Opinion by James D. Zirin

Of all universities, the Ivy League colleges of Harvard, Penn and MIT should know better. It’s very simple: Advocacy of genocide is abhorrent, dehumanizing; it instills fear and distress. It has no place on a college campus, or anywhere else in our society. It has no pedagogical value. It is murder, nihilism.

Just before I went into the Army, a lawyer friend, who had served, counseled me to give an evasive non-answer to any question I was asked: “Depends on the tactics and the terrain.”

So it is perhaps not surprising that a lawyer thought “Depends on the context” was the perfect answer for three university presidents (one of whom is now an ex-president) testifying before Congress if asked whether calls for the genocide of Jews on campus constituted bullying or harassment.

Context? What a dreadful word to use in the context of genocide. What is the context it would depend on — Auschwitz, Dachau, the pogroms of Russia in the 19th century, or the Jews’ convenience over 2,000 years as victims of dehumanizing oppression. And let’s not forget the 1,400 victims of Hamas’ Oct. 7 attack on Israel — women raped and murdered, babies slaughtered, men butchered in barbarous ways on another day that will live in bloody infamy.  

At all of these universities, I am certain, burning a cross or erecting a gallows in front of a dormitory housing Black students — both forms of symbolic speech — would constitute bullying or harassment. I’m equally certain that statements targeting LGBTQ+ students would constitute bullying or harassment. 

Interestingly enough, Harvard President Claudine Gay was dean of the university’s Faculty of Arts and Sciences on May 25, 2020, when George Floyd was murdered on the faraway streets of Minneapolis. She published a statement, declaring that “We have been here before, too many times,” that “the headlines stir an acute sense of vulnerability,” and that “we are confronted again by old hatreds and the enduring legacies of anti-black racism and inequality.” She said she feared for her teenage son and suggested she felt personally threatened by Floyd’s death. The tragic event, she wrote, illustrated “the brutality of racist violence in this country” and gave her an “acute sense of vulnerability.”

In nothing which Gay said last week before Congress did she show any understanding or empathy that Jewish students or their parents might have felt similarly vulnerable after Harvard condoned calls for the genocide of Jews.

The question put to the university presidents by Rep. Elise Stefanik (R-N.Y.) was not all that difficult. The three scholars likely would not have had such a hard time responding if it had been based on race, gender or sexual orientation. If asked whether the burning of crosses has any place on a university campus, rest assured that the answer would not have been “It depends.”

Jewish students should be treated no differently — and certainly no worse — than others. But the ideal outcome is not to coddle Jewish students or make them another overly protected class. It would be much better for these elite schools to reconsider many of their current practices. They ought to set consistent guidelines on free speech and enforce those. They ought to refrain from partisan statements on national and international issues, which are beyond their scope of responsibility.

Historian Niall Ferguson — among other things, a senior fellow at Harvard’s Belfer Center — has it right in a piece he recently wrote in The Free Press. Ferguson argues that the answers given by the troika of university presidents may have been technically correct under the First Amendment but constituted the “treason of the intellectuals.” 

“The lesson of German history for American academia should by now be clear,” Ferguson writes. “In Germany, to use the legalistic language of 2023, ‘speech crossed into conduct.’ The ‘final solution of the Jewish question’ began as speech — to be precise, it began as lectures and monographs and scholarly articles. It began in the songs of student fraternities. With extraordinary speed after 1933, however, it crossed into conduct: first, systematic pseudo-legal discrimination and ultimately, a program of technocratic genocide.”

Germany and France both have more robust approaches to hate speech and incitement to genocide that have much to recommend them. But they’re flatly inconsistent with the way the Supreme Court has interpreted the First Amendment. There is obviously much to think about but, as far as fear of harm goes, violence or the threat of imminent violence obviously is not protected speech. So anyone who commits violence violence, or launches an imminent threat of violence, is breaching university rules.

But is this enough to nip genocidal ideation in the bud? Are the crazies among us more or less likely to become violent if they’re forbidden from engaging in speech about it? I’m not sure. 

Perhaps university authorities are more likely to identify dangerous people in their communities if they’re allowed to speak their minds — otherwise, an attack comes without warning. But is it feasible for universities to identify the potentially violent students on campus after they have expressed odious views, put them in a digital dossier, and keep them under artificial intelligence until they attack a Jew heading to class?

One professor I know at Penn explained it this way: 

“Oh, I fully agree with no threatening/no taunting/no cross burning. And all of those are prohibited by the Penn speech code. The issue is what to do about a call for genocide at a protest — someone chants ‘Kill all the —.’ I think that contributes nothing to discourse and has no place in a university community, and I would try to teach students norms of civility and respect. But I wouldn’t expel them for saying it, in part because I do think usually the best answer to bad speech is good speech, but more because I worry about giving university administrators the task of deciding who’s calling for genocide. In the Israel-Hamas conflict, for instance, each side accuses the other of genocidal goals, so supporting either side will be called endorsement of genocide. And I just don’t feel like student disciplinary proceedings are the place to decide who’s right about that. Administrators have a very hard time being neutral.”

Right. But can they be neutral about murder? And should university administrators take political positions at all? As Justice Jackson put it in his concurring opinion in Terniniello v. Chicago, “if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Keeping students safe is of paramount importance. So I would forbid anyone on a college campus to advocate the murder of anyone. 

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast, “Conversations with Jim Zirin.”