MIT, Penn, Harvard, and Florida: Universities as Rightwing Props and Battlegrounds

It seems that I have been writing about attacks on American universities for as long as I have been writing.  There is no shortage of examples of reactionary pundits and politicians going after "pointy-head college professors who can't even park a bicycle straight" (an agrammatical example from long before I began writing), and in more recent decades everyone on the far right from Rush Limbaugh (who included academia among his "four corners of deceit") to Rick Santorum (who called Barack Obama a "snob" for advocating policies to increase college attendance) has gotten in on the act.

On Tuesday of this week, I wrote a column discussing why the attack on higher education led by Florida's governor has not gained as much national attention as one might have hoped.  Even eleven days after Stephanie Saul, one of the best reporters out there, wrote an excellent and prominently placed piece in The New York Times laying out what is happening at my home university and its statewide siblings, and even after her reporting was quickly confirmed by a carefully researched American Association of University Professors study (written by a special committee that included Dorf on Law's own Anil Kalhan), all anyone can talk about on the higher education front has been the supposed sins of the presidents of MIT, the University of Pennsylvania, and Harvard.  As I noted on Tuesday, although Saul's piece quoted me extensively, even people on the far right are now so uninterested in the University of Florida that it generated only two bits of hate mail in my inbox!

At the end of my Tuesday column, I noted that Philip Bump of The Washington Post is one of the few pundits who has bothered to pay attention to the Florida situation.  In "Furor over the Ivies — and crickets about Florida," Bump offered some thoughts about why the MIT/Penn/Harvard story has legs, while the much more problematic UF story struggles to break through.  Before discussing his arguments, however, I want first to consider the proximate cause of the outrage that is now focused on the presidents of those elite institutions: last week's congressional hearing at which the three women supposedly "evaded" questions and opened themselves up to fierce criticism.

In two columns earlier this week, Professor Dorf made the important point that colleges and universities cannot -- and in fact should not -- simply "incorporate by reference every jot and tittle of the courts' understanding of the First Amendment," explaining that doing so would be both over- and under-inclusive when it comes to the goals and ideals of higher education.  He also offered this alternative answer to the question that people have focused on from the congressional hearing, which had to do with whether campus codes of conduct ban statements in support of genocide:

I believe our campus code would protect even as odious a statement as a call for genocide as permissible freedom of speech if it didn't constitute a true threat or harassment; however, if so, the campus code should be changed to make clear that some speech that the First Amendment protects from government censorship as a general matter violates a university community member's obligation to respect the safety and emotional wellbeing of every other community member.

Professor Dorf made clear that he was not saying that he or others "would have done better" in the moment, suggesting only that there was an answer that could have avoided the current firestorm.  And I completely agree that his answer is both completely accurate and conveys the revulsion that is appropriate in this situation.  I honestly have to say, however, that I am skeptical that even a clear statement like his would have avoided the trap that the Republicans on the committee had set for the three presidents.  Even if they had allowed one of the presidents to get through that entire statement (which I doubt), I think it is clear that they would have objected along these lines:

Inquisitor: Wait, you're saying that the current code allows this ugliness, but you're only now saying it should be changed?  You've had almost two months!  What are you waiting for?

Trapped Witness: Well, that takes time, and we want to be careful not to change the code in a way that impinges on legitimate speech.

Inquisitor: 'Impinges on'?!  Please.  So you're saying it's complicated?  What's complicated about genocide?

Trapped Witness: Well, our code shouldn't be changed, for example, to simply ban the word genocide from campus.  And it depends on the venue -- in class (required or elective), at commencement, in a cafeteria, at a faculty seminar, or ...

Inquisitor: "It depends'?!  That sounds evasive to me.  Why are you dodging the question?  I asked why you haven't been working day and night to change your campus code -- which you've just admitted currently allows this evil speech -- and you're lawyering your answer?

Trapped Witness: Well, as I'm not a lawyer, I would want to rely on someone who is an expert on such matters, so I referred it to the appropriate people.

Inquisitor: 'Appropriate people'?!  But you're the president, and now you want to blame some lawyers for not doing your job for you?

Or consider an alternative answer to that last question:

Trapped Witness: Well, I actually am a lawyer, and I know that this is a case where there could be unintended consequences.

Inquisitor: So if you're a lawyer, you surely know that a lawyer who represents herself has a fool for a client.  Why aren't you relying on the many excellent lawyers in your institution's office of legal counsel?!

I have no way of knowing whether the blowback from those alternative scenarios would be worse, as bad as, or better than the current situation.  I do know, however, that the problem is not that the presidents gave "evasive" answers, because that is not what they did.  They were asked a simplistic -- in fact, an idiotic -- yes/no question, and they said that things are not so simple.  "It's actually quite complicated and context-specific" is the only right answer, but any attempt to delineate complications and context would be attacked as lawyerly or insufficiently human.

