On December 5, at a widely broadcast hearing of the U.S. House of Representatives Education and Workforce Committee, three unwary college presidents made a hash of testimony on campus antisemitism, prompting the resignation of one of them and noisy and still ongoing calls for the others to step down as well. The common enduring impression is that the three presidents, Claudine Gay of Harvard, Elizabeth Magill of the University of Pennsylvania, and Sally Kornbluth of M.I.T., sought to sidestep answers to a question about dealing with those who call for genocide of Jews. In so doing the presidents offended almost everyone by appearing to evade the moral issue with overly rehearsed legalisms.

Rep. Elise Stefanik (R.-NY), put to Ms. Magill this simple question: “I am asking, specifically: Calling for the genocide of Jews, does that constitute bullying or harassment?” Ms. Magill, a lawyer, responded, “If it is directed and severe, pervasive, it is harassment.” To which Rep. Stefanik replied: “So the answer is yes.” Ms. Magill then said: “It is a context-dependent decision, congresswoman.”

The ensuing uproar, prompted in part by denunciations from Pennsylvania Governor Josh Shapiro and U.S. Senators Bob Casey and John Fetterman (both D.-PA), led to Magill’s resignation four days later. Although the brunt of the immediate criticism fell on Magill because of her extended colloquy with Rep. Stefanik, Gay and Kornbluth have also suffered withering criticism and though they remain in their jobs three weeks later, the fallout has not yet dissipated.

To all of this, several things stand out, all of them relating to the failure of moral leadership. A contrarian opinion piece in The Chronicle of Higher Education declared that “it’s a good thing” the college presidents “behaved like academics.” No, it’s not. The three presidents were not there as academics, that is, as teachers or scholars of a particular discipline. They were there as presidents, as leaders of leading American universities, being questioned in the sanctum of the U.S. House of Representatives, not on the fine points of law but of public policy and moral behavior.

The Expertise Problem

The first thing to notice is that this whole debacle is likely an instance of the failure to recognize the limits of expertise—or perhaps a misplaced trust in the wrong expert knowledge, an odd but common problem in universities. Instead of speaking to a House committee as leaders of significant organizations with wide influence on important segments of the American public, the presidents spoke as defenders of a legal view, filtered through the lenses of lawyers and courts, on the constitutional meaning of freedom of speech. Of course there is nothing wrong with espousing such a view; I’ve done it myself, when teaching a course on the First Amendment. But that’s not what the presidents were being asked. Yet it may have been the predictable outcome of the coaching they received from lawyers at a top American law firm, WilmerHale in Washington, which has a unit that helps prepare witnesses for legislative testimony. How much of this was the fault of Wilmer’s specialty practice is unclear and may remain unknown, since the details are still being hidden behind the understandable attorney-client relationship. It’s possible that the firm’s advice may have been better than the presidents’ delivery.

The Leadership Problem

And that’s the second thing to notice: the failure of leadership. (Many commentators no doubt would put this failure first.) The answer to a question from Congress on a matter so fraught should not be, “Well, it depends on all the facts on the ground,” including the euphemisms used, maybe this, maybe that, maybe the other thing. Leadership demands responding to the main thing first, and equivocating later. Compare these hypothetical Equivocating and Leadership responses:

Equivocating

Question: Does it violate your campus code, Madam President, to shout “The first thing we do, let’s kill all the lawyers?” (Shakespeare, Henry VI, Part 2 (Act IV, Scene 2)
Answer: Well, it depends on who is saying it and under what conditions. We’d need to know what the previous sentence referred to. Did the speaker mean only “bad” lawyers? Was he speaking of lawyers in the technical sense, as members of the bar or more generally as people with a legal education? Did he mean all the lawyers somewhere other than on our campus? Was he referring to a game we’re playing or to an actual homicide? Of course, if the speaker advocated actually killing actual people who are actual lawyers who are actually part of our community on our actual grounds, then we’d certainly want to examine whether he had the present ability to kill all the lawyers or only some of them or maybe none of them. And if he had the means to carry out his verbalized proposition, we’d need to know whether his call to action would have led to killing, or whether the lawyers could have protected themselves in an obvious way that would have communicated itself to the aggressors. And if all of those variables and nuances lined up properly after a full investigation, then, why, of course we would condemn it.

