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The Real Lessons We Should Draw from Claudine Gay’s Resignation

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Amy Kapczynski (@akapczynski) is Professor of Law at Yale Law School. 

Last week, Claudine Gay was forced to resign as President of Harvard, after what might be called – with apologies to Clarence Thomas – a high-tech lynching. First, Gay was ambushed in a Congressional hearing. The ostensible topic was antisemitism on college campuses in the wake of October 7. But it was clearly a setup from the start. Conservatives who had spent the better part of a decade setting Twitter afire with complaints that college administrators were censoring too much speech on behalf of coddled minorities were suddenly shocked, shocked that anyone could be allowed to say something hateful on campus. The hearing was followed by attacks on Gay’s scholarship, including claims of plagiarism, that were just as obviously in bad faith. 

How to protect both free speech and equality is an extraordinarily complex question. The proper boundaries of citation and credit in academic work is too. But neither are really what the free speech wars on campus are about. That’s obvious, now that two prominent university presidents have been deposed in a matter of weeks, none of it involving academics applying their own standards to the matter. 

For me, there was another tell: one of the driving sources of recent events was the Washington Free Beacon. The site styles itself as an online newspaper, and in the last two years has written dozens of internecine “gotcha” stories about free speech at my place of employment, Yale Law School. In one “scoop,” for instance, the author “exposed” a series of student Instagram posts that said things like – gasp – the Supreme Court doesn’t really protect democracy. He then called one of their summer bosses to tattle.

The point is that when you live inside of the full arc of one of these public spectacles, it becomes blindingly obvious that the campaign it’s a part of isn’t about defending free speech or academic virtues in any way. At their best, universities can hold open space for thinking that challenges existing ideas and power structures. That is why these institutions are under attack. The aim is to shut some speech down, and to promote other speech. Mainly, conservative speech, and conservative speakers, who are now supposed to be not only given a platform but also tenured professorships and leadership positions in universities, because they are conservative. And all of it is gaining traction, in part, because many people haven’t yet put the picture together, and are still treating each attack as a part of good faith debate about snowflakes and viewpoint diversity. 

The View from Inside

I’ll come back to Gay in a minute, but first let me vent. Because one of the features of these social media maelstroms is that you cannot vent at the time – unless you want to open yourself to an unending stream of harassment, doxing, and professional attacks.

In the last few years, Yale has been host to a series of free speech controversies – the Halloween incident, “traphousegate,” and the 2022 protests of the anti-LGBT group Alliance Defending Freedom (ADF). From the inside, the picture of the institution being painted and amplified by the right-wing outrage machine appears as if in a bizarre kind of funhouse mirror. Some things are immensely distorted, and other things disappear entirely. 

For example: read the prominent conservative coverage of the disruption of the ADF event and you might reasonably assume that Yale students shut down the event, and had no interest in debating the merits. But they didn’t shut it down. Protesters left the room following the “three warnings” rule put in place to protect free speech. Raucous chanting continued for a while down the hall, but the event went on as planned. Not exactly decorous, but also a far cry from the most famous moments in Yale free speech history (read this 1974 report for some of those). What you won’t see in any of the video clips circulating online were the questions that students had prepared to ask in the room that day, or the statement sent around by the “Outlaws” group that directly challenged ADF’s record and advocacy on the merits. None of that was amplified – the rightwing outrage machine is asymmetric and selective – but all of it is much more characteristic of this place than fifteen minutes of rowdiness, for better or worse.

The idea that Yale Law School is a raging hotbed of radicalism is… just absurd. In the last decade, Clarence Thomas visited several times, once to receive an award of merit with Justice Alito. Last year, James Ho – the judge who has declared he won’t hire Yale students to punish the place – spoke. Again uneventful. Two years ago, there was a packed FedSoc event that I and many LPE students attended where Patrick Deneen spoke about common good constitutionalism. It was supremely tweedy, unremarkable – and received no press. 

