Transcripts For CSPAN Harvard 20240706

Good afternoon, everyone. I am the dean of the harvard graduate institute and is my pleasure to welcome all of you, whether you are joining us in person or online, to todays discussion on free speech on campus. We plan to this discussion some weeks ago, but i bet it has become an increasingly crucial conversation. Before i introduce those on todays program, allow me to express my gratitude to the Radcliffe Institute Leadership Society and our donors whose generosity keeps our program free and open to the public. I also want to thank todays distinguished speakers for sharing their expertise and perspectives, and i thank everyone who is joining us this afternoon for engaging in this critically important conversation. As i moved to an introduction of the substance of the program, i have a request for you. During this fraud period of understandably strong opinions and strong emotions, i ask that we engage with one another as generous listeners. With open minds and open hearts. Thank you in advance for doing so. We must begin the session by acknowledging the devastating and continuing effects of the october 7 hamas terror attack on israel, the ensuing humanitarian crisis in gaza following israels counterstrike, and the impact of these events around the world, including in our country, on our college, and University Campuses. In the wake of these terrible events, we have witnessed protests and counter protests expressing a range of political viewpoints in support of israelis and all jewish people, in support of the palestinian people, and in support of justice and peace for all. Meanwhile, many are grieving and afraid for themselves and their loved ones. And i want to say that whatever is your political viewpoint, we must not harden our hearts to human suffering. Anywhere. Including on our campus. We also must acknowledge that in the wake of this crisis, Law Enforcement officials in the u. S. Have noted a sharp increase of antisemitic, antiarab, islamophobic speech, harassment, threats, and assault. And they have included traffic online Death Threats and grievous, even fatal, assaults. These terrific horrific events include the increased violence against jewish, muslim, and arab communities in the u. S. Since the israelhamas war broke out. Yes, these are tumultuous and disturbing times. And it is my sincere hope and my expectation that we stand against all hatred, realizing that injustice anywhere is a threat to justice everywhere. As dr. Martin luther king jr. Once said, during his leadership of the American Civil Rights struggle, the movement that was predicated on nonviolence and one aided by the First Amendment freedoms. This movement helped produce the rights laws that enabled us to be here together today. United in the search for knowledge across lines of race, ethnicity, national origin, gender, religion, ideology, and so many more categories. The questions which we engage today on how to reconcile hate speech and political speech at colleges and universities are far from new. The current moment joins the long history of contested speech in our education and beyond. For decades, University Communities have such to establish the boundaries of protected speech and protest. Flashpoints have erected at many points, perhaps most famously during the 1960s and 1970s, during the civil rights, free speech, and antivietnam war protest. Students engaged in Political Activities and protest and insisted that universities honor their freedom of expression. Society and colleges at University Campuses were deeply divided on domestic and international issues. Around the same time, federal state authorities passed laws that banned discrimination and harassment, including title vi and title ix of the Civil Rights Act of 1964. And students from all walks of life, diverse from multiple identities, matriculated to college and University Campuses. Campus communities became more diverse than ever before, and administrators such to create positive learning environments, sometimes by regulating speech and conduct deemed hateful or otherwise harmful. But critics have long argued that some of these oncampus efforts infringe on Academic Freedom and freedom of expression, as we will discuss momentarily. In short, todays political and societal context is unique, but the tensions surrounding speech on College Campuses are not unprecedented. Todays challenges underscore enduring questions about the appropriate role of institutions of Higher Education during times of political and social conflict, and how the mission, policies, and values of universities intersect with constitutional and statutory law. Our panel seeks to address these complex questions, and we ask these experts to do so because our ability to whether deeply emotional challenging periods as a Community Requires us to know about our rights and responsibilities. And it demands dialogue, even and especially when we strongly disagree. And now i am pleased to introduce our panelists. The full bios of our distinguished panelists are available on the event page for todays program. I will provide highlights of the many accomplishments that makes them so well suited to todays discussion. Jeannie suk gersen is the John H Watson junior professor of law at Harvard Law School. Before joining the faculty, she served as a law clerk to Justice David sutter of the u. S. Supreme court and to judge Carrie Edwards of the u. S. Court of appeals for the d. C. Circuit judge. The recipient of numerous awards, she is the author of at home in the law, and is a contributing writer. Nadine strossen is the second professor of law emerita at Harvard Law School and the senior fellow for individual rights and education. From 1991 to 2008, she served as president of the American Civil Liberties union. She is the recipient of many honors and the author of several books, including free speech what Everyone Needs to know, released in october. Keith whittington is the professor of politics at princeton university. He is the awardwinning author of numerous books, including speak freely why universities must defend free speech. His writing has appeared in media outlets, including the New York Times and the wall street journal. Later in our discussion, we will be joined by erica chenoweth. Erica is a susan and wallace professor here at radcliffe, economic dean of economics and first professor of amendments at the kennedy school. Erica directs the Nonviolent Action Lab at harvard, and does the author of several books including civil resistance what Everyone Needs to know. Erica also chairs the Harvard University antibullying committee group. The universitys new antidiscrimination and antibullying policies took effect this september. And i will moderate todays discussion. In addition to leading radcliffe, i am a professor of constitutional law at Harvard Law School with expertise in constitutional law and postwar american history. Now, please join me in warmly welcoming our panelists to the stage. [applause] thank you all again for being here. We have a big task in front of us and i am looking forward to modeling civil dialogue with you. I would like to begin with you, nadine strossen. You have an extraordinary depth of expertise on the subjects we will discuss today, and i would like you to start us off by explaining the constitutional and legal roles following expression and protest on public and private campuses, what kind of speech and activities are protected, and any exceptions to the general rule, in five minutes. Prof. Strossen [laughter] if you want the first story, you will have to read my new book. Thank you so much and thanks to my distinguished copanelists and everybody for organizing this really important seminar. So the United States