From CAFH Leadership: Harvard's Settlements Are No Threat to Academic Freedom — Yet

Harvard’s settlements of lawsuits alleging that it impermissibly tolerated antisemitism on campus have led to objections that they could pose threats to academic freedom at Harvard.

Undoubtedly, the problems identified by the plaintiffs deserve recognition, and we endorse Harvard’s intention to combat all forms of intimidation, bullying, disruption, discrimination, and other violations of the University’s purpose.

The settlements provided guidance for how Harvard will apply its Non-Discrimination and Anti-Bullying policies to combat antisemitism in particular. The policies, adopted in 2023, were designed so they could not be misused to infringe on academic freedom.

Although the thrust of the settlements preserves those protections, one part has set off alarm bells, namely Harvard’s adoption of the International Holocaust Remembrance Alliance’s expansive definition of antisemitism. The original author of that definition had warned that it was intended only as a heuristic guide for tracking intercorrelated signs of antisemitism, not as a speech code that would single out particular opinions for sanctioning. The possibility that administrators could use the definition to flag certain statements by students or faculty as antisemitic has led to strong criticism of the settlements in the Boston Globe and the resignation of the director of a program at the Harvard Kennedy School.

In a frequently asked questions page updated several days after the announcement of the settlements, Harvard’s Office for Community Conduct addressed these worries. Harvard’s commitment that its NDAB policies are restricted to “discriminatory disparate treatment” and “discriminatory harassment” of individuals, each precisely defined, is reassuring. So is the page’s affirmation that these policies are subject to the University’s protection of free speech, academic freedom, and uncomfortable or challenging conversations.

As long as the NDAB policies are enforced according to the strict criteria laid out in the FAQ page, they are unlikely to threaten academic freedom. But the adoption of the IHRA guidelines, with its list of suspect opinions, muddies this reassurance. It is far from clear why a stipulation of proscribed content is necessary to identify instances of harassment, discrimination, or bullying of Jewish individuals.

Though the statements can indeed be expressions of antisemitism when framed in crude and malicious ways, some are related to empirical or normative propositions that are legitimate subjects for academic debate. It is reasonable, for instance, to raise the question of whether ethnic and religious groups have an inherent right to their own nation-states, or whether the aims of particular political lobbies conflict with the national interest.

Similar concerns would arise with an analogous definition of racism or Islamophobia that listed the content of particular beliefs as signs of bigotry. For example, the FAQ page states that “denying the ancestral history of another person or group” could constitute a violation of the NDAB policies. Would this apply to archeologists who study the history of a Native American tribe and present evidence that contradict the tribe’s sacred beliefs about how long they have occupied their territory? What about a scholar who publishes data on ethnic or religious differences in rates of media ownership, crime, or terrorism?

Even the apparently unexceptionable case of “advocating genocide” as an example of discriminatory harassment is easy to abuse. Scholars who defend Israel’s military actions against Hamas in Gaza on just-war grounds should not be punished for harassment merely because some factions describe the war as “genocide” against Palestinians. Nor should a student be sanctioned simply for carrying the sign “From the River to the Sea,” just because some have interpreted that as calling for “genocide” against Israel.

In sum, the University must follow its own strict definitions of discrimination and harassment against individuals in order for it to respect its stated commitment to academic freedom. We are opposed to any interpretation or enforcement of this policy that would expose people to investigation for the content of their ideas or opinions. This includes ideas that many find offensive, one-sided, or wrong, as long as they fall within the perimeter of speech protected by the first amendment and conform to reasonable standards of time, place, and manner of expression.

Errors and biases should be exposed by vigorous criticism from members of the Harvard community, not stipulated by University policy.

Steven A. Pinker is the Johnstone Family Professor of Psychology. Eric S. Maskin is the Adams University Professor and Professor of Economics and Mathematics. Jeffrey S. Flier is the Higginson Professor of Physiology and Medicine and was the dean of Harvard Medical School from 2007 to 2016. They write on behalf of the executive committee of the Council on Academic Freedom at Harvard.