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What Rules Should Harvard Have?

By Alan M. Dershowitz

How should a great university, committed to diversity and freedom of speech, deal with the recurring problem of whether to “sponsor” a student-run event that is deeply offensive to other students?  This issue is currently being debated in the context of the upcoming conference entitled "Israel/Palestine and the One-State Solution."  Similar controversies have engulfed other universities, in many different contexts, and will continue to confront Harvard in the future. Harvard, and other schools like it, should follow guidelines consistent with the mission of the University and its commitment to the most fulsome freedom of expression.

The primary criterion a university must apply when deciding whether an event should be sponsored is political and ideological neutrality.  What is good for the goose must be good for the gander and what is bad for the gander must be bad for the goose.  Offensiveness to one group cannot be measured differently than offensiveness to another group. Moreover, the university must maintain a near perfect circle of civility whose circumference cannot conveniently be stretched to accommodate the “political correctness” of the day.  These rules should be articulated in advance of specific problems being raised, cloaking them with a Rawlsian veil of neutrality.

When confronted with choices about what kind of events can take place on campus, there are essentially five approaches a university could take.  The first is called “the taxi cab rule.”  Taxis must pick up all potential customers and generally do not refuse service to anyone.  A university could adopt such an approach, but if it did, it would have to make its facilities available to the Ku Klux Klan, to the Westboro Baptist Church, and to other racist, sexist, and homophobic groups.

A second approach would be to have explicit criteria set out in advance that are clear and relatively non-discretionary.  For example, a rule could permit a school to deny support to any group that deliberately provokes and insults students based on race, religion, ethnicity, national origin, gender or sexual preference.  Such a rule would exclude the KKK and the Westboro Baptist Church, which clearly fit those negative criteria.  But it might also deny sponsorship to atheists who mock religion or raucous comedians whose shtick is to be offensive to everyone.

The third approach is to deny sponsorship to all groups that are offensive to anyone.  This is a dangerous prescription for widespread censorship that gives those who are most easily offended (or claim to be) the power to suppress speech.  No great university should adopt such a rule.

The fourth approach is to vest discretion in some university official to be exercised based on undefined criteria such as whether an event is “consistent with the mission of the university.”  This, too, is dangerous to freedom, because the discretionary decisions are likely to reflect the political correctness of the day.  It is precisely those ideas that are politically incorrect that require the protection of free speech rules.

The final approach would be for a university never to sponsor or support financially any politically or ideologically controversial events, but simply to allow its rooms to be used by any group with a faculty advisor and a minimum number of members.

In the end I support the taxi cab approach, with the full realization that it will allow speech that is deeply offensive and disturbing to some.  The appropriate response to offensive speech inheres in the open marketplace of ideas, which permits “good” speech to counter “bad” speech, without defining either.

In order to determine how a rule of neutrality would apply to the current debate, consider the following thought experiment: What would Harvard’s response be if a group of right wing students and faculty decided to convene a conference on the topic “Are the Palestinians Really a People?” and invited as speakers only hard right academics who answered that question in the negative?  Would the Provost’s office help fund such a conference?  Would the Kennedy School host it?  Both the actual and hypothetical conferences would be deeply offensive to many students and faculty (including me), since their subjects are both ploys designed to deny people—Jews and Palestinians—the right to self-determination.  They both have a veneer of academic and political acceptability which serve as a cover for their underlying bigotry.

Many of the speakers at the current conference will argue against “a Jewish state,” without protesting the Palestinian Constitution that formally establishes the Islamic religion as the only “official” faith and “the principles of Islamic Sharia” as the main source of law.  The Palestinian Constitution also does what many right-wingers are trying to do in the United States:  It establishes only one language—in their case, Arabic—as the “official language” of Palestine.  Israel, on the other hand, has three official languages—Hebrew, Arabic, and English—and does not have an “established” religion.  Indeed, most Israeli Jews are secular, and Judaism, Islam and Christianity stand on an equal basis, at least as a matter of law.  Israel does have a law of return, based not on religion but on the history of the exclusion of Jews from countries throughout the world during the Holocaust.  When Palestine is established, it too will have its own law of return.

By funding this one-sidedly offensive conference, Harvard has essentially committed itself to the taxi cab approach.  I hope it will maintain that commitment when other students sponsor equally controversial events.

Alan M. Dershowitz is the Frankfurter Professor of Law at the Harvard Law School.

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