First Amendment freespeech standards, which by the way, are only directly binding on public universities, but which the vast majority of private universities, including harvard, have voluntarily decided to adhere to as a matter of economic Academic Freedom and pedagogical excellence, so i will refer to the First Amendment, but please be aware we are not literally talking about the First Amendment. We are talking about harvards own rules, private universitie own rules which mirror the First Amendment. For all of the disparaging commentary we tend to hear about First Amendment exceptionalism, in fact, the more you know about the rules, the more they make plain common sense. And not surprisingly, they are echoed in the laws of many other countries and International Human rights freespeech law as well. What the Supreme Court has said is the bedrock principle underlying our whole system of free speech is the best starting point. If i can only give you one principal, lets start with the bedrock principle. It starts what we also call content neutrality. Government and universities must remain neutral with respect to the ideas, viewpoints, the message, the content of the expression. They may neither favor nor disfavor particular expressions because they agree with, disagree with, even loathe or generally fear the content of the expression. However, governments and universities may and indeed should restrict speech when they do so for reasons that get beyond thoroughly disfavoring the content. Those fall into two basic categories. One is content neutral time, place, and manner restrictions. So no matter what you say, you may not disrupt the class. A matter what you say, you may not interfere with peaceful studying in the library and so forth. The second situation in which government and universities may and should restrict speech because of the concerns going beyond more disfavored context is when the speech considered in its overall context imminently directly causes or threatens certain specific serious harms. This is often referred to as the emergency concept. The Supreme Court has recognized several subcategories of speech that, considering all the facts and circumstances, may well constitute a punishable, restricted will emergency. These may sound familiar to you. Intentional incitement of that is likely to happen in imminently, targeted harassment or bullying, hostile environment , whether it is pervasive climate of intimidation that may include inspection expression that is so unwelcomed, and actively offensive, severe and pervasive that it deprives a student of an equal education opportunity or an employee of an equal opportunity. One of the examples is a genuine threat, a true threat where the speaker intends to or recklessly instills a reasonable objective fear on the part of the targeted person that they will be subject to physical attack. Note that the speaker does not have to intend to actually carry out the attack. Merely instilling a fear that is reasonable already does harm because if you are subject to that fear, it is going to impede your freedom of speech as well as your freedom of movement. Sadly, we have heard many accounts coming from harvard and other universities that much of the expression that is taking place could and should be subject to restriction for violating these content neutral rules in the case of time, place, and manner restrictions or because they satisfy the emergency concept of targeted harassment or genuine threat or hostile environment harassment. If i can make one other point, it is that those of us who strongly support these freespeech principles and, far more important than myself, are all aligned with justices of the Supreme Court, going back to the second half of the 20th century when the court began to adopt these speech protected standards, not coincidently in the crucible of the Civil Rights Movement that he referred to, because the leaders of that movement recognized that their advocacy absolutely depended on these robust speech protected principles. And for that reason, we are very supportive of them. But the Supreme Court justices have acknowledged that even speech that does not satisfy the emergency test may well still cause a lot of harm. I really appreciated your reference to, we have to be compassionate and sympathetic to all the ways that people are hurting on campus, students in particular, but also faculty members and others. And even if the remedy is not to censor certain speech, first of all, one remedy which you alluded to is to make sure to punish and restrict actual violence and threatened violence , of which we have sadly too much. Also to punish the expression that transgresses the generous but still finite bounds of protected freespeech. But even with respect to core constitutionally protected speech that is advocating ideas that we consider offensive and load some and people, our remedy is not just to say, do not censor it. Our remedy as educated in particular is to do something more. It is often called counter speech in the law. The Supreme Court justice set the first phrase, the concept of the emergency standard, louis brandeis, interestingly enough the first jewish justice on the Supreme Court. He first framed that content concept in a dissent. He said the fitting remedy to People Councils is good ones. People councils is good ones bid it is not good enough for those of us who opposed censoring speech and his content we find load some, we have the responsibility to firmly raise our voices to down provide the kind of education and support that will deepen understanding and ultimately hopefully eliminate or reduce the hateful attitudes of which the speech is just a symptom. Dean brownnagin thank you so much. Let me go to keith, who is a political scientist. You have argued that free speech is under attack on campus and you have made the important point that these attacks have come from across the political spectrum. You also argue that these attacks are corrosive to the very mission of our education. I wonder if you can say more about your diagnosis of the problem. Prof. Whittington i appreciate the opportunity to participate in the panel and i appreciate the initiative of the institute to do a panel on this important topic at this important time. Obviously, speech issues have been front and center on University Campuses than the last couple months, but fortunately they have been front and center on University Campuses the last several years. This is an issue that i mostly tend to take for granted. And i was drawn into thinking about speech, disputes and the relationship between speech and universities in particular, because of the way that knowledge sheds a light on fundamental purposes of universities in the first place. Why we value universities and how we often conduct ourselves within those universities and what kind of policies and practices we ought to engage in. Central to me is the vision of the university as a place that is about advancing human knowledge, sharing what we gained to others. Those others include not only our colleagues in scholarly professions, not only our students in the classrooms, but people in the wider world. Society benefits from having institutions like this that can push on the frontiers of human knowledge, trying to expand knowledge frontiers, trying to expose weaknesses and flaws in conventional wisdom, and share those lessons as a whole. We have made a bet that we are better off as a society if we know things that are true, and we can reveal things that are false or flawed or week and can be undermined. It is sometimes a painful process of exposing those weaknesses. We are better at the end of the day exposing those weaknesses and trying to build on firmer foundations. That is what