HARVEY SILVERGLATE says the testimony of three prominent university presidents at a congressional hearing on Tuesday “was appallingly bad” and the lawyers advising them “should all be fired for incompetence.”
The leaders of Harvard, MIT, and the University of Pennsylvania have faced a firestorm of criticism after their appearance at a hearing of the House Education and Workforce Committee focused on antisemitism on US college campuses. The presidents have been excoriated for equivocating when asked whether calls for genocide against Jews would violate conduct rules at their schools or constitute bullying or harassment. By Saturday, one of them, Penn’s Liz Magill, had resigned.
Critics have expressed shock that the presidents did not readily say that such calls would cross the line, but Silverglate, a well-known First Amendment lawyer, says the real problem lies with the very idea that the university officials should be commenting on contentious issues at all.
“They are not political leaders,” said Silverglate, a co-founder of the Foundation for Individual Rights and Expression. “They are heading institutions the sole purpose of which is to enable an exchange of ideas. A liberal arts campus is a place where people are allowed to express even the most unpopular views, the most outrageous political positions.”
That freedom, he said, should extend to anything short of acts of violence or voicing criticism of someone or a group of people that includes an element of clear physical intimidation.
At the hearing, the presidents got drawn into testy exchanges with committee members, mostly Republicans who were clearly out to sandbag the higher ed leaders. The three presidents tried to distinguish between speech, which they said would be protected, and conduct, which would not. Their answers got them tied in knots.
Asked whether calls for genocide against Jews would violate Penn’s code of conduct, Magill, said, “if the speech turns into conduct, it can be harassment. Yes.” When pressed further on the issue by Rep. Elise Stefanik, a New York Republican, Magill said: “It is a context-dependent decision, congresswoman.”
It came off like a version of Bill Clinton’s famous evasion on the meaning of the word “is,” but with far more serious issues at stake.
Within 24 hours, Magill was on the defensive, facing calls to resign from Jewish leaders and a major Penn donor as well as questions about her ability to lead the university from Pennsylvania Gov. Josh Shapiro, a nonvoting member of Penn’s board of trustees. The day after her congressional testimony, Magill released a video statement walking back her comments, saying she was unduly focused in her testimony on the university’s long-standing commitment to free speech and not on the “irrefutable fact that a call for genocide of Jewish people is a call for some of the most terrible violence human beings can perpetrate.”
“In my view it would be harassment or intimidation,” she said, removing the context-dependent qualification she attached to her response during the hearing.
On Saturday, facing mounting pressure, Magill resigned.
By Thursday, Harvard president Claudine Gay was also in full retreat, apologizing for her testimony in an interview with The Harvard Crimson, the campus student newspaper. “I am sorry. Words matter,” Gay told the paper.
“I got caught up in what had become at that point, an extended, combative exchange about policies and procedures,” Gay said. “What I should have had the presence of mind to do in that moment was return to my guiding truth, which is that calls for violence against our Jewish community — threats to our Jewish students — have no place at Harvard, and will never go unchallenged. Substantively, I failed to convey what is my truth.”
During her testimony, Gay was grilled by Stefanik on whether calls to “globalize the intifada” or for “intifada revolution” violate Harvard’s code of conduct.
Gay said such expressions are “personally abhorrent” and “at odds with the values of Harvard,” but only violate university policies when such speech “crosses into conduct.”
Explaining the university’s broad defense of speech rights, Gay said, “We embrace a commitment to free expression, and give a wide berth to free expression even of views that are objectionable, outrageous, and offensive.”
Stefanik shot back: “You and I both know that is not the case.”
With that, Stefanik – a self-described “ultra MAGA” warrior who has herself faced charges of echoing white nationalist talking points – struck at the heart of why the controversy over rising campus antisemitism, and how universities have addressed it, has become so fraught.
Silverglate said the debate has exposed the two-faced posturing of universities, which seem to be bending over backwards to regard actual or perceived statements of antisemitism as protected speech, but have become increasingly intolerant of speech that offends those on the political left.
“Everybody wants their own speech to be free, but they try to shut up the people who disagree with them,” he said.
New York Times columnist Bret Stephens made the same point in Friday’s paper.
“Colleges and universities that for years have been notably censorious when it comes to free speech seem to have suddenly discovered its virtues only now, when the speech in question tends to be especially hurtful to Jews,” he wrote.
He cited a string of examples, including the “hounding out” at Harvard of evolutionary biology instructor Carole Hooven, who authored a recent book arguing that sex is binary and biological. At MIT two years ago, he noted, a department canceled a scheduled scientific talk by a University of Chicago geophysicist who has questioned some aspects of affirmative action and diversity programs. Stephens says that’s hard to square with MIT president Sally Kornbluth’s claim at Tuesday’s hearing to embrace the airing of diverse viewpoints.
“The word for all this is hypocrisy,” wrote Stephens, who calls the double standard playing out at US campuses “itself a form of antisemitism.”
Silverglate says hypocrisy over speech is now rife on the political left and right. “I am a traditional liberal,” he said. “The left, however, has been taken over by the so-called progressives. They are the fascists of the left,” he said, adding that the same intolerance of differing views is true of many Republicans on the right.
Dan Cohen, a left-leaning political consultant who has worked on many Massachusetts political campaigns, said the congressional hearing exposed the lack of consistent commitment to free speech on both the left and right.
“Anti-free speech actors on the left, who have for years been pushing policies to ban the expression of discriminatory or otherwise ‘harmful’ speech in many venues, are now horrified that people are trying to restrict their ability to advocate for ideas that other people find harmful and discriminatory,” Cohen wrote in a lengthy Facebook post.
Meanwhile, he said, “Many on the right (but not exclusively on the right) who have rightfully decried laws and policies that ban the expression of ideas deemed harmful to marginalized groups, are now chomping at the bit to ban any number of thoughts, ideas, slogans, or images.”
Silverglate said university presidents should get out of the business of weighing in on major issues of the day and work instead to make their campuses open to vigorous debate, even if it includes extremist views they oppose.
“This should be a place where people can voice their opinions, no matter how outrageous. They can call for genocide. They can’t take the first step to it,” said Silverglate, a Harvard Law School graduate who has twice run for a seat on the university’s board of overseers to push for free speech policies.
“Restricting the expression of ideas has never and will never stop those ideas,” wrote Cohen. “Having vile ideas exposed and countered is the only long term solution toward limiting their power.”
[This story was updated following the announcement on Saturday that Magill resigned.]