Photo by Gagan Kaur

Doing The Impossible: Making Congress Look Good

By Joel Levin

The three college presidents testifying last week did the almost impossible: they made Congress – this Congress – look good. That is, testifying before the most dysfunctional, uninformed, petty and parochial House of Representatives in American history – a House that cannot elect a leader, pass a budget, enact legislation, guarantee the government won’t shut down or that, despite absolutely no evidence to support it, that President Biden won’t be impeached – the presidents of Harvard, MIT and Penn managed to make many of these members look positively statesman-like. What is even more remarkable is that, given that the Republicans on the committee did most of the hard questioning on the college administrators’ lackadaisical attitude to antisemitism and, to a person, these same Republicans are adamant and largely uncritical admirers of a former President (Trump) – whose bigotry labeled Mexicans as felons, who tried to bar entry based on religion (those following Islam), who found good will and decency in antisemitic, white supremacists who marched in Charlottesville, and who associated with neo-Nazis over dinner – the three college presidents managed to finish second in a two party race as to who was most indifferent to the intimidation, harassment and bullying of Jews. In all, a remarkable performance.

Let us take a minute to consider what this hearing was and was not about. Congressional hearings operate on the premise they will gather facts for future legislation. This hearing did nothing of the sort. Only one of the four witnesses (Prof. Pamela Nadell, an historian at American University) was an expert on antisemitic bias and various strategies to combat it through policies and procedures on campus. She was mainly ignored. The other three – the university presidents – did not claim expertise. They failed to show they possessed any.

The hearing was not about the codes of conduct that the colleges had formulated, which are at best inadequate, at worst both encourage hate speech by some and restrict fair comment by others, nor was the hearing about whether the codes were even followed. The actual governing rules were, apparently, beside the point, even in the way. The real purpose was to bully the witnesses. Questions were delivered with loaded or faulty premises (intifada equals genocide), making any answer suspect. Hypotheticals about events that had not occurred (explicit calls for genocide on campus) were raised, not as reality, maybe not even much as possibilities, but as accusations. A reasonable amount of time given to answer, let alone answer completely, was unavailable and its possibility mocked. Examples of individual students who had been subjected to antisemitism were tossed out, without the even faint chance that the college presidents would know the individual facts. 

Finally, the tone was authoritarian, heavy-handed, disrespectful, belittling, spiteful and dismissive. Any possibility that the hearing was called to produce solutions shown to be a pretext. The purpose seemed only to bully and belittle the heads of institutions whose productivity measures up well against that of Congress: finding cures for diseases and disorders; discovering solutions to problems with energy, the economy, aging, and society; developing genetic solutions to food scarcity and nutritional deprivation; solving math problems and designing math modeling that allow for better computers, internet and weather, and climate prediction and management; mastering the maximization of efficiencies of transportation systems and supply chains, and even preserve wildlife and rainforests; conducting research that leads to understanding the origins and future of the planet and we humans on it. Congress, meanwhile, carps, criticizes, complains, defames, dawdles and obstructs. 

The format of a Congressional hearing might, to a casual observer, look like a legal proceeding: witnesses sworn, exhibits introduced, questions asked upon both direct and cross-examination. But the similarities are misleading. Congressional hearings bear only the vaguest similarity to court hearings. There is no neutral judge to keep order or to rein in obstreperous inquisitors or filibustering witnesses; there is no neutral audience (jury or judge) whose opinion is the object of the questioning; there are no strict rules of evidence about what might or might not be asked (no compound questions, no personal attacks, no rambling preambles, no cutting off answers, no undefined terms, no testifying by the questioner, to pick a few safeguards foreign to Congressional inquiries); and there is no focused reason for the entire event (whether someone is criminally guilty or civilly liable). The questioners in courts are professional, trained and experienced. A record is kept for an appellate court to correct errors. Truth is expected to triumph over spectacle. Whether at the McCarthy or House on Un-American Activity Committee (HUAC) proceedings a half century ago, or the endless hearings requiring the testimony of Hillary Clinton a decade ago, neither fairness to the witness nor a neutral search for truth has been the hallmark of Congressional inquiries.