universities are all about, but if universities have already performed that task, they also have a great deal of intellectual freedom for those in the Campus Community to engage in the process of ringing skeptical and wary bringing skeptical inquiry that is held firmly on campuses or scholarly disciplines. Orthodoxies that those outside the particular disputes may not understand the content of, let alone the alleged importance of them, but sometimes those orthodoxies are centrally held by society at large. They have fundamental social, political, and other questions that people hold ideal, which means we need to insulate scholars and universities from pressures that will prevent them from raising those questions, probing those kinds of orthodoxies to expose those kinds of weaknesses to build up stronger and tougher arguments that can survive going forward. We have tried to do that at american universities, somewhat fitfully over time, and really only for the last 100 years or so. These are relatively modern innovations, the universities that have become what they are now. They have principles they are committed to, that they dole out protections of and rules they are now committed to, but these are centrally important to the kind of solutions over the course of the last century. The one hand, that includes policies and principles concerned with intellectual freedom, which are core to protecting the kind of research and scholarship that faculty scholars on University Campuses are doing but also the teaching they are doing, the faculty engagement with students on University Campuses, and having the freedom to explore difficult ideas and those kinds of contexts without worrying about retaliation from University Officials as a consequence of how you perform those tasks and the controversies they may raise. Likewise, the value of free speech in general. They will speak about matters of general public concern without having to worry about retaliation from University Officials because they said something controversial. The universities benefit from having that wide open space for debate about tough ideas. We are going to have disagreements as a consequence of that. Universities perform best when they bring those disagreements inside, when we have people of different opinions who can engage each other in a serious way and trying to understand those ideas best, but those will be contingent and sometimes passionate and Difficult Conversations to engage in. That is something that universities are always struggling with, how to work their particular moments of controversy, but also the robust protections of free speech which are always under pressure. They are particularly under pressure right now, but critical for universities to perform the social role we want them to perform. Bill thank you. Now lets go to my colleague jeannie. You have come to discussion as the faculty leader of the Freedom Alliance Whose Mission is the pursuit of an atmosphere on campus where ideas can be followed without fear that you will be punished. And you lead a Similar Group here at harvard called the council on the dimmick freedom, which council on Academic Freedom, which launched in 2023. Tell me why you became involved in these efforts and how you react to the claim that many universities lack credibility, the way leaders invoke the concept of Academic Freedom. Prof. Gersen thank you for that. I am a leader of those two organizations. One of them, keith is also the leader of the Academic Freedom alliance, which is a National Organization of faculty members across the nation who have banded together and created this forum and Membership Society for fighting against restrictions on Academic Freedom. And then we have that organization here at harvard that was created earlier this year. I think that many of us, myself included, became concerned in the last several years. It probably started its slow erosion of Academic Freedom around 10 years ago, but as of a couple years ago, it started to feel unbearable. And i think for me, it is incredibly common for students to say in the privacy of office hours where they are alone to say, i never would speak my mind , regardless of what their political leanings are, whether they are conservative, liberal, leftwing. I would never speak my mind, never raise my hand in class to actually express a viewpoint. Even if i know some people agree with me because i know some people will not agree with me and i might be subject to some kind of shaming campaign or ostracized. And i think teachers also have told me in droves that they have altered their syllabi, altered what they are willing to teach, even cut out entire subjects. And those are the ones i tend to emphasize in my classes such as topics about gender, sexual assault, racial discrimination. Those are the topics that many teachers who do not specialize in them say that i used include these topics, but now it is too risky, even if they are not espousing any viewpoint that itself would be considered controversial. Because somebody might Say Something that other students would react to and you have a problem on your hands and he would not have a smooth running classroom experience. All of those things, which i started teaching in harvard at 2007, and that is not what i really experienced as a teacher and that is not what i heard from students. That is why i have been active in the Academic Freedom readership space, in the active Academic Freedom alliance. I see several members of the council here today, including one of the copresident s, so it has been important to defend Academic Freedom, namely by going after instances in which somebody is experiencing some kind of official discipline by the university, maybe an investigation and a complaint, and trying to defend that persons right to say it. Most of the time, i will disclose the speech. I will say myself that is speech i do not like, but i willful throated lee defend it. I will give you an example. Amy whacks, she said Asian Americans might not have the spirit of liberty, and it would be good to have less of them in the country. Do i like that . No, i think it is offensive. However, do i defend her right to say it and dont think the university should be sanctioning dean brownnagin it was an extramural statement. Prof. Gersen it was, and for some people, that is an important distinction. For some people, it is not. Whether you are in class or scholarship, those are distinctions one can make, but i do think there is a big difference between those kinds of things that we know speech that we do know we prohibit, verbal conduct. Sometimes it is free speech, but sometimes verbal conduct is the substance of an act of harassment or bullying or discriminatory conduct that violates university rules. And those things are not Academic Freedom. But the more we expand what we think of and are willing to treat as disciplineable harassment, discrimination, and bullying, the less space there will be for free inquiry and exploration of ideas. So most of the time, if you are an Academic Freedom advocates, you will find yourself defending speech that you do not like. That is just the bargain. If you are someone who only wants to spread speech you do like, that is not a full commitment to Academic Freedom. That is what i believe that the people who have been leaders of this movement in the last several years, that is what we all have in common. We are not the same in terms of our political leanings, not in any way. [laughter] keith is laughing. I would like to make a comment, if i may. As you do, i want to welcome professor chenoweth to the stage. She is joining us. [applause] thank you for being here. I wanted to say as the president of the Civil Liberties organization that was already on the