University Presidents Needed Better Communication Skills during the Congressional Hearing. Here Are Some Tips.

Harvard University

“What action has been taken against students who are harassing and calling for the genocide of Jews on Harvard's campus?”

Congresswoman Elise Stefanik asked that seemingly simple question of Harvard President Claudine Gay.

At the December 7, 2023 congressional hearings to investigate antisemitism on campus, three top university presidents were called on the carpet and lambasted by Stefanik because they upheld the right of certain students to express deeply unpopular opinions. In particular, some anti-Israel students were speaking and demonstrating for a holy war and the destruction of Israel. Many Jewish students were feeling threatened, to say the least.

In accordance with the law, the university presidents were right, and the Republicans were just plain wrong. Free speech in America is almost absolute, and hate speech, pretty much no matter how awful, is legal. There is no hate speech exception to the Bill of Rights. Unfortunately, the university presidents allowed themselves to be bullied. They made factual but ineffectual responses to the Republicans’ questions. The public is in an uproar and almost everyone, from left to right, sides with Stefanik against the university presidents. What could the presidents have done better?

Let’s look at a few examples. I’ll focus on the well-publicized, much-maligned performance of Harvard President Claudine Gay. Dr. Gay needed to be more precise on the facts, while she also needed to reset the abusive process while projecting more confidence.

When someone asks a question, phrase the responses precisely. 

Stefanik asked Gay:

“Do you believe that type of hateful speech is contrary to Harvard’s code of conduct or is it allowed at Harvard?”

That sounds like a fair question, doesn’t it? Gay droned her rote response:

“We embrace a commitment to free expression even of views that are objectionable, offensive, hateful. It’s when that speech crosses into conduct that it violates our policies against bullying ….”

At that point, Stefanik interrupted and shouted that anti-Jewish hate did cross that boundary. Now, under the First Amendment law, which applies to colleges and universities under various court rulings, Stefanik was wrong. The courts have repeatedly ruled that the First Amendment protects hate speech.

Previous Post: Elise Stefanik Was Wrong, and Hateful Speakers Are Allowed on Campus

Calling for genocide is horrible, but it is not an immediate, specific threat, and therefore it’s constitutionally protected speech. Gay’s response was right out of the legal handbook and was, I imagine, briefed for her by Harvard’s legal department.

Unfortunately, Gay’s response sounded vague and impassive. She droned legal platitudes in a slow, distracted voice. Could she have done better? Well, yes, she could have done much better. Try this, for example:

Hypothetical response: “As an institution of higher education, Harvard is absolutely required to obey the 1st and 14th Amendments to the Constitution. The courts have emphatically ruled that even extremely horrible speech is protected by the First Amendment. In fact, we cannot make a rule that prohibits vile and offensive speech, because the courts have ruled over and over that hate speech must be allowed.”

That would be a better response because it states the reasoning behind the rules that Harvard follows. 

Challenge the abusive questioning process.

However, as the reader will recall, Stefanik had interrupted Gay, blocking her attempt to respond. That abused the communication process. So, here is another hypothetical response. After being interrupted, Gay could have said:

Hypothetical Response: smile and ask, “I would very much like to answer your question. May I do so?”

If that doesn’t work, it would be time to get a bit more vigorous, but still sounding self-disciplined:

Hypothetical Response: “Congresswoman, you are asking important questions and short, glib answers are not going to be adequate; may I please answer your question?”

More forceful hypothetical response: 

Hypothetical Response: “Congresswoman, with due respect to your high office, why are you asking important questions if you won’t let me explain my answer?”

Or, if that doesn’t work:

Emphatic Hypothetical Response: “Congresswoman, you swore an oath to uphold the Constitution, and the First Amendment is part of the Constitution. Since you studied government at Harvard, I expect you to understand the First Amendment. May I explain how the courts have ruled on these questions?”

If the speaker gets badly irked:

Hypothetical response: “Congresswoman, you are asking questions that I’d like to answer thoughtfully. But every time I try, you interrupt and shout at me. May I please answer your question?”

 
If you are being vague, explain why you cannot be specific. 

Speakers, like Dr. Gay, need to be careful when they use technical terms. Otherwise, their arguments get lost. Gay confused her listeners with a technical term about education law. Stefanik asked: “What actions have been taken against those students?” Gay’s response:

“Given students’ rights to privacy and our obligations under FERPA, I will not say more about any specific cases other than to reiterate that processes are ongoing.”

The overall public neither knows nor cares about FERPA. However, everybody in higher education has been drilled about FERPA (Family Educational Rights and Privacy Act of 1974). When I worked at universities, we were all required to pass periodic FERPA training. This federal law strictly protects student privacy. Among many other things, FERPA covers student disciplinary procedures, even in extreme cases, and university personnel may not violate student privacy by sharing the results or processes of student discipline.

I had plenty of experience with this. Even parents are often ineligible to see their children’s records (Congress passed a bunch of arcane rules about parents’ rights.) I sometimes had to tell parents that I could not answer questions about their children. Remarkably, when the FBI and Navy recruiters came to ask us about various students over the years, they needed to show the university’s records office that they had the student’s written permission or a lawful subpoena. Seriously. Worse, I served on university disciplinary boards for years. FERPA makes the disciplinary procedures confidential. FERPA is one tough law. 

