Campus bigwigs displayed legal caution instead of compassion, embarrassing themselves in the process

Businesspeople know that lawyers too often kill business deals. For that reason, in my own business deals, I often tell my commercial lawyer to stick to drafting the terms I provide and offer no insight whatsoever.

Or, at the very least, if they perceive an issue, remain silent at the table and speak about it only to me so that I can decide whether it is worth bringing up or whether it will raise disproportionate hackles in response.

Why is this? It is the same reason that half of those couples who choose to negotiate marriage contracts never end up married.

Their lawyers imagine every possible perfidy which must be accounted for and therefore resolved in advance, however miniscule the prospect of that contingency actually occurring. Lawyers are motivated to do so by the fear that, if they don’t and the contingency arises, they might be sued in negligence for not foreseeing and forestalling that possibility. Of course, trying to resolve such issues, which were never contemplated in the first place, in an adversarial environment creates new points of conflict which drive the parties apart. It also kills the enthusiasm and blue-skying conducive to entrepreneurship.

That focus on risk-minimization makes lawyers vocationally indisposed to see the bigger picture.

That is obviously not true of all lawyers and there are many deal-making specialists — Albert Gnat and Purdy Crawford, for two, during my career — who rise above that narrow prism and use their experience to display to their clients opportunities previously not conceived. Farsighted rather than near. But they are rarities.

This came to mind when viewing the congressional testimony of the presidents of Harvard, MIT and the University of Pennsylvania last week. All three had had their preparations with the same D.C.-based law firm, WilmerHale. Their testimony seemed canned, rehearsed and entirely myopic. In refusing to agree that calling for the genocide of Jews violates their codes of conduct, codes which, until that moment, deemed mere microaggressions (making someone feel merely uncomfortable for the uninitiated) to be a disciplinable offense, they lost sight of the how their words would be perceived and the contradiction in how their codes had been interpreted up until then.

Forgetting that their actual codes had become so draconian that they did not permit free speech to even offend — Harvard came last out of 248 Universities in the College Free Speech Rankings and the University of Pennsylvania, second last — they overfocused on free speech in their presentations to such an extent that they lost sight of what a moral outrage, as well as how hypocritical, their testimony so obviously was. Their predictable apologies (like those of a certain Prime Minister) were too obviously opportunistic to convince anyone.

They forgot that giving public testimony watched by millions has far more to do with displaying wisdom, compassion and big-picture idealism (all with appropriate sound bites) than providing legalistic First Amendment answers, particularly answers that did not match their actual practises.

Steven Davidoff Solomon, a professor at the University of California, Berkeley, school of law said that the college presidents appeared to be “prepared to give answers in the court — and not a public forum.”

But the responsibility of university presidents, Solomon said, is “not to give legal answers, it’s to give the vision of the university.”

American law professor Alan Dershowitz also weighed in.

“They also forgot the obvious hypocrisy with which their answers would be viewed given the obvious prostration before Black Lives Matter and Muslim issues relative to their stating that there might be no repercussions for campus calls for the extinction of Jews,” he said.

“In recent years, many universities have selected as their presidents woke, progressive cowards who pander to the most extreme and vocal left-wing students and professors. They are the wrong people, at the wrong time, to be leading American educational institutions. Just as many of these new university presidents were selected for symbolism, so too should they be dismissed for symbolism.”

As the backlash against Diversity, Equity and Inclusion (DEI) initiatives has grown in the U.S., the rise of anti-Semitism promoted by some of the biggest DEI supporting groups has created an obvious sense of hypocrisy for which many of these groups are now being rightly attacked.

According to the research firm Revelio Labs, one in three U.S. DEI professionals lost their job in 2022.

A recent article in Forbes also pointed out that corporate DEI budgets are being slashed, DEI consultancies are shutting down and DEI initiatives are being attacked at many levels — including the recent Supreme Court decision to strike down Affirmative Action.

The outburst of anti-Semitism here, south of the border and in Europe, coupled with the hapless presentations by the presidents of three of the world’s most prestigious universities, has demonstrated to the majority that the woke support for diversity is a shibboleth or, as the placards state, “Me Too — Unless you’re a Jew.”

The university presidents’ lawyers, rather than focusing on protecting what passes for free speech on campus, should have understood the landscape the Congressional hearings presented and prepared the presidents accordingly. Their singular focus on risk-mitigation respecting freedom of speech blinded them to the absolutely obvious acknowledgement that calling for the murder of all jews violated campus harassment codes. The present climate is such that they were apparently blind to that.

But does anyone doubt for a second that, if they had been asked whether calling for the murder of all blacks, Muslims or any other group was permissible, they would have provided the same answers?