The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Should State Universities Have Official Positions on Whether Constitution Should Be Read as Protecting Abortion?
Apparently, "The Court's decision"—and by implication the position of students, staff, and faculty who endorse that decision—"is antithetical to the University of California's mission and values."
The University of California President thinks so:
University of California President Michael V. Drake, M.D., today (June 24) issued the following statement on the United States Supreme Court's decision in Dobbs v. Jackson Women's Health Organization:
For nearly 50 years, people in the United States have had the right to make private, informed choices about their health care and their futures. I am gravely concerned that today's U.S. Supreme Court decision removes that right and will endanger lives across the country. This decision overturns decades of legal precedent and could pave the way for other fundamental rights to be removed.
The Court's decision is antithetical to the University of California's mission and values. We strongly support allowing individuals to access evidence-based health care services and to make decisions about their own care in consultation with their medical team. Despite this decision by the Court, we will continue to provide the full range of health care options possible in California, including reproductive health services, and to steadfastly advocate for the needs of our patients, students, staff, and the communities we serve. We will also continue to offer comprehensive education and training to the next generation of health care providers, and to conduct life-saving research to the fullest extent possible.
This is a sobering moment for many of us at the University of California and throughout the nation. Today, we stand with California leaders and health care advocates who are taking critical steps to protect Californians' human rights and their access to affordable and convenient health care choices.
I don't think that a public university's "mission and values" should be to promote a reading of the Constitution as securing abortion rights, or as not securing abortion rights, as opposed to promoting research on this and related questions. And while of course a public university that runs hospitals should generally perform legal medical procedures, and train doctors with regard to legal medical procedures, I don't think that justifies the university taking a stand on whether such legality is determined by state legislatures or by Supreme Court Justices.
That's especially so when, as the UCLA Chancellor's follow-up letter points out, "The decision is not expected to affect women's reproductive rights in California," so UC doesn't even have much of a direct interest in the outcome of Dobbs as it affects its own operations. (There may be more room for statements by a public university president as to political decisions that do directly affect the operations of the university, such as changes in funding, statutes related to student admissions, and the like.)
More broadly, I tend to agree with the 1970 statement by the Office of the UC President:
There are both educational and legal reasons why the University must remain politically neutral. Educationally, the pursuit of truth and knowledge is only possible in an atmosphere of freedom, and if the University were to surrender its neutrality, it would jeopardize its freedom. Legally, Article IX, section 9, of the State Constitution provides in part that "The University shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs…"
I'm not sure that as a legal matter this extends beyond advocacy related to candidates or ballot measures; but I do think that, as a policy matter, it counsels against the Administration's taking stands on such matters. (Note that the President should be able to speak out in his personal capacity, but of course his letter was significant precisely because it was a letter written as President of the UC, not just as a citizen or a scholar.) Likewise, I agree with the 1967 Kalven Committee Report from the University of Chicago:
A university has a great and unique role to play in fostering the development of social and political values in a society. The role is defined by the distinctive mission of the university and defined too by the distinctive characteristics of the university as a community. It is a role for the long term.
The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.
The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.
Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues.
Prof. Leslie Johns in the political science department also cc'd me on an e-mail she sent to the UCLA Chancellor, and when I asked her for permission to post it, she graciously agreed:
As a UCLA faculty member of 14 years, I was very distressed by your email today entitled "Reaffirming UCLA's Commitment to Women's Reproductive Rights."
As a faculty member in both the political science department and the Law School, I feel compelled to remind you that Americans (and even Californians) have diverse and complicated viewpoints on the issue of abortion. The legal issues involved in the recent US Supreme Court ruling cannot be simply reduced to a statement about restrictions on "women's reproductive rights."
Abortion is not a simple matter of access to health care. It is a complex moral and political question that involves balancing fundamental rights to life and physical autonomy. By denying this reality, you are asserting a political position. Yet your employment as a public employee explicitly prohibits you from using your office for political purposes. It is both inappropriate and illegal for you (and for me) to use our official capacity to make claims that specific abortion policies or constitutional interpretations are "antithetical to the University of California's mission and values."
Given UCLA's professed commitment to "diversity, equity, and inclusion," I respectfully ask you to carefully consider the implications of declaring that a conservative viewpoint is "antithetical to the University of California's mission and values."