Professor Ben Eidelson of Harvard Law School has posted a defense of President Claudine Gay’s testimony before the House Committee on Education and the Workforce that implies that she was wrong to apologize. “She did nothing wrong,” he writes, and “the real failure of leadership would be surrendering to a campaign so hostile to our values.” According to Prof. Eiders, “universities are supposed to be enclaves where substance—facts, reason, even nuance—still count.”

Okay, but let me refer to a thought experiment from Etiquette of Equality, a new paper in Philosophy & Public Affairs that is available online. The article imagines a law school classroom discussion of Lawrence v. Texas, the sodomy case. Suppose a student argues that moral disapproval alone cannot justify the criminal sodomy laws, and another student raises the reductio ad absurdum argument Justice Scalia made in dissent, which was that the majority opinion would, if its logic were followed, lead to overturning criminal bans on polygamy and bestiality. Then suppose a third student says that any comparison is offensive and that the second student should apologize. “What should happen next?”

The author (spoiler alert: Professor Eidelson) spends the rest of the article working through this kind of interaction as a moral philosopher, but he acknowledges that it’s not a simple or easy question:

One natural thought is that it depends on whether the offense that the third student took (or supposed others would take) is justified. That is evidently what Justice Scalia himself thought: faced with an openly gay student’s similar request for an apology, Scalia rebuked the questioner for failing to grasp the reductio argument that he had actually made. Insofar as Scalia had “compared” same-sex intercourse and bestiality, after all, he claimed only that bans on these practices are alike by the lights of the principle that the Court invoked to invalidate sodomy laws. As Scalia correctly observed, that claim really has nothing to do with whether same-sex intercourse is morally tantamount to bestiality at all.

Yet I suspect many will share my instinct that this point of logic is not all that matters, from a moral point of view, in the kind of encounter that I have described. For if many people confronted with Scalia’s analogical argument will foreseeably take its expression as implying a moral equivalence between same-sex intercourse and bestiality—or, more simply, as an anti-gay insult—that fact alone seems to bear on whether, or at least how, one should voice the argument. And insofar as Scalia or the second student in our imagined dialogue predictably caused gay audience members to think they were being insulted (even, in a sense, mistakenly), and did so without good reason, taking offense at that behavior—under that revised description—could well be warranted after all. In a sense, the listener’s interpretation, which starts off foreseeable but mistaken, seems to bounce off of the speaker and return to the listener vindicated in the end.

This line of thought might suggest that the second student did act wrongly and should indeed apologize. But that is not a comfortable result either. Treating the student’s mere invocation of the analogical argument as an insult will tend to ratify the misunderstanding of what they actually said, to discourage the expression of other ideas that could also be misunderstood, and to raise the overall “symbolic temperature” within the community. Indeed, a general practice of validating reactions such as the third student’s here could well result in gay students facing more, rather than fewer, comments that they rightly take as offensive—at least in a belief- or evidence-relative sense of rightness—and thus leave them only worse off. So, again, what should the characters in this story do? I am tempted to say that, if you think the answer is obvious, one of us is missing something important.

Professor Eidelson has a really interesting and nuanced understanding of the dynamics in these situations, and not just classroom discussions but all kinds of ways of communicating, even without words. What meaning does someone convey who wears an American flag pin on his lapel, and why might someone who is otherwise patriotic and who respects the flag choose not to wear one? My American readers probably have a sense of how Prof. Eidelson answers that question. What about capitalizing the word “Black” when referring to Black (or black) Americans, and why might someone not want to capitalize the word? Again, American readers probably have a sense of how Prof. Eidelson answers, because we live in a shared social world. Here is the implication, according to Professor Eidelson:

All of this suggests that, despite the sympathetic account of the etiquette of equality that I sketched above, its own social meaning will often compromise its capacity to achieve its aims. … [W]hen the norms work precisely by making one’s intentional observance of them apparent, looking to that behavior as a barometer of respect may be unreasonable or even counterproductive. Since many will be averse to behaving as the norms prescribe regardless of their actual attitudes toward members of a subordinated group (much as I might be averse to wearing the flag pin despite my patriotic sentiments), the intended beneficiaries will not consistently receive the assurances of respect that those norms are supposed to facilitate. If the would-be beneficiaries take the norms at face value, in fact, they could be led to perceive less regard for them than actually exists. Meanwhile, the same uncertainty about the real meaning of any given person’s norm-violating behavior will cast doubt on the reasonableness of taking offense at these violations. And while this problematic ambiguity will dissipate once (or if) a given norm comes to enjoy such broad uptake that its original provenance ceases to color the significance of the prescribed behavior, at that point the relevant practice will be well on its way to becoming a new default (like “gay”) whose use does little to signal respect for anyone anyway.

Why do universities pay attention to minority student demands for symbolic speech? For two reasons, Professor Eidelson suggests: because they genuinely want to show the students that they are full members of the community entitled to just as much respect as anyone else, and because they face pressure to respond to the demands. He writes, for example, about HLS’s decision to get rid of its shield, which featured three sheaves of wheat, an element taken from the arms of Isaac Royall, Jr., an 18th-century slaveholder who endowed the first law teaching job at Harvard. He argues that once the shield came to have an offensive meaning to many black students, it was right to get rid of it in the absence of strong arguments for keeping it. He suggests that the students were better off because the school was emphasizing its commitment to including them in the community and because the students had been able to make use of their own political power to get the school to do what they wanted—and that these two points are in tension with each other. “The more that the institution’s reaction is taken to reflect the students’ power—say, their ability to extract concessions by threatening reputational harm—the less it can be taken by them as evidence of the institution’s genuine concern for their sense of inclusion.”