Public perception of speech on campuses is almost entirely shaped by extraordinarily powerful networks outside the university. And this media ecosystem, even before Musk took over Twitter to turn it rightward, is wildly unbalanced. As Yochai Benkler’s co-authored book shows, the right-wing media ecosystem works differently than the left wing one: both generate fake news, but on the right it gets picked up and amplified by places like Fox, even after it’s shown to be false. There is no comparable circuit on the left. 

The campaign is also having its desired effect – it is in fact chilling speech on our campus, and you can expect the same at yours. Last year, FedSoc invited the ADF back to campus to talk about their 303 Creative litigation. This time, I went. This time, there were no chants. I recall not a single sign in the hallway, and if there were critics in the audience, none dared ask a single question. Nadine Strossen, the former ACLU head, was on the panel too, undoubtedly because she agreed with ADF, and has defended the right-wing line on free speech on campus. After the event, however, she suddenly seemed to glimpse what she’d helped to produce. “Are 10 minutes of shouting out of an hour-and-a-half-long event too much? That is a matter of judgment and degree,” she told the Times. “I worry that maybe the reason that there weren’t even nondisruptive protests,” she said, “is students were too afraid that they would be subject to discipline or doxxing.”

Well, duh. Our students are now well aware, in the time of Twitter and the Free Beacon and Fox News, that any kind of mildly hostile question could be misrepresented online, making them a target for harassment for days if not weeks. After the latest battles, they can also expect doxing trucks to show up on campus and at their parents’ homes, and perhaps to lose their jobs. 

What’s more: Yale has changed its free speech policy, responding to calls from outside, to make it clear that students can be sanctioned for anything that “disrupts” “regular or essential operations of the university.” Where is the line between peaceful protest and disruption? The students could be forgiven for thinking it not so clear. Can you have an orderly die-in in the student lounge? When some students planned one a few weeks ago, promising not to block any exits and be there a short time, they were informed that our university general counsel believed that this would “disrupt university operations” and that they would risk formal discipline – unless they died sitting up. 

If you are at a public university in one of the 22 states where educational gag orders have been passed in the last three years, things may be far, far worse. PEN America has tracked hundreds of these bills around the country. They report that while earlier efforts banning particular ideas – like DeSantis’s Stop WOKE Act, which censors teaching about racism and gender in the classroom – faced headwinds in courts, there is now a more structural approach. Right-wing politicians are now seeking to ban particular programs, initiatives, and student groups, take over colleges, weaken or end faculty tenure, and attack accreditation processes

There is a real, and major threat to free inquiry in the academy today, and to free speech on campus. But it is not coming from DEI committees.

Follow the Money

So where is it coming from? This is a far more difficult question. Obviously, part of the story here is the increasingly well-organized and concerted right-wing attack on universities. Though many recognize this attack as central to Gay’s resignation, few yet appreciate just how well-funded and coordinated it is. 

In 2022, Leonard Leo was given a $1.6 billion donation to pursue an unspecified set of projects, all at Leo’s sole discretion. It was the largest political donation in American history, from a 90-year-old billionaire to a man readers of this blog likely know well. Leo is commonly credited as the architect of the Federalist Society campaign to pack the courts with conservatives. However, because the gift was made to a secretive Trust (which avoided hundreds of millions in taxes), we have no public accounting of its activities. We do know, again from reporting, that it has already given out hundreds of millions of dollars – and that at normal returns, it can continue this without even cutting into the principle, vastly outspending even juggernauts like the Heritage Foundation. 

What is Leo aiming to do? All we know is what he himself has told us: he wants to apply the Federalist Society model to “lots of other areas of American culture and American life where things are really messed up right now.” He cites four targets in particular: Hollywood, Wall Street, Silicon Valley, and the academy.

