The world moves fast. Daybreak keeps you up-to-date.
Enjoy everything you need to know to stay informed — on campus and off — in this digestible, efficient podcast. Daybreak is produced by Maya Mukherjee '27, Twyla Colburn '27, Sheryl Xue '28 under the 149th Managing Board of The Daily Princetonian. The theme music was composed and performed by Ed Horan, and the cover art is by Mark Dodici.
Daily Princetonian: You have spent 25 years at Princeton, moving from Catholic University two years into your start at teaching. After spending the bulk of your career here, how would you say your focus and perspectives in academia have changed over the decades? And, after over 25 years at Princeton, why move to Yale Law now?
Keith Whittington: I've been here a long time. I think there's something exciting about trying to do something a little new and different. My work has evolved into integrating more with law school communities than was true at the beginning of my career. They're an important part of my broader scholarly community and a lot of people I talk to professionally, so moving over to be full time in a law school and teach with them has advantages.
Over the last few years, I've become more interested in practical applications associated with the theoretical and historical work that I do. Yale will be a good platform as a law school is an appealing place to really try to think through how theory meets practice, and now in the context of additional doctrines, but also policies and regulations. I'm optimistic that I can do some new things more easily there than I could do here.
DP: Princeton has sometimes been criticized as an environment for free speech. The Foundation for Individual Rights and Expression ranks Princeton 187th in the country. Some students have pointed out that there have been few speaker shout-downs on campus compared to other schools. What has been your experience with the free speech environment? Would you say the ranking is an accurate reflection of the campus’s free speech environment?
KW: The ranking the FIRE produces is partially based on policies and partially on surveys of student impressions. On the whole, our policies are actually pretty good. President Eisgruber has put a lot of emphasis on free speech and so it has been an important theme on campus. But clearly, a lot of students are still feeling real pressure. I think that pressure often comes from their peers. It's a hard challenge to improve that from a faculty perspective, because it's not driven by faculty. It's not driven by the policies on the books so there's a limit as to how much you can affect the campus culture among students.
But, there are some issues here that are not unique to Princeton. Law schools suffer some of the same problems. We've not had a lot of incidents of student disruptions of speakers, and we've seen some of those high profile incidents in other places. I think that's positive. I hope that continues to be true. But I think people feel a lot of pressure to conform here at Princeton, and it has a lot of consequences. But among the consequences is the willingness of people to speak up and voice different views from what most of their colleagues have.
DP: Institutional neutrality has recently come into increased focus as a subject of free speech. President Eisgruber has defended the right of individual University officials, including the President, to speak in their own capacities. Do you agree with Eisgruber on that point? What are some of the risks involved that make institutional neutrality preferable in your view?
KW: I think President Eisgruber and I have some differences. He's adopted a posture that he characterizes as institutional restraint. The goal of that kind of policy is to not speak up very often, but there are occasions in which he thinks it's particularly important for senior university officials to issue statements and speak out vocally. He also carves out space for himself and senior officials to be able to speak in their personal capacities, as opposed to their institutional capacity. He notes he has a scholarly reputation and scholarly expertise on certain issues. He thinks it's appropriate to continue to speak out on those things. He thinks of that as being a speech primarily in his own voice and not necessarily in the institution's voice. I think that's a very hard line to walk in practice. It's very hard to disentangle what deans and presidents say in their own individual voice as opposed to the institutional voice. So I tend to think that it's better for them to simply assume that everything they're going to be saying is speaking with an institutional voice. As a consequence, they have to be much more cautious about what they're willing to say if they remain on the faculty.