In other words, this is ultimately not an echo of the 1988 presidential faux-debate in which Michael Dukakis responded to a weird (and frankly disgusting) hypothetical question about his wife being raped and murdered by offering a canned response about the death penalty.  Even that situation was ridiculous and unfair, but Dukakis could have done better by offering a more human response.  By contrast, in Congress last week, I see no way in which any response by one of the witnesses would not have led exactly to the same criticism: "Genocide is bad, but you're dithering and saying that it's not as simple as I say it is."

Why am I so confident about that alternate history?  Turning now to that Post op-ed by Philip Bump that I mentioned above, the larger point is that Republicans cannot allow any discussion of higher education to be anything but anti-elitist performance art.  Bump asked exactly the wright questions: "Why is [Gov. Ron DeSantis] trying to reshape higher education in Florida? What’s the problem he’s ostensibly trying to fix?"  

Bump offered "two clear, overlapping answers."  The first is that "it has become an article of faith on the right — despite a dearth of supporting evidence — that colleges are turning young people into liberals. And that, therefore, colleges need to be overhauled and their instructors scrutinized and purged."  This means that the "pointed-head intellectuals" (which is still a weirdly agrammatical attack, more than fifty years later) are supposedly coming after your children and pouring evil ideas into their heads.  The professors are, if you will, hyper-elite intellectual groomers.  And Bump's second point bears reprinting in full:

[C]ollege education often serves as a proxy for being in the “elite,” a member of the nebulously bounded class of Americans that is viewed with disdain (or worse) by the political right. That’s particularly true of those who attended schools such as Harvard, a school whose name is functionally synonymous with elitism. House Republicans brought Ivy League presidents to answer questions about antisemitism in part because of reported incidents on their campuses and in part because they are ready-made punching bags for the Republican base.

So the situation in Florida serves the first purpose -- purging people with "dangerous" ideas that pollute the minds of America's young -- while the congressional hearing serves the second.  On October 31, relying in part on and quoting from another important article by The Times's Saul, I noted that now-departed UPenn President Liz Magill was already under fire from right-wing donors:

[I]t turns out that the reaction against the Penn administration was an extension of a campaign of right-wing donors who have been complaining about what they view "as the university’s leftward shift, including a transgender athlete on the women’s swim team and the push for diversity, equity, and inclusion programs by the dean of the business school."

At the time, it appeared that the institutional safeguards against donor meddling in the running of an institution of higher learning would hold.  We now see how that has turned out.  But that was merely a battle in the larger war on higher education.  In my column two days ago, I mentioned that Florida's governor had brought in Christopher Rufo to carry out the hit job on his state's colleges and universities (starting with New College).  I noted that Rufo has no business being in charge of anything related to higher education and pointed out that he responded to news that professors are leaving Florida by saying that "[p]rofessors who want to practice D.E.I.-style racial discrimination, facilitate the sexual amputation of minors, and replace scholarship with partisan activism are free to do so elsewhere. Good riddance."

But he is not merely one among too many loudmouths on the right.  DeSantis chose him for a reason, the most obvious of which is that Rufo was the guy who turned Critical Race Theory into a content-free Republican target.  More to the point, however, he is on the central committee of anti-intellects who, as Kathryn Joyce put it in Salon, wants to "[d]estroy public education."  Joyce's sub-headline argued that "Rufo used 'critical race theory' as a Trojan horse," and "[n]ow he wants to sack the city and win the war."  If that sounds apocalyptic, it is.  Joyce writes:

[H]e urged conservative intellectuals to recognize that "politics is downstream from institutions," and that they should use government power to shape entities like public universities as a means of eventually crafting a more powerful conservative movement. The same month, Rufo told New York Times columnist Michelle Goldberg that, having "unlocked a new terrain in the culture war," he was now "preparing a strategy of laying siege to the institutions."

In my October 31 Dorf on Law column noted above, I wrote that, unlike UF, "Penn is a private university (that is, it is not Penn State), yet it was still subjected to intense pressure to toe a very particular and extreme political line.  Happily, it has not caved at this point.  But academic freedom is always in danger."  It is in even more danger today.  Indeed, the very notion that education is an independent source of a society's strength is under direct -- and unhidden -- attack.  There is now direct political meddling by movement conservatives and their wealthy backers at all universities, public and private.

Why?  Because we professors say things that they do not want to hear, and they have resorted to political brute force rather than continuing to engage in -- and regularly come out on the losing side of -- the battle of ideas.  Their message is: Why would you pay attention to what we're doing in Florida when we've got these snooty women under attack at a congressional hearing!  What could go wrong?