Lessons From the College Presidents

 

By David K. Shipler 

                During a presidential debate in 1988, Massachusetts Governor Michael Dukakis sank his presidential campaign with a clinical, legalistic answer to a question about his wife from reporter Bernard Shaw: “Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?”

                Instead of reacting from his gut, Dukakis responded from his head. Instead of exploding first with a vengeful desire to tear the man limb from limb himself, he jumped right to the substantive answer on capital punishment:  “No, I don’t, Bernard, and I think you know that I’ve opposed the death penalty during all of my life. I don’t see any evidence that it’s a deterrent, and I think there are better and more effective ways to deal with violent crime. We’ve done so in my own state. It’s one of the reasons why we have had the biggest drop in crime of any industrial state in America . . .” By that point, if not sooner, millions of voters were incensed by his lack of passion, no matter how legitimate his policy.

                It’s not an exact parallel, but it’s instructive nonetheless in how the three presidents of Harvard, MIT, and the University of Pennsylvania made fools of themselves in last week’s congressional hearing. Excessively prepared by the prominent law firm of WilmerHale, according to The New York Times, they slipped catastrophically into procedural answers during a sequence of prosecutorial questions on whether calls by students for the genocide of Jews would constitute punishable harassment.

                Again, instead of the raw gut reaction of “Yes!” two of them in particular, Elizabeth Magill of Penn (who has since been forced to resign) and Claudine Gay of Harvard, tried to draw a line between speech and conduct. The first is usually protected, the second, often not. They failed to recognize that verbal calls to exterminate Jews, who make up part of their student populations, would at least blur that line and probably erase it entirely.

They may have been complacent about antisemitism on their campuses, as some Jewish students have complained. Or they may have been more sensitive than last week’s blundering made them seem. In any event, cautionary lawyering apparently made them gun-shy about potential free-speech lawsuits from students. The presidents acted as if they were in a courtroom instead of a hearing room. And therein lie some lessons.

1.       Never testify before Congress voluntarily. If you’re not under subpoena, obligated as a government official to appear, or seeking Senate confirmation for a position. Don’t naively imagine that the legislators are inviting you because they are actually seeking information. The Republicans especially want you as a foil to posture, perform, and promote themselves into political orbit.

2.       If you can’t resist the honor of being a witness, be prepared to push back on uninformed or hypocritical questioners. There was no reason to accept brow-beating by failing to note the country’s rising phenomenon of hateful speech in the country, fostered by certain political leaders. Why not call out last week’s acerbic interrogator, the Republican Congresswoman Elise Stefanik?  A former moderate turned hard-right, she got on her high horse about antisemitism while supporting the country’s chief enabler of white supremacists and neo-Nazis, Donald Trump.

3.       Play the role of decent human being first, and only second the role of considered academic, bureaucrat, policy wonk, or fund-raiser. Say what you feel, not only what you think. Tucked into the presidents’ responses were the appropriate revulsions about antisemitism, but they were wrapped in procedural scaffolding, making them seem bloodless. Remember, again, this is a hearing room, not a classroom or a courtroom.

4.       Address the perplexities of free speech head on. Not all speech is protected, even under the First Amendment. Certain threats are punishable in and of themselves. Further, the First Amendment restricts what government may prevent or punish, not usually what non-state institutions such as those three private universities may do. Well before coming to Washington, the presidents must have—should have—thought through this question of how much speech can legitimately be curbed without snuffing out intellectual freedom. It’s a balancing act, because a college owes its members security from a hostile environment. It also owes students an education, including what Stefanik and her fellow Republicans vitriolically oppose: good diversity, equity and inclusion programs to prepare students for the diverse world they will enter. The college presidents surely know that the best protection for healthy freedom of speech is not punishment. It is the internal moral compass of every student who can learn to listen as well as speak, to agitate without threatening.

5.       Don’t be afraid of your students. They are there to learn, and you are there to teach and to model free intellectual inquiry. Too many quivering administrators these days are cowed when students disrupt or cancel speakers they disagree with, thereby narrowing the field of debate and corrupting the university’s purpose.

6.       Thoroughly familiarize yourself with the subject at hand, in this case the Israeli-Palestinian conflict and the slogans of protest. The presidents should have been able to see immediately the logic of Stefanik’s interrogation, which was designed to entrap.

If you read more of the hearing’s transcript than the brief clips on the news, you’ll see what Stefanik was up to: corner the presidents into admitting that they had not acted to curb antisemitism. She was trying to do that by conflating “intifada” (“uprising”) with genocide. Here is a relevant excerpt from an exchange with Harvard’s President Gay, who is Black:

STEFANIK: Dr. Gay, a Harvard student calling for the mass murder of African Americans is not protected free speech at Harvard, correct?

