The resignation of Elizabeth Magill, former president of the University of Pennsylvania, has the potential to be an ignominious, watershed moment in American history.
I’m a Jew and, heaven knows, no one has been more critical of elite colleges than I’ve been, but the greatest intellectual threat of these times is neither antisemitism nor Ivy League schools — it’s to academic freedom and the First Amendment’s protection of speech. Without a rapid course correction, Magill’s ouster will undermine the values of the American academy and the essence of what it means to be a college student.
A lot has been made of Magill, Harvard President Claudine Gay and MIT President Sally Kornbluth’s inadequate preparation for and stilted responses to Rep. Elise Stefanik’s pointed questioning during a recent hearing on antisemitism on college campuses.
One glaring error they made, which has received little attention, is their failure to correct Stefanik’s characterization of the term “intifada” as synonymous with genocide. Stefanik referenced Harvard students chanting during marches, “There is only one solution. Intifada revolution,” and “Globalize the Intifada.” She then asked Gay, “You understand that this call for intifada is to commit genocide against the Jewish people in Israel and globally, correct?”
Gay responded, “That type of hateful speech is personally abhorrent to me,” thereby distancing herself from antisemitism but effectively conceding the premise of Stefanik’s question and missing an important opportunity to reset the conversation. “Intifada” — the Arabic word for “uprising” — has been used since the 1980s to describe Palestinian revolts against Israel, and while it undoubtedly has been used by Hamas to advocate for the eradication of Jews, the term has no inherent connection to the concept of genocide.
On one of the most polarizing issues of our time, in one of the most polarized periods in human history, it would have been important to challenge a characterization of the facts as more extreme than they actually are.
It would have been important, too, to counter the subtler premise in Stefanik’s question, which ironically is one of the moves that conservatives most detest in the “woke” left — evaluating language by the listener’s sensitivities and reactions rather than the speaker’s intended meaning. The danger in this is obvious. Last month, 65 student groups declared in the Northwestern University student newspaper, “When we say, ‘From the river to the sea, Palestine will be free,’” — the slogan for which the Republican-controlled House censured Rep. Rashida Tlaib — “we imagine a world free of Islamophobia, antisemitism, anti-Blackness, militarism, occupation and apartheid.” Surely that is protected speech by any imaginable definition.
Finally, it would have been worth noting that even the advocacy of genocide — however abhorrent — would be protected speech. The touchstone here should be the University of Chicago’s free speech principles, which were created following a series of disputes over controversial commencement speakers and have been adopted by over 100 universities and endorsed by the Foundation for Individual Rights and Expression (FIRE), the nation’s leading defender of campus speech. Neither Harvard, Penn, nor MIT, have adopted what’s known as the Chicago Statement, though the free speech code at Harvard contains several similar elements and a petition at MIT to adopt the Chicago Statement has 163 faculty signatories.
The Chicago Statement guarantees all members of the university community “the broadest possible latitude to speak, write, listen, challenge, and learn” excluding only language that violates the law, is defamatory or “constitutes a genuine threat or harassment.” Harvard’s principles strike a balance between speech, which is “privileged in the University community,” and “the individual’s pursuit of inquiry and education.” It excludes “behavior evidently intended to dishonour such characteristics as race, gender, ethnic group, religious belief, or sexual orientation.”
So, despite her poor sense of the optics, Gay was correct when she told Stefanik that whether support for intifada violated Harvard’s Code of Conduct “depends on the context.” Specifically, it would depend on the speaker’s intent. Speakers with intent similar to the Northwestern University students would not violate the policy. Speakers who invoked the specter of genocide with the intention of harassing or intimidating would.
These colleges are private actors, but the answer would be the same under the U.S. Constitution. Speech advocating unlawful action is protected by the First Amendment unless it is both directed to and likely to produce imminent lawless action.
