The national controversy that flared up in the aftermath of the congressional testimony on anti-Semitism by three elite university presidents earlier this month has helped expose severe and chronic double standards for free speech and intellectual inquiry on American campuses.
As viral videos of the testimony spread online and made headlines, millions of Americans came to see the disparity between the leniency with which these universities treat violent rhetoric against the Jewish people and their support for policies that punish the expression of conservative views.
Some professors and students have faced disciplinary action or have seen their careers or studies derailed for speech that in no way compares to the fierce anti-Semitic rhetoric frequently heard on campuses.
That’s the view of Clay Calvert, a professor emeritus at the University of Florida and nonresident senior fellow at the American Enterprise Institute.
Comments at the Dec. 5 hearing from Sally Kornbluth, president of the Massachusetts Institute of Technology (MIT); Liz Magill, president of the University of Pennsylvania; and Claudine Gay, president of Harvard University, sparked wide condemnation from lawmakers, commentators, and the public.
Since the Hamas terrorist group’s Oct. 7 massacre of more than 1,200 Israelis, most of them civilians, and taking hundreds more as hostages, college campuses around the country have erupted in pro-Palestinian and “anti-Zionist” protests. Much of the rhetoric has distinctly violent and anti-Semitic overtones, calling for Palestinians to achieve freedom “from the river to the sea,” or—as many interpret the catchphrase—the establishment of a Palestinian state from the Jordan River to the Mediterranean sea, which effectively wipes out Israel and displaces all her inhabitants by force.
When Rep. Elise Stefanik (R-N.Y.) asked the university presidents whether calls for genocide against the Jewish state violated their schools’ codes of conduct, the presidents wavered and gave vague, contradictory, and legalistic answers.
“If targeted at individuals, not making public statements ... I have not heard calling for the genocide of Jews on our campus,” said Ms. Kornbluth.
Ms. Magill was similarly evasive: “If the speech turns into conduct, it can be harassment.” She went on say, “If it is directed and severe or pervasive, it can be harassment.”
For her part, Ms. Gay asserted the primacy of context over the content of the remarks, even though Stefanik had been highly specific about the type of speech in question.
“It can be, depending on the context…. Targeted at an individual,” Ms. Gay said.
Ms. Gay’s answer was a classic legal Catch-22. A call for genocide, by definition, is directed at an entire people, not a single individual, yet she stated that it is harassment only in the latter case.
The Upshot
As explosive as the Dec. 5 testimony before the House Committee on Education and the Workforce may have been, Mr. Calvert believes that it served a good purpose.“The congressional hearing was definitely a made-for-television spectacle, but it was also a very necessary event, in my opinion, because it sparked a much-needed conversation about the state of free speech on the nation’s college and university campuses,” he told The Epoch Times.
“It finally brought to the forefront what a lot of people feel—that there’s a certain amount of hypocrisy among some university leaders, who say they want to have a free speech environment on campus, but for the past decade have adopted speech codes, trigger warnings, and ‘safe space’ areas, silencing speech in many ways,” he added.
David Keating, president of the Washington-based Institute for Free Speech, said that his organization regularly takes up the cases of professors who have fallen afoul of “diversity, equity, and inclusion” (DEI) policies on campuses.
Mr. Keating acknowledged that there is a difference between government attempts to silence or suppress free speech—a form of repression that the First Amendment explicitly prohibits—and the censorship and bullying that take place at private universities. Schools that the government does not run are broadly free to adopt the policies of their choosing.
But if they practice or condone censorship, they may still violate their own contractional provisions, he pointed out, including, in many cases, clauses that both parties agreed to as a precondition of any relationship, before the hiring of the faculty or the matriculation of the students.
“A more fundamental issue is that many of these universities make written promises to their students and faculty, and many of these are quite close in language to the types of guarantees offered by the First Amendment. There’s often a good case to be made that that is a contract between the university and the faculty for these rights, so even though it may not be a First Amendment violation, it’s a contractual violation,” said Mr. Keating.
“A lot of these universities have policies safeguarding free expression, but they never actually lift a finger when they don’t approve of the expression,” he added.
McAdams v. Marquette
By way of example, Mr. Keating mentioned the case of a professor at Marquette University in Milwaukee, John McAdams, whose case went before that state’s supreme court.Mr. McAdams believed that the university, which suspended him without pay in 2014 after he criticized a fellow professor who refused to allow any classroom discussion of the issue of gay marriage, had treated him in a high-handed and arbitrary manner and breached his employment contract. Four years after his suspension, the state supreme court decided McAdams v. Marquette by a 4–2 vote in the plaintiff’s favor.
“Ultimately, the professor prevailed at the Wisconsin Supreme Court, which said yes, he had a contractual right to freedom of speech and that the university’s punishment for his speech and actions were in violation of that contract,” Mr. Keating said.