Anyway, after hearing about FERPA, Stefanik soon gave this angry response: “This is why I’ve called for your resignation, and your testimony today, not being able to answer with more clarity, speaks volumes.” That was nonsense. There was no reason for Dr. Gay to put up with that. Try this:

Hypothetical Response: “Congresswoman, I am not responsible for the laws Congress passed to protect student privacy. These disciplinary procedures are totally confidential under the Family Educational Rights and Privacy Act of 1974. I didn’t pass the law; Congress did. I regret that it is illegal for me to answer your question. If you don’t like the law, you, and not I, are in a position to change it. That’s because you’re in Congress, and I am not. I don’t see why you want to fire me just because you don’t like a law that Congress passed.”

That specific answer would, I would hope, at least calm Stefanik’s bullying. 


Change the ground of the debate

The winner of a debate is the side that sets the ground. That is, the winner is not necessarily the side that has the best issues, but, more often, the side that decides what questions to ask. Stefanic laid her groundwork by making wild accusations and refusing to let Dr. Gay explain her answers. On that ground, she will win every time. Gay sounded awkward and intimidated, and her answers were just too safe.

You can’t stop a congressional bully by uttering vague platitudes that your lawyer fed you. You need to be specific. You need to reset the debate on your own ground. Put the burden back on Congress, where it belongs. How about:

Hypothetical Response: “The things that are going on are often awful, but we at Harvard must follow the law. If you don’t like the law, if you are against a high level of free speech and assembly, if you don’t think students should have a legal right to privacy, which of us is in a position to change the law? Because it isn’t the President of Harvard.”

I’m sure that Stefanik would continue to yell, but the debate would now be on more even ground.


Delivery

Also, delivery matters. Cicero said so thousands of years ago. It’s still true. Dr. Gay was quiet and hesitant, and she seemed flustered. Of course that doesn’t work. You can’t be obsequious in front of a bully any more than you can lie down in front of an angry German shepherd. Dr. Gay needed to speak up. She didn’t need to shout like Stefanik, but she needed to sound confident and self-assured. Stop leaning into the microphone. Sit up straight. Take your glasses off and wave them around. (That worked for President Dwight Eisenhower, who was also soft-spoken.) Have a copy of the Constitution in your hand (preferably on yellowed fake parchment) and rattle it in front of the microphone. Get off the defense. Defensive speakers lose. Take charge. Sound like you are in charge. Help the audience see that Stefanic was behaving poorly. Presentation counts.

Stefanic was trying to use Gay for a stage puppet, so don’t sound like a puppet.


Counterplay

Anyone who has followed Republican politics, even at the most superficial level, could have predicted everything that Stefanik said during this hearing. Gay did not sound as if she cared about the Jewish students. Her responses were vague and sounded guarded. She needed to say more to show she cared. Dr. Gay needed counterplay. 

Gay also needed to show that she cared about Jewish students who felt intimidated by campus demonstrations. Harvard had already established on-campus programs to deal with antisemitism and these were well publicized on campus. Gay should have talked more about programs for students who felt victimized by campus events.

Indeed, she should have set up even more such programs, however hastily, before she traveled to the Capitol. Have these universities done enough to protect students and to guarantee a safe learning situation? I think not. Jewish and other students have every reason to be distressed, even though this ridiculous congressional hearing didn’t get to any authentic issues. I’ll try to write soon about communication solutions that are legal and might help the situation.

Gay could, and probably should have, given a pre-Congress, on-campus, open-to-all speech in which she criticized demonstrators who had become hostile, while, at the same time, making sure that the campus understood that the demonstrators had strong First Amendment rights. (She had already given written statements to the Harvard community, although they were probably too vague to punch through the controversies.)

Hypothetical campus speech: “I deplore these awful demonstrations and I condemn their message, but I will defend to my last breath the protestors' constitutional right to assemble  and speak as long as they are peaceful. I will defend any of your rights the same way.”

Too late for all of that. Propaganda won, I guess.


Conclusion

But did propaganda need to win? On the one hand, academic people tend to be diffident. Even aggressive academics, like university presidents, tend to be more controlled than the general public. On the other hand, many politicians are confrontational. That does not mean that the university presidents needed to disintegrate as they did. There are many ways to confront bullies, and they don’t require a person to act like a bully in return. Maybe my ideas will help a congressional witness in the future.

I will end with a personal story. 

After retiring from his career as an attorney with the Department of the Interior, my father did volunteer legal work with the American Association of Retired People. His role was to represent indigent Americans who had been unjustly deprived of their Social Security benefits. It was a hard job, with wins and losses. President George H. W. Bush gave him a Points of Light Award for his service. In the course of his work with the AARP, my father testified before a congressional committee. A conservative southern congressman went off on a rant about useless government bureaucrats and wasteful government spending. (You’ve heard all that many times, I’m sure.) This irked my father, who responded like this:

I am proud of my government service. I am proud of my service in the Army during World War II and Korea. I am proud of my two battle stars. I am proud of my 25 years with the Department of the Interior.

The congressman apologized.

So, bullies don’t need to win. It’s not just what you say, it’s also how you say it.

by William D. Harpine

Copyright © 2023 William D. Harpine

Image of Harvard University: David Adam Kress, Creative Commons License