More oxes, more gore, more free-speech opportunism

The House Committee on Education and the Work Force held a hearing with the balanced title Holding Campus Leaders Accountable and Confronting Antisemitism, with Claudine Gay (Harvard), Liz Magill (Penn), Sally Kornbluth (MIT), and Pamela Nadell (History & Jewish Studies, American). Video (I have not had a chance to watch yet) here; news reports here, here, here, and here. More detailed report here.

Committee Chair Virginia Foxx (N.C.) set the tone in her prepared remarks:

Today, each of you will have a chance to answer to and atone for the many specific instances of vitriolic, hate-filled antisemitism on your respective campuses that have denied students the safe learning environment they are due. As you confront our questions in this hearing, remember that you are not speaking to us, but to the students on your campus who have been threatened and assaulted and who look to you to protect them.

More:

Harvard also, not coincidentally but causally, was ground zero for antisemitism following October 7th and is the single least tolerant school in the nation according to the Foundation for Individual Rights and Expression’s 2024 College Free Speech
Rankings. UPenn is right behind them at 247th of 248. MIT is in the middle of the pack.

First, I am old enough to remember Republicans seeing large numbers of students who claimed to have been denied a "safe learning environment" because of "vitriolic, hate-filled" speech (anti-Black, anti-immigrant, anti-LGBTQ+, anti-feminist)--and deriding those students as "snowflakes" who need to grow up and learn to hear and engage with ideas they disagree with, even if they find them offensive. Now, students are "threatened and assaulted" by offensive speech; universities have failed to protect these wronged non-snowflakes; and students earn invitations and special mention at congressional hearings. I also am old enough to remember Republicans complaining about universities issuing public statements about current events and condemning speakers for certain expression. Now university leaders lack the "moral clarity" and "courage to delineate good from evil and right from wrong." And thus to do what? I guess shut down or sanction offensive speech or issue public statements against it.

Second, Foxx's demand for universities to "do something" about all this antisemitism conflicts with the criticism in the second quoted paragraph. Because much of the antisemitic speech people complain about remains constitutionally protected,* shutting down or criticizing that speech would earn these schools worse rankings in FIRE's next survey. FIRE evaluates not only formal university efforts to shut down speech but also the extent to which students "feel" that they cannot speak because fellow students and university officials think less of them and/or criticize them for their ideas. Both are what Foxx seems to demand of Harvard, Penn, and MIT. (If it is not clear, I think the FIRE survey is scientifically nonsensical. That Republicans have weaponized it in this way all the more so).

[*] Examples of actual assaults or unprotected speech are relatively rare. Some unprotected speech and conduct--occupying buildings, interrupting classes, projecting images onto buildings, chalking--lacks protection regardless of its antisemitic content. We perhaps can make hay if schools refuse to punish those who engage in unprotected activities or punish them differently than those who engage in the same activities with different messages. (See, e.g., the non-punishment of some pro-Hamas/anti-Israel events at MIT).

Things unsurprisingly went downhill from there. The exchange garnering the most coverage features Rep. Elise Stefanik (NY) asking whether calling for the genocide of Jews (a fair interpretation of "from the river to the sea") violates university codes of conduct or constitutes bullying or harassment. Magill, Gay, and Kornbluth all responded with some form of "context matters," looking at whether it is directed or whether it crosses into conduct.

But context does matter, at least for public universities and private universities (such as these and most elite research universities) agreeing to abide by the First Amendment--as these and other Republicans have been demanding for years when it comes to speakers they like demeaning, offending, and harassing listeners they don't like. A general call for genocide that does not cross into true threats, incitement, or harassment--which is to say most such speech--retains constitutional protection and thus cannot violate a code of conduct interpreted in light of free-speech concerns. Perhaps the presidents' erred in not framing their discussion of context in an explicitly First Amendment framework. While discussing "context" and "wide berth to freedom of expression," none presented in concrete terms of what this means for codes of conduct and what speech is permitted on campus. Or perhaps respond this way--"if Nazis can march in Skokie, Hamas-loving students can chant 'river to the sea' at Harvard."

I apologize that I am becoming (have become?) redundant on this. But the point remains relevant so long as political leaders (and advocates, some of whom I assumed knew better) make bad-faith statements at bad-faith hearings that show their commitment to free speech lasts as long as their agreement (or lack thereof) with the speech at issue and their sympathy (or lack thereof) with the targeted-and-unsafe student group. And I return to my initial question--what do they expect university presidents to do and who will they react when university leaders address other "viotriolic, hate-filled" speech? On that, this Politico interview with Eugene Volokh hits on many of these issues. Although the piece mentions the coming hearing, Volokh does not talk about it in the Q&A. Based on his answers, I expect (hope) he would be as critical of this hearing and this general conversation.

The 3d Annual Law vs. Antisemitism Conference, hosted in February at FIU, will include a roundtable discussion on campus antisemitism and free speech. We will try to work through these issues.