forefront of the Civil Rights Movement that infamously has been treated akin to nazis, i really believe it is not just a turn of phrase, that we are not defending the speech. We are not defending what amy whacks said. We are not defending what the nazis said. It is important to keep emphasizing that we are defending a principal, a principle that is essential for those who want to oppose what amy whacks said, who wants to oppose what the nazis say. And some of us use a phrase, the golden rule of free speech, that we literally are not going to have freedom for the speech that we love unless we also defend it for the speech that we loathe. Dean brownnagin thank you so much for that followup. I want to move us into a conversation about hate speech. In particular, the kinds of things we are seeing these days after october 7, the terrorist attacks, the humanitarian crisis in gaza. Some are claiming that protected political speech is really crossing a line into threats, into harassment. And i have spoken to many students, jewish and israeli students, palestinian students, arabs, and they all want to be safe and protected. And many of them are fearful. But i want you to talk more, nadine, about what constitutes hate speech and what kinds of things might cross the line. And you can answer me at a level of generality that allows us then to talk about campus codes that i want to cover it in some detail. Prof. Strossen ok, so the same general principles that you kindly invited me to lay out at the beginning apply specifically to socalled hate speech. I am using the scare quotes because it is not a legal term of ours specifically because the Supreme Court has never recognized the category of speech described by its hateful content, and therefore is unprotected by the First Amendment. To the contrary, consistent with the viewpoint neutrality principle, you are completely free to express it for ideas. Hateful ideas. What you may not do is express those ideas in a particular factual context that crosses the line and satisfies this quite specific definitions of categories of speech that satisfy the emergency principal. Lets take the example of harassment. We tend to use that term relatively loosely in everyday speech, but the Supreme Court has quite narrowly defined two kinds of unconstitutionally protected harassment. Number one is when the speeches directly targeting a particular individual or small group of individuals. And subjects them to repeated, pervasive, or sufficiently severe and pervasive offense that it interferes with their privacy, their freedom of movement. So it has to be individually targeted. And that could be satisfied by some of the videotapes i have seen from this campus and others of students who were not only participating in a general demonstration voicing slogans that some other students see as discriminatory and hateful. That is protected political speech regardless of whether you deem the message to be hateful or not. It is a general expression to a general audience. But if some of those demonstrators were to follow a particular student and chant those slogans in the presence of the student, that clearly, i think, could be seen as punishable, targeted harassment. The same thing about threat, i will give that as another example. Again, in everyday speech, we tend to use the word relatively loosely that i feel threatened by the fact there are so many demonstrators who are calling for the annihilation of the state of israel. I take those emotional reactions very seriously, but i would not consider it, and more importantly the Supreme Court would not consider it, a true threat, and the court uses the adjective true to distinguish it. Dean brownnagin why is it not a true threat . Prof. Strossen here are the requirements of a true threat. That the speaker has to mean to, that means intend, intentionally, or recklessly, in still in a targeted person. So not to general audience. It is not one to many speech, it is one to a handful of audience members speech. It intends to instill a reasonable fear that you personally are going to be subject to attack. I mentioned there is another kind of harassment which overlaps here, and that is i understand the department of civil rights the office of civil rights and department of education has launched an investigation against harvard, among other universities, on the allegation of hostile environment harassment, and that gets a bit closer to what you are questioning me about. And that is, if there is such a pervasive climate of intimidation and fear, that it deprives somebody of an equal Educational Opportunity, i agree with the three test with the three president s that testified in congress. The Supreme Court also agrees that these texts depend on all of the facts and circumstances and are fact specific in their application. Reasonable people can disagree, which i understand leads to difficulties on the part of those who are enforcing and administering these laws, especially if you want to adhere which i am sure we all want to do, not here to do process and not presume somebody is guilty without doing an investigation. Dean brownnagin i understand there is a distinction between speaking about ones visions at a university in a moral voice, and answering questions at a congressional hearing. I have testified before congress. It is always very political, very performative, and that, i think, is part of the problem. Lets go to a conversation about how bringing in title vi and campus conduct policies might change the analysis. I have to say that in preparation for this event, i studied our policy and i read the policies at many universities that i want to quote some of the language that i found. These policies promised to protect students safety and wellbeing, promise freedom of movement, stipulate respectful treatment of all students, ban harassment, threats, and bullying, ban physical or verbal abuse that threatens or inhibits Free Expression or significantly interferes with a persons education, and one can go on and on. These codes tend to be very long. There is a lot of language in there. And i wonder, jeannie and also erica, if you can speak to how to reconcile our commitment to protected political speech and our commitment to a campus that promises to our students all of these things, some of whom are as young as 18 years old, maybe younger. Many of whom may come from backgrounds where they have experienced trauma, are experiencing trauma, intergenerational trauma. So it matters whose perspective we are taking and who the decisionmaker is. I may be answering my own question. [laughter] why dont you go ahead . Prof. Gersen glad you bring that up. If you do go to those policies, it is always long, but the lawyer will zero in on the key lines. And those key lines, the offense as a punishable abuse is defined, and those who look at bullying, harassment, discrimination, you can see the whole document, but what you really need to know the purpose of discipline and investigation and actual expulsion or suspension are all kinds of sanctions, there are some key lines. And those do not provide that if you make someone feel disrespected or if you make someone feel like their dignity is harmed that that person will then be disciplined. That is not how we debate around here or anywhere. What they do is, for example, if you look at harassment, it has to be unwelcome conduct that is so severe or pervasive and objectively offensive, right . Not just i feel offended, but objectively offensive. Dean brownnagin what does that mean . Prof. Gersen in the law, we have debates about what is subject to standard and object to standards. Subject is how you feel and object is essentially what reasonable person would feel. There is a whole about what a reasonable