Given all that, how could presidents of three of the top universities in the world fail to look good? Bullying has well-known defenses: calmness, direct answers, a serious expression, calling out the question, simply looking good by being prepared, going with the point inherent in the question (“should one respond to hatred”?) with a more vigorous response (“Yes, immediately, thoroughly, without compromise or question”). Moreover, bullies often look like bullies when a victim is present (That is why Trump almost never has his target within eyesight and avoided showing up at the E. Jean Carroll sexual assault trial, return to tell his side of the story in his New York fraud trial, or facing opposition on the primary debate stage). 

One might have thought the presidents of these three universities would know that. They might have been prepared. They might have tried to be persuasive or at least sympathetic. They might have shown (rather than just mouthed empty words) that they cared about the problem at hand: antisemitism. They did nothing of the sort. Instead, they displayed a kind of touch-freely, moral indifference. Easy condemnations – against genocide, prejudice, and religious and ethnic bias – were avoided. “Context” was instead required. ”It all depends” being the way forward. An eerie confusion of the immoral with the illegal occurred, with the further confusion even within the legal and the moral. Consider an example taken from Congresswoman Elise Stefanik’s questions (somewhat abbreviated) to Harvard President Claudine Gay, Gay’s replies, and then the obvious and simple and correct answers in brackets, to illustrate the failure.

Stefanik: Harvard receives funding from foreign entities and governments which supported Middle East Studies Department. Correct? 

Gay: We receive funding from a variety of sources because we have alumni from all over the world. 

[The correct answer is “Yes”. If one receives funding from A through Z, then, as a matter of logic, reason, common sense and sanity, one receives funding from A. Any other answer makes one look like a liar. Nor is this a secret. Anyone who fails to admit what is easily shown to be true, here the sources of funding being easy to track down, is generally deemed untrustworthy, and rightfully so.]. 

Stefanik: But that is correct, right? The Middle Eastern Studies Department.

Gay: We receive funding from various sources.

[This is not an answer to the question. The question was about Middle Eastern Studies funding. Undoubtedly Harvard receives funding for various sources: from student tuition to alumni bequests to demands for dorm rent to licensing fees for its intellectual property to proceeds from all those Harvard sweatshirts and mugs. Who cares? The question concerns funding of the Middle Eastern Studies Department. Any other answer makes one look like a liar]. 

Stefanik: It’s a yes or no. Are you not aware where the Middle Eastern Studies Department receives funding? 

Gay: We receive funding from various sources.

[Of course, this is not an answer. In fact, it is the same wrong answer given before. Who cares where other funding comes from? Any other answer makes one look like a liar].

. . . 

Stefanik: So the answer’s correct, yes, yes, the answer [receiving funding from foreign entities and governments] is correct?

Gay: We receive support from alumni all over the world, from individuals.

[This answer fails to address the question (government funding), gives an answer to a question not asked (alumni funding), and comes close to lying. Harvard, like everyone else, takes foreign government funding. The Department of Education in April 2923 stated that U.S. universities have received $19 billion from foreign sources without recorded dates of receipts, with an estimated 50% of that from authoritarian Middle East governments]. 

Consider another attempt to get a simple answer to a simple question, a question asked under oath.

Stefanik: Dr. Gay, does calling for the genocide of Jews violate Harvard’s rules on bullying and harassment?

Gay: The rules around bullying and harassment are quite specific. And if the context in which that language is used amounts to bullying and harassment then we take, we take action against it.

[The question was about genocide, a word not mentioned in Gay’s vacuous answer. She was asked whether a call for genocide violates Harvard’s rules: does it or not? She cannot bring herself simply to say “Yes”. Of course it is bullying and harassment, not to mention violative of any rule one might have in favor of decency, morality, civilization, the way we want to live our lives, and to have others live theirs. Gay instead brings in the impossibly vast term of “context”, implying mass murder and extermination may not always be all that bad. Check the context. For genocide, being bullied or harassed are the least of the matter. Context might matter, but usually to prove more than harassment: context might reveal murder, deadly conspiracies, calls for war, human rights crimes, and, indeed, genocide].

Stefanik: Can you say yes to that question of: does calling for the genocide of Jews violate Harvard’s rules on bullying and harassment?

Gay: Calling for the genocide of Jews is antisemitism.