I tend to think that the institutional restraint posture leaves too much space for universities to be issuing statements on contested issues, and I'd prefer something that is more neutral. The general principle of institutional neutrality is not widely adopted, and most universities do resist it. I think it's a preferable way for the university to approach these issues. Optimally, the university is a place where individual faculty, as well as students and other members of campus community can develop their own ideas and express their own opinions about things. You expect to see a lot of disagreement on campuses. It's not necessarily the university's role to take its own positions on those things. It is the university’s role to host these debates, not to be a participant. Once the institutions begin to stake out their own political positions, it will affect how individuals on campus feel welcome and fully part of the community. In some contexts, it has serious chilling effects on those who might disagree. So for example, if you are an assistant professor looking to be promoted in your department, but your department starts issuing political statements, and you find yourself in the political minority in your department, there's going to be serious pressure to either conform yourself to the views of your senior colleagues, or simply be silent. And that's just fundamentally an inappropriate situation to put faculty in. It's inconsistent with the goals, values and missions of the university. So universities would be in a better posture if they refrain from that.
I think our present moment with the debate around Israel and Gaza has highlighted some of the complications associated with this. The university has had a long period of issuing statements about all kinds of events. As a consequence, people expect the university to issue statements here. Universities feel cross-pressured for what they're going to issue. And as a consequence, they haven't made anyone very happy with what they've done. And if they had instead staked out a consistent posture of institutional neutrality, it'd be much easier to find a position that would be more widely acceptable in our current moment and avoid some of the political conflict that universities have found themselves in.
DP: You have said you seek to remedy deficiencies in “free speech and ideological diversity” at Yale Law. What are some of the steps you seek to take at Yale to fill those gaps you cited?
KW: Yale has some very high profile issues of law school specifically. It's had some very high profile speech problems of late. I'm hopeful that I can help contribute to the solution, there are a lot of faculty, who have been disturbed by some of the things that have happened on campus lately. They view it as inconsistent with the kinds of values that the law school in particular is trying to foster. I hope to join some colleagues in trying to both model behavior that students will engage in, but also try to help students think through the kinds of principles and concerns they ought to have on the free speech issues.
Yale Law School has been a place in which there has not been a lot of political diversity on the faculty. To my knowledge, I'm the first right of center faculty member teaching constitutional law topics that Yale has ever hired in its history. They have not had a person teaching constitutional law from the political right since the early 70s. So it's not a faculty that has nurtured a wide range of opinions. It's particularly unfortunate as Yale is an important place. Among law schools, it trains a lot of future judges and politicians. It trains a lot of future law professors, so I think it's important for a place like that, in particular, to have more diversity on its own faculty who are capable of thinking through the range of issues that are in front of us and help grapple with the political environment we are operating in.
I'll be setting up an academic freedom and free speech center. I will be doing a lot of work on these kinds of topics, not only for Yale in particular, but hopefully for the country more generally.
DP: What specifically do you think a right of center viewpoint brings to students at Yale?
KW: So, I think it's useful to actually have somebody who is familiar to the students, who has right of center opinions. I think, when you don't encounter very many people on your campus, particularly at the faculty level, but in general, who have quite divergent views from your own, you tend to think they fall easily into stereotypes of what those views look like. You're making inferences about what most people look like from what you see on cable television and social media. It's important to be around people where you can see they're more well rounded than you imagine. They hold more in common with you than you imagine. Hopefully, you can see more sophisticated versions of opposite political opinions. I think that will tend to make people more tolerant in general. It certainly makes them better informed about what the range of views are.
Particularly in a law school environment, part of what you're training law students to do is be able to argue from a variety of positions on behalf of their clients and legal environment more generally. We exist in a world in which there are a lot of conservatives around and they have a lot of political power. The federal Judiciary, among other Judiciarys', has a lot of conservatives on it. It’s a disservice to students, if you're not trained to think through, respect and grapple with the kinds of conservative arguments that are going to be persuasive to the kinds of judges that they want to try to persuade.
Faculty do the best they can in exposing students to a wide range of views and make them understand them. But it's helpful to have people around that actually believe in them. From a teaching perspective, it's quite important to have the kind of diversity reflected that's relevant to the world around them.