person would feel. It is not like it is an easy line to draw, but papers have been expended on what a reasonable person is, but that at the end of the day, it is not just anyone who is subjected to what they feel, but if we think a reasonable person of the community would take this to be offensive. Even more, it has to be that it actually makes it so the person who is experiencing this is not able to have an equal education, that it denies that person equal Educational Opportunities. That is a lot that you have to jump over in order to actually end up with a disciplinary result. So essentially, the length of these policies, the universities communicating a mood, they are communicating their aspirations and their values and their principles, and that is great. The university can express a statement and say that we would like you all to behave with these rules in mind, just like tomiko, you emphasize understanding and compassion. That does not mean to say that you go throw someone in jail. That is why these policies are really long, but the key lines of what is disciplineable, they are narrowed definitions, whether it is bullying, harassment, discrimination, title ix related or title vi related. We have very tight policies. And the problem is many people feel like we have these policies there is room for interpretation, and you tend to put people in discipline if they say things that are conservative and you offend people who are liberal, but you will not do the same thing if it is a liberal group of people. So it is just that is the allegation of hypocrisy and of double standards that we are seeing on campus and in congress. But ultimately, if we stick by our policies, i would like to level up when it comes to Academic Freedom and not allowing these definitions more room, rather than leveling down saying you have not punished antisemitism in the past and now saying we have now an expansive definition of discrimination and we can do that now. Dean brownnagin i want to make sure the audience appreciates the distinction being drawn between punishable offenses and offering guidance. So everything that you can say, you need not say. Right . [laughter] out of respect for your peers. And i will pause there because i want erica to have time to speak. And speak about how you chaired this bullying, what kind of policies came out of it, and if you could reconcile the policy of speech with our commitments. Prof. Chenoweth i can start with one of the key principles that animated our work on the antibullying working group was Academic Freedom. And how do you make sure that the policies that we do recommend and that are ultimately accepted and then implemented do not chill speech because of fear that people will become zealous in their use of these policies to try to silence people with whom they disagree. So it was a guiding principle all along, but i will say that i came around to the view in my consultations among the working group and with people all across our community at harvard, that in fact the policy, its best intention is to provide Academic Freedom for everyone. That is the whole point of these policies, to make sure everyone in our community has access to Educational Opportunities here. And there are unfortunately some egregious instances in which people have been bullied out of the institution, in which people have actually experienced targeted discriminatory harassment. And they are few, but they are not zero. So there needs to be a minimal standard of conduct so that everyone has access to the opportunities that Academic Freedom promises. So i actually think that makes sense in how i view the policies and why it is that we word them so narrowly to make sure there is a minimum standard. On the other hand, as you say, the policies do not speak to the culture of Mutual Respect that we all seek. So there is other work now happening at University Level and in my case at the kennedy school, we just completed two years of work on how to promote candid and constructive conversation. That is the nice acronym of ccc, but what it means is how we can have real talk about hard things across serious levels. The answer to that is you have to intentionally build not just a culture of mutual trust and respect, but also skills to have these types of conversations to convene them, to facilitate them, and to recover from them. And you have to have plenty of venues through which those conversations can take place. This is a call not just to do get out on stage debates, but more Small Group Discussions where people can express in small, intimate settings their generation their genuine views and concerns and have disagreements they can then move forward from. In our case at the kennedy school, we are just now implementing a number of recommendations out of this work to try to focus on trust building, skill building, and venues for practicing those. I will mention we also have a blueprint for this type of activity from the 2018 president ial task force on inclusion and belonging, and our colleague daniel ellen was one of the cochairs of that. The fact that we can have the procedural conversations here but we also need to have the conversations about the culture of Mutual Respect and the learning of empathy, the learning of, ok, i can say this, but ought i say it now . These are all very cool good questions for responsible people to be asking themselves, and at its core, the purpose of the university is to basically create new knowledge, to talk about ideas, and to prepare the next generation of leaders to go out and build a better world. I think that means we have a responsibility to practice that well here. In a sense, what danielle and many others on this stage have said before, it really resonates with our time. Principles are what will carry us through and when we are having a tough time. Prof. Strossen may i Say Something, one thing about the wonderful oped that i was going to mention because of the question you asked me, and this is in the spirit of being so critical and openminded. She puts out as a hypothesis that harvard may consider adopting a rule that even nontargeted expression that even if it were targeted would be punishable harassment that may be should also consider, maybe not disciplining, but at least strongly discouraging students from saying anything, even in a general audience, that might be punishable if it were directly targeted. I thought it is an interesting hypothesis that would be worth discussing. Dean brownnagin let me go back to the idea, and jeannie, you mentioned some of this in your earlier remarks, about the consequences of speaking. The consequences of voicing dissident ideas, politically unpopular ideas. And the consequences can be really harsh, right . I think those consequences help explain a bit about why some are fearful of speaking. They can include ostracism, harassment, job loss, proposed blacklisting by people with the power to do so, and i wonder if you can talk about whether there are and whether there should be certain protections for speakers who really are pushing up against the line. What are your thoughts about that . All of you can speak to this. Prof. Gersen yes, the culture of Academic Freedom and its erosion is not only about official sanctions from the university. It does involve some of those other things as well. So to the extent that speaking then leads to the speaker being bullied, as defined by the university, or harassed, as defined by the university, then we have to see if that is actual bullying or harassment, that is not allowed. But most of the time, it will not fit our definition of threats or bullying, but nonetheless it can be painful. We have to understand that a consequence of speaking is counter speech, and there may be a lot of