[Of course it is, but that wasn’t the question. The question concerned whether Harvard’s rules were violated. It seems incredible that the top administrator of perhaps the premier university in the world, running an organization with over 20,000 students and 16,000 staff and faculty, and a $50 billion endowment cannot answer a simple question. The full range of answers is nothing much more than “Yes, it does violate Harvard’s rules or if it doesn’t violate the rules, those rules should be changed immediately, and in any case, it would not stop Harvard from acting promptly to stop and discipline such behavior].

Stefanik: So yes?

Gay: And that is antisemitic speech, as I’ve said.

[Yes. It is speech, as it is uttered language. So are many criminal and violent acts. A demagogue saying to a mob: “Lynch him“ or a captain of the guard saying a firing squad: “Ready. Aim. Fire.” are both speeches, but they are both also actions. In fact, they are paradigm examples of what the linguistic philosopher J. L. Austin called “Performative Speech Acts”, language that is used not to convey truth, but for other purposes – to inspire, nominate, contract, swear, marry, launch, or even to constitute conduct or behavior – in the world. For example, when a bride and groom utter vows, saying the words “I do”, the vows themselves make them married, regardless of the truthfulness of the content (being faithful, etc.) of those vows. No matter what, they are married, just as the prisoner standing against the wall, no matter what, is dead after the firing squad captain utters the term “Fire”. None of this is complicated. The fact that someone calls for the murder of another individual or the murder of another group may make it speech in the way it is delivered, but that is hardly much analysis at all. If moral clarity is being sought – moral clarity that means calling hatred to be hatred, condemning bigotry as bigotry – this should have been an easy set of questions. In fact, it turned out to be too difficult for the head of Harvard University to address].

The confusion did not suddenly come from nowhere: it inheres in a culture where there are better and worse biases, groups and fears, some with superior claims, others that garner little or no sympathy. The landscape is confused, but a few landmarks are evident. Let me mention four: two different conceptions of free speech, the conflation of law and morality, the championing of certain groups grievances over others, and the helplessness of giving rights to groups who, if in power, would eliminate those rights for others.

First, free speech was trumpeted by almost everyone in the room. What does that mean: no regulation, no criticism, no balance against other freedoms? Here, in the context of antisemitism, it seems to mean two, completely contrary, things: the right of everyone to say what they want without threat and the right not to be bullied by the speech of others. Who is the bully and who is the victim in these matters is, of course, central, with much of the speech likely to be put into question far from careful, considered, or even coherent. Under such circumstances, analysis degenerates quickly. According to surveys, a significant percentage of those who say “From the river to the sea, Palestine will be free” – a slogan Jews take to mean the genocide of all their co-religionists who live in Israel – cannot identify the basis as the Jordan River and the Mediterranean Sea. They do not know what they are talking about. Clearly, this is speech, clearly it is harassment, and clearly there is a whiff in the air of genocide. Should those who say it have their speech restricted, made less free? The accusing congressmen could not actually identify the use of the term “genocide “ in all of the campus uproar, but rather employed various other terms as shortcuts or stand-ins for the grievances, justified or not, by those uttering a number of certainly anti-Israeli, likely, antisemitic, offending words.

Free speech is a complex concept, but it certainly involves something of a hierarchy, with religious and political speech ranking near the top, commercial speech (consider cigarette or whiskey advertising) somewhere in the middle, and defamation (consider the Giuliani trial brought by the slandered Georgia election workers) near the bottom. Hate speech was once more commonly and casually uttered, considered to be not so different than ethnic jokes (which were taken by some, but only some, to be harmless) then and apparently locker room talk still today. But the consequences of that speech, given the various genocides and holocausts, the mass murders and ethnic cleansing, ethnic wars and civil disputes – together claiming lives not in the tens, but in the hundreds, of millions of people – has now caused hate speech to be demoted to the very bottom of the free speech list. It gets minimal protection, if any at all, and is to be condemned, almost instantly, if punished more carefully, cautiously, and in a measured way. Universities have occasionally been quick to suspend or expel or fire those engaged in what they considered not even quite hate speech, but thought to be close enough to replicate the hate, in order to fire faculty, expel students, demote administrators and, in general, create a supposedly hate-free environment. Administrators testifying before Congress are products of this ambiguity and indefensible, paradoxical standard.

