, which the regime turns around and uses to arm militias, and then uses to massacre its citizens. If these corporations temporarily froze operations until a settlement was reached, Khartoum's military capacity would soon diminish.
That is why the Kalven report was not properly applied - there is no neutral position, either holding the investment (direct complicity) or not. Furthermore, from memos created by the Kalven Committee, it is clear that when they wrote the clause regarding "exceptional circumstances," what they specifically had in mind was the Holocaust.
The slippery slope argument is a convenient one, but not at all realistic. Hundreds of institutions have accepted the situation in Darfur as clearly crossing a line where corporate activities are acceptable, or can be solved constructively through engagement, and therefore investments are not morally tenable. Not a single one of these institutions has turned around and divested from Israel - the situations, the underlying logic, its all totally different.

[Nonprofiteer]

I honestly cannot understand what principle of academic freedom would be jeopardized by the University's deciding not to profit from corporate activities that underwrite genocide. Is the notion that people who support genocide would have their free speech chilled? Or is it that corporate activities are none of the University's business? If that were true, the University would stop investing in corporations. Or is it that it's impossible to decide whether something less than genocide would justify the University's taking a position? I don't see why we have to decide that when we're faced with is, precisely, genocide.

This is the same conversation we had when I was in college and the question was South Africa. The University was wrong then but there was nothing I could do about it. It's wrong now and therefore I've stopped supporting it financially. Doubtless its profits from looking the other way in Africa will be sufficient to make up for what it's lost.