Punishment Envy And The Perils Of Institutional Engagement

Every parent of multiple kids knows about punishment envy. You punished me for doing that, why aren’t you punishing him for it? Why does she get to do things I wasn’t allowed to do? It’s not fair. You love her more. You treat him better because he’s a boy.

Parenting is absurdly difficult. “It sure would be helpful,” I sometimes proclaim, “to have a clinical child psychologist to deal with this situation.” I say this to my wife the clinical child psychologist, who does not tend to react with an attitude of solace. Life is complex. Every kid is different, every situation is different. Why did I treat this kid differently for sneaking out than that kid? From that kid’s perspective it’s rank discrimination. From my perspective I caught that kid, covered in scratches from the hedge outside their window, making a deafening racket climbing through the wooden blinds, to find me sitting in their desk chair doomscrolling Facebook, saying “‘sup?” You lift the blinds and go under them, for Christ’s sake. And don’t get me started on the cameras. What is your strategy, exactly, in tiptoeing like a cartoon burglar past a security camera? Do you think it’s sound-activated? What did you expect to happen when you engaged in a prolonged examination of the camera to adjust its field of view while on camera? I feel disrespected by the lack of OpSec is what I’m saying, I guess.

I may have strayed from my point, which is about punishment envy. Institutions, like parents, punish. Sometimes they punish speech. Punishment can be take the form of actual official censorship, like suspending or firing someone for their speech, or the form of harsh criticism, like issuing a statement condemning someone’s speech. Perceived disparities in these punishments lead to tumult. Punishing leads to demands for more punishment.

We’ve been seeing a storm of institutional punishments since the Hamas attacks on Israel of October 7, 2023. They’ve multiplied in the wake of Israel’s military response against Gaza. We’ve seen some universities suspend and investigate professors for heated outbursts about the war, some ban Students for Justice in Palestine, and some issue issue statements implying — or sometimes outright claiming — that certain student or professor speech about the war is bigoted. Law firms have withdrawn offers to law students over their speech about the war and fired associates for criticizing the firms’ approach to the issue. 

Some of that is clearly censorship, and you could call it “cancel culture” by a reasonable definition. But that’s not my point. My point is that the war has revived an old debate — should universities and other nominally non-political institutions get involved in addressing political controversies at all? Should they get involved in condemning offensive speech that doesn’t rise to the level of a violation of law? Will getting involved in that advance their missions, or impede them?

In 1967, the Kalven Commission at the University of Chicago issued a report and recommendation saying that universities should avoid getting involved in politics:

The bitter disputes over Israel have revived this argument. Numerous commentators have argued that universities should adopt the Kalven policy of staying out of political discourse, leaving that for their faculty and students. It’s easy to see why. University engagement in the Israel-Gaza debate has led to widespread recrimination and condemnation. Critics suggest that university statements are too sympathetic to Israel, or too sympathetic to Palestinians; that condemning atrocities against one group excuses atrocities against the other; that condemnations of bigotry unfairly portray political criticism as racism; and that students who feel offended or even threatened are treated differently depending on their ethnicity or religion.

Students have demanded that other students, or professors, be punished for speech about the war. USC saw dueling petitions demanding the reinstatement or termination of a professor who confronted a pro-Palestine demonstration. Students have argued that failure to punish critics of Israel is putting Jewish students at risk and that failure to protect the critics is putting them at risk.

This is an old, well-known problem. It’s called “censorship envy.” The concept is that once an institution gets in the business of punishing speech, people will inevitably say “if you’re punishing that speech those people don’t like, why aren’t you punishing this speech that I don’t like?” We saw it, for instance, in Europe, where Muslims not unreasonably asked “if you are willing to punish denying the Holocaust, why aren’t you willing to punish vilifying the Prophet?” I think the term should be broadened to “punishment envy” to encompass institutional condemnation as well as official censorship. Since October 7th we’ve seen instance after instance of students claiming that a university condemned Hamas atrocities more vigorously than it did atrocities against Palestinians, and vice-versa. The impulse is the same: you’ve decided to get into this fight, so why don’t you fight that hard for the things I care about?

That’s a legitimate argument by the students. Universities, and their officials, have a First Amendment right to weigh in on public issues. But I think that institutional hubris prevents them from realizing that once they start they can’t stop. Once universities commit to weighing in, it’s fair game to question how they chose when to do so, and to examine what issues or causes draw their greatest vigor. It’s fair game to ask “why did you seem more upset, use more paragraphs, devote more vivid condemnation about this offensive speech as opposed to last month’s offensive speech?” Moreover, once a university creates an apparatus whose job it is to weigh in on public issues, it will be naturally tempted to do so more and more. Iron itself draws a man to use it; a public relations department itself draws a university to comment. The best case scenario is that an institution, like a political campaign, will be forced to spend time and resources framing policies positions on every issue and handling the resulting backlash. The worst case scenario is what we are seeing now — constant bitter dispute over institutional bias towards brutally unsolvable situations.

Non-academic institutions like law firms face the same problems. When national business selling widgets “go woke” — to use the fatuous and dismissive term popular on the Right — they are probably doing so out of a calculation that it sells widgets. But institutions like law firms sell services much more complicated than widgets, and taking political positions on public issues is far more likely to impact their credibility as advocates and counselors. A client — or a judge — would be perfectly justified to ask “you fired that prospective associate who wrote that, but not the lawyer who wrote this — why is that? You weighed in on antisemitism but not on racism — why is that?” It’s buying trouble.

The answer here is absolutely not simple; the problem is as complex and fraught as are the political disputes to be avoided. First of all, even the Kalven report conceded that sometimes political issues arise which implicate “the very mission of the university and the values of free inquiry” and so justify university involvement. I think that advocates of the Kalven approach dramatically underestimate how hard that line is to draw. Certainly laws that restrict what can be taught in a university, or that impact tenure, are fair game for comment. What about affirmative action? What about student diversity? What about First Amendment law in general, that impacts everyone’s free inquiry equally? What about primary and secondary education, which impact the population of students from which the university draws? What about racial slurs and racial harassment towards students that don’t rise to the level of abuse outside the protection of the First Amendment?

Second, while “neutrality” may be neutral, demands for neutrality usually aren’t. Popular demands for soda and beer brands to stay out of politics didn’t arise because the brands displayed American flags or “support our troops” advertisements; they arose because brands treated traditionally despised folks as fully American and fully human. The University of Chicago didn’t commission the Kalven Committee out of some abstract and intellectual concern for the ideal of neutrality; it did so because of pressure to weigh in in a very specific historic and cultural context — the Civil Rights movement and the Vietnam War1. Most modern demands for university neutrality arise from debate on war, race, class, and sexuality. Many people — most? — demanding neutrality mean they want universities to shut up with the positions they don’t like. You can’t assume that saying you’re neutral will be received as a neutral decision.

Rather than a probably unworkable hard-and-fast rule, I think university and institutional neutrality is better suited as a sensibility, an ethos. It’s a vibe. Its root should be humility. “This institution isn’t in a position to solve an ancient and intractable problem; we empower scholars and students to strive to do so” is an ethos. “This law firm doesn’t tell clients what their values should be, it seeks to advocate for them vigorously and competently” is an ethos. “This controversy is not suitable for a press release. It requires careful study and advocacy, like our members provide” is an ethos. It’s hard work. It takes discipline. It takes good-faith debate: is this, or is it not, an issue on which the university should take a position? To the extent institutions pursue it, it will take decades of patient explaining to overcome the social expectation that the institution will take sides.

No easy answers today. Sorry. Fresh out.