counter speech and it may be loud and really strong counter speech. That is a desirable consequence in that we want people to speak so they can engage with disagreement. And we need to build a culture in which there is tolerance for that kind of sharp disagreement and continuing conversation, not for ostracism, pushing the person out of the community, making it impossible for them to continue in their job or as a member of the student groups. And that is a cultural project that we have to engage in. And i think that Academic Freedom alliance and the council on Academic Freedom at harvard, while we are most focused on official sanctions, it is also true that these kinds of conversations about how to have a healthy culture in which you do not freak out and then make it impossible for discourse when someone says something that you consider really offensive. Part of the problem, going back to the theme, part of the problem is it is easy for people to say that is discriminatory, that is harassing, that violates my dignity. Ok, those are not the end of the conversation. They should be the beginning of a genuine engagement about why something was either hurtful or wrong. So we cannot punish our way out of this. Dean brownnagin keith and nadine, do you have thoughts . Prof. Whittington i wanted to build on one point briefly, which is i have always had reluctance to participate in conversations about cancel culture. It is not very helpful in thinking about these kinds of questions. I like what jeannie just said about part of what we try to build in a Democratic Society is a greaters appearance greater spirit of disagreement and willingness to engage and fundamentally understand you have to live with people who have different views and opinions and religious beliefs and moral codes then you have. So how do we successfully build a society in which we can live together and be productive at the end of the day . That requires a great deal of tolerance. In the context of universities, it is extraordinarily important that we be tolerant to even a wide range of views precisely of the very point of this institution is to bring people together to ask what seems like extremely wild questions from out of left field in the margins of what we might think of as excess rebel acceptable opinions, specifically because universities are the places where we tolerate that. We need people to put on the table things people have not really thought about and ought to think about, even if they do not think about it very long or rejecting it. I find it particularly disturbing when universities find themselves engaged in a project of shrinking the boundaries of acceptable debate and what will be tolerant. At the same time, it is also true one of the complicated things about these kinds of building this kind of tolerant culture is these will be judgment calls. It is always going to be the case that there are some things and some contexts that you find intolerable. There are people you will not want to invite to dinner anymore. There are people you will not want to associate with anymore because of certain things they have said and done. At the university, we have a responsibility to make sure those margins were a line is possible that we are continuing to overcome that because that is the nature of our institution, but in other spaces, that will be less true. We have to be thinking about how we build a greater spirit of tolerance in general while at the same time recognizing there will be difficult decisions on the margins about how to respond to particular kinds of opinions people might express or particular ideas they might hold. Those are going to be difficult and controversial decisions that have to be made over time that we should be open to resisting overtime as well. I think the survey after survey consistently indicates that across the ideological spectrum on campuses across the country, including harvard, the single greatest factor that is cited by students and faculty as chilling their expression, not killing their expression from slinging hateful epithets at each other, but chilling their expression in expressing certain perspectives or even asking certain questions or even addressing certain topics, the single greatest factor is not fear of the government, not fear of Harvard University officials. It is fear of p pressure peer pressure, where even one student can be enough to lead people to self censor in ways that are detrimental to their educational experience. It is a matter of judgment, as all legal standards ultimately are, but one concept i find helpful here, because i strongly advocate counter speech. I wrote a whole book appropriating that, but counter speech can go too far. And the court legal concept in our system and in International Human rights law as well as the concept of proportionality. When the responses are disproportionately harsh, even to a remark that is perceived or misperceived as insensitive, calling down incredibly shaming, shunning responses not only on the person who made the remark but also intimidate other people from addressing that topic, that is counter speech that goes too far. And i controversially have taken the position in writing, so i will say it again here, that i think that although employers have a right not to associate with students whose views they abhor, i would never say they had a legal duty to hire those students, though i guess there is some staple of they might in fact have a legal duty, but putting this aside, i think it is a disproportionately harsh statement to categorically say that any student in any of these organizations that issued a very unpopular, controversial statement that i personally found extremely abhorrent to my views, nonetheless i think it was disproportionately harsh to categorically say we will ever hire a single student who was a member of any of those organizations never hire a single student who was a member of any of those organizations. I think it is a and considering how young these people are, considering the general spirit in our society that that have committed actual acts of violence. That young people have not sufficiently developed in their prefrontal cortex. They should not be helped they should not be held to the same high standards. There is a high tolerance that would give them another chance. There is an Educational Opportunity than one for the equivalent of the death penalty. Looks like there is a response. As she does, i want to remind people the consummate questions to the panel using the saido act. I heard people say that does not happen. That people would be blackballed. Because of their abuse. I am an attorney. I have spent much helping former students that were not on campus this fall. There were employed at law firms whose jobs were really in danger because they had previously been a member of some of those organizations. Or they had been active in the bds movement. They were really threatened with job loss and were asked to renounce their commitment to propalestinian in order to assure the clients of those firms who complained that the firm would not have people who had those viewpoints. That is actually happening at these firms you would expect to actually have a commitment to Viewpoint Diversity is important for people to be very vigilant. Maybe one day, a movement that you are in favor of and that law firms and may be a movement that you are in favor of or that you are the one being looked at skeptically by your employer because of something that you believe or have been. As you are an authority, to the protest and practice. If you can comment on how the tactics and goals we are seeing today might compare with ones you are familiar with effective and ineffective protest actions. I think helps a little bit