Simkovic: Lessons From The Resignations Of Penn And Harvard Presidents Liz Magill And Claudine Gay

TaxProf Blog op-ed: Lessons From The Resignations Of Penn And Harvard Presidents Liz Magill And Claudine Gay, by Michael Simkovic (USC; Google Scholar):

The presidents of Penn and Harvard have both resigned under intense pressure after controversial Congressional testimony.  During their testimony, the Presidents suggested that, depending on the context, their universities’ codes of conduct and anti-harassment policies might allow for calls for Genocide against Jews.[i] Given the forceful approach that universities have taken in recent years to try to protect other minority groups on campus and provide them with a safe environment conducive to learning, this testimony suggested to some observers a disturbingly high tolerance for anti-Semitism on campus, and that this ideology was coming from the top.  More deeply, it suggested something wrong with university governance. 

Jewish people, though relatively highly educated and economically successful, remain among the leading targets of hate crimes in the United States according to FBI statistics, have suffered the worst genocide in history within the last century, and continue to be hated and targeted for violence in many parts of the world.  Even advocates of strong free speech policies on campus were concerned about the apparent inconsistency between the treatment of Jewish people and other vulnerable minority groups.

Prior to the Presidents’ testimony, the Federal Government sent universities a clear signal that it expected them to do more to combat anti-Semitic harassment on campus.  In the wake of this warning, the subsequent testimony from university leaders came across as defiant and evasive.

The media lambasted the Presidents and their universities.  Donors cancelled and withheld donations.  Members of Congress threatened to slash federal funding or increase taxes on universities.  Students and alumni protested.  Students sued Penn and other universities under Title VI.  The federal government launched an investigation of Harvard.

Some viewed criticisms of university leaders, or the way in which they were questioned, as unfair and politically motivated.  And indeed, some conservatives have been looking for reasons to cut universities’ funding for decades.  But much of the scrutiny came from the Biden administration and from liberal donors.  Moreover, a key part of the job of the leaders of universities to manage external relations effectively, both with Congress and with donors—even when members of Congress are hostile.  A crucial part of a University President’s core competency is fundraising and public relations. 

It is legitimate for university leaders to stand up for rigorous science and to stand against misinformation, even if that means disagreeing with donors or political leaders.  But university leaders cannot afford to casually antagonize the government and donors and other key constituencies in pursuit of ideological goals.  Indeed, attempting to speak on behalf of the university as a whole can undercut the goal of protecting academic freedom if there are faculty members who disagree with the university president about moral or political issues and fear adverse consequences for publicly disagreeing with their boss.  If university leaders had consistently focused their public statements exclusively on issues directly relating to running their universities well, they could have avoided trouble.  However, once some university leaders began expressing opinions on current events that were not directly tied to running their universities, they opened the door to demands for statements on other political issues. 

Universities are deeply financially vulnerable and highly dependent on federal funding and federal policy.  The government has many levers it can use to defund universities—Federal Student Loans, Pell Grants, taxation, federal research funding from the NIH, NSF, or DARPA, control over student visas, Department of Education regulations, and civil rights investigations, and laws creating private rights of actions and litigation threats.  These are not idle hypotheticals—the federal government has in fact already used many of these levers in the past, and high-level elected officials have made serious proposals to use others in the future.

The last time universities tangled with the federal government over moral issues, and Congress responded by threatening to cut funding, universities were forced to back down.  Like institutions in the private sector, universities that wish to thrive (or in many cases, survive) must manage their government relations so that they can work effectively with the government, regardless of who is in power.  (For an excellent example of how to finesse this, see a recent interview of Jamie Dimon, the CEO of JP Morgan). 

High profile presidential resignations may capture the attention of University boards and leaders around the country, who now see themselves as vulnerable.  What lessons should universities draw from these resignations?  The views of Presidents Magill and Gay offer an important set of perspectives. 

Prior to her resignation, Magill acknowledged missteps in her Congressional testimony:

“I was not focused on, but I should have been, the irrefutable fact that a call for genocide of Jewish people is a call for some of the most terrible violence human beings can perpetrate.  It's evil—plain and simple…. I want to be clear, a call for genocide of Jewish people is threatening—deeply so. It is intentionally meant to terrify a people who have been subjected to pogroms and hatred for centuries and were the victims of mass genocide in the Holocaust. In my view, it would be harassment or intimidation.  As President, I'm committed to a safe, secure, and supportive environment so all members of our community can thrive.”

Gay had previously criticized the pro-Palestinian chant “from the river to the sea…” because of its implicit support for genocide, but stopped short of saying that the chant explicitly violates university policies: 

“phrases such as “from the river to the sea” bear specific historical meanings that to a great many people imply the eradication of Jews from Israel and engender both pain and existential fears within our Jewish community. I condemn this phrase and any similarly hurtful phrases.”

