Liz Magill was forced to resign Saturday as president of the University of Pennsylvania—by all indications because, at a congressional hearing, she could not bring herself to declare that calls for the genocide of Jews are punishable speech. She would more justly have lost her job for being a bald-faced hypocrite when it comes to campus free expression. The future of higher education depends on which of these motives governs such decisions in the future.
Magill was part of a triumvirate of college presidents who testified before a House committee last week. Magill, Harvard president Claudine Gay, and MIT president Sally Kornbluth had been called to discuss the anti-Israel hatred embroiling their universities since the October 7 terror attacks on Israel. To call their performance robotic would insult robots. When asked a repeated question after their first evasion did not satisfy the questioner, these intellectual role models repeated their first evasion verbatim, maybe adding a cryptic non sequitur.
Congressman Jim Banks (R., Indiana) grilled Magill, for example, about a conference on Palestinian culture that the University of Pennsylvania had hosted two weeks before the Hamas terror attacks. Critics had demanded that Penn cancel the conference, due to the presence of alleged anti-Semites among its speakers. Penn allowed the gathering to continue, however, citing academic freedom.
Banks focused on invitee Roger Waters, founder of the rock group Pink Floyd and a vocal proponent of the Boycott, Divest, and Sanction (BDS) movement: “Why in the world would you host someone like that on your college campus to speak?” he asked.
Magill: “I appreciate the opportunity to discuss this. Antisemitism has no place at Penn.”
Banks: “Why did you invite Roger Waters? What did you think you would get out of him?”
Magill: “Antisemitism has no place at Penn, and our free speech policies are guided by the United States Constitution.”
It was on the question of condoning the “genocide of Jews” that the presidents were not only robotic but breathtakingly duplicitous.
Congressman Elise Stefanik (R., New York) parlayed this line of interrogation into national fame. Stefanik to Harvard president Claudine Gay: “Can you not say here that [calling for the genocide of Jews] is against the code of conduct at Harvard?”
Gay: “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 our policies against bullying, harassment.”
Stefanik: “Is that speech according to the code of conduct or not?”
Gay: “We embrace a commitment to free expression and give a wide berth to free expression, even of views that are objectionable.”
The other two presidents took the same substantive position: whether speech constitutes actionable conduct depends on the context, including whether it is targeted at specific individuals.
Stefanik to Magill: “I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment,”
Magill: “If it is directed and severe or pervasive, it is harassment.”
Stefanik: “So, the answer is yes.”
Magill: “It is a context-dependent decision, Congresswoman.”
Stefanik’s questioning was relentless, but was it fair? As MIT president Kornbluth noted plaintively, she was unaware of anyone at MIT calling for the genocide of Jews. Stefanik was extrapolating from the ubiquitous student chants of “intifada” to explicit calls for Jewish genocide, but the former expression is more ambiguous, especially in the mouths of ignorant American students.
Nevertheless, Stefanik’s interrogations went viral. “American college presidents tongue tied regarding the genocide of Jews!” was the common takeaway, even among liberal defenders of academia, such as Harvard law professor Laurence Tribe.
And this failure to agree that alleged calls for the genocide of Jews should be banned appears to be what did in Magill. (Penn’s chairman of the board also resigned on Sunday, a shake-up as momentous for the future of university governance as Magill’s departure.) Sensing her imminent peril, Magill released a video a day after the hearing reversing her position on punishable speech. A “call for genocide of Jewish people [is] harassment or intimidation,” she stated—and thus, subject to prior restraint or retroactive sanction.
The problem, Magill explained, was the Constitution: “For decades, under multiple Penn presidents and consistent with most universities, Penn’s policies have been guided by the Constitution and the law. In today’s world, . . . these policies need to be clarified and evaluated.” Penn would be initiating a “serious and careful look” at those constitutionally inspired limits, in order to provide what Magill called a “safe, secure, and supportive environment [where] all members of our community can thrive.”
In other words, though Penn had heretofore chosen to abide by constitutional norms (though as a private institution, it was not mandated to do so), it would now put those norms aside to ensure that students feel “safe.”
The presidents’ refusal to declare hypothetical calls for the genocide of Jews punishable conduct has been portrayed as the greatest scandal of the hearing. It was not.
The real scandal was the presidents’ duplicity in citing a “commitment to free expression” as the reason why they needed to give “wide berth to . . . views that are objectionable,” as Gay put it.
GOP congressmen demolished the presidents’ protestations of free speech loyalty, providing example after example of faculty members and outside speakers who had been muzzled, punished, or banned because of views contrary to campus orthodoxy. Those views included the assertion that sex is biological and binary, that racial preferences harm their beneficiaries, that the diversity bureaucracy inhibits academic freedom, and that an open-borders immigration policy damages the country.
It was those fantastically counterfactual assertions of loyalty to academic freedom that should have doomed Magill and the other two presidents. On any common understanding of truthfulness, their claims to protect “objectionable” views were flagrantly contrary to the facts. Having been exposed as hypocrites, dissemblers, and enforcers of politically correct thinking, they should all be fired as unfit to lead institutions ostensibly dedicated to the pursuit of truth and the transmission of knowledge.
Ironically, however, it was their one correct stance during the entire hearing debacle that put them in peril. However woodenly they asserted their alleged reason for not shutting down the pro-Hamas demonstrations, that reason should have been controlling. Speech should be protected unless it crosses the line into direct threats to individuals or incitement to imminent violence. Student parroting of Islamist slogans does not meet those tests. Allowing a central authority to ban speech that it declares injurious to the common good is a license for precisely the abuse of power that has been the norm throughout human history, a norm that the Founders were so insistent on overturning. Moreover, it has been in the name of creating what Magill called a “safe, secure, and supportive” campus “climate” that universities have suppressed unwelcome facts and unpopular speakers.
Of course, even the presidents’ explanation for why they tolerate the pro-Hamas demonstrations is likely a lie. The real reason for their equivocation is fear of the campus Left—or, in the case of the diversity bureaucrats who often took the lead in responding to the terror attacks—agreement with the campus Left that anti-Israel terrorism is merely a matter of Palestinian self-defense.
Critics of the American university have seized on what they perceive as the most efficacious means for discrediting academia. But though accusations of tolerance for the genocide of Jews guarantees the most media coverage, conservatives are making a mistake in highlighting that alleged tolerance as the main reason to revamp the university. This mistake will come back to haunt them.
Absent a complete turnover of university personnel, a renewed authority to limit speech will be used overwhelmingly against conservatives. Even now, Penn is weighing sanctions against law professor Amy Wax for her challenges to campus orthodoxy. Had the public consensus been that the universities’ mistake was in not extending the same tolerance they showed to the pro-Hamas demonstrators to dissenters from leftist nostrums, Wax could have argued that she is entitled to the same protections for controversial speech. Now, with renewed support, even from the right, for student “safety,” Penn can argue that its newfound concern for Jewish student safety requires it to intensify its solicitude for the “marginalized” groups whom Wax allegedly jeopardized with her contrarian opinions.
A colleague of Wax’s has published an op-ed in the Washington Post unironically headlined: “To fight antisemitism on campuses, we must restrict speech.” “Isn’t it time for university presidents to rethink the role that open expression and academic freedom play in the educational mission of their institutions?” asks law professor Claire Finkelstein. However fanciful the question’s premise—that universities currently honor academic freedom—it is chilling that the answer is increasingly affirmative, even from many on the right.
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