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Amid ouster of Penn president, 3 challenges of regulating speech

Peter Cappelli, Wharton
Peter Cappelli
Peter Cappelli is HRE’s Talent Management columnist and a fellow of the National Academy of Human Resources. He is the George W. Taylor Professor of Management and director of the Center for Human Resources at The Wharton School of the University of Pennsylvania in Philadelphia. He can be emailed at [email protected]

My employer, the University of Pennsylvania, has been the scene of a lot of drama this past week. Leaders are routinely pushed out in the corporate world, but in the much more genteel world of universities, it is a stunner.

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Our president was pushed out (technically, she resigned) in part because of a PR gaffe in a Congressional hearing on campus antisemitism—but more fundamentally because of the sticky problem of regulating speech that makes people uncomfortable. The next day, the chair of the Trustee Board resigned in apparent protest of her resignation, warning about the overreach of the rich donors who helped push her out. [Editor’s note: Harvard University President Claudine Gay, who testified alongside Penn’s now-former president, Liz Magill, resigned Jan. 2; shortly after the Congressional hearing, Gay apologized for her remarks and the Harvard board said at that time that she would remain in her post. MIT President Sally Kornbluth remains in her position and has not issued a statement about her testimony.]

I think there are three lessons here for other organizations and employers.

Independence needed in governance

The first is about corporate governance. Universities and colleges typically have lousy corporate governance. Once presidents are appointed, they, in turn, appoint the trustees who, on paper, have some authority over them and the institution—but, in practice, have little information and little responsibility. They are wholly unlike boards of directors in that sense. (State universities are different in that governors appoint the trustees, and they have both more information and more power.)

At Penn, there are 48 trustees, a group that is far too big and unwieldy to develop a sense of what they think. So, it is pretty hard to have a sounding board to know whether what you are doing is getting you in trouble or not. Leaders need that independent view as to how things are going, and in higher ed—along with some other institutions—they don’t have it.

See also: Amid turmoil in Israel, how American companies are responding

Protection, punishment and the explainability problem

The second is about the role of public opinion, even for positions as insulated as university presidents in private institutions. The conflict here was a social/political issue very similar to what companies like Disney have faced. At its center is the code of conduct regulating behavior and speech.

What complicates the First Amendment view of tolerating all speech on campuses is that undergraduates are not yet adults—at least, their parents see it that way. Colleges used to regulate student behavior and speech until the civil rights era, but the idea that colleges should still protect students, in loco parentis, continues and may have even accelerated. In public universities, where the organization is the government and the First Amendment applies to students, one cannot regulate student speech unless it likely incites bad behavior, but in private ones, they can.

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The issue at Penn and elsewhere was about that perceived obligation to protect students from hateful speech and, therefore, punish those who say it. At least among the donors, the complaint was that one group was being protected too much (“woke groups”) and another not enough (Jewish students).

So, this is a tricky balance: hands off on regulating students, maintaining free speech as a norm, also protecting students from hateful speech and then applying that protection equally and fairly across sometimes wildly different contexts. It would be so much easier to have no obligations to protect students, as some more libertarian pundits are calling for.

That takes us to the public opinion issue. Our now-former president probably would have survived even the boycott on donations led by a trustee if it weren’t for her performance at the Congressional hearing last week explaining Penn’s code of conduct. What does it say?

The basis of the code of conduct, which is pretty much the same across universities, follows the First Amendment: You can typically say mean and hateful things, including urging violence, until it appears to apply to specific individuals. Yes, the courts uphold your ability to call for the genocide of an entire civilization, but you cannot call for an attack on Bob in accounting. Tolerance for free speech sounds fine until you hear the worst things that, therefore, get tolerated.

Congresswoman Stefanik, who led the questioning, knew this, and the presidents—as expected—looked awful explaining it. The advice to the presidents should have been: Just don’t go. There is no way to do anything but look terrible in the context of sound bites. (Why they didn’t condemn hateful speech remains a puzzle, personally.)

Read more insights from columnist Peter Cappelli here.

Content vs. civility

This takes us to the third lesson, which is what universities might learn from private employers that are buffeted by the same social and political tension but with relatively minor flare-ups concerning speech. College students are hotheads compared to 40-year-old employees with a mortgage and kids to support, and that obviously makes a huge difference.

But another reason for the difference might be that the corporate policies on speech that I have seen focus less on trying to parse out whether the content is hateful and more on the delivery: Are we treating each other with civility and respect?

As a practical matter, it is hard to say something really hateful in a civil way, and it is also the case that hurt is typically more about the emotion that is conveyed than the message, per se. It is remarkable what we can tolerate hearing if it is presented in a civil way. I wonder whether other institutions, including universities, would be better off with norms about civility and respect rather than trying to determine in each case the line where content becomes hateful—and to do that across situations in a way that stakeholders will respect.