Why the Presidents Couldn’t Answer Yes or No

On December 5, the congressional Committee on Education and the Workforce grilled the presidents of three of our most elite universities — Harvard University’s Claudine Gay, the Massachusetts Institute of Technology’s Sally Kornbluth, and the University of Pennsylvania’s M. Elizabeth Magill. In this five-hour hearing, the Republicans, who predominate on the committee, were the most brutal. This is not surprising. The right has had it out for higher ed for some time, viewing it as an incubator of leftist thought.

What was surprising, when we consider how fights across the aisle have historically played out, is that it was the right accusing the left of bigotry — specifically, antisemitism (never mind that the torch-carrying mob chanting “Jews will not replace us” in Charlottesville, Va., were all Trump supporters). While there has been bipartisan condemnation of the surge of antisemitism in the United States, on campuses and beyond, Republicans blamed colleges. In her incendiary opening remarks, for example, the committee chair, Rep. Virginia Foxx, a Republican from North Carolina, agreed with Senate Majority Leader Chuck Schumer’s castigation of those in his party who, he felt, had betrayed “liberal Jewish Americans,” but she suggested that he had missed one of the main culprits in this collective betrayal: the university. “For 40 minutes,” she observed, “he failed to use the word university a single time.” And then came the damning indictment meant to set the agenda: “Rabid antisemitism and the university are two ideas that cannot be cleaved from one another.”

Foxx’s “evidence” for this claim was various. She began by enumerating specific courses in Harvard’s catalog (e.g., Race and Racism in the Making of the United States as a Global Power), as if their titles alone would convey their antisemitic content. (In fact, their names, to my ears, seemed to suggest exactly the opposite.) She posed tendentious questions about faculty hiring and curriculum: “How did your campuses get this way? What is it about the way that you hire faculty and approve curriculum that’s allowing your campuses to be infected by this intellectual and moral rot?”

As the protracted hearing wore on, however, it became clear that Republicans intended to use the dire issue of antisemitism on college campuses as a Trojan horse for the larger attack on higher ed that they have been perpetrating for decades now. Rep. Mary Miller, of Illinois, was shameless in deviating from the hearing’s topic. Replaying right-wing concerns about cancel culture, she asked Magill whether she’d allow former President Donald Trump to speak at his alma mater. (Magill said “yes,” much to the representative’s delight.) Miller then played the transphobic card, panicking about students using locker rooms inconsistent with their biological sex.

Then there was Rep. Rick Allen, of Georgia, who was simply on the moon. He reminded the room that they “have the full face of Moses looking down on the entire body.” Moreover, Allen continued, “our church was founded by Jesus, who was a Jew — the American church, in fact the church throughout the world.” Then he treated the poor university presidents to a homily on the dangers that biblical illiteracy posed to our colleges and to our nation, blithely heedless of the Constitution’s separation of church and state.

But the biggest, though perhaps best concealed, target for the Republicans was freedom of expression. It became clear that they had appointed as their captain for this crusade Harvard alum and avid Trumper Rep. Elise Stefanik, of New York, to whom right-wing committee members yielded the balances of their time on several occasions. It’s awfully paradoxical that freedom of expression should be the conservatives’ quarry in this hearing, given that they repeatedly referred to the most recent College Free Speech Rankings, put out by the Foundation for Individual Rights and Expression (FIRE), which placed Harvard last and Penn only one step above them. (MIT is in the middle, which is perhaps part of the reason why the wolf pack was far gentler on Kornbluth.) To resolve this paradox, we need only recall the widely read essay of last year from former FIRE president David French, “Free Speech for Me but Not for Thee”: “All too many Republicans want to maximize their own freedom and minimize their opponents’.”

That double standard was vividly on display in the hearing. In a nefarious but brilliant attempt at entrapment, Stefanik asked Gay, “A Harvard student calling for the mass murder of African Americans is not protected free speech at Harvard, correct?” It’s obvious that she had hoped to expose Gay, who’s black, as a hypocrite for defending pro-Palestinian students who had taken their rhetoric too far, but Gay didn’t fall for it. Stefanik had better success, though, when she addressed the issue head-on, demanding to know whether calling for the genocide of Jews violated Harvard’s code of conduct. Refusing Stefanik’s demand for a yes-or-no answer, Gay replied: “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 the policies against bullying, harassment —” And then she was cut off by another of Stefanik’s aggressive demands for a yes-or-no answer.

