What Is -- and What Is Not -- Going Wrong at American Universities

One of the evergreen tendencies in US punditry over the last decade or so (with roots going back much further) is to decry some horrible thing or another that is supposedly happening on college and university campuses throughout the country.  In recent years, the favored incendiary term has been "cancel culture," with the idea being that beleaguered right-wing students and faculty dare not step out of line, lest they be socially judged and punished by their liberal oppressors.

As I have made clear in many previous writings, that is nonsense of a particularly vacuous sort, little different from the long-stale "political correctness" panics and the more recent inanity surrounding "wokeness."  Based on my own observations and after talking with some of my students, this is all empty grievance-mongering, and too many people fail to notice that the ideological battles on campus are being stoked for clicks and outrage by conservative trolling operations claiming to be victimized by a supposedly dictatorial lefty campus culture.

Before getting to the main point of this column, however, I want to draw an important distinction.  Everything that I described above and in those previous columns is about peaceful (if sometimes heated) ideological and policy disagreements.  By contrast, much of what is making the news in recent weeks about American campuses is, sadly and worryingly, no longer in the realm of words and argument.  Among too many examples to list, Cornell saw a terrifying sequence of events in the last few days in which a campus online forum was used to call for the grisly murders of Jewish students and others, including a threatened shooting at the university's Center for Jewish Living.

It should go without saying, but I will say it anyway, that this is not at all what we see in the usual debate about "campus culture."  And even short of the most vile calls for mass murder, the atmosphere on campus is now giving everyone reason to be afraid.  Berkeley Law's Dean Erwin Chemerinsky, a highly respected First Amendment scholar, penned an op-ed in this past Sunday's The Los Angeles Times detailing some of the stunning statements from students and professors at top universities across the country that celebrated the October 7 terrorist attacks.

Chemerinsky made an important point that honestly would not seem particularly nuanced in any other context but was a welcome contribution in these scary times:

To be clear, I — and I hope all of us — mourn the loss of life in Israel and in Gaza. There is surely room in our hearts to feel compassion for all who are in danger and all who have lost loved ones. But it is simply wrong to confuse condemning antisemitism with ignoring the plight of the Palestinians.

Of course, criticism of the Israeli government is not antisemitism, any more than criticizing the policies of the United States government is anti-American. I strongly oppose the policies of the Netanyahu government, favor full rights for Palestinians, and believe that there must be a two-state solution.

Chemerinsky added that "[s]tudents have the right to say very offensive and even hateful things, but school administrators — deans, presidents and chancellors — have free speech rights too. They must exercise them and take a stand even if it will offend some and subject them to criticism," concluding that campus officials should "show moral leadership and speak out against the antisemitism that is rampant now, as they would condemn all other forms of racism and hate on campus."

In other words, Chemerinsky was saying that in the nonviolent realms of political debate, administrators' right to speak is important; and in an environment in which every action -- and inaction -- is criticized, the temptation to trim one's sails and hope not to offend anyone is no longer a viable option.  In that sense, being in a fraught environment brings a kind of freedom, allowing leaders to say what they truly believe.  I would add that even those institutions that have held over the years to a consistent policy of never issuing official statements about any other issue are now under extreme pressure to break with their own practices, being told that this situation is so extraordinary that it merits an exception.

An important article in last week's New York Times discussed how that is playing out at the University of Pennsylvania, where (as happened at Harvard earlier in the month) powerful alumni have been calling for the removal of the university's president, with the purported firing offense being her delay in issuing a statement after October 7.  The critics somehow even found a way to be outraged that the university's Instagram feed had sent out what was surely a pre-written, scheduled statement celebrating Indigenous People's Day.

And sure enough, it 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," as well as a decline in the number of Jewish students at the university.  Regarding the threat that this poses to universities’ central mission, the article quote's Cornell Law's Risa Lieberwitz (who serves as general counsel for the American Association of University Professors, the premier organization defending academic freedom):

It’s essential that the university remains independent from donor pressure or influence on the content of work that’s done in the university.  The public needs to trust us that we’re doing research or teaching or other educational activities without being pressured to take certain positions.”

Fortunately, Penn's alumni association maintained its support for the president, and the board of trustees (reportedly without dissent) affirmed its support as well.  The article ends with this:

Andy Rachleff, a trustee and founder of Benchmark Capital, said, “There are a lot of people who want free speech — except when it affects them.”

The three leaders of the faculty Senate also issued a pointed statement.

Academic freedom, they said, “is not a commodity to be bought and sold by those who seek to use their pocketbooks to shape our mission.”

My first reaction upon reading that article was very personal, given that I recently decided to leave the University of Florida in reaction to a concerted (and successful) effort by the state's Republican governor and (heavily gerrymandered) legislature to end tenure in all but name and to impose viewpoint restrictions on the state's college professors.  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.

All of which brings me back to the beginning of this column, where I was pointing out that the usual pre-October 7 conversation about American universities was an ongoing drip-drip-drip of complaints about being too lefty, too coddling, too something.  I long for those relatively innocent days, but what was happening was still important -- again, not as pressing as the immediate threats of hate-fueled violence, but essential to a long-term defense of what makes universities valuable to society.

One attack-the-universities reaction that especially caught my attention came from an unexpected source, Ezekiel J. Emanuel, a medical doctor who made a name for himself with important work during the Covid-19 pandemic as a calming voice in troubled times.  Even so, he wrote a guest op-ed in The New York Times two weeks ago, arguing that "university leaders and faculty are at fault."  For what?  "[A] coalition of 34 student organizations at Harvard [said] that they 'hold the Israeli regime entirely responsible for all unfolding violence' and students at other elite universities blame Israel alone for the attack Hamas carried out on Israelis on Oct. 7 or even praise the massacre."