And the answer is resoundingly the same from the standpoint of an educator. Our job is not to promote intellectually safe spaces but rather to challenge students with controversial ideas and views. As the Chicago Statement puts it, “education should not be intended to make people comfortable, it is meant to make them think.” It is from engaging with people and ideas with which they disagree that people learn and evolve. This is the essence of the value of college.
No professor would protect a student who expressed a hateful view with the aim of disrupting a class or making a fellow student uncomfortable. But any teacher worth their salt would die to protect a student trying to articulate their honest conception of justice.
That’s why the doxxing of Harvard students who signed a misguided letter blaming Israel for the Hamas attack is so repugnant, a fact that should be particularly evident to the left, which (correctly) embraces the language of restorative justice. A young person’s fate should not be determined by their worst misdeed or most intemperate language.
Part of what has complicated this episode is that universities have been woefully inconsistent in enforcing their principles.
It’s simply not credible for Gay to defend Harvard as a bastion of free expression. Harvard ranked dead last in FIRE’s most recent free speech rankings, and Stefanik was correct to note that Harvard has rescinded admissions offers for sharing inappropriate memes and offensive social media content.
It’s worth noting that Stefanik is guilty of her own massive hypocrisies. In 2020, Stefanik railed against Harvard’s Institute of Politics when it removed her from its advisory board after she supported Donald Trump’s baseless claims of election fraud. At the time, Stefanik offered a broad conception of free speech on campus. “The decision by Harvard’s administration to cower and cave to the woke Left will continue to erode diversity of thought,” she wrote in a statement. "The Ivory Tower’s march toward a monoculture of like-minded, intolerant liberal views demonstrates the sneering disdain for everyday Americans and will instill a culture of fear for students.” Today, however, she is eager to crack down on dissent against U.S. support for Israel amid a controversial war.
The answer is not for the left or right to double down. It’s to abandon this pathway entirely.
Despite the firestorm, Harvard faculty rallied behind Gay, and the university has decided to keep her in place as president. This should be a relief to all those who care about maintaining academic freedom. But the threat is not over. (And while colleges are rethinking their policies, please end legacy preferences.)
It’s time for universities to reset to neutrality: Adopt the Chicago Statement, and get out of the business of taking stands on political issues unrelated to education. Responding to the issues of the day is the business of politicians. Balanced statements require consideration, nuance and empathy for all stakeholders. After all, colleges are supposed to be places where all kinds of people can learn.
This may cost something.
Some 50,000 members resigned from the ACLU in the 1970s after the organization and its courageous Jewish attorney David Goldberger defended the right of Chicago-area Nazis to hold a demonstration in Skokie, Illinois. Such risk has not prevented the ACLU and FIRE from defending antisemitic speech. They may lose members today. Colleges might lose support too. Hedge fund manager Ross Stevens threatened to withdraw a donation of approximately $100 million if Magill was not fired. The board of Wharton, Penn’s business school, was reportedly focused on a proposal to prohibit “hate speech.”
If anyone is equipped to weather this storm it’s these colleges. Penn’s endowment is $21 billion. Harvard’s is nearly $51 billion. If there’s a hill for these colleges to die upon, it’s this one.
Any venture down the path of allowing the government or college administrators to determine what speech is worthy of protection will not end well. Because there is simply no way to eliminate so-called “hate speech” without also cutting deeply into our most cherished freedoms of expression.
The essence of safeguarding civil liberties — a core piece of the American experiment — is to ask what you would think about restricting speech if the shoe were on the other foot.
Consider this statement: “These aren’t people. These are animals.”
Imagine first that it was being said by an Israeli about a Palestinian.
Then a Palestinian about an Israeli.
Then a Democrat about a Republican.
Then a Republican about a Democrat.
Each time as you read it, ask yourself whether it’s protected speech.
Interested in the identity of the speaker?
It was Donald Trump speaking about undocumented immigrants.
I look forward to Elise Stefanik’s hearing on that.
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