Gay, who faced accusations of plagiarism as well as mismanaging anti-Semitism on campus, did not directly acknowledge errors of judgement beyond saying that “it is in the best interests of Harvard for me to resign.” She accused some of her critics of being motivated by “racial animus.”  A few months ago, Gay gave no indication that she believed that Harvard had done wrong when the Supreme Court ruled that Harvard illegally discriminated against Asians.

A fascinating perspective on the resignations comes from activist Hedge Fund manager Bill Ackman, who played a prominent role in the campaign to change university policies, and ultimately to change university leadership. Ackman argues that there is a link between anti-Semitism and anti-Asian discrimination on campus, an overly simplistic and ideological approach to DEI, racial preferences in admission and hiring, and suppression of ideologically unpopular speech.  He argues that many universities are mismanaged, over-hire administrators, grow their student bodies and faculties too slowly, do not invest their endowments well, would be more effective if business leaders were at the helm, and should shift toward meritocratic admissions and hiring.  He also addresses Gay’s accusations of racism.  Whether one agrees or disagrees with Ackman, whether one suspects his motives, he is influential.  His letter is an important read for university leaders who want to understand their critics.

My view, which differs from Ackman’s, is that the role of a university is to educate students, to provide a skilled workforce, to encourage scientific and intellectual advancement, and to promote economic growth. Universities are like libraries or laboratories or professional services firms that require peace and tranquility to allow for the focused attention need to accomplish their objectives.  Universities are not like a cable news talk show or a film location for producing viral social media videos that requires flashiness and noise to entertain or emotionally captivate people.  Helping attention-grabbing, but low-quality speech hijack people’s attention and distract them from more worthwhile pursuits is often inconsistent with universities’ mission. 

Private universities have considerable latitude regarding who and what they will allow on campus.  It is hard to imagine what meaningful learning would be lost, or how government policy would change for the worse, if protestors were routinely told to hold their protests off campus at a more appropriate location closer to relevant decision makers—for example, outside the nearest Israeli consulate/embassy or outside of Congress or the office of a local Congressperson if they wish to protest policies of the Israeli or U.S. government—rather than on campus in front of a Jewish student center, library or classroom, or houses of worship, where protestors target students and faculty based on their ethnicity or religion.  Those who have time to protest have time to travel to an appropriate location to hold that protest. Similarly, it is unclear what would be lost if, for example, professors were not allowed to use the “n-word” in class (USC law school prohibits this).  Banning such inflammatory language might help students focus and learn and help faculty concentrate on research.  Moving protests off campus might be good both for universities’ educational and scientific mission as well as for reputation management.  It is not good branding for universities when individuals or groups adopting extremist views, expressed in chants, soundbites, epithets, and placards lacking anything resembling academic rigor, use the universities’ name, logo, and facilities as a backdrop to gain public attention.  If protests are routinely held off campus, then there will be no need for university presidents to selectively disclaim the most outrageous ones because none will appear to be endorsed by the university and few will have an opportunity to harass other students.  Similarly, private universities can prohibit university-affiliated student groups from issuing political statements in the name of a group containing the universities’ name or logo rather than in the names of individual student signatories who are clearly expressing their own personal views, are not speaking on behalf of the university, and are not speaking on behalf of other students who were not individually consulted or asked for their permission.  Students who wish to embrace controversy should be free to do so—but not at the expense of other current or future students or of the university’s reputation.

I’ve made the point about the importance of tranquility on campus in Congressional Testimony before, in a context unrelated to ethnic strife.  I’ve also noted the importance of teaching self-restraint.  Universities can and should protect students and faculty from a hostile environment that makes learning more difficult.  But they cannot do so in a way that is selective or discriminatory or ideologically biased.

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[i] Strong anti-Israel and anti-Jewish views are common in many Muslim-majority countries.  Residents from these countries comprise a potentially lucrative source of donations and international students for U.S. universities.  Although Jewish people outnumber Muslims within the United States, and on average have higher incomes and pursue more education, there are roughly 1.8 billion Muslims in the world compared to 16 million Jews—a ratio of more than 100 to 1.  University Presidents likely gave carefully hedged, lawyerly responses to avoid obligating themselves to discipline or constrain students and faculty who have called for the elimination of the state of Israel or signaled support for Hamas and its recent attacks against Israeli civilians, including women, children, and the elderly. 

Pro-Palestinian protestors on campus have arguably called for Genocide against Jews, albeit in coded language.  The popular Pro-Palestinian protest chant “From the River to the Sea, Palestine will be Free” is viewed by many as a call for Genocide or ethnic cleansing against Jews in Israel, both because the Jordan River and the Mediterranean sea form the Eastern and Western borders of Israel, and because the chant closely echoes Palestinian Arab militias’ and Arab regular armies’ plan to “throw the Jews into the Sea” when they attacked Israel repeatedly from the late 1940s on.  Pro-Palestinian protests have accompanied threats and actual violence against Jews in the United States and Europe, including on college campuses (see also here).  