That said, universities and their presidents ought to have done a better job a long time ago in trying to solve it rather than stumble and stammer their way in front of a national audience. Too many examples of colleges that alternate between a trigger finger – the Hamline University art history teacher, Erika Lopez Prater, punished for showing a piece of 14th century Islamic art that depicts the Prophet Mohammad, or the Yale faculty member, Erika Christakis, forced to resign for defending the right to choose one’s own Halloween costume, but Jewish students are unable to show films or to attend classes that celebrate their own religion. 

Different cases and different instances may call for different outcomes, but broad principles that demand fairness are always required. It is fair to ask what those principles are and whether they are being followed at each of the schools. When President Gay was questioned why Harvard allows separate graduations for Black, Hispanic and gay students, but would not allow them for White students – not an unfair question – she could only say she opposes segregation. There may be justification for that segregation (as there may be for women’s colleges), but given that it is exactly contrary to the goal of integration championed for hundreds of years, and ascendant for more than half a century since Brown v. Bd. of Education, there ought to be a response more convincing than Gay’s response that such segregated graduations are “Inspiring”. Speech or conduct, or their typical blend, still must meet the basic requirements of moral decency, respect for the individual, consistency among all individuals (Kant’s categorical imperative, or earlier, the golden rule of Leviticus and Hillel, and then Jesus), and a balance between and among competing rights. Slogans don’t cut it, but slogans were all the administrators brought with them.

Second, law and morality are not the same thing. In fact, they do not serve the same purpose, have the same masters, or necessarily travel in the same direction. We often think of legal rights as the right to do the wrong thing, the wrong thing being the immoral thing. In our personal lives, we view a number of things that are not illegal critically, and then judge family and friends, workplaces and communities by the moral standards that we hold. Being unkind, selfish, avaricious, dishonest, hypocritical, unfaithful, mean-spirited are not illegal, at least not generally. However, they are (or should be) objects of our moral distain. All the indications of antisemitism mentioned in the hearings, and too often observed not only on college campuses, but throughout the United States generally, need to be condemned, even if the law often has no good solution. However, private universities are not the law, they are not public entities, and they do allow for a variety of solutions. There are any number of sanctions that can be placed by the university to stop the immoral and embrace their educational mission to promote what is useful and important and essential in creating the kind of society that the university administrators seem to claim they want to achieve.

That claim itself, of course, is highly suspect. Consider but one example, set out by the legendary historian, John Hope Franklin, in his autobiography. He discusses the obscene amount of money raised by places like Harvard for their endowments, with each extra dollar doing extremely marginal good, giving administrators a slightly grander office and a slightly more robust paycheck, building more foreign campuses, having slightly fancier buildings, or better tennis courts and track facilities. Bequests are trivialized when measured against best educational use. Franklin argues that, rather than trivializing those dollars, Harvard (to pick his example) could give even a small amount of that away to help, for example, historic black colleges and universities (the HBCUs, again Franklin’s example). The failure of elite colleges and universities to give away their money to those who are dedicated to the mission of educating the entire population, including the historically disadvantaged, belies the sanctimonious talk of being on some kind of moral crusade to educate all who might benefit from it. But, again, that is the world that the three college administrators testifying before Congress inhabit, a world where elite universities’ successes are measured by the size of their endowments, their accumulation of Nobel, Field, Turing, IEEE and other prizes and trophies, the accumulation of glittering faculty names, and their bragging rights about alumni who go onto political fame or corporate riches or celebrityhood. Educating promising, but poverty stricken, youngsters to become middle school teachers who will spend their lives helping other poverty-stricken youngsters is not on the front line of the vision of these schools.

To return more directly to the issue of law and morality, all three college administrators talked about the First Amendment free speech rights that U.S. residents have against the state and federal governments. That should not mean and does not mean, however, that these rights operate in the same full-blooded way when considered against other rights, when measured against other speech, or in general, when employed in the arena of private institutions. Limits on governments are not limits against each of us as private citizens or private organizations. Put crudely, while governments (generally) can’t say “Silence”, parents, teachers, friends, neighbors and co-workers (generally) can. It is a standard and a difference that we embrace. We do so because we are more worried about oppressive governments than we are about pernicious talk. That worry, an important one, does not even apply to the government when there is belligerency, intimidation or harassment, and it has a diminished role when trying to analyze how a private educational institution manages its classrooms, labs, libraries, quads and dorms. The inability of the three presidents to sort any of this out, or even to mention it, is telling evidence of their chaotic view of what free speech is all about, and when and where it is a legalistic matter and when and where an ethical one.