The president of the world’s preeminent university sitting before Congress and refusing to affirm that calling for genocide violates the institution’s code of conduct — on national television, no less? This is an optics nightmare, as the Republicans are fully aware, and it didn’t help that it persisted with the Republicans’ other targeted president, Magill, whose replies were almost identical to Gay’s, emphasizing that these questions depend on context. For her, too, determining if an utterance violates university codes depends on whether or not speech turns into conduct.

However craven or unsatisfactory Gay’s and Magill’s “academic” responses to these provocative questions may appear at first glance, they were absolutely right, even if tone-deaf. Theorists of language, from J.L. Austin to Roman Jakobson, have taught us that utterances are nothing if not contextual. Language is situated — coming from a particular person, in a particular time and place, meant for particular ends. Speech is meaningless when shorn of its context. As absurd as it may seem, this is true even of something so apparently threatening as “calling for the genocide of the Jews.” Was it a joke made between two Jewish students? A line put in the mouth of a character in a creative-writing professor’s novel? A satire, in the mode of Swift, actually intended to prevent genocide? We have had this conversation before about the N-word: Many literature professors have been at pains to explain that the word appearing in, say, Huckleberry Finn is different from a racist Proud Boy menacingly hurling it at a black child on the sidewalk.

More to the point, in equivocating on the question of whether calling for the genocide of Jews always constitutes a violation, the presidents were trying to fend off one of the most-charged yet patently illiberal tactics of the right, and of some on the left: the weaponization of antisemitism, a serious term we now see abused with breathtaking flippancy. Persuading the university presidents to grant that calling for the genocide of Jews violates codes of conduct (and, again, the answer to this does depend on context) would have opened a rabbit hole of false equivalences — such as that between intifada and calls for genocide — which often serve to foreclose any and all criticism of the state of Israel, even when that criticism has nothing to do with the ethnicity of its citizens.

Itai Sher, an economics professor at the University of Massachusetts at Amherst, illustrates just how vital it is that colleges remain open-minded about the possibilities for speech, and specifically with respect to the Israel-Hamas war. In a tweet responding to Penn’s recent, puritanical revision to its code of conduct — a revision aimed at regulating the discussion of genocide — Sher observes that the topic “must be debatable at universities,” warning that “punishing people for ‘veiled’ comments will chill debate.” As with thought, so with speech: You cannot know in advance to what it conduces. And this is why the presidents’ insistence on the distinction between speech and conduct is so important.

Gay’s and Magill’s replies were taciturn — probably because of both time constraints and legal advice — but they have significant implications for the kind of colleges they envision, and I think their visions are precisely what we need. They conjure colleges as oases of enlightened societies, not unlike what Kant describes in “What Is Enlightenment?,” where faculty and students are bid, “Argue as much as you will, and about what you will, only obey!” What Kant says one must “obey” are those restrictions put in place to protect everyone’s freedom. By confining themselves to policing conduct rather than speech, the presidents help ensure that colleges are places where expression does not lead to oppression — places where “enlightenment” is possible. When this vision is executed properly, the balance between freedom of expression and community safety is struck perfectly.

In trying to force the university presidents to condemn a particular kind of speech unconditionally and without context, Republicans tried to force institutions into a conformity completely at odds with the university’s essential function of finding and disseminating truth. As Noah Feldman points out in his recent article on the congressional hearing, “The core idea of First Amendment freedom is that the expression of ideas should not be punished because doing so would make it harder, not easier, to find truth.” Feldman goes on to explain that without such strong distinction between speech and conduct — the distinction Republicans like Stefanik wanted to force the presidents to deny — there’s no free speech at all. And no academic freedom either.

The presidents’ courageous refusal to provide simple answers to an extraordinarily complex set of questions may well cost them. It already has cost Magill, who, along with the chair of Penn’s Board of Trustees, resigned this past weekend. And it is undeniable that Gay and Magill — both, not incidentally, advised by the same law firm — would have benefited from the clarity demonstrated by Kornbluth, who explained in unmixed language that “speech can become a form of harassment” and that harassment is “punishable.” Ultimately, though, despite the overwhelming, deeply shortsighted pressures to denounce them, we in the academy should celebrate the heroism these women displayed on December 5. At a time when so many of our college presidents are behaving like corporate bosses, these three behaved like academics.