Leadership

Question: Does it violate your campus code, Madam President, to shout “The first thing we do, let’s kill all the lawyers?”
Answer: Any call for people to be killed on the basis of group identity should be condemned outright and without equivocation. To solicit genocide violates our clear campus rules, as it should violate those of any organization or community. How to do deal with a person who expresses that position depends on a number of things—did he explicitly call for genocide or did he mask it in a fuzzy euphemism; was he merely blustering or did he have the means to act on his demand? The courts have said that the First Amendment protects speech that does not directly incite immediate violence. For example, if the speaker had said, “let’s create a lawyer-free zone from the courthouse to your house,” that might not be enough to warrant us to act. If there’s a problem with this interpretation, take it up with the courts. And I should add, Madam Chairwoman, that in addition to the sanctity of life, we believe in the First Amendment as interpreted, as do many of your fellow Republicans who are not intent on banning books.

The Courage Problem

A third thing to notice, as lots of commentators have remarked, is the bind that these presidents were in. They found themselves tactically giving legalistic answers to provocative question accompanied in one notorious instance by the hostile demand that the answer be either “yes” or “no.” The problem was that their (and many other) universities have been wildly inconsistent on the very policy they were pressing: adherence to a broad conception of freedom of speech. For example, two years earlier MIT notoriously disinvited a distinguished geophysicist and climate scientist from speaking on his subject when the hosts discovered he had taken a position on affirmative action which to strong proponents of such policies sounded as if he philosophically favored limiting admissions and hires made on the basis of race. And Harvard’s record of handling free speech controversies has put it at the very bottom of one serious annual college survey on the issue. At the least it’s embarrassing to claim to be standing up for free speech when you deny it to many others for less egregious expressions (or for holding opinions on matters unrelated to and not even to be mentioned in a public talk). More likely your claims of virtue are downright hypocritical.

Had they the guts to speak to the point, Rep. Stefanik’s question gave the presidents the opportunity to demonstrate courage and pluck. The answer should have been something like this:

Congresswoman, you have pointed to an embarrassing situation we, and many other colleges, find ourselves in. Our response to these recent events fairly raises the question whether we have been consistent in applying our context-based rules in other situations. It’s entirely possible that we have not. As demoralizing and depressing as the current campus unrest has become, it does present us with the important opportunity to rethink how we have reacted and should react to the whole range of speech questions on campus. I pledge to do so, and to apologize on behalf of the university in those cases in which on more mature consideration we have wrongly or unfairly applied the free speech principles we all value. We cannot merely profess our principles; we must practice them.

As part of this pledge to be consistent, the presidents might also have considered the vogue word and concept that have put down roots on campus the past decade or more: microaggression. I refrain here from exploring the history and meaning of the term as it is commonly used today, but it is fair to ask why, if minor and often unintentional insults are taken as forbidden aggressions, the three presidents should have hesitated in condemning the ultimate macroaggressive calls for genocide.

The Law Problem

And if you are going to press nuance, context, and “legalistic” differences in interpreting your campus policies, you ought also to have been prepared with a fuller understanding of the law than was on display. At a minimum, the presidents might have consulted their HR departments (and the WilmerHale lawyers?) about Title VII of the 1964 federal civil rights act, which bars discrimination against employees on the basis of race, religion, sex, or national origins. In a landmark case in 1986, the Supreme Court held in Meritor Savings Bank v. Vinson that a sexually “hostile environment” constitutes a form of sex discrimination that Title VII prohibits. Notwithstanding the First Amendment. I won’t work through the legal analysis (and all the nuances and exceptions) that would take us from Meritor to the antisemitic harassment that has surfaced in the recent campus turmoil, but it doesn’t take a great leap of imagination to understand that—always with nuance in mind, of course—a series of demonstrations calling for what may reasonably be understood as genocide against some part of the student body is a hostile environment. To the extent that the hostility affects employees, the law applies directly to the university as employer. It might take an argument, but not one that’s difficult to articulate, that whether or not the law applies to campus residents, neither the First Amendment nor free speech principles generally stand in the way of a university’s applying an equal rule to protect students—namely, an enforceable ban on menacing demonstrations that raise justifiable fears of violence against individual people.

A New Year’s Resolution for 2024

I recognize that my reflections are all afterthoughts. That’s the joy of blogging. One can do it later, and at leisure, when the heat is off. That’s why, as the expression does not go, I’m not paid the big bucks. Here’s hoping that those who are paid to lead will do so from now on (and I include in this call a prayer for the tiny minds in Congress who have refrained from demonstrating a like consistency in their own rhetorical flourishes—and votes). May all of them resolve in the year to come to summon the moral courage and intelligence to minimize the offense that pusillanimity and narrow focus so often cause.

Update

Nearly a month after her congressional testimony, Claudine Gay became the second of the three presidents to step down, announcing her resignation on January 2, 2024. Her statement was silent on the issues that prompted her to resign, saying, in pertinent part, that “after consultation with members of the Corporation, it has become clear that it is in the best interests of Harvard for me to resign so that our community can navigate this moment of extraordinary challenge with a focus on the institution rather than any individual.”