Higher Education in Chaos

The Middle East conflict, the importance of free speech, and the missing discussion of purpose

University presidents testifying on December 5, 2023 (photo by Kevin Dietsch/Getty Images)

College and university campuses have been in turmoil since the October 7th Hamas massacre.

In early November, I critiqued the inability of university leaders to speak clearly about the Hamas terrorist attack. The ensuing weeks have seen a wide range of voices critiquing the Hamas attack, Israel’s military response to the attack, and the protest and debate surrounding these actions, particularly on college campuses.

Earlier this month, the leaders of Harvard, MIT, and Penn testified before a House committee about antisemitism on their campuses related to the ongoing conflict in the Middle East. As Keith Whittington summarized in The Dispatch:

The most viral moment of the testimony happened when Republican Rep. Elise Stefanik demanded a “yes or no” answer from each president as to whether “calling for the genocide of Jews” violates their respective university’s code of conduct. When the presidents responded that the answer was complicated and “context-dependent,” Stefanik shot back. “These are unacceptable answers across the board,” she said. 

Following subsequent backlash, Penn President Liz Magill resigned, and the leaders of Harvard and MIT have faced pressure to do the same.

There is a great deal that could be said about all of this, but I will focus here on what the presidents’ testimony reveals about how higher education views free speech and pluralistic tolerance. Because there is so much to cover, I am departing from my typical format and will instead make three broad observations.

Private Universities are Different Than Public Ones

Before delving into the debate over the presidents’ testimony, it’s important to clarify the legal distinction between public and private universities. Public universities are government institutions subject to the constitutional limitations of the First Amendment. In public universities, people can usually say what they want, subject to narrow limitations like true threats. As the Supreme Court asserted in its 1973 decision, Papish v. University of Missouri: “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”

Public universities may impose some speech limits that arise from the unique nature of the campus environment. As Kent Greenfield recently observed, “Even with public universities, the unruly rules of the public square do not translate automatically to the ivy tower.” Still, as a general matter, on public university campuses, people can shout insults, murmur nonsense, and call for genocide. As law professor Eugene Volokh has noted, it’s pretty clear that “advocacy of genocide” without greater specificity about the imminency and likelihood of the threat is protected speech under the First Amendment.

Private universities are different. They are not bound by the First Amendment and can craft their own speech codes. But if they adopt a speech code that differs from the broadly permissive First Amendment, the restrictions of that code will reveal a lot about the institution’s purpose, mission, and values. Speech codes can also produce deep tensions with those core values. This is particularly true when the procedures required by those codes are not consistently followed or are applied in an ad hoc manner. Worse still, some private institutions fail to develop speech codes and instead, as Whittington notes, “look for creative ways to suppress and punish speech that college administrators do not like.”

Without Procedure, the Most Powerful Voices Win

The First Amendment is not without its costs, but one of its benefits is a centuries-long tradition of constitutional reasoning that establishes speech and conduct boundaries and the procedures used to enforce those boundaries. Private universities that choose not to rely on this legal precedent are faced with the challenge of creating their own limits and procedures. Well-meaning administrators and donors sometimes want to ban “bad,” “harmful,” or “hate” speech. But as I noted in my recent interview with Nadine Strossen, these standards are impossible to enforce and lead to arbitrary line drawing. The First Amendment avoids imposing them with good reason.

When private universities adopt unclear standards or apply unstated standards on a case-by-case basis, the resulting confusion gives tremendous speech-suppressive power to those in control by avoiding or sidestepping bedrock First Amendment concepts like clarity and notice. And even though private actors do not wield the coercive force of the government, we should not ignore their power to disrupt and destroy lives by maligning reputations, ending careers, and expelling students. Harvard rescinded an admissions offer because of a student’s previous racist comment. MIT canceled a guest lecture because a professor did not support affirmative action. Penn removed a law professor from first-year teaching after her statements demeaning black students. Each of these actions by private universities policed unpopular speech and imposed real-world consequences on the speakers. And they came from the very institutions who saw themselves as unable to restrict calls for genocide.

The tensions erupting on college and university campuses over the Middle East conflict illustrate how the lack of clear standards cedes authority to those in power. In this instance, neither ideological camp is happy. Writing for Inside Higher Ed, law professor Tabitha Abu El-Haj observes:

We should be clear about what university administrators are up to. Because they would prefer not to hear certain students’ challenges to a prevailing orthodoxy about Middle East politics—challenges that upset many donors—they are establishing new rules, setting up investigations and finding ways to ban student groups.

