Legality vs Morality: Some University Presidents Failed to Lead

I am a former college president. I am involved with a group concerned about banning books. I am a lawyer by training and taught law for two plus decades. I work in crisis management now, with a focus on trauma. I worked in the Department of Education during the Obama Administration. I have given sworn testimony before Congress several times.

I raise all this as background to this brief set of observations about the testimony of three University Presidents at a recent Congressional hearing on harassment and discrimination on their respective campuses post the Oct. 7th, 2023 massacre and the literally just announced resignation of the President of the University of Pennsylvania.

Failure Abounded

These presidents’ testimony was a failure. They failed to distinguish between and consider with articulated nuance what is legal and what is moral. Yes, we assume or hope or expect there to be perfect convergence between these two terms. But, we know from history that our laws and rules are not always “moral” and that what is right and just and moral is sometimes not legal.

These presidents were “prepped” by lawyers from WilmerHale (which law firm should be ashamed of themselves frankly). These presidents were either over-prepped or not able to navigate an obvious hypothetical question. They stuck to their script as if they were clutching a life raft. They did not want their institutions to be sued. They saw the First Amendment broadly and without limits.

Representative Stefanik posed a fair hypothetical, asking “if calling for genocide of Jews” is harassment and bullying according the Harvard University’s rules. The Harvard President, as it has been reported, did not actually answer the question; she sidestepped it as did her other colleagues. Was that the legal advice she was given?

At a moment like this and with a question like the one posed, educational leaders need to step up and see their role not as the individuals who must insure rule abidance in every instance and avoidance of lawsuits. Instead, they must do (not just say) what is morally right and justified. Educational leaders need to stand up and be role models for not only their university but the larger world. I’d go so far as to say it is part of their job.

Genocide, whether it is within or outside Harvard and Penn and MIT’s existing rules on bullying and harassment, is morally wrong. The Presidents might have passed a law school test on free speech but they failed a test of their judgment and capacity to speak with moral authority and use their leadership chops.

Genocide is wrong. Period. Full stop. Apparently their handlers thought free speech overrides all morality. Or, thought about another way, the Presidents were too scared to listen and think on the spot about the meaning of genocide and harassment and bullying. Sometimes, laws and rules miss their mark. Not only can rules and laws be wrong but they are subject to interpretation. For real. Rhetorically, I ask: When could the call for genocide be deemed acceptable under an institution’s rules?

And, to be clear, not answering is an answer.

Being a college or university president is a tough, almost impossible, job. I get that. I know that. But university presidents need to be the guideposts and guardrails for their institutions. It is hard for me to fathom how these university presidents went so so wrong in their testimony.

The Simple Version

Stated most simplistically, three presidents of prestigious universities failed to lead. That’s more than worrisome. It was a missed opportunity to share with Congress, their faculties, their staffs, their students, their donors and our larger world that calling for genocide of Jews (or anyone else) is unacceptable and breaches their institution’s moral code and their rules and crosses the boundary that demarcates acceptable speech.

I am both cringing and saddened; educational leaders must do better.

Postscript:

How institutions deal with leadership failure needs to be another whole posting. Yes, resignation was the pathway of the President of UPenn, although this was not the only leadership controversy at that institution.

For the two other Presidents, it is their governing boards — NOT politicians and donors — which decide a leader’s future. And the leaders themselves, with or without pressure, can decide resignation is best for them and their respective institution.

For the record and as a quite serious observation, I am wondering if the legal bill to WilmerHale should be discounted by the firm. They, too, failed. Just saying….