That universities are clearly in his sights make sense. His billionaire benefactor, Barre Seid, has a long record of trying to shape higher education: he was revealed as the secret donor that pledged $20 million to GMU on the condition that it change its name to Antonin Scalia law school, and has given millions to the Mercatus Center at GMU. Earlier, he gave close to a million dollars in an attempt to effectively take over a tiny great-books college called Shimer in Illinois – until faculty rebelled, and the college foundered.

Is it a surprise, then, that we’re seeing these widespread attacks on universities, fanned by well-funded outrage machines? (The money trail also winds its way to the Free Beacon. According to the New York Times, it is largely funded by Paul Singer. Yes, the same hedge fund manager and vulture capitalist who took Alito on his private plane for a fishing junket before his Argentinian sovereign debt case came before court.)

It’s easy to draw the connections between Leo, and other prominent university critics: Elise Stefanik (who attacked Gay in the hearing, Harvard ‘06), Vivek Ramaswamy (author of Woke, Inc., YLS ‘13), and Ron DeSantis (Yale ’01, HLS ’05) have all been prominent participants in his secretive Teneo network

The Political Economy of the University

But there is a still deeper problem, one that makes the university particularly vulnerable to these far-right incursions: the transformation of the political economy of higher education in America.

The real protectors of free speech on campus are structural: they are commitments to security of employment and protection from political retaliation, the resources and support for teachers and students to engage in critical inquiry together – not subsumed to the kinds of immediate demands that shape the marketplace or the profit motive – and the capacity to take ideas seriously and invite criticism in a spirit of openness. All of these have been under assault in the past several decades, as the ratio of untenured faculty has risen, as retrenchment in state funding has put vastly more of the costs of education onto learners, and as broader economic insecurity and debt have pushed students to think of themselves as human capital and their education as an “investment.” Universities have also made themselves enormously reliant on wealthy benefactors who sometimes successfully use their power directly to influence decisions on hiring, firing, and curriculum.

Every academic should read this recent article on the rapid erosion of interest in and support for higher education in America. Though conservatives like to blame this shift, like everything else, on whatever they call “wokeism,” the essay points to a far deeper truth. As students have had to bear more and more of the costs of their education, they have lost confidence that college is worth it – in part because its financial impact, particularly for students of limited means, and those who may not finish, may well be negative. Nor should we accept this shift as the inevitable result of changing economic forces or demographics: while in America college attendance is declining, in Europe, where students can still go to university for a few hundred dollars a year, or even for free, attendance has risen in recent years. 

Where is the program to address all of this? We should ask this of every aspiring university President and Dean – and of one another. Student debt organizing has been a rare bright spot. But we need much more. While Bernie proposed a schematic free college plan, there is very little serious discussion about how to refund public education, much less organized groups poised to deliver it. This is particularly ominous, because Trump has a new proposal of his own: a free online “American Academy,” paid for with a tax on elite universities, that would accept credits for past coursework and be a recognized credential for federal positions and contractors. 

Where, too, is the conversation about weaning universities from the precarious reliance some have on a small number of very wealthy donors? Or the bold new ideas for how to make our campuses more open to ordinary people? Could we build free new adult education programs on the model of the extraordinarily successful prison education programs, for example? Provide real support for more early-college high schools or other programs to improve K-12 education, and pave the path to universities for more students now locked out? Is it time to commit at least 90% of incoming slots at law schools and universities to students who graduated from public schools – to match the proportion of them in the country, and to reverse the massive bias toward wealthy prep school students at elite colleges today? Would new partnerships and degree programs between public and private universities help to spread the wealth? Or are there better ways to undo the vast resource inequalities between our academic institutions? Successfully expanding access to higher education in this country requires a focus on the state schools and community colleges that provide the vast majority of it, and also recognizing that the kind of loan forgiveness programs that liberals love will not work as well as commitments to free tuition for working class students.

Free speech at universities hangs in the balance, to be sure. But defending it will require much more than just resisting the assaults coming from billionaires and right-wing influencers. It will require reconnecting with the purposes and highest aims of the academy and building a political economy of higher education that can begin to truly deliver on them.