Meanwhile, in The Atlantic, University of Florida President Ben Sasse takes aim at the university presidents testifying before Congress:

We ought to dispense with the laughably absurd notion that these university presidents are somehow steadfast champions of free speech. Where was this commitment when MIT canceled a speech from a climate scientist who voiced opposition to affirmative action? Where was this obligation when a lecturer said she felt pushed out of Harvard for suggesting that sex is a biological fact? Where was this duty when Penn tried to fire a law-school professor who made odious comments about minority groups and immigration policy? These elite institutions make the rules up as they go and stack the deck against disfavored groups.

Notice that Abu El-Haj and Sasse are making the same point from very different political perspectives. When there are no procedural rules, everybody is susceptible to abuse.

Purpose Matters Even More Than Procedure

Procedural rules that create broad protections for free speech do not mean that everything is up for grabs. We ought to be able to say—truthfully and conclusively—that genocide is bad. We should be able to assert without qualification that raping women and torturing children is evil.

How is this possible within a higher education institution committed to free and open inquiry? The answer lies in establishing and maintaining clarity around the purpose of the institution. Contrary to the intimations of the presidents who testified before Congress, colleges and universities do not exist to facilitate unbounded inquiry and expression. As teaching and research institutions, they pursue knowledge and understanding within established curricular and extracurricular norms.

In a 2018 law review article published in the Utah Law Review, I relied on Alasdair MacIntyre’s notion of “constrained disagreement” as one way to understand the purpose and limits of the university. As I noted, “disagreement without any constraints would open the door to manipulation and even violence” and “in the university, most of our disagreements are modestly constrained and our creedal wars somewhat intelligible.”

Modest constraints that reflect a university’s purpose can offer sensible boundaries for discourse. Calling for the genocide of one’s adversaries in a university community falls outside of these boundaries and should properly be prohibited. That should have been the answer from the leaders of Penn, Harvard, and MIT.

Not everyone agrees. Writing in the Chronicle of Higher Education, Professor Rafael Walker argues that the presidents’ responses were “absolutely right, even if tone-deaf.” Walker notes that the headline grabbing sound bites lacked context. He’s right that the theater that passes for Congressional hearings these days is designed more for “gotcha” moments than for serious inquiry. But Walker suggests that the presidents’ responses were substantively correct:

Gay’s and Magill’s replies were taciturn—probably because of both time constraints and legal advice—but they have significant implications for the kind of colleges they envision, and I think their visions are precisely what we need. . . . By confining themselves to policing conduct rather than speech, the presidents help ensure that colleges are places where expression does not lead to oppression—places where “enlightenment” is possible. When this vision is executed properly, the balance between freedom of expression and community safety is struck perfectly.

What Walker misses is that any serious institution of higher learning not otherwise constrained by the First Amendment should be able to set certain speech limits in light of its purpose. Ben Sasse gestures at some of these limits:

What’s at stake is nothing less than the mission of a university. Our campuses are meant to be communities of scholars pursuing truth together, in a community built to discover, teach, share, and refine. A foundational commitment to human dignity is essential to the very purpose of education.

But Sasse’s own vision is muddled by his commitment to “explore everything with humility, including views of sex and gender that were standard until the previous decade, classical traditions, America’s promise and progress, and the concept of universal human dignity.” According to Sasse, we should “engage the truth with epistemological modesty,” “embrace open inquiry,” and have “more curiosity, less orthodoxy.”

There is a tension between Sasse’s calls for inquiry and epistemic humility on the one hand, and a substantive vision of community on the other. For example, it’s unclear how we explore “the concept of human dignity” with humility while also maintaining “a foundational commitment to human dignity.”

People can have and express different opinions about international politics, military operations, and a wide range of other controversial issues. We should be having robust discussions and disagreements on college campuses about Israel’s ongoing military action in Gaza and the broader political context in which it unfolds, including whether Israel’s response is proportionate and otherwise following the law of armed conflict. But private institutions not subject to the First Amendment should not allow calls for genocide, rape, and torture.

Private universities unconstrained by the First Amendment should be able to resolve this tension with a clearer commitment to the norms, language, and posture that better facilitate a community of inquiry and learning. Public universities face more constitutional constraints in limiting discourse, but even they may be able to impose some forum-based restrictions in parts of their campuses. Both private and public institutions will require clearer articulations of purpose and mission to pursue debate and inquiry while also sustaining communities of trust and respect. In other words, as much as procedure matters, purpose matters even more.