We often think of American universities as either public or private. Public universities are those that are effectively owned by a governmental entity, almost always a state. Private universities, at least the respectable ones, are nonprofit corporations, controlled by trustees who appoint a president as chief executive officer to run the university. We imagine that the president is responsible to the trustees, the trustees are responsible to nobody but themselves, and the university’s faculty has academic freedom and, as long as it avoids a few live wires, is accountable to nobody. Students, meanwhile, are treated as customers and temporary residents, free to study or protest, but with little say in the university’s governance.
But as I have argued elsewhere, it is more accurate to divide America’s universities into the public and the publicly privileged. The public ones are, as described above, owned by a government entity and operate with greater or lesser degrees of autonomy from that entity’s executive and legislative leadership. The publicly privileged universities are not publicly owned but benefit nonetheless from crucial privileges: almost all of them receive funding through a multitude of government programs, nonprofit universities can receive tax-deductible donations, and all of them benefit from the privilege of accreditation, the recognition of their degree programs by the state that enables their students to get student aid and student loans and ensures that their studies fit them for government-imposed professional qualifications. In addition, for foreigners who wish to study for university degrees in the United States, only by being accepted to an accredited school can they obtain the student visas that permit them to enter the U.S. and matriculate.
Of these publicly privileged universities, the oldest and most prestigious is the Ivy League, including the University of Pennsylvania, founded in 1740 by a group of Philadelphia’s worthiest citizens headed by none other than the incomparable Benjamin Franklin. But even in the Ivy League, the relation of the schools to the state is varied and complex. Harvard and Yale were kicked loose by Massachusetts and Connecticut, respectively, in the 19th century. In the same period, Columbia managed to get out from under the supervision of the Regents of the University of the State of New York, in which it is nominally included. Cornell, to this day, operates four state-funded “statutory colleges.”
The University of Pennsylvania, however, presents a complex case. Unlike its peers that more fully severed their ties to the state, Penn’s governing statutes contain a direct, if long-dormant, link to the government of the Commonwealth.
On December 5, 2023, Penn’s then-President Liz Magill appeared at a congressional hearing on “Holding Campus Leaders Accountable and Confronting Antisemitism” alongside Harvard’s now-former President Claudine Gay and MIT President Sally Kornbluth. When asked by Representative Elise Stefanik, “Specifically calling for the genocide of Jews, does that constitute bullying or harassment?” President Magill replied, “It is a context-dependent decision.” Pennsylvania’s Democratic governor Josh Shapiro said at the time that President Magill’s comments were “absolutely shameful” and stated regarding calling for the genocide of Jews “If that doesn’t violate the policies of Penn, well, there’s something wrong with the policies of Penn that the board needs to get on, or there’s a failure of leadership from the president, or both.” Shortly thereafter, President Magill resigned.
But Governor Shapiro did not stop with harsh words. For the first time in many decades, as Ben Dinday relates in a detailed article for the Chronicle of Higher Education, the Governor of the Commonwealth assumed his statutory role as President of Penn’s Board of Trustees. Governor Shapiro forced Penn to accept as his representative to the Board Robb Fox, a Penn alumnus, adjunct Penn law professor, and activist against antisemitism. Mr. Fox, Dinday reports, pressured the board with Governor Shapiro’s backing into banning Penn Students Against the Occupation of Palestine and deploying university and Philadelphia police to shut down a pro-Palestinian encampment.
The actions that Mr. Fox and Governor Shapiro forced on Penn raise many difficult and controversial questions about freedom of speech and about the role of universities in policing illegal expressive conduct and violent harassment.
But more importantly for understanding the possibilities for reform in American higher education is the opportunity Governor Shapiro seized to intervene. Dinday calls the statute that empowers the Governor of Pennsylvania to preside over Penn’s trustees “archaic,” but we should not be surprised that powers long disused have to be dusted off to meet unprecedented challenges. Apart from white resistance to desegregation, American campuses have never seen anything like the 2023–2024 wave of antisemitic intimidation. Vietnam-era protests targeted university administrations, military recruiters, and defense researchers, but they did not attempt systematically to cow faculty and staff or to bully or drive off campus students who had fought or who supported the war.
If university leaders and Democrat politicians do not want all credit for fighting the persecution of Jews on campus to be claimed by Education Secretary McMahon and other officials of the Trump Education and Justice Departments, they are going to have to use every jot of their own lawful powers.
UCLA, unlike Penn, is unarguably a public, that is, state-controlled, university. UCLA lost a lawsuit in federal court for allowing antisemitic protesters to exclude Jews from a portion of its campus. California Governor Gavin Newsom would be wise to look closely at UCLA’s subsequent actions. If those actions are insufficient to permit Jewish students and staff to study and work without fear or hostility in all parts and programs of the UCLA campus, the laws of California and the statutes of the University of California provide ample powers to the Governor and ex officio Regent Newsom to intervene.
It would be the right thing to do. Perhaps more relevantly, it is also smart politics. For Governor Newsom to be a credible contender in the 2028 presidential primaries, he must show centrist Democrats and swing voters that he recognizes the rot on campus. Proving he has the will to clean it out may be his most important test.