Failing the moral clarity test

NICK EICHER, HOST: Up next on The World and Everything in It, the cost of ignoring anti-Semitism on Ivy League campuses.

Last week, the U.S. House questioned the presidents of Harvard, MIT, and Penn.

During the hearing, none of the three women who testified was willing to condemn anti-Israel protests as anti-Semitic activity.

MARY REICHARD, HOST: In particular, Representative Elise Stefanik asked Harvard President Claudine Gay about the use of a term associated with violent uprising against Jews. audio here from C-SPAN.

STEFANIK: You understand that this call for Intifada is to commit genocide against the Jewish people in Israel and globally, correct?

GAY: I will say again, that type of hateful speech is personally abhorrent to me.

STEFANIK: Do you believe that type of hateful speech is contrary to Harvard's code of conduct? Or is it allowed at Harvard?

GAY: We embrace a commitment to free expression even a views that are objectionable, offensive, hateful, it's when that speech crosses into conduct that violates our policies against bullying, harassment—

STEFANIK: Does that speech not cross that barrier? Does that speech not call for the genocide of Jews and the elimination of Israel? You testified that you understand that as the definition of Intifada? Is that speech according to the code of conduct or not?

GAY: We embrace a commitment to free expression and give a wide berth to free expression, even views that are objectionable.

STEFANIK: You and I both know that's not the case.

EICHER: The hearing sparked calls for the presidents to step down. And just days after Tuesday’s hearing, Penn’s president Elizabeth Magill resigned.

Will all of this lead to change?

Joining us now to talk about it is Ilya Shapiro. He’s a senior fellow and director of constitutional studies at the Manhattan Institute and a member of the board of fellows of the Jewish Policy Center. He’s also the author of Canceling Justice: The Illiberal Takeover of Legal Education, to be released next year.

REICHARD: Ilya, good morning.

ILYA SHAPIRO: Good to be with you, Mary.

REICHARD: Well, shortly after last week’s hearing, a donor reportedly withdrew a $100 million gift to the University of Pennsylvania due to the school failing to address anti-Semitism on campus. Do you think backlash like this will cause universities to change?

SHAPIRO: I think universities will only change from external pressure by donors, alumni, trustees, congressional hearings and State Attorney General investigations. Because internally, these presidents live in a rarefied bubble. That came through in the hearing as well, where few people disagree with them, and few people hold views that are quite mainstream and the rest of America. So it's going to take a lot of what economists might call exogenous shocks, external reaction from employers and donors to say, “Look, you need to reform yourselves,” because they're not going to do it, you know, just from the force of internal logic.

REICHARD: Some in higher ed argue that they are responsible to safeguard free speech and academic freedom. That means allowing demonstrations and speech against Israel. But where should schools draw the line between allowing free expression and protecting Jewish students?

SHAPIRO: Well, controversial speech, offensive speech, so-called hate speech is constitutionally protected. And it's largely protected by the free speech policies of universities, including the three private universities whose presidents were represented in that hearing. The problem comes when that speech either becomes conduct in terms of harassment, if you have these sorts of protests outside the Jewish life center, or or outside the dorm where Jewish students are living, or if they disrupt or violate other university policies, like disrupting classes or speakers, or other events that are going on. And so it's not simply a matter of saying all speech is protected and tapping the First Amendment sign, that's not always the end of the discussion, because sometimes its conduct. Sometimes it's properly regulated as time, place or manner. You don't get to say whatever you want, whenever you want, however you want. And sometimes it can even rise to the level of incitement of violence or being a true threat, which is not protected by the First Amendment.

REICHARD: You know, these same university presidents wouldn’t tolerate anything approaching what they’d call homophobia or transphobia - including not using someone’s preferred pronouns or acknowledging biological sex.

Can you make sense of that? For schools worried about so-called “microaggressions”...while they tolerate outright hate speech in the form of anti-semitic slogans during student protests?

SHAPIRO: That sort of hypocrisy is another big problem with the performance of the university president. When they tried to clean up their statements the next day, Magill of Penn in a video, Claudine Gay, I think has now of Harvard has issued to clean up statements. And they all talk about how they're so committed to free speech and the First Amendment that they overlooked that they should have first, you know, condemned, that that calling for genocide against any group is against their values. But that's laughable because everybody sees through that in the way that you described. On October 6, the day before the Hamas attacks, students and faculty across the country and various institutions were under investigation for microaggressions or other kinds of violation of wrong thing or wrong speak. So the answer is precisely not to impose stricter speech codes such that anti-Jewish speech is also condemned, but to enforce the rules on freedom of speech even-handedly and to enforce the rules against harassment and disruption even-handedly as well.

REICHARD: Anything you think the mainstream media is overlooking? What aspect of this story would you like to illuminate?

SHAPIRO: The role that DEI, diversity, equity, inclusion, and these structures are playing in all of this. I agree with my colleague, Heather McDonald, who, last week, had an important op-ed in the Wall Street Journal, talking about not how just DEI is the font of anti-semitism, which is true. And that's why when Harvard created a new task force on anti-semitism, it couldn't just do it within the existing DEI structures. Jews aren't included in that. But these postmodern ideologies of engaging in oppression olympics and hierarchies of intersectionality and who has more privilege and all of that, rather than just defending basic Freedom of speech, academic freedom, open inquiry, due process - these classical liberal values that have fallen by the wayside - all of that is driven by this increased bureaucracy and these DEI structures, and that's hard to talk about. So it's not simply an issue of, oh, we have this blind spot about anti-semitism. The rot is deeper.

REICHARD: Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. Thank you for joining us today!

SHAPIRO: Thank you. Take care.

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