The Harvard and UPenn presidents walked into a trap in Congress

I wrote this essay for The Guardian, about how three university presidents from elite institutions were asked about non-existent calls for genocide on American campuses, while the potential dangers of genocide in Gaza were ignored.

Last week in Congress, Representative Elise Stefanik proved how well she can throw a dead cat.

Let me explain. During an hours-long hearing on 5 December, members of Congress grilled university presidents from Harvard, MIT and the University of Pennsylvania, some of the country’s most elite institutions of higher learning, about antisemitism on their campuses. But it was Stefanik’s questioning that grabbed the spotlight. She repeatedly asked the presidents essentially the same question: does calling for the genocide of Jews on your campus constitute harassment, yes or no?

The question is a trap, of course, and for several reasons. The first and most important reason is that there’s no evidence anyone since 7 October, or even in recent history, has called for the genocide of Jews on any American campus, public or private. Stefanik’s question implies that such calls are commonplace, but she offered no proof.

The second reason this is a trap is that the question can’t be answered with just “yes” or “no”. Public universities, as state actors, are bound by the first amendment, as are private universities which receive federal funding. And the vast majority of private universities guarantee freedom of speech and academic freedom as part of their core mission. The American university is, by tradition and design, precisely where abhorrent ideas can be uttered. So, if someone had called for the genocide of Jews, which they haven’t, that would be extremely disturbing but still protected speech.

The utterance alone does not constitute harassment. In fact, the utterance should be an opportunity to debate and debunk – and not silence – the worst ideas of our day. To rise to harassment, such conduct must be targeted at an individual and, as a 2019 supreme court case decided, be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”. Context makes the difference, or as this 2011 article, published by the American Bar Association, says: “It is the context that matters, and the context helps to make the determination about whether conduct is actionable under school policy or protected by the First Amendment.”

The third reason the question is trap is that the situation is complicated by the overarching codes of conduct many universities have adopted, codes that I believe do often (wrongly) cross over into limiting speech. But here, too, Stefanik seems confused. Writing in the Wall Street Journal after the hearing, Stefanik ridiculed Harvard for requiring incoming undergraduates to take an online training session to help them identify language and behavior that could be considered hateful to others. But, while mocking Harvard’s approach, Stefanik – a rising Maga Republican – is at the same time demanding to be included in it. So, which is it?

To recap: all three presidents were asked how they would hypothetically punish hypothetical students for uttering hypothetical thoughts. They answered, albeit with lawyerly detachment. Yet their responses were deemed by many, from the White House on down, as callous and insufficiently protective of Jewish students. Following the hearing, all the presidents attempted damage control, but the University of Pennsylvania president has since resigned.

Meanwhile, not a word was spoken about the threats that Palestinian, Arab, or Muslim students and faculty (and their supporters) are facing. Billboard trucks drive around Cambridge, Massachusetts, and New York City and Washington, broadcasting the names and faces of Palestinian supporters and libelously labeling them “antisemites”. University leaders suspend campus groups such Students for Justice in Palestine in moves the ACLU has said “harken back to America’s mistakes during the McCarthy era, and in the months and years after 9/11”. Three Palestinian college students, speaking a mixture of Arabic and English, were shot in Vermont over Thanksgiving break in what was “absolutely was a hateful act”, the Burlington police chief told CNN. On 29 November, dozens of students and some faculty members at Trinity College, where one of the students is enrolled, walked out of a vigil for the injured student because they say the campus administration is downplaying their insecurity on campus.

But there is something even more ominous in Stefanik’s questions…

Read the rest here.