about what the theory of change is and who the target audience is. Generally speaking, there are four key elements of civil resistance movements. The first is that they get bigger and bigger, larger in size, larger in diversity of the movement. The second thing they do is they begin a wider net of political influence, by building new alliances and even on the opponent side. The third thing they do is using a variety of methods and tactics so that the boot move beyond symbolic and use tactics to give them more material leverage. The fourth thing they do is they maintain nonviolent discipline so they are not subject inciting violence or harm to others. I think those four things are typically associated with movements that tend to win more often than they fail. I think there is a law of protests that happen that have a right to happen that does not necessarily meet those four criteria. They should not be judged for that. Political protest is a form of political expression. It is what it is. When it comes to whether it is going to work, i think that is when we can be more analytical about whether theyre meeting that criteria or not. I want to go to some of the audience questions. There are many. Lets start with this one. What should be done with this which should be done with activities, teaching, or specific efforts to stimulate Critical Thinking and create spaces for a civil debate. On campus, between people, holding opposite views, especially for different students. This is a very simple technique that i have used in all of my law school classes. Just as a way of instilling habits of critical inquiry and exposure to an understanding of the principles involved in any case that we are studying. That is certain to law professors on my panel at least and im certain others. My students are required, they can also they can all recite this as a mantra. So they can understand, articulate, and advocate all plausible aspects on issues. Plausible means that defensible, including the source of law and sources of interpretation, not conclusory arguments or ad hominem arguments. That is important. That is not why i institute it, there were not problems long ago when i started teaching. One benefit is this student is not asked to express his or her own perspective. They are being angels advocates or devils advocates. I think that would be a good way to teach, starting at the lowest grades. Any other thoughts about that . I think it is important for people to be able to articulate the people that they most disagree with. I feel very strongly about that. That students should be required in class to articulate the most strong, the most convincing, the most persuasive arguments for the side that they most disagree with. I think that is a disagreeing principal. There are the social sciences that are debatable. Not only in the classroom but also in student debates, extracurricular the or other kinds of public forum. I think that would be great. Even if there was a debate, like a public debate, you would have some opportunity for each person to actually have an opportunity to articulate the other side in the strongest possible and more persuasive form. Students have reported that that is incredibly helpful. Of course, you have to do that. That is how youre going to find the best arguments in that position. If youre actually could be arguing in a court of law. We should not harden our hearts to arguments that we disagree with. That actually might be the case. As some students implored to me that law school has changed some of their minds that they have moved their position. That may not happen, that has had intellectual growth. One thing that went excellent one thing that went to mind. Diversity is under attack. That is because of the Supreme Courts decision to say it is not ok when it comes to race. That may have come to floodgates when it comes to diversity, equity and inclusion. When we think about what for, why do we care . It is because of the premise of people with utterly different perspectives. People that are irreconcilable. That is part of what were trying to do we are achieving diversity. We have to care about that intellectual spectrum and the disagreements and the clashes and the complex and the pain. All of that has to be part of our commitment. Thank you. I have a question that i would like to ask. Can talk can you talk about micro aggressions and their link to hate speech . Micro aggressions have been defined in many diversity policies, i am not sure whether it exists in the harvard policy or not. People are subjectively defined with that standard that we are aiming for here within the law. It would not rise the level that would be illegally punished for that would be offensive. One thing, please, i hope this would not constitute a micro aggression but i will quote some examples that are listed as being micro aggressions. And, asking somebody who has an asian surname, where you from. Where are you from . Things that show discourtesy, but intent is not a necessary element. All of the things we are talking about, i understand the goal, i support the goal. It is to create a truly diverse and welcoming environment on campus for everyone. That everyone feels fully included and empowered in the conversation. I think it is important to alert people that they might unwittingly Say Something that is making someone else feel less than included. Using this term, micro aggression that there might be some adverse disciplinary consequences, i do not think that is a constructive approach. I would imply implore a more positive educational approach and not one rich see may not ask those questions are use of certain terms. To add another question, what are you . To someone who is racially ambiguous may be something that i have heard a lot. Let me ask this question, a question from the audience. A question that is one of mine. Should universities reframe from issuing comments on Current Events . I would not ask of it that way but that is the gist of it. Are there implications to the practice of administrators in particular issuing comments about pressing issues that a lot of people are interested in question mark. I have been coediting a book on this issue. Hopefully it will come out before very long. A lot of universities have rethinking. Over the last couple years as well. I do tend to think that as universities stopped a stance of neutrality relative to issues because of the applications of not only how should University Leaders speak in public about those issues themselves, but also in terms of resolutions, that the institutions might adopt or express more generally. There are potential downsides to who does the speaking. One clear concern that arises in that speech activity is that there are brief precautions that flow from it. It does not do structural damage with the contingencies tested with the public right now. Public universities very much feel that. Private University Private universities are affected by that as well. We are doing ourselves no favors. As institutions, active institutions are taking sides on those disputes. Their homes are people in their places were debates into can take place. That goes this i can of concern, the active freedom one. Which institution or what leader might be thinking of doing the talking. There are real concerns, for example, units and universities taking positions on issues, when they have junior faculty, perspective protect prospective faculty who are trying to get jobs, my on the wrong side am i on the wrong side . We have a certain set of political commitments and if we bring in, you may oppose them and even sway the department and the other direction. That is not a road i that is not a road i think we want to go down. We want support in the universities. Universities