The academic year, which had scarcely begun on October 7th, culminated this spring in controversy, disruption, and accusations of hate and repression at universities across the country. April brought a wave of pro-Palestinian encampments to the grounds of more than a hundred and thirty seats of higher education, which resulted in thousands of arrests. As Harvard’s commencement approached, a twenty-day encampment, in which students demanded that the university divest from Israel, ended peacefully, without arrests or forcible removal, when the university promised organizers that it would hold meetings with them to discuss its investments, and also “academic matters related to long-standing conflicts in the Middle East.” But disagreement over a key part of the deal rendered any relief short-lived.
The new dispute concerned whether student protesters would be disciplined. The participants had been warned repeatedly that erecting tents in Harvard Yard was against university policy, which forbids “interference with members of the University in performance of their normal duties and activities,” and the school had issued disciplinary charges to dozens of students. When the encampment was dismantled, Harvard’s interim president, Alan Garber, promised to recommend that those disciplinary cases be addressed “expeditiously,” including for “students eligible thereafter to graduate so that they may do so.” Protesters optimistically took that to mean that seniors with pending cases would be able to graduate days later. Instead, Harvard College’s disciplinary body quickly meted out probations and suspensions; more than a dozen seniors will not be able to graduate until a future semester.
Warring public letters, each signed by hundreds at Harvard, where I am a law professor, made opposing arguments about which of the two options—leniency or punishment—was unprecedented, dangerous, and unfair. Professors in the Faculty of Arts and Sciences voted to confer degrees on the thirteen seniors in question despite their disciplinary statuses. But the Harvard Corporation, the school’s highest governing body, rejected the faculty’s determination, saying that students who are “not in good standing” cannot receive degrees. The focus of protest had shifted from Gaza to the fate of Harvard undergraduates. As one student organizer at an emergency rally put it, “You discipline over thirty-five students. They’re making it so that fourteen seniors can’t graduate. And on top of all that, Palestine is going through a genocide.” (The actual number was reportedly twenty-five students total, at least thirteen of them seniors.)
On campuses nationwide, support for students who were arrested or disciplined for protesting Israel’s invasion of Gaza unified many who disagreed about the war, because of the overriding idea that a university is supposed to be a place of free expression. At Harvard, as at many universities, students have rights to free speech and political action; the school’s policy empowers students “to organize and join political associations, convene and conduct public meetings, publicly demonstrate and picket in orderly fashion, advocate and publicize opinion by print, sign, and voice.” And its free-speech guidelines state that “hard choices regarding appropriate time, place, and manner should have a presumption favoring free speech.” When students peacefully erected tents in the Yard during the Occupy movement, in 2011, the university foregrounded its commitments to the protesters’ freedom of expression and to insuring their and others’ safety. There was no talk of disciplining the students, even though the same policy against interference with “normal duties and activities” was in effect. Thirteen years later, Garber’s letter to the community about the pro-Palestinian encampment said in bold letters that free speech “is not unlimited,” and threatened disciplinary consequences.
The contrast in reactions to these two protests has bolstered allegations that, on college campuses and elsewhere, there is a “Palestine exception” to free speech. But it is important to note what else has changed since 2011. First, administrators have become accustomed to using punishment as a go-to solution rather than as a last resort. The emphasis on disciplinary action became particularly pronounced in the twenty-tens, when universities were under urgent pressure to address campus sex discrimination and harassment. Second, universities’ commitments to free speech have weakened over time, as liberal students have increasingly come to be skeptical of “free speech” because offensive statements may harm marginalized and vulnerable people. The most difficult aspect of guarding freedom of speech is determining where its limits must be, in order to prevent infringing on the rights of others. The balance between free speech and other values has gradually been recalibrated, so that the claim that someone’s speech constitutes intimidation or harassment is more likely to feel correct to university administrators today than it did thirteen years ago.
So, without even getting into whether there is a “Palestine exception” to free speech, it is not surprising, in 2024, to see an administration use disciplinary action for protests that allegedly disrupt university functions—or to see increased sensitivity to unwelcome speech. To some, political chants condemning genocide and promising “intifada” are antisemitic calls for ethnic cleansing of Jews. Those arguing that the Harvard protesters should face significant disciplinary consequences characterized the protesters’ actions not as protected speech but rather as harassment on the basis of Jewish or Israeli identity, expressions of antisemitic hate, and threats of violence toward Jews or Zionists. In his letter, Garber referred to “increasing reports that some within, and some supporting, the encampment have intimidated and harassed other members of our community.” He continued, “When Harvard staff have requested to see IDs in order to enforce our policies, supporters of the encampment have at times yelled at them, tried to encircle them, and otherwise interfered with their work. We have also received reports that passers-by have been confronted, surveilled, and followed.”
The facts are surely in dispute, and details of disciplinary charges or rulings have not been made public. But if Garber’s allegations form some of them, then some students may have been disciplined not merely for participating in an encampment but for violating discrimination, harassment, or bullying policies. The pressure to enforce those policies cannot be overstated. In the twenty-tens, the Department of Education investigated many schools, including Harvard, for failing to adequately address allegations of sexual misconduct; universities today are once again under federal scrutiny, which threatens their federal funding and tax-exempt status, for failing to address allegations of antisemitism. A congressional committee issued a report in May rebuking Harvard for inaction, highlighting insufficient disciplinary measures. The school is also defending itself against several lawsuits filed under Title VI, which prohibits discrimination on the basis of race, color, or national origin; those cases allege that the school enables antisemitic harassment by not disciplining offenders. Harvard is in a genuine pickle when it comes to students who, in the course of protest, also engage in conduct that might meet the university’s definitions of discrimination, harassment, or bullying. And Garber may have created further difficulties by proactively announcing to the community that protesters engaged in harassment and intimidation. Once he’d done that, not severely disciplining the students would have given fuel to those suing and investigating Harvard.
The pressure to punish is not only on academic administrators; both sides of the conflict are also calling on others to shun those that they condemn. In a lawsuit filed against Columbia University by the group Students Against Antisemitism, the plaintiffs claim that some Jewish students at the school “maintain a list of professors classified as ‘not friends of the Jews,’ ‘complicated,’ ‘undecided,’ or ‘friends of the Jews,’ ” in order to avoid taking courses with professors who have expressed antisemitic views. The AMCHA Initiative, an organization that combats antisemitism in higher education, has published a list of more than two hundred “anti-Israel Middle East studies professors” nationwide who signed a petition to boycott Israeli academic institutions, so that students can avoid “subjecting themselves to anti-Israel bias, or possibly even antisemitic rhetoric,” in the courses they choose. The Canary Mission, which “documents individuals and organizations that promote hatred of the USA, Israel and Jews on North American college campuses and beyond,” maintains a public database of professors and students who are deemed anti-Israel or antisemitic, including their photographs.