The now outgoing president of the University of Pennsylvania is a highly accomplished scholar. She, along with the presidents of Harvard and MIT, have had years of experience preparing for and taking exams and have inexhaustible resources at their fingertips to help them get ready. Yet, these three presidents so spectacularly failed their latest exam at a congressional hearing last Tuesday to discuss the record levels of antisemitism on campus that Penn President Elizabeth Magill has already been forced to resign while Harvard President Claudine Gay has had to make an abject apology for testimony which Harvard Law Professor Lawrence Tribe called “hesitant, formulaic, and bizarrely evasive.”
Indeed, the now infamous performance by these university leaders before the House Education and Workforce Committee managed to generate a remarkably widespread chorus of condemnations from the White House, leading Democrats and Republicans, and business and community leaders. As a former university general counsel serving as an advisor to five university presidents and having previously worked at the law firm that prepared Magill and Gay for their testimony, I know how thoroughly presidents prepare for important public presentations and hearings. So what possible explanation is there for this extraordinary leadership flameout?
One major factor is a deeply embedded misunderstanding among many higher education leaders that upholding free speech principles requires tacit acceptance of an increasingly toxic campus environment for Jewish students. When asked explicitly whether advocating genocide against Jews was a violation of the schools’ student conduct codes, Magill began her answer by highlighting Penn’s commitment to free speech and then observed that, “It is a context-dependent decision.” Her response was echoed by Gay, who declared that, “We embrace a commitment to free expression and give a wide berth to free expression even of views that are objectionable, outrageous and offensive.” These answers betray a serious misconception of how free-speech principles should apply on campus.
Colleges and universities typically say they exist for the purposes of teaching, learning, and research. Free speech and related principles of academic freedom are critically important in order to foster these objectives. As Justice Felix Frankfurter famously observed in Sweezy v. New Hampshire, “the spirit of free inquiry [and] the right to examine, question, modify or reject traditional ideas and beliefs… are the necessary conditions for the advancement of scientific knowledge [and are] also necessary for creative work in the arts.”
But increasingly, university leaders and faculty have developed an intellectually lazy habit of ignoring this foundational rationale for free speech in the academy. The contours of the right to free speech, like all other rights that we Americans cherish, can be determined only if we appreciate the purpose of such a right in the first place. Free speech in a university context exists to foster the particular goals of an academic community. Speech activity that is self-evidently unhinged from the university’s scholarly mission and instead operates to impede that mission by directly attacking an insular minority on campus should not be shielded from any disciplinary consequences.
To cite a real-world example, a member of the university community who places a noose in a campus location knowingly frequented by Black students can, and should, be disciplined for that speech activity. That’s because the speech activity in no way fosters the academic purposes of the school, but instead creates a hostile educational environment for Black students in violation of Title VI of the Civil Rights Act which requires the school to eliminate the hostile environment, address its effects, and take steps to ensure that it does not recur. Ignoring the reason why universities should protect free speech leads them to misapply the principle in cases where it serves no valid purpose, and instead creates a climate of intimidation and fear that violates students’ civil rights and denies them equal educational opportunities.
A second reason underlying these presidents’ problematic testimony is what might be called the “Jewish students exception” to diversity, equity and inclusion (DEI) protections on campus. Virtually no DEI offices in American higher education were established with any consideration for Jewish students’ needs. Even today, after the alarming rise in antisemitism on campus has been called out by President Biden and his administration, as well as by Congressional leaders and state officials across the country, Jewish students routinely experience a cold shoulder from DEI and other student-facing administrators who do little to protect them from an explosion of intimidation, marginalization, and bullying in classrooms, in social media, and in the quad.
Too often, Jewish students are stereotyped as privileged, white, and wealthy students who are undeserving of the protections and services offered to other minority campus populations. This discrimination not only is an erasure of the 28% of Jews between the ages of 18-29 who identify as Jews of color or Mizrahi Jews; it is a violation of federal and state civil rights laws and a betrayal of the very mission proclaimed by the schools these students are attending.
It is a stark and sad truth that while Presidents Gay, Magill, and their DEI offices likely would find it easy to express unconditional condemnation of similar behavior inflicted on other minority groups on their campuses, the “Jewish students’ exception” makes them visibly uncomfortable answering detailed questions about their schools’ protection of Jewish students’ civil rights, explaining that they must “contextualize” their responses to genocidal threats behind a haze of free speech ideas and student privacy rules that leave Jewish students with little faith that their school will take their claims of harassment seriously.
Let’s be clear: Nothing in the law of free speech, academic freedom, or student privacy prevents university presidents from forthrightly declaring that advocating genocide of Jews or any other group is barred by their student conduct policies. If those policies aren’t clear enough on this point, then they should commit to making them clear. The time for obfuscation and avoidance is over. The time for moral clarity and leadership is now.