Free Speech on Campus
Law 620
Spring 2024
TO BE NEUTRAL OR NOT (THAT’S THE QUESTION FOR UNIVERSITY LEADERS)
Throughout the semester, we’ve read the responses of university leaders—deans and presidents—to free speech controversies. E.g.,
White Supremacists Speakers. Florida’s president condemned the “racist rhetoric of Richard Spencer,” while expressing the university’s “unwavering” support for free speech.
Provocateurs at Commencement. NYU’s president called the commencement speaker’s words “one-sided and tendentious” and suggested the NYU wouldn’t have allowed the speaker to have delivered his pro-BDS speech.
What to do about Student Hecklers. A dean at Stanford Law told that speaker that “For many people here, your work has caused harm.”
The response of universities to free speech controversies moved to the fore once again, in October 2023, in the days after Hamas’s attack on Israel and Israel’s retaliation against Gaza. Below are two of the more prominent examples.
Case Study #1 (Harvard University)
[Drawn from three articles in the Harvard Crimson (here, here, and here) and in two articles in the New York Times (here and here).]
On the day of the attack, the Harvard Palestine Solidarity Committee (PSC) issued a statement, originally co-signed by 33 other student organizations, holding “the Israel regime entirely responsible for all unfolding violence.”
When Harvard’s president, Claudine Gay, and other leaders didn’t immediately respond to the statement, Harvard’s former president, Lawrence Summers, posted messages X (formerly Twitter):
In nearly 50 years of @Harvard affiliation, I have never been as disillusioned and alienated as I am today.
The silence from Harvard’s leadership, so far, coupled with a vocal and widely reported student groups’ statement blaming Israel solely, has allowed Harvard to appear at best neutral towards acts of terror against the Jewish state of Israel.
Instead, Harvard is being defined by the morally unconscionable statement apparently coming from two dozen student groups blaming all the violence on Israel. I cannot fathom the Administration’s failure to disassociate the University and condemn this statement.
I am sickened.
Politicians expressed similar views. E.g., Senator Ted Cruz (R-Texas), a Harvard Law graduate, wrote “What the hell is wrong with Harvard?” Rep. Elise M. Stefanik (R-N.Y.), also a Harvard grad, wrote “it is abhorrent and heinous that Harvard student groups are blaming Israel for Hamas’ barbaric terrorist attacks that have killed over 700 Israelis.”
Later that day, President Gay, joined by 17 other senior Harvard administrators, released a statement stating that they were “heartbroken by the death and destruction” caused by the Israeli-Gaza war. The next day, on October 10, perhaps in response to criticism that the original statement was too meek, Gay issued a stronger statement:
As the events of recent days continue to reverberate, let there be no doubt that I condemn the terrorist atrocities perpetrated by Hamas. Such inhumanity is abhorrent, whatever one’s individual views of the origins of longstanding conflicts in the region.
Let me also state, on this matter as on others, that while our students have the right to speak for themselves, no student group — not even 30 student groups — speaks for Harvard University or its leadership.
And in yet a third statement, Gay released a video message to the Harvard community.
But controversies at Harvard continued. Students allegedly affiliating with groups that signed the PSC statement were doxed on websites and social media. And a billboard truck with the names and faces of the student signatories drove through streets near the university.
Some donors also pulled their financial support. As one put it, “We are stunned and sickened at the dismal failure of Harvard’s leadership to take a clear and unequivocal stand against the barbaric murders of innocent Israeli civilians by terrorists last Saturday, the Sabbath and a festival day.”
Ultimately, Gay established an Antisemitism Advisory Group. But she continued to face criticism, this time for refusing to give a definitive answer, at a congressional hearing, to the question of whether “calling for the genocide of Jews” would violate the university’s code of conduct. In an interview with Harvard’s student newspaper, Gay apologized for her response, saying: “Words matter.” And that “[w]hen words amplify distress and pain, I don’t know how you could feel anything but regret.” (See reports here and here.)