GAY: Our commitment to free speech …

STEFANIK, interrupting: It’s a yes or no question. Is that okay for students to call for the mass murder of African Americans at Harvard? Is that protected free speech?

GAY: Our commitment to free speech extends …

STEFANIK interrupting: It’s a yes or no question. Let me ask you this. You are president of Harvard, so I assume you’re familiar the term intifada, correct?

GAY: I’ve heard that term, yes.

STEFANIK: And you understand that the use of the term intifada in the context of the Israeli-Arab conflict is indeed a call for violent armed resistance against the state of Israel, including violence against civilians and the genocide of Jews. Are you aware of that?

GAY: That type of hateful speech is personally abhorrent to me.

STEFANIK: And there have been multiple marches at Harvard with students chanting, quote, There is only one solution intifada, revolution, and, quote, globalize the intifada. Is that correct?

GAY: I’ve heard that thoughtless, reckless and hateful language on our campus. Yes.

STEFANIK: So based upon your testimony, you understand that this call for intifada is to commit genocide against the Jewish people in Israel and globally. Correct?

GAY: I will say again, that type of hateful speech is personally abhorrent to me.

STEFANIK: Do you believe that type of hateful speech is contrary to Harvard’s code of conduct, or is it allowed at Harvard?

GAY: It is at odds with the values of Harvard.

STEFANIK: Can you not say here that it is against the code of conduct at Harvard?

GAY: We embrace a commitment to free expression, even of views that are objectionable, offensive, hateful. It’s when that speech crosses into conduct that violates our policies against bullying, harassment, intimidation--

STEFANIK interrupting: Does that speech not cross that barrier? Does that speech not call for the genocide of Jews and the elimination of Israel? When you testify that you understand that is the definition of intifada, is that speech according to the code of conduct or not?

GAY: We embrace a commitment to free expression and give a wide berth to free expression, even of views that are objectionable.

The word “context,” so integral to providing students with due process if they’re charged with violations, proved incendiary in this hearing. To Stefanik’s question on whether calling for genocide violated Harvard’s rules against bullying or harassment, Gay answered, “It can be, depending on the context.”

“What’s the context?” Stefanik asked.

“Targeted at an individual,” said Gay.

“It’s targeted at Jewish students, Jewish individuals,” Stefanik shot back.

Evidently, Stefanik was not getting exactly what she expected from the presidents: that calls for genocide violated the codes of conduct. If they’d said yes, her next question would surely have been: So, what punishments for that code were applied? And if the answers were none--bingo, gotcha for tolerating antisemitism.

There seems to be no evidence that students have urged “genocide.” Rather, the entire line of interrogation relied on Stefanik’s assertion that pro-Palestinian protesters were advocating genocide against Jews by calling for an intifada. It‘s a questionable argument, as Gay might have said had she been better prepared. The term intifada, as used by Palestinians to describe two past episodes of violent “uprisings” against Jews in Israel, has not been generally taken as a synonym for genocide against all Jews everywhere, extending to Harvard’s campus. Even the slogan “globalize the intifada” usually means global activism for the Palestinian cause, not mass murder of Jews worldwide. Gay missed the opportunity to draw that distinction.

The clumsy retreat into procedural language was sharply displayed in this exchange with Magill of Penn:

 STEFANIK: At Penn, does calling for the genocide of Jews violate Penn’s rules or code of conduct? Yes or no.

MAGILL: If the speech turns into conduct, it can be harassment, yes.

STEFANIK: I am asking specifically, calling for the genocide of Jews, does that constitute bullying or harassment? Yes or no?

MAGILL-- if the speech becomes conduct, it can be harassment, yes.

STEFANIK, her voice rising to an incredulous tremor: Conduct meaning, committing the act of genocide?

Ouch. Magill dug herself in deeper by saying, “It is a context-dependent decision, Congresswoman.” Magill is a law professor.

                With the benefit of the doubt, the presidents could be seen as trying to be balanced and considered in their attempts to defend freedom of speech on highly polarized campuses. Ironically, their ineptitude is likely to accomplish the opposite, emboldening the hard-right groundswell of contempt for higher education’s supposed leftist “elites” and “experts.” Under pressure from donors and politicians, the scope of permitted protest and debate, already eroded by the dogmatic left, is likely to be narrowed further, just when the country desperately needs open, civil discourse.