Harvard and MIT Presidents Should Resist Pressure to Resign

In my essay over the weekend discussing the furor over the answers that the presidents of Harvard, the University of Pennsylvania, and M.I.T. gave in Congressional testimony to a hypothetical question about calls for genocide, I explained that much of the apparent disconnect between their free-speech-protective statements and the public reaction could be attributed to a misconception that universities that rightly value free speech should implement it by essentially copying and pasting the legal doctrine that governs the limits on the role of government in regulating free speech by the general public. In the course of so doing, I tried to avoid piling on the university presidents, focusing on the broader principles.

In today's follow-up essay, I shall discuss why I believe that Harvard President Claudine Gay and M.I.T. president Sally Kornbluth should resist calls for them to follow the lead of now-former Penn President Elizabeth Magill, who announced her resignation on Saturday. I offer these thoughts as a constitutional scholar, a Jew who is hardly insensitive to antisemitism, and a Harvard alum. With respect to that last point, I see no relevant differences between the circumstances of Harvard and M.I.T. (with which I also had some connections in my student days).

(1) A short petition signed by hundreds of Harvard faculty states that a university's "critical work of defending a culture of free inquiry in our diverse community cannot proceed if we let its shape be dictated by outside forces.” I broadly agree with that proposition and, given the context, would have signed a similar petition if Cornell administrators were facing the kind of pressure now facing the Harvard and M.I.T. presidents. However, it is not literally true.

The "outside forces" to which the Harvard faculty petition refers include Congress and wealthy donors. Harvard depends on both for substantial amounts of funding, even though it has the largest endowment of any university in the country (although only fifth on a per-student basis). Fundraising--from both public and private sources--is one of the key criteria by which a university president is evaluated, even at universities with large endowments. It is simply unrealistic to think that government and private actors with no obligation to confer their largesse on universities would not seek to influence university policy in some ways.

(2) Not all such outside influence is malign. Under Titles VI and IX of federal civil rights law, for example, educational institutions that receive federal funds may not discriminate based on race, color, or national origin (Title VI), or sex (Title IX). In recent years, there has been controversy over how the Department of Education has used "Dear colleague" letters to influence university policies regarding sexual harassment and sexual assault, but whatever one's position on those particulars, it is difficult to argue against the legitimacy of the core anti-discrimination rules that such laws impose.

Nor is all private donor influence malign. Universities--like all non-profit institutions--especially value unrestricted gifts, but they also accept targeted ones. A wealthy alum might want to donate to their alma mater to support scholarship aid at a particular unit of the university (the business school, say) even though the university has greater need in some other unit; or the alum would like to see their name attached to a new stadium; or the alum wants to endow a chair in a particular field. A capable university president (or, in the case of smaller gifts, development officer) will try to steer the donation towards the university's own priorities or at least towards some project that the university was planning to undertake anyway (thereby freeing up other funds for other priorities). In the end, however, negotiations between university administrators and private benefactors lead to some distortion of the funding priorities that the university would otherwise choose. That's hardly ideal, but so long as the donors' wishes do not lead the university to pursue ends that are inimical to its values, it is generally deemed an acceptable price to pay.

(3) Accordingly, universities cannot and do not resist all outside influence. Nonetheless, there is a line. Neither government nor donors should be able to dictate matters like who is hired or tenured. That would be a direct interference with academic freedom. How universities weigh the free speech rights of academic community members versus the rights of other academic community members against discrimination and harassment is the sort of question that government and private donors may rightly be concerned about, but efforts to micro-manage that weighing can--and in this instance do--cross the line.

(4) That conclusion is necessarily nuanced. We might draw a loose analogy to the business judgment rule in corporate law. Shareholders do not get to override corporate management in the day-to-day running of the business, so long as management doesn't do anything crazy. If a university president testifying before Congress said "it is university policy to encourage students to threaten and even commit acts of savagery against one another, and I fully support that policy," no sensible person would object to calls by members of Congress, wealthy alumni, or the general public for the university president to step down. But the fact that we can imagine cases of legitimate outside influence over the retention of a university president hardly makes this particular instance legitimate.

(5) As I explained over the weekend, the university presidents were asked questions about their university codes. They gave answers that might well be correct as a description of those codes but that were insufficiently attentive to the underlying values. They then apologized for their insensitivity. That should have been the end of the matter, and not least because the focus on these particular university presidents is almost random. There had been incidents of antisemitism at other prominent universities, including the three most prominent private universities in my own state of New York: Columbia; Cornell; and NYU. If the president of one or more of those or other universities had appeared before Congress and honestly but ham-handedly answered questions about their policies, they too would now be under pressure to resign, despite however well they had otherwise performed.

(6) Perhaps most importantly, the calls for Presidents Gay and Kornbluth to resign are part of a larger campaign on the political right to remake higher education. Some of this campaign comes from government (most prominently in Florida but also elsewhere). Other elements come from allied anti-woke private-sector activists. For example, Bill Ackman--the hedge-fund billionaire who is at the forefront of the campaign to withhold largesse from universities that do not toe the line he prefers--has been a supporter of Vivek Ramaswamy's Trumpier-than-Trump Presidential campaign.

In short, the outside forces now seeking the resignations of Presidents Gay and Kornbluth will not stop there. There is a campaign afoot to do to Harvard, M.I.T., and every university in America what Ron DeSantis is doing to New College of Florida. Even the most minimal commitment to what has made American universities the valuable institutions they are requires resistance to such efforts.