BY ALAN SINGER
An earlier version of this blog post appeared on the Daily Kos. We are reposting it here with permission of the author.
Many of us have seen the congressional sound bites. MAGA superstar Elise Stefanik made mincemeat out of Ivy League college presidents Claudine Gay of Harvard, Liz Magill of the University of Pennsylvania, and Sally Kornbluth of the Massachusetts Institute of Technology. While each denounced antisemitism during over three hours of testimony, when asked directly if hypothetical threats of genocide violated university codes of conduct, all three prevaricated, trying to explain that it depended on “context.” The congressional committee members provided no evidence that anyone on these campuses called for genocide against Jews.
Following the hearing, Rep. Virginia Foxx (R-N.C.), the chair of the House Education Committee, announced a congressional investigation into the three universities to examine their disciplinary policies and learning environments. A letter signed by 74 members of Congress demanded that the governing boards for Harvard, Penn, and MIT remove the presidents. Magill of Penn was the first to fall. She resigned as university president on Saturday. Scott L. Bok, the chair of the University of Pennsylvania Board of Trustees also resigned.
The three college presidents prepared for the hearing with a law firm, WilmerHale, that specializes in testimony before Congress. That was clearly a mistake. While preparing for congressional testimony must include legal knowledge, it also requires political savvy and common sense, what my Eastern European Jewish grandparents call “tseykhl,” or street smarts, something lacking in the three Presidents. All three presidents have since apologized for their poor performance at the hearing but face demands from alumni and donors that they resign or be fired.
Magill, a lawyer, tried to explain to the committee that the University of Pennsylvania Code of Conduct ensures “The right to freedom of thought and expression.” What she should have stressed was that the Code of Conduct also insists that students “exhibit responsible behavior regardless of time or place. Failure to do so may result in disciplinary action by the University.” Responsible behavior includes respecting the health and safety of others. This precludes acts or threats of physical violence against another person (including sexual violence) and disorderly conduct.” So, YES, advocating genocide against a group of people, Jews or anyone else, is a “threat of physical violence” and violates the University of Pennsylvania Code of Conduct.
According to the Harvard University Student Handbook, “speech not specifically directed against individuals in a harassing way may be protected by traditional safeguards of free speech, even though the comments may cause considerable discomfort or concern to others in the community” (51), a point President Gray unsuccessfully tried to make at the hearing. Harvard University “places special emphasis . . . upon certain values which are essential to its nature as an academic community. Among these are freedom of speech and academic freedom” (52). The handbook also makes clear that community members have a right to expect “freedom from personal force and violence,” which I assume means death threats. At Harvard, “Interference with any of these freedoms must be regarded as a serious violation of the personal rights upon which the community is based . . . It is implicit in the language of the Statement on Rights and Responsibilities that intense personal harassment of such a character as to amount to grave disrespect for the dignity of others be regarded as an unacceptable violation of the personal rights on which the University is based.”
The MIT Code of Conduct states that MIT “is committed to providing a living, working and learning environment that is free from harassment. Harassment is defined as unwelcome conduct of a verbal, nonverbal or physical nature that is sufficiently severe or pervasive to create a work or academic environment that a reasonable person would consider intimidating, hostile or abusive and that adversely affects an individual’s educational, work, or living environment.” I suspect this also includes, or should include, death threats and calls for genocide.
During questioning at the congressional hearing, Stefanik demanded to know whether Harvard had rescinded the admission of students who chanted “from the river to the sea,” a slogan identified with calls for a Palestinian state that would include territory that is now Israel. Stefanik was clearly unaware that extremist Israeli settlers on the West Bank have made a similar demand for the removal of Palestinians.