Though Mr. McAdams ultimately won after four bitter years of litigation, some view the case as typical of the kind of censorious stance on the part of university administrations—highly sensitive to “microaggressions” and perceived insensitivity—that makes the free exchange of viewpoints all but impossible in academia today.
In Mr. Keating’s view, a marked shift in sentiment toward speech is particularly evident on the part of younger generations. Many people in their teens and twenties do not view the issue the way that their parents or grandparents might have.
“If people start believing free speech is bad and we need to control it, that’s not a good thing for the future, obviously, and the younger generation seems to be in that place—that words are harmful and we need to police them. These students might become the judges and legislators of tomorrow,” he said.
Nevertheless, free speech advocates are nearly unanimous that it is policies imposed from the top down—under the guidance or at the behest of left-leaning administrators—that have brought about a radical shift in the environment prevailing on campuses and eroded many students’ willingness to state their beliefs, or even ask questions in class.
A Growing Crisis
The suppression is becoming more widespread, Cherise Trump, executive director of Speech First, a Washington-based legal advocacy group that represents the victims of censorship and de-platforming in court, told The Epoch Times.Policies that censor, and in some cases even coerce, speech have proliferated on campuses in lockstep with the rise of DEI programs and initiatives, Ms. Trump said.
“Speech First is only five years old, and we have maintained a steady flow of lawsuits on behalf of our student members with three Circuit Court wins and a number of decisive settlements. Every day, we receive tips about incidents, and regarding campus policies that target and suppress student speech,” she stated.
Besides the familiar actions targeting alleged offensive speech and microaggressions, one concerning trend is the growing use of “bias response teams,” which gather information based on anonymous tips and then pursue action against students, according to Ms. Trump.
This has fostered an environment where any student who hears a comment he or she disagrees with, or finds offensive on the basis of subjective criteria, can get the person who made the comment in serious trouble by submitting a complaint. A bias response team will then review the complaint, and, if it finds grounds, proceed to discipline or punish the source of the comment.
Clear and precise definitions are a core part of due process, but the “bias” in bias response teams tends to be rather nebulously defined. The statement triggering the disciplinary action might be something along the lines of “I hope Biden loses big time” or “I think Black Lives Matter has made some mistakes.”
The administrations of universities are not erring on the side of due process, Ms. Trump said. “We often see universities weaponize harassment policies to target student speech as actual forms of harassment.”
Like Mr. Keating, Ms. Trump acknowledged a difference between the legal obligations of public universities subject to the First Amendment and those under private ownership. In either case, she said, there is no excuse for censorship. Private universities often publicly assert their commitment to the principle of free speech, and some of them have gone so far as to sign the Chicago Principles of Free Expression, Ms. Trump pointed out.
“These promises become part of the universities’ contractual obligation to their students. So when these same institutions violate students’ speech rights, students might be able to hold them accountable through private right of action lawsuits for breach of contract,” she added.
The Case of Matthew Garrett
As millions of people watched university presidents equivocate at the Dec. 5 House hearing on whether calling for genocide amounted to a form of harassment, Matthew Garrett, a professor fired from Bakersfield College in California under disputed circumstances, mulled his next move.The PEN statement called Mr. Garrett and his Renegade Institute for Liberty “controversial” and linked to a 19-page report that the college has put forward to justify his firing. At the same time, PEN called attention to the fact that a number of activities cited as reasons for letting Mr. Garrett go are entirely legitimate, constitutionally protected forms of expression, such as writing an opinion piece, posting fliers, stating his views on social media, making statements about his case on a radio show, and asking the college for clarification of the complaints against him.
“Universities should never throw the kitchen sink at faculty in an attempt to silence them. Unfortunately, that’s exactly what seems to have happened in Matthew Garrett’s case,” said Jeremy Young, PEN’s senior manager of free expression and education.
For his part, Mr. Garrett denies that much of what he said during the October 2022 meeting even touched on Ms. Parks’s idea for a new task force.
“Actually, I didn’t say much about the racial climate task force in this meeting, but there is this perception that I’m the puppetmaster, or ringleader, behind all the faculty who might oppose it,” Mr. Garrett said in an email to The Epoch Times.
Though he could not comment extensively on current litigation, Mr. Garrett offered little grounds for believing that the Bakersfield College administration showed any regard for due process.
“They ran an investigation, and nobody ever talked to me,“ he said. ”I think all they did was to extract a few student comments. They took those comments and said, ‘Look what horrible things Matt Garrett did.’ All they’ve identified are three quotations from three students who made statements about feeling uncomfortable in a meeting.”
Bakersfield College did not respond to a request for comment.