The third confusion – championing certain grievances over others – is more sensitive, more problematic, more riddled with the disingenuous and hypocritical. It is simply a matter of fact that certain groups are given pride of place over others, treated to greater advantages, or handled more sensitively, not universally, but by members of those groups and by their allies. Consider the relevant example of genocide. It was a concept created in 1944 by Raphael Lemkin, an exiled Polish-Jewish lawyer from Lvov (does that make him Polish, as that was a Polish city when he lived there, or Soviet, as it was later or Ukrainian, as it is now, or Austrian, as it was before all this? Perhaps he has no citizenship or residency claims, as he is historically a Jew exiled from Judah in the Babylonian Exile of the 7th century B.C.E., and nomadic ever since). 

There is far from universal agreement or a simple consensus as to what the concept of genocide entails. However, its most basic feature is the intention to destroy an ethnic group. By that definition, of course, Israel has no genocidal intentions, wanting to destroy Hamas but not all 2.5 million Gazans or the millions of other Palestinians in the West Bank or in exile. In fact, there is little to no evidence of genocidal killing by Israelis against Gazans because they are Gazans and not for any other reason, such as, here, the usual if terrible civilian collateral damage so closely tied to wars. (That does not mean that Israeli military conduct is immune from criticism. For example, the use of so-called “dumb” bombs, unguided and wandering missiles, in civilian areas leading to thousands of deaths, is morally indefensible behavior). In fact, there are instances of genocide in the world today and it is hard to find anyone in America, on college campuses, or even a number of international forums who seemed to care much about it. Consider three: the mass murder of the black-African Masalit by the Arab Rapid Response Forces in Sudan, the ethnic cleansing of the Uyghurs in China, and Hamas in Gaza, whose Article 7 of its founding charter states: “The Day of Judgment will not come about until Moslems fight Jews and kill them”.

The entire debate can take on the tone of an argument about property rights, an argument conducted seemingly by those with both a poor grasp of the fine points of modern property law and a worse grasp on the larger problems of political philosophy when sorting out the various claims among larger groups with competing stories as to who should live where. (A little reading from John Locke and Robert Nozick and the problem of justice in acquisition of property, particularly land, even with all their drawbacks, would go a long way). Arguments are constructed on the quicksand of mythical positions, dubious land grants and obscure or pernicious and indefensible narratives originating from distant governments typically both non-democratic and of dubious legitimacy. Such arguments are laced with explanations of supposed ethnic purities and of origins historically unsustainable. They have no place for intermarriage and adoption, and ignore the ordinary migration and immigration, and integration of those captured, conquered or enslaved, that humans have engaged in for thousands of years. Instead, they trot out preposterous, heroic historical narratives in service to claims to possess and dispossess territory and peoples. Terms like “indigenous”, “historical”, “colonial” and “settlor”, bereft of real meaning or moral legitimacy, are put on display all around as inhumane proof of the right to mistreat one another. The rights of distant ancestors are treated as the rights of individuals today, a breathtaking form of genetic destiny that even the evolutionary biologist Richard Dawkins in his The Selfish Gene would dare not consider.

That said, this is exactly the territory that needs to be explored. It is everywhere a problem, but with little consistency. Take Britain. The Ulster Scots are said to be intruders in Northern Ireland, the Norman French invaders ignored, the Viking marauders who settled down in Ireland and England celebrated, and the 16th century Polish immigrants (except for Poland Street in London) forgotten. Why? In a hearing on hate speech and hate crime, one group Congress never mentioned is almost certainly the most disliked group in America: Muslims. They are widely attacked, sometimes physically, and the subjects of hate on a regular basis. However, they were barely discussed. Interestingly, of course, the disproportionately low esteem in which they and their actions are held in the United States can be contrasted with how they are judged in the Middle East and North Africa. There, discrimination by Moslems against Christian Coptics in Egypt and the Assyrian and Chaldean Christians in the Middle East, as well as discrimination against Jews, from Morocco to India, and against Bedouins from all sides, are hardly remarked on.