How do these dynamics play out in the case of Pres. Gay’s testimony? It seems to me that one of her main mistakes, and the reason she apologized, was that by the time of the hearing, it had become very clear that Jews on campus had the same kind of feeling about what they perceived as calls for genocide on campus as black students had about what they perceived as the school’s lack of respect for them that resulted from its use of a slaveholder’s family symbol as its own symbol. And so just as in the classroom discussion of Lawrence v. Texas, it’s more complicated than just insisting that the student who had taken offense had just failed to understand things properly. President Gay should of course have understood that giving a view about Harvard’s policy on bullying and harassment, even if 100% accurate, could not possibly meet the moment. Here is Professor Eidleson again:

As I suggested early on, in a social context characterized by plainly visible, yawning gaps in both opportunity and recognition, it makes perfect sense that members of subordinated groups and avowed allies would be drawn to, and then keenly sensitive to, the use of our respect-communicating practices to situate oneself relative to those glaring inequalities. Likewise, increased awareness of the slights and insults that were all along implicit in certain kinds of comments and behaviors undoubtedly protects important interests and might well be impossible without the informal codification of corresponding, etiquette-like norms. So, insofar as the escalation of the etiquette of equality may be regrettable, the lion’s share of the blame lies with the systemic injustices that make that escalation a logical and possibly inevitable response. 

There are two additional dynamics that I think are important. First, it’s true that American Jews and our allies are trying to exert political pressure to improve the frankly terrible climate for Jewish students on campus. But the dilemma Jews face is that the claim that the Jews control our elite institutions behind the scenes is part and parcel of traditional antisemitism. So the tension between reading President Gay’s apology as a sign of respect for the Harvard Jewish community and reading it as a surrender to political pressure is more fraught than usual; while Jews may have good reason to take President Gay’s apology at face value, antisemites will think they have particularly good reason to dismiss it as insincere. Jews know this and have to wonder whether the apology therefore paradoxically makes them less safe. (“Look what the Jews made her do!”) Second, as Professor Eidelson frames the issue, it concerns “claims (1) in the normative register of respect and offense that are (2) linked to membership in a presently or historically subordinated social group and (3) occasioned by symbolic or expressive items or acts (flags, monuments, mascots, pronouns, analogies, tweets, ‘tropes,’ and the like).” I question whether those defending President Gay really think of American Jews in that light, as an historically and maybe currently subordinated social group in a position to make moral claims about how others should speak. This is the double standard that, as I’ve written before, is the most concerning aspect of the whole affair. Since Harvard does take seriously and respond to the claims of members of other minority groups that free discussion of some ideas that they regard as offensive are socially unacceptable, it can’t really be an answer to Jewish or non-Jewish critics of President Gay’s testimony that Harvard is a place where all ideas can be discussed and debated without limitation.

I want to finish by testing a point I’ve made in this post and that I made in my last post on Pres. Gay’s testimony. I’ve asserted that Harvard has restricted the expression of some ideas on its campus, and that assertion is a premise of my assertion that Harvard and other schools have a double standard when it comes to Jews. But am I right about that? Or am I just parroting some right-wing talking point that I read on the web? I think the answer is twofold. First, yes, there are cases at Harvard where the University has taken action against someone, not necessarily under the Bullying and Harassment Policy, that give good reason to think that the University is not as committed to free speech as President Gay’s testimony suggested. For example:

• In 2022, the University disinvited Dr. Devin Buckley from a colloquium on British Romanticism on the grounds that her “public profile is largely rooted in controversial issues regarding trans identity and that [she was] on the board of an organization that takes a public stance regarding trans people as dangerous and deceptive,” namely, the Women’s Liberation Front.
• In 2019, the University removed Professor Ronald Sullivan from his position as faculty dean of Winthrop House, “bowing to months of pressure from students,” after Sullivan, a noted expert in criminal law, announced he would join Harvey Weinstein’s defense team.
• In 2021, the University canceled a course that was to have been offered by Prof. Kit Parker called “Data Fusion in Complex Systems: A Case Study.” The course would have studied “the use of a policing technique known as Counter-Criminal Continuum policing, or C3, to disrupt gang and drug activity [in] Springfield, [MA],” but was canceled after students questioned whether the “the computational nature of” C3 “naturalize[s] policies and practices that have had disparate impacts on Black and Brown communities.”
• In 2020, the University removed David Kane, a lecturer who taught Gov 50, from the class after his invitation to Charles A. Murray to speak led students to discover racist blog posts that Kane had posted elsewhere.

With the exception of the removal of Professor Sullivan from his job as residential dean of Winthrop House, all of these strike me as core academic freedom issues. So yes, I really do think that Harvard is forbidding controversial speech for the kinds of reasons Professor Eidelson is writing about.

Second, I think that a thought experiment will make the point, too. Imagine a professor standing up in a classroom and saying, “I advocate for the genocide of Latinos” (not any particular Latino person) or “I advocate for the genocide of transgender people” (not any particular transgender person), etc. I defy anyone familiar with American higher education in 2023 to say that a teacher who said something like this would finish the semester. I do not believe it. Maybe the University would say that the professor had violated a rule. Maybe it would find some other way to get the professor out of the classroom. I hope the same is true for anyone who stood up in a classroom and said, “I advocate for the genocide of the Jews” (not any particular Jewish person), though I admit that these days I am not 100% sure, and President Gay’s testimony did not set my mind at ease.