On the Need for Uncompromising Reassertions of Neutral Principles Regardless of Inevitable Political Implications

Editor’s note: Originally posted on the Access to Justice Blog

Richard ZorzaBy Richard Zorza —

There is obviously a lot to cheer about today, as different aspects of our complex, flexible, and therefore very resilient system starts to trigger its anti-fascism-antibodies.

One of the most important, in the long term, may be the fact that institutions with nonpartisan missions are coming to realize their right, obligation and need to reassert the neutral principles that inspire them and to act in accordance with those principles.  They are coming to see that non-partisanship does not impose passivity.

To put it another way, when the inconsistent actions of others highlight the difference between those actions and the actions of the nonpartisan institution, then that does not make the nonpartisan institution partisan, rather it just illuminates the hyper-partisanship of the actions of others.

Two simple and inspiring examples, from institutions large and small.

Under the heading “We Are All Harvard,” the President of my alma mater (not a phrase I usually use) issues a clarion call:

.  .  . I write to share information about resources available to students and faculty and to underscore that our international students and scholars are essential to our identity and excellence. We are all Harvard.

In times of unsettling change, we look toward our deepest values and ideals. Among them is the recognition that drawing people together from across the nation and around the world is a paramount source of our University’s strength. Thousands of students and scholars and visitors come to Harvard each year from all over the globe—to study, to teach, to propel our research enterprise, to join in conferences and colloquia, to share insights and abilities that transcend nationality. Thousands more leave Harvard each year to travel abroad, learning from experiences they could not replicate here, gaining insight into cultures and perspectives different from their own, visiting colleagues and family and friends, forming and sustaining the human bonds essential to mutual understanding.

Our robust commitment to internationalism is not an incidental or dispensable accessory. It is integral to all we do, in the laboratory, in the classroom, in the conference hall, in the world.

Very similarly, the Executive Director of Collington, the retirement community where I live, sent all the staff a letter yesterday, including the following language:

Each and every one of you reading this is a part of a large and close knit international family here at Collington.  We represent numerous countries from all over the world and proudly celebrate that diversity throughout our community.  .  .  .

I feel it is important for you to know that Collington stands firmly shoulder to shoulder with all of you.  We welcome with open arms all individuals.

He then quoted from the values and practices document.  “To encourage and welcome all people without regard to race, color, gender, sexual orientation, religion, national origin, or any other characteristic protected by law, to live in our communities and to serve on our staffs and boards.” He added, in a cover note to the Board:

For those that may not know, a significant portion of our staff are Muslim and/or immigrants and the recent executive order has many of them fearful even though they are all either naturalized citizens or permanent residents of the US.  As one staff member said to me today, “Collington could not exist without immigrants that come here to work.”

So, I would suggest that the path forward is simple: reassert core values and principles without fear that that will be seen as partisan — it is not.  Make plans to act in direct accord with those values and principles and be transparent about the need, the relationship between values and actions, and be proud of it all.  That will result in a stronger institutions, community and country, even more deeply grounded in our common principles and values.

With respect to the courts, this is not harder than for other institutions, but it does require more clarity of thought.  All too often, neutrality has been seen as requiring passivity.  But what we do have behind us is the experience of working through in the self-represented context that, neutrality does not prevent judges from taking actions to ensure fairness.  (See also general pre-election discussion here.)