Politics not morality takes the lead here, unfortunately. The racial and ethnic and religious issues that have traditionally plagued the U.S. – involving African Americans and Native Americans, not to mention endless episodes involving Catholics, Mormons, Jews and East Asians – remain festering and incompletely solved. Immigration from the Hispanic south will only add to those issues. (That is not to say that any particular form of discrimination is always with us. The eldest of the founding fathers and great Enlightenment figure, Ben Franklin, was fiercely against German immigration. He thought German immigrants to be “Generally of the most ignorant Stupid Sort of their own nation”, and wanted their immigration stopped. That bias has evaporated, luckily in time for General Eisenhower’s family to immigrate from Karlsbrunn, Germany to employ his strategic military genius in W.W. II). Three college presidents, lacking any discernible expertise in this area, while questioned by politically motivated Congressman looking for headlines, are unlikely to move us toward any solution.

The fourth and final concern here, but hardly the last on a more complete list, is the problem of toleration toward the intolerant. We can be brief. Having rights that can give power to intolerant groups – whether led by fascists, nationalists, communists, or any religious or ideological or sectarian or criminal group that is indifferent at best, hostile at worst, to the freedom of others presents an almost insoluble problem for a democracy. As one of those rights, free speech is subject to limitations against those groups when they intend, if given the opportunity, to curtail the speech of others. This is hardly an issue that can be well-analyzed in several soundbites, the absurd congressional format which gives only five minutes per round per Congressman for questions and answers, but it is one that hung over the entire hearing. That said, the cautions necessary when giving voice and power to the intolerant poses an additional potential constraint on speech.

We can then, finally, return to the title of this essay. The college presidents – bumbling, stumbling, evasive, and lost in a moral fog – managed to make Congress look good, but even they, with all their combined erudition, couldn’t make it look great. The hectoring, labeling, and phony premises leading to false conclusions remain evident. Take just one characteristic example, this from the questioning of Rep. Joe Wilson of South Carolina.

Rep. Wilson asked all three of the presidents what percentage of their faculty were conservatives. Each replied that their schools do not track such data, hardly unexpected, particularly as in the academic world, conservatism covers such a wide area as to be largely vacuous. Wilson simply responded that lack of tracking means “There’s no diversity inclusion of intellectual thought.” This is a ridiculous statement in terms of how many conservatives are on campuses and an absurd statement in terms of political diversity, which is hardly limited to a rigid bivalence between those deemed conservative and those deemed nonconservative. Wilson then concluded, even more remarkably, “And the result of that is antisemitism”.

Ignoring the evidence, changing the answer, and mischaracterizing the respondents’ positions are no longer surprising in Congress, but two things are true about the conclusion Rep. Wilson reached. First, even if there are fewer conservatives in elite universities than as a percentage of the general population, that would hardly imply an increase in antisemitism, or have anything to do with racial or prejudice whatsoever. Even ignoring the obvious fact that those seen as antisemitic belong to two groups scarce among faculty – Middle Eastern Moslems and right-wing, ultra-nationalist, white supremacists, the left cultural relativists and colonial theorists. 

One might find an unrelated reason for faculty aversion to some version of current Republican conservatism: science. Too often the GOP is identified with denying evolution, questioning vaccines, mocking global warming, and crushing funding for basic science and academic research. All of this is antithetical to faculty members of elite (and non-elite for that matter) universities, and it would be remarkable if such faculty were to identify themselves as conservatives as the term is used by Republicans in Congress. 

Just to clarify, Conservatives constitute a diverse group Of course, not every Conservative has an aversion to science.  However, many religious-oriented conservatives in the Republican party do. 

Second, while Wilson seeks to link antisemitism exclusively to the left, it has for decades, even centuries, been firmly and deeply associated and at home with the right. If Rep. Wilson bothered to drive 5 1/2 hours on US-29 N from his hometown in Columbia, South Carolina, he would find himself in Charlottesville, Virginia, where in 2017, a Unite the Right (not left) rally – populated by white supremacists, neo-Nazis, white nationalists, members of the alt right and Klansman – marched to the chant “The Jews will not replace us”. Wilson had been in Congress for 16 years then but seemed sufficiently unconcerned by actual antisemitism and real violence (where one person died, and two state troopers were injured) to call for a Congressional hearing. It is easier to blame a few well-mannered, if clueless, college presidents.