Pro-Palestinian protests similar to the ones held on some U.S. campuses have been banned in Germany and France as incitements to violence. 

Some student groups at Harvard and some faculty members at Columbia signed statements immediately after Hamas’s October 7 attack which were interpreted as endorsing those attacks.  

Hamas is a virulently anti-Semitic, anti-Christian, anti-secular, Islamic fundamentalist Palestinian Arab militant organization which is funded and armed by the Islamic Republic of Iran.  Hamas has been designated as a terrorist organization by both the U.S. government and the European Union.  Hamas’s original charter calls for Genocide against Jews in Israel and the establishment of an Islamic fundamentalist state in its place:

“our struggle against the Jews is extremely wide-ranging and grave … it will need …to be followed by further steps and reinforced by … the multifarious Arab and Islamic world…Hamas is one of the links in the Chain of Jihad … It links up with the … the Muslim Brotherhood ….the Hamas has been looking forward to implement Allah's promise whatever time it might take. The prophet, prayer and peace be upon him, said:

‘The time will not come until Muslims will fight the Jews (and kill them); until the Jews hide behind rocks and trees, which will cry: 0 Muslim! there is a Jew hiding behind me, come on and kill him!’…

[Peace] initiatives, the so-called peaceful solutions…are all contrary to the beliefs of the Islamic Resistance Movement. For renouncing any part of Palestine means renouncing part of the religion…There is no solution to the Palestinian problem except by Jihad… In order to face the usurpation of Palestine by the Jews, we … must spread the spirit of Jihad among the [Islamic] Umma, clash with the enemies and join the ranks of the Jihad fighters…I indeed wish to go to war for the sake of Allah! I will assault and kill, assault and kill, assault and kill(told by Bukhari and Muslim…

Israel, by virtue of its being Jewish and of having a Jewish population, defies Islam and the Muslims.”

Genocide is defined under both U.S. law and the UN Convention on Genocide as violent acts targeted at a racial, ethnic, religious or national group because of their racial, ethnic, religious, or national identity with the intent to destroy that group as a people.  These violent acts include intentionally killing non-combatant civilians and raping women as tool of war—things that Hamas did during its October 7 attack.  Hamas leaders have vowed that Hamas will repeat its October 7 attack on Israeli Jewish civilians as soon as it is able.

Hamas was elected as the government of Gaza by Palestinians in 2006.  Although Hamas has not allowed elections since then, opinion polls in both Gaza (which Hamas controls) and the West Bank (which it does not) both suggest that Hamas remained among the most popular Palestinian factions shortly before to its October 7 attack, that its attack on Israeli civilians inside Israel was popular with the majority of Palestinian Arabs in the West Bank and Gaza, and that the attack increased Hamas’s popularity.  (Israel’s Arab citizens residing within Israel generally did not support the attack).

In addition to calling for Genocide against Jews, Hamas’s original charter also recites anti-Semitic and anti-Christian conspiracy theories—claims that Jews run the media, the UN, the Rotary club, the Free Masons, invented Communism and Capitalism, and are Nazis and drug dealers; Christians are claimed to be Crusaders and Imperialists who try to poison Muslim minds with their missionary efforts, etc.  The Hamas Charter includes language which seems to be a thinly veiled threat to kill Jews, Christians, liberals, and feminists outside of Israel:

“The enemies [of Islam] realize that if they can guide and educate [the Muslim women] in a way that would distance them from Islam, they would have won…you can see them making consistent efforts [in that direction] by way of publicity and movies, curriculi of education and culture…All of them are nests of saboteurs and sabotage. Those Zionist organizations control vast material resources…When Islam will retake possession of [the means to] guide the life [of the Muslims], it will wipe out those organizations which are the enemy of humanity and Islam.”

Islamist and Palestinian terrorists have kidnapped and killed American and European citizens who are not citizens of Israel, outside of Israel, including an elderly disabled man who was shot and then throw over the side of a cruise ship. (See also here and here).

Hamas adopted a revised charter in 2017, which is more diplomatically phrased.  The new charter promises to respect human rights within a radical Islamist governing framework, similar to statements issued by Iran’s Ayatollah Khomeni in the 1970s to gain support from Western liberals.  Once in power, Khomeni’s followers spent the next 45 years torturing and persecuting Iranian dissidents, gays, and religious minorities—recently using morality police to imprison and beat an Iranian woman to death for not wearing an Islamically proper head covering.  Hamas’s treatment of women, gays, religious minorities, and political dissidents is broadly similar to Iran’s.  After the Islamic revolution, Iran’s Jewish population fell by 90 percent.  Its Zoroastrian, Christian, and Bahai populations have all also plummeted.  Much of the educated and professional workforce has fled to other countries, and the Iranian economy tanked.