need to step back from taking those approaches and try to be as neutral as possible on those issues as institutions. What if, the statement concerns, issues that are right in the wheelhouse of the university, such as, admitting students, the kind of students at the university would like to attract, question mark . [laughter] there are usually political implications that the university will have to make judgments on policy questions at the institution. There is the Institutional Mission and they should be speaking out on the importance of Academic Freedom. Otherwise, youre giving away the institution itself. Some universities are in a position where they cannot afford speaking out while still correcting the core mission. There is still a distinct mission in terms of what the universitys policies are about admissions. To me, it would be unreasonable to criticize affirmative action within the own system. How can they take this issue . This is about our own policy on how we admit students. It would be different to say that the university supports the black lives matter movement. That is a political statement, and alignment of university as a goal with the political movement. In part of why there is a little bit of hot water is because people observed that the university had spoken on behalf of lack lives matter but then on behalf of black lives matter but then on another issue, like hamasgaza, all of those things. All of these affect Academic Freedom. There are many people at the there may be people at the university who do not support the lack lives matter movement. There are people who may not be condemned is always genocidal. It does not always shrink the space, but i think the university is signaling that a certain perspective on this is what matters. It may be less than welcome so maybe i will trim the sales and try to keep my head down on those issues. Let me jump in to Say University sent a message condemning the movements around george floyd. I can understand why people might couple of those as expressions. I strongly endorse what is called the calvin principles, they were famously said in 19 cd7 at the university of chicago said in 1967 at the university of chicago. Ultimately, the expression of views about these really important social issues, including the george floyd situation are in tended to be encouraged and stimulated by institutional neutrality to empower the individual voices of the constituent members. I understand the students and faculty members might say that they do not care about that issue. I would like to read one sentence from the calvin report. In arises not from a lack of courage or indifference or insensitivity but respect for free inquiry and the obligation to cherish a diversity of viewpoints. This neutrality is an institution and has a complement of the fullest freedom for people to participate and Political Action and social protest. Some universities now have taken a turn and now some eminent professors have advocated that harbert now take a turn. Harvard now take a turn. They have asked the faculty to take a turn the make it that makes it clear that henceforth the institution will mop will not make statements. Do not take that is any particular mood view. One of the singlet tories to this document one of the people on this document, very active as a public intellectual, what i believe makes a point. I broadly agree with everything that has been said. When you think about the floyd protests that summer was the largest and broadest movement in the history of the United States. It was an unprecedented, still unprecedented moment. It was a promise of Free Expression that has been held up by this university and the First Amendment. If we actually mean it, we really have to mean it. We have to give everyone access to the promise of Academic Freedom. Their people come here and are in your care, would people are in the world like that, they need to hear that they are welcome here, they belong here, we see what is happening. It is totally unprecedented. We have got you. You have to learn to ask questions about these issues. [applause] they have been excluded. These institutions have excluded people. It is important that that is said. Click to take care of the people in our care, when they are here to learn. We have to extend that freedom to everyone equally. We have to acknowledge when things are happening in the world for them. There are changing their lives in ways that none of us can experience or imagine. That is not me making statements. That means making other statements let me know that we see them and care for them. [applause] one more question here. There are a number of questions about docs about doxing. Would the doxing of students and teachers qualify as targeted bullying or harassment or incitement to violence . Why, or why not . I think actual dock thing would not be i think actual doxing would not be but that term refers to revealing private identifying information, including contact information, addresses, family information. If what is shown are only names and pictures, which i understand they are already in the public debate, has been the case, that would because its usually projected. To repeat a point that erica has made repeatedly. The fact that you have the right to do it legally, does not mean it is right to do it. Just that employers have a right not to hire someone, that is freedom of association. I do not think they should exercise that freedom to punish someone for a statement that they disagree with. Even if it is legally protected, it should probably be discouraged. Any other questions or closing arguments . As administrators, faculty members, you have the floor. Relative to one of the other questions as well. There is one personal thing that i think we should all be doing as faculty members and exemplars of these kinds of standards of civil discourse that we think is so quickly important as well as tolerance. Part of wild was attracted into academic and the first place was precisely because i found it to be a place where people are doing it differently. Where people disagree with me dramatically on almost everything. Mosys students i work with closely disagree with me dramatically about various things. The one thing about i try to get that across from people on a routine basis. What were doing in life is exploring ideas. We are not always into it, sometimes we make mistakes. We should be tolerant of those mistakes and willing to engage in a kind of exploration. It is really hard. I think we have people in the current environment that the okta be willing to do that, i think is crucial it is possible. They are a good model. We are going to try and build a kind of culture that we want for a Democratic Society. On this question of taking care of our students, it is very important. It does not automatically mean we automatically discipline the people who make you feel like you are not safe. It is a very important thing. For a lot of things what it means is that the other people have to be treated in a certain way. I think the key idea is that we are taking care of students equally. If you are committed to that, that means that even the people on the others are also going to be taking care of. Culturally, we need to move to a place for people accept that equality. That they do not think that what it means to be taking care of is official repercussions, including discipline for other people. That if they do not discipline other people for what they have said that they are not being to care of. That is a very easy move to make. That is going to take some work. We have to be precise about these things. Taking care of students like they are family does not mean shielding them from ideas. In the long rum, that will disable them