DP: You are an expert in constitutional law, and often a go-to source on campus to understand the courts. In 2021, President Biden appointed you to a Presidential Commission on the Supreme Court to interrogate reform topics like introducing term limits and expanding the number of judges on the court. The final report could be viewed as relatively inconclusive on any specific recommendations on these issues. Where did you land on some of the questions the commission considered? Would you consider there is a crisis of legitimacy in the Supreme Court and how would you suggest resolving it?
KW: Part of the mission that the President gave to the commission was to examine a range of policies but not make recommendations. The goal was to study them and try to think through what the relevant considerations were, and present them in a relatively fair manner so the President and other policymakers can be better informed about how to think about these issues. But without the report necessarily trying to push them in particular directions on those issues. I think we did that reasonably well. We tried to lay down a wide range of views about how best to think about these things and tried to highlight for the President and others, what were the most important points now to be thinking about, both for and against various kinds of proposals that are floating around.
President Biden had promised to make it a bipartisan commission, he followed through on that and did appoint some conservative scholars, as well as some former judges, to the commission. So we did have a range of views reflected on the commission and I think the individual Commissioners, some were much more supportive of some of the proposals than others. So I have publicly discussed my own individual views about some of these issues. I find the idea of expanding the court an extraordinarily dangerous proposition for maintaining robust constitutional democracy.
Certainly other commissioners think about that differently than I do. I think a lot of the other kinds of proposals that we tried to talk through have more merit than court packing does and are somewhat more viable, although I have my own concerns about some of those as well. So one of the popular measures that does get sort of more bipartisan support, in general, is the idea of term limits for the judges. I don't think term limits are a bad idea. It's not obvious that they solve many of the problems people are most concerned about with the court. And so they introduce a lot of new complications, they think it's hard to predict what all the effects would be. And it's not obvious, it actually solves any real problems. So I don't find myself very eager to adopt term limits. But I also tend to think that they're not terrible, necessarily, but there's some real complications about how you design them and implement them.
The courts are in a much more contested political environment than it once was. Public Confidence is lower than it once was in the court. The hostility to the court is particularly heightened at the moment. Some of that is a reflection of something's happening to institutions more generally, and not just political institutions. And so we see across the board, whether you're talking about corporations, media, universities, legislatures, or the judiciary, that there's just declining public confidence in all those institutions. And that's partially reflected in political polarization. And so those who don't like most of the policy outcomes that are emerging from the court, are particularly hostile to the court. And that was true when the court was issuing opinions that were more frequently in favor of the left, you had a lot of people on the right, who were hostile to the court. And so we get that now, too. It's not obvious how you rebuild legitimacy in that environment.
It's a challenge for all these institutions, including universities as to how do you rebuild public support? In this context, I think the court will, by nature, continue to be involved in very hot button political issues. It will issue decisions that a lot of people in the country are not going to like the outcomes of. And that's going to lead to continued hostility to the court. And so in some ways, I think we will have to learn how to muddle through with a court that is not universally held in high favor but is viewed with some hostility.
I think the justices should do what they can to try to make that better. And that includes things like being as carefully reasoned as they can be about the nature of the arguments and countervailing position seriously. I do think that it'd be useful for the court to have its own ethics reform, so that they avoid some of the individual scandals that they're being attacked for. Now, some of those things will help. But I think there's a limit as to how much you're gonna be able to do in our current polarized environment to dramatically improve how the court is perceived.
DP: As someone who has taught here for a long time, do you think concerns over grade inflation that Dean Dolan has raised in recent years are legitimate”
KW: I think there are concerns about grade inflation. I was a supporter of the grade deflation policy that we adopted for a while, in part, because the policy that the university was considering was basically going to bring grades into closer alignment with what we were already doing in the politics department. So, it seemed particularly reasonable to me that it was both reflective of what I thought was the reasonable thing to be doing and it would bring other departments more in line with our own practices. That policy was obviously very unpopular among the students. It was certainly unpopular with some of the colleagues here in the university. So we've now abandoned that.