(On January 2, 2024, Gay resigned from the presidency. Controversy over her response to the Hamas attack on Israel likely played a role, as did accusations of plagiarism. Her letter of resignation is here.)
Case Study #2 (University of Pennsylvania [“Penn”])
[Drawn from three articles two articles in the New York Times (here and here) and one in the Philadelphia Inquirer.]
Before Hamas’s attack on Israel and Israel’s retaliation against Gaza, Jewish groups objected to some of the scheduled speakers at festival featuring Palestinian art and culture to be held on Penn’s campus (but not officially sponsored by Penn) on September 22, 2023. The groups claimed that some of the speakers were antisemitic.
Two days before the conference, Penn’s president, Liz Magill, responded in a letter to one of the Jewish groups. She called the inclusion of some of the speakers “deeply offensive,” but reiterated “Penn’s commitments to open expression and academic freedom are central to our educational mission. This is true even— and especially— when keeping those commitments is most challenging.”
Critics of the festival were not pleased with President Magill’s response. Apparently, nearly 4,200 Penn alum signed a protest letter:
[M]any scheduled speakers at the upcoming event…have a history of antisemitic rhetoric, actions, and hostility towards Jewish people. The fact that University of Pennsylvania academic departments are co-sponsoring the Festival and its platforming of outright antisemitism without denunciation from the university is unacceptable.
Magill faced even more pushback after the Hamas attack out of anger that it took her three days to issue a formal statement; and some alumni thought the statement was too tepid. They complained about Magill’s “failure to condemn all forms of hatred, including antisemitic hatred.” One alum, Marc Rowan, even called on “all UPenn alumni and supporters who believe we are heading in the wrong direction to ‘close their checkbooks’ until President Magill and (Board of Trustees) Chairman Bok resign.”
Meanwhile, Penn’s Board reaffirmed their faith in Magill: “President Magill and her existing University leadership team are the right group to take the University forward.” Important donors, though, disagreed and joined Rowan in pulling their funding. One resigned from the Board saying that the university’s leadership had “a broken moral compass.”
In early November, Magill expressed regret that some Penn community members doubted her position on antisemitism and her hope that “with time and progress on our goals, that they will once again engage with Penn.” She also released a plan to “combat antisemitism,” writing that Penn will counter “this evil urgently on our campus and in society.”
But that wasn’t the end of the matter. Four days after testifying at the same congressional hearing as Gay, Magill resigned amid the same criticism: that she seemed to evade a question on whether Penn would discipline students “calling for the genocide of Jews.”
Readings
Kalven Committee, “Report on the University’s Role in Political and Social Action,” November 11, 1967 (the “Kalven Report”). (We read another University of Chicago report earlier in the semester, when we discussed historical perspectives on university free speech. Please review that too.)
Christopher L. Eisgruber, “Princeton’s Tradition of Institutional Restraint,” Princeton Alumni Weekly, November 7, 2022
Mohan Setty-Charity, “Stick with Institutional Restraint, Not Institutional Neutrality,” The Daily Princetonian, March 7, 2023
Robert Post, “The Kalven Report, Institutional Neutrality, and Academic Freedom,” August 19, 2023
Class Discussion/Your Essay
The 1967 “Kalven Report” report called for a policy of university neutrality: universities should steer clear of taking positions on issues of the day.
But, according to some commentators, many universities don’t follow this policy on at least some issues and so may have “forfeited” the right to be neutral on others. As Summers, the former president of Harvard, put it, “When you fly the Ukrainian flag over Harvard yard, when you issue clear, vivid and strong statements in response to the George Floyd killing, you have decided not to pursue a policy of neutrality.” (According to one scholar’s inventory of 17 major universities, 15 issued a statement about Ukraine.)
We want you to tackle the following problem. Suppose you’re an advisor to USC’s president. Based on what you’ve learned this semester (and any outside materials you may want to consult), would you advise the president to pursue a policy of neutrality, outright reject neutrality, or adopt something in between?
Your essay should address this question. Please justify your response with relevant materials and please don’t forget to acknowledge arguments that may not support your position.
You also should be prepared to discuss your answer in class.