It is customary for witnesses testifying before Congress to remain silent to avoid admissions of guilt by saying, “On the advice of counsel, I invoke my Fifth Amendment privilege against self-incrimination and respectfully decline to answer your question.”
But university presidents don’t “take the Fifth.” Testifying on December 7 before the House Committee on Education and the Workforce, the presidents of three leading universities invoked not the Fifth Amendment for themselves but “took the First Amendment” for their universities’ faculty and students to speak against and intimidate Jews.
The presidents were not legally wrong: The United States has the broadest free speech rights in the world, permitting hate speech of even the most odious, offensive characters, constrained only by specific limitations (such as incitement, individual defamation, obscenity, and child pornography).
Traditionally, colleges have permitted expression of unpopular, even outrageous speech and ideas according to the theory that open expression has supreme educational value – that the free marketplace of thought will tend to truth and critical thinking, a la John Stuart Mill.
In the past, there have been instances of violent student insurrectionists forcing change on American university campuses, mostly from 1968 to 1972 (Cornell, Columbia, Harvard, Dartmouth, Princeton, Tulane, Howard, CCNY, UC Berkley, Michigan, Penn State, and Brown as recently as 1992). The causes centered largely around racial issues and the Vietnam War. In most instances, the universities quickly appeased protesters and everyone went back to school.
When US universities began to limit free speech
In recent years, American universities have been devising policies to limit free speech in an attempt to make students feel comfortable and safe from speech or ideas that they may regard as unpleasant or hostile.
Universities (in tandem with corporate America), have embarked on extensive programs of Diversity, Equity, and Inclusion (DEI) to promote the representation of identities in student and faculty populations that have been statistically underrepresented, such as different races, ethnicities, disabilities, genders, religions, and sexual orientations. The diversity, many believe, is designed to move away from a monopoly of white-race Christian males who have been privileged to control Western civilization, often to the oppression of non-white, non-Christian, non-males. One might speculate that the presidents appearing at the hearing, being all female, show that the policy bears fruit. It is not speculation to say the current vice president of the United States was selected on a criterion of female identity because candidate Biden declared publicly only women would be on his list of potential running mates.
Even though free speech is a high-temple value for the academy, many believe the promotion of DIE orthodoxy is even higher. The three university presidents who testified before the Committee are not antisemitic or antisemite sympathizers. So how did they flub their appearances before the Committee? How did they fail to give full-throated endorsement to the “apple pie” notion that calling for the genocide of Jews is not permitted in their universities? Where did common sense go?
The answer is: Enter the lawyers. The presidents were prepped by lawyers to give the lawyerly answer, “It depends.” Legal answers always depend on context. Is it permissible to injure a fellow student or to be intoxicated on campus? It depends! (i.e. Is injury inflicted for self-defense? Is the intoxicated person driving a car?) Lawyers Alyssa DaCunah and Felica Ellsworth, specialists in crisis management and litigation from the law firm WilmHale, sat in the front row at the December 7 hearing, attending with their university president clients. (Defending colleges is their practice specialty.)
No one in the United States is more steeped in legal pedigree and culture than then-Penn president Liz Magill. Her father, Frank J. Magill, was a federal judge on the 8th Circuit. Her brother, Frank J. Magill Jr., is a federal judge in the 4th District in Minnesota. Liz Magill is a constitutional law expert, a former dean of Stanford Law School, and a former vice-dean at the University of Virginia Law School. Her husband of 33 years, Leon Szeptycki, is a professor at Penn Law School, where she will be joining him on the faculty. Liz Magill clerked at the United States Supreme Court for Ruth Bader Ginsburg, whom she considers a role model and heroine.
So how could Liz Magill, a legal expert herself, be swayed by litigation lawyers away from the common sense answers most people would easily have given to the Committee and lose her job? How could she say calling for the genocide of Jews “depends on context”? She explained it to us the next day, December 8.
“I was not focused on... 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. In my view, it would be harassment or intimidation.”
Magill had obeyed her lawyers because she was “focused” on the abstraction of free speech more than the reality. She was “focused” on the legal orthodoxy of DEI more than understanding the reality that Jews, even though white and “privileged” in her eyes – similarly to herself – are entitled to protection from hate speech and intimidation. She was forced to resign on December 9.
The visit to Capitol Hill of the three presidents has been exposure of the empty quality of America’s universities, from the top down. Too many students and faculty view Jews as malign, white oppressors. Denying Israel’s legitimacy as a Jewish nation is endemic and evil.
Justice Ruth Bader Ginsberg would have been ashamed of her former law clerk on December 7. Most Americans are. Action is coming.
The writer is a Jerusalem technology lawyer who began his career practicing law on Wall Street.