To be clear, I completely agree with Emanuel about the moral obtuseness that he highlights.  And I think I understand what he means when he says that "we have clearly failed to educate them. We have failed to give them the ethical foundation and moral compass to recognize the basics of humanity."  He is an ethicist, and he is understandably beside himself to see people failing one of the most clear ethical tests that one could imagine.  He concludes that universities "must focus on the core mission: figuring out what it means to graduate educated people. In turn, this requires us to articulate and justify what we think education is so that we never again have our students make patently uneducated and alarmingly immoral declarations."

As much as I understand and applaud the motivation for this statement, I have to say that I am completely at a loss as to what Emanuel would have us do.  Consider a pertinent comparison.  The movement for reform in legal ethics several decades ago led to the adoption of required law school courses in "professional responsibility," paired with the Multistate Professional Responsibility Examination (MPRE).  That, however, was not about teaching budding lawyers to be ethical in the sense of turning morally bankrupt people into morally upright people (although it is nice when that happens).  The course and exam (as most readers of Dorf on Law know all too well) address professional ethics from the standpoint of questions that are not about good versus evil but open-ended questions about practice: what are the contours of attorney-client privilege, what is "commingling of funds" and why is it prohibited, and so on.

But Emanuel's call is, I’m happy to say, at the opposite end of the spectrum from the recent calls for law schools to teach their students things like professional decorum.  This reached its low point when people were wringing their hands about students who protested a judge's speech, with the fatuous claim being that those students supposedly are unaware that they are not permitted to be rude to a judge in court.  I argued in that context that creating a finishing school for lawyers would be a misuse of students' time and tuition dollars because it is completely unnecessary.  Anyone above the age of six who somehow does not already know that one must be polite to a judge in court will learn that lesson quickly and definitively.

Emanuel is correctly describing something like the opposite of that phenomenon, in which something that seems painfully obvious as a moral proposition to most people is shockingly not universally shared and is somehow not easily corrected.

I would love it if universities could do something about that.  My law school had a recent trauma in which a 1L publicly espoused White supremacist views, but I doubt that any attempt to educate that student out of those views will be successful.  It is possible for a school to refuse to recommend students for bar membership on "character and fitness" grounds, but the possible content of the ethics training that Emanuel has in mind (apparently for undergraduates, not just professional school students) is at best not obvious, and he provides no guidance about how to (in his words) "construct a curriculum so we can certify graduates as educated," even though he says that there are "many ways" to do that.

This situation reminds me of a conversation I had with a recent college graduate last year.  After watching yet another news story about some abominable thing that Ted Cruz had said, the young person turned to me and exclaimed: "You went to Harvard, right?  How could they have given that man a law degree?!  Don't they have any standards?"  After clarifying that my time at Harvard was in the Economics department rather than the law school, I pointed out that this is simply not something that universities can monitor.  Cruz apparently graduated with high honors, but that does not mean that anyone was predicting that he would act honorably.  He could answer questions about, say, the Dormant Commerce Clause in some detail.  That, along with a litany of other accomplishments, earned him a degree from a top-ranked law school, just as Josh Hawley and Ron DeSantis were able to earn degrees from Yale Law.

This is not merely a matter of law being a professional degree, because those law schools in particular view themselves not as assembly lines producing legal technicians.  (As it happens, it is Economics departments that do not even bother pretending that they care about whether they give credentials to people with a moral compass, so long as they are good at the latest technical fads in the field.)  More broadly, the sad fact is that we cannot be sure that we are graduating people who would put the defense of democracy above their craven political ambitions and repressive social policies.  And even if we were to add that to the curriculum, people like those guys would quickly figure out how to misrepresent their true intentions.

One could argue that Emanuel was simply giving voice to his moral despair in seeing people cheering for atrocities.  On reflection, he might conclude that the ideal ethical education that he would like to create cannot be turned into reality.  What bothered me about his framing of the issue, however, is that he described it as the universities' fault, feeding into the anti-university trope that has become so popular not only on the right but among centrists and some liberals as well.

And right on cue, a panelist on MSNBC's "Morning Joe" a few days ago blurted out that the real problem today is on America's campuses.  Unlike Emanuel, who is in fact an academic and an administrator, the panelist on "Joe" is a foreign policy professional, which is a fine thing until he steps so clearly out of his lane.  He had almost certainly read Emanuel's op-ed, and because he was on the TV show that (within the mainstream media) is probably the most obsessed with "cancel culture on campus," he felt comfortable repeating a dumbed-down version of Emanuel's criticism of universities.

Notably, the other panelists quickly took the bait and started recycling complaints about universities’ supposed obsession trigger warnings and microaggressions, sneering at the idea that colleges care about small things but turn a blind eye to larger things.  The fact is, however, that even if campuses had done everything in the way that the "Joe" folks would have preferred when it comes to cultural issues, Emanuel's complaint would be the same: just as valid morally, but just as impossible to imagine implementing realistically.

Again, there are many things that universities can do, but saying that "[w]e have failed" (as Emanuel does in opening his op-ed) suggests that we could have succeeded.  I would like that to be possible, but I am deeply skeptical.  More to the immediate point, it is irresponsible to drag university curricula into that fraught debate.  Speaking on behalf of academia, I have to ask: What isn't our fault?

In the end, I have nothing unique to add regarding the sudden climate of fear that has taken over our campuses.  It is horrifying, and it must stop.  I think Chemerinsky's comments were important and spot-on.  I do, however, know when a problem is being used opportunistically, and Emanuel (probably inadvertently) surely delighted those who are always on the lookout for ways to undermine American higher education.

I hope that every institution in society can do a better job of producing morally decent human beings.  Singling out universities, however, misses the mark and reinforces a very damaging narrative that certain politicians and anti-higher education provocateurs will gladly exploit.