I think the consequences have been predictable that we've had grade inflation recurring to a greater degree, and there seems to be very little interest in actually trying to hold it back at this point. Again, Princeton is not unique in this regard. That's true in lots of universities. It's true below the university level as well. One consequence of that is it just makes it very hard to distinguish when students are actually doing good work and when they're not doing very good work. So the signals are not very clear to the students about the quality of their work. It's not very clear to outsiders about the quality of the work. And I think there we’re falling down on our job to some degree if we're not straightforward and honest with students about the quality of what they're doing.
And I think that part of what we're seeing here with high grades is a reflection of the fact that students are very good. And so that's a real element. We ought to take that into account and be aware of that. But I think partially, we're just seeing genuine inflation as well and an unwillingness to grade harshly. And that seems to be where we are as a culture. I think it's good if you have the majority of the faculty at the moment that they're more comfortable with that as well. So I think it's hard to dig out of it.
DP: Other universities have been criticized for their administrative bloat. Have you noticed a proliferation in the administration in your time at Princeton and, if so, have you noted any effects on the academic environment?
KW: There's no question that there is a proliferation of administrators during the time I've been here. And again, that's not unique to Princeton, it's true at all universities across the board. I think some of it's unavoidable. The university is responding in part to new needs that arise on campus, they're responding in part to regulatory environment that requires administrators to deal with, there's just a lot of compliance and paperwork, requirements that are generated by federal regulations by accreditors, and others, that sort of necessitate having a lot of administrators on campus. And so, regardless of how one feels about that, some of that is sort of unavoidable?
I think Princeton has become a more bureaucratic place during the time I've been here. I think that's been the experience of a lot of faculty at a lot of different kinds of institutions. But it is striking how, when I arrived, Princeton felt like a very small place, a very informal place. Not a lot of rules, and the rules were pretty flexible. It was very flat administratively. So you'd often talk to people at pretty senior levels about lots of decisions. That's just not true now to the same degree, it's much more bureaucratic, a lot more rules, a lot more layers of administration. Some of that seems probably useful. Some of it is more dubious as to how helpful it is. It's hard to say how much effect that actually has on the academic environment. As such, I tend to think that the administrative rules surrounding teaching is not always helpful. There's little too much that impinges on the kind of flexibility that faculty need in the classroom.
I have particular concerns about some features of the administration that do directly impinge on classroom teaching. I think some of the administrative rules and activities surrounding harassment policies, as they're applied to classroom speech, are too intrusive. Some universities, I think, have very serious problems in that regard. I don't think Princeton is as bad as law universities are. Nonetheless, I think there have been real instances of administrators intervening into classroom conduct in a way that's inappropriate and inconsistent with academic freedom. And I think all universities, including Princeton, are sort of struggling with how to reconcile genuine academic freedom concerns with genuine concerns about how to identify instances of harassment and discrimination in the classroom. I don't think we have that balance right, yet. But I'm hopeful we can make better progress toward figuring out how to reach a right equilibrium on this.
DP: What will you miss most about teaching at Princeton? Particularly as you’re making this move from teaching undergraduates to law students.
KW: I hope I continue to have some opportunity to teach undergraduates when I'm at Yale as well. I will have a joint appointment in the political science department that will facilitate me to do some teaching over there. But most of my teaching now will be with law students, and they're different from undergrads.
The things I will miss most about Princeton are the colleagues and the students. Students here have been terrific to work with both at the graduate level and the undergraduate level, it is part of what kept me at Princeton for a long time. I've had law schools that I've talked to before, about whether or not to move. But the thing that's always kept me here has been students. I enjoy working with them, they do interesting things, you can have very interesting conversations and push them to take ideas very seriously. And that makes it fun to teach the students makes the job much more enjoyable and interesting than it otherwise would be. And so I'll miss that. I'm confident that will also be true with students at Yale though. So it'll be a little different.
But, one of the things that's always been rewarding is not only getting the student in the classroom, but doing some of the independent work. For example, the undergrads' projects are often quite fascinating. It's great to be able to guide students through their first really serious scholarly project. And so I'm sure I will wind up missing some of those opportunities as well.