Criticism of Israeli actions in Gaza following the October 7th attack by Hamas has been heated on many American campuses, and in response the House of Representatives passed a statement equating anti-Zionism with antisemitism. Representative Jerrold Nadler, a Democrat from New York City and the longest-serving Jewish member of the House, refused to vote for the resolution. According to Nadler, “Under this resolution, those who love Israel deeply but criticize some of its policy approaches could be considered anti-Zionist. That could make every Democratic Jewish member of this body, because they all criticized the recent Israeli judicial reform package, de facto antisemites.”
Alan Singer is a professor of social studies education at Hofstra University.
First, had any of the three presidents given the answers you suggested the immediate next question would have been: so why haven’t you been disciplining the protestors for their views. Moreover, such claims would have opened the universities up to hostile environment lawsuits.
Second, your interpretation of the codes of conduct is less than fully persuasive.
For instance, the UPenn code of conduct does specifically say that hate speech on its own (while bad and the university disapproves) isn’t grounds for discipline. You read that responsible behavior clause so broadly as to render this part of the code meaningless.
I mean, on your interpretation, won’t voicing hate speech always be irresponsible behavior and thus punishable.
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I think the fact that I see academics confidently claiming both that the UPenn code of conduct both does and doesn’t forbid that behavior goes to a much deeper issue here. There is a problem at these (and many other) universities about a clear communication about what is and isn’t considered punishable speech.
I personally am horrified at the breadth with which you interpret these regulations but either way it’s a problem that there is such ambiguity over what they do prohibit as that’s a recipe for everyone feeling they aren’t being treated fairly and for strong emotions to affect enforcement.
To explain in more detail why I think your interpretation of all three codes of conduct is mistaken let’s consider each in turn.
Harvard: You read out the repeated use of the word “personal” and conflate abstract advocacy with a threat. This is a critical distinction.
Penn: Again the conflation of a threat and abstract advocacy.
On your reading of both Harvard and Penn’s codes a philosophy professor who admits: “yes under my moral theory it would be just to kill anyone who owns or operates a slaughterhouse” would be in violation if anyone at the school fit that description.
MIT: That quote merely speaks to what MIT is committed to providing and doesn’t articulate any rule that a student must follow on pain of discipline.
Indeed, we know it doesn’t intend to do so because it merely tracks the obligation all schools have under title VI (wrt race as is the case here) and we know that abstract advocacy of genocide is 1a protected and not something public schools can punish students for doing.
“…and we know that abstract advocacy of genocide is 1a protected and not something public schools can punish students for doing.”
Professor Gerdes
Not true. We do not know that. Your reliance on 1st Amendment protection is misplaced here. Speech that creates demonstrably unsafe conditions for other students on a college campus may subject the offending speakers to discipline.
School Codes of Conduct, no matter how inartfully they are written, all have the same legitimate purpose. They are all designed to ensure that students can enjoy a safe environment conducive to learning and free from harassment, intimidation, and bullying.
Parsing sentences in a Code of Conduct document to avoid its clear intent ignores the greater message contained in the totality of its body.
And it would not be difficult for a disciplinary board to take notice that a frenzied mob of pro-Palestinian students – chanting words (“Intifada”) and phrases (“From the river to the sea”) whose well-accepted meanings call for genocide of Jews – has created a hostile and dangerously unsafe environment for its Jewish students.
Such a correct and easy disciplinary board finding would place the offending students squarely in contravention of the school’s Code of Conduct or at the very least, its spirit.
Regrettably, the three presidents who refused to recognize these glaring facts have placed a mark of shame on their respective institutions.
It is most noteworthy, also, that students – by their acceptance of an admission to a school – voluntarily agree to abide by the school’s Code of Conduct. And behavior that violates the Code – even though it takes the form of speech – can still be punishable without offending the 1st Amendment. Simply put, the mere fact that speech is involved in wrongful behavior does not render that behavior immune from discipline.
Final thought: Would speech by a group of students on a college campus that calls for the “extermination” (in the abstract, of course) of Asians or Blacks or LGBT members violate a school’s Code of Conduct?
Or does anyone on this blog really think that such a school would be powerless to discipline these student offenders because of the 1st Amendment?