January 2014
A speech to the 55th reunion of the Harvard Law School class of 1958,
October 26, 2013.
I
graduated from Harvard Law School in 1967. Very early in my career, I
represented many students in Administrative Board cases growing out of their
protests against the Vietnam War. I represented (with Alan Dershowitz) one group
of students accused by the Administrative Board of harassment for closely
following the Harvard College Dean, Ernest May, 24 hours a day, chanting
"murderer, murderer, murderer." Wherever the dean walked in Cambridge, he was
followed. Dean May was consulting at the time for the Department of Defense.
This is why the students followed him and chanted.
The
College’s Ad Board acquitted the students on academic freedom/free speech
grounds, simply advising the students to keep a respectful distance from Dean
May when they followed him. This would never happen today. The definition of
"harassment" has very much swallowed up the concept of free speech and academic
freedom.
By
the mid-1980’s, I noticed a distinct change in the culture of free speech and
academic freedom throughout the entire country, but Harvard, and particularly
Harvard Law School, was a pioneer in the slow death of these virtues.
My
first public critique of the suppression of free speech at Harvard occurred in a
1996 Wall Street Journal op-ed, "Harvard
Law Caves In to the Censors." HLS adopted, for the first time in its
history, the Harvard Law School Sexual Harassment Guidelines, which deemed
certain unpleasant speech to constitute actionable "harassment." This grew out
of the publication of the annual Harvard Law Review April Fool’s Day
parody issue in 1992, the Harvard Law Revue. The satirical issue
contained the infamous Frug parody: Mary Joe Frug, feminist legal scholar at
Northeastern School of Law, was tragically and viciously murdered on the streets
of Cambridge in 1991. As a memorial tribute to Professor Frug, the Harvard
Law Review had published Professor Frug’s unfinished draft article on
feminist legal scholarship. The satirical Revue made fun of this piece in
a highly insensitive parody that contained a warning on the cover that it was
"highly insensitive."
Outrage was instant. HLS Dean Robert Clark at first resisted calls for
censorship, but finally caved in, as did all but three faculty members attending
the faculty meeting that approved adoption of the dean’s "Harvard Law School
Sexual Harassment Guidelines" that trenched on speech.
I
wrote a protest to Dean Clark. He responded:
"Thank you for your letter . . . about your thoughts
on the Harassment Guidelines. Your sentiments have been echoed in the faculty
chambers along with many others. This discussion is a sign of the times, as is
the need perceived among students that we have to discuss this or be seen as
uncaring of their concerns.
The
Guidelines remain in effect today. There cannot be another such parody at HLS
involving gender; nor has there been.
The
HarBusnewspaper ran a really
rather tame cartoon
in itsOct 28, 2002 issue, ridiculing the administration’s operation of
the HBS career office. Student editor-in-chief Nick Will was called to a meeting
with Steven Nelson, executive director of the MBA Program, HBS Career Officer
Matthew Merrick, HBS Senior Dean Walter Kester, and HBS Dean Kim Clark – all
over a cartoon! Nelson threatened the student editor with disciplinary action,
and so the editor resigned for fear of getting kicked out of the school.
The
Harvard Crimson
reported the story,
which is how we know about it. Dean Kim Clark told the Crimson:
"We do not want students to engage in discourse that hurts others," and the dean
added that the coverage violated "HBS Community Standards."Finally, The
HarBus News Corporation legal counsel opined that the criticism was "printable
according to free speech laws," according to the Crimson. The HBS
administrators retreated presumably in the face of legal advice.
I
need not go into great detail about the incident that triggered the resignation
of Larry Summers. Some say there were several reasons, including difficult
personality traits that grated on some of the more pampered faculty members, or
perhaps Summers’ adamantly expressed views about subjects on which he was not a
certified expert. But there can be no doubt that Summers’ widely-reported
remarks, at an academic conference held at Harvard on January 14, 2005, run by
the National Bureau of Economic Research, was the key precipitating factor that
led within a couple of weeks to his resignation after only some five years in
the President’s office.
What was Summers’ error? He suggested that genetic differences between the
sexes might in part account for women’s underrepresentation in math,
science, and engineering, and that research must be conducted to answer the hard
questions and devise remedies. He should have known, however, that in the modern
academy, it is no longer acceptable to speak honestly, even intelligently, about
gender, race, sexual identity, or any other issue that has already been
"decided" by entrenched orthodoxies – that these are no longer acceptable topics
for rational discussion and debate, much less scientific research. It did not
matter that Summers, in his speech, had actually called for research to be done
in this area. His merely suggesting the possibility of a genetic difference
between men and women in their ability to master certain fields was enough to
bring him down.
Harvard’s Richard Freeman, the economist whose invitation to Summers led to the
speech that triggered the tumult, was quoted in a January 23, 2005 article in
The New York Times
to say that he had invited Summers specifically to speak in his capacity
as a world-class economist rather than as an institutional leader, because,
explained Freeman, had Summers been invited in his role as university president,
"he would have given us the same type of babble that university
presidents give." (This Freeman quotation alone is a sad comment on what
has happened to our academic leaders.)
But
the faculty revolt that forced Summers out of the Harvard presidency had grave
consequences. The fact that the university president appeared to have been
forced out of office because he uttered a controversial opinion was not lost on
anyone in the Harvard community.
Stephanie Grace, 3L, had dinner with some classmates, at which the hot-button
issue of race and intelligence apparently came up. When she returned to her
room, she had some further thoughts that she emailed to the dinner participants.
Here are excerpts from what she said:
I absolutely do not rule out the possibility that
African Americans are, on average, genetically predisposed to be less
intelligent. I could also obviously be convinced that by controlling for the
right variables, we would see that they are, in fact, as intelligent as white
people under the same circumstances….
I also don’t think that there are no cultural
differences or that cultural differences are not likely the most important
sources of disparate test scores…. I would just like some scientific data to
disprove the genetic position, and it is often hard given difficult to quantify
cultural aspects…..
In conclusion, I think it is bad science to disagree
with a conclusion in your heart, and then try (unsuccessfully, so far at least)
to find data that will confirm what you want to be true. Everyone wants someone
to take 100 white infants and 100 African American ones and raise them in Disney
utopia and prove once and for all that we are all equal on every dimension, or
at least the really important ones like intelligence. I am merely not 100%
convinced that this is the case.
Please don’t pull a Larry Summers on me.
[Emphasis added.]
A
recipient of this email apparently forwarded the email to others – I don’t know
the precise route – but it eventually landed on the desk of Law Dean Martha
Minow. I do not know the details of whatever discussions Dean Minow had with 3L
Stephanie Grace, but the results of those discussions were evident in separate
messages disseminated, one by Ms. Grace and then one by Dean Minow, to the
entire HLS community. Herewith are excerpts:
Stephanie Grace, in her email to the Black Law Students Association:
I am deeply sorry for the pain caused by my email. I
never intended to cause any harm, and I am heartbroken and devastated by the
harm that has ensued. I would give anything to take it back.
I emphatically do not believe that African Americans
are genetically inferior in any way. I understand why my words expressing even a
doubt in that regard were and are offensive.
I would be grateful to have an opportunity to share
my thoughts and to apologize to you in person.
Even beforehand, I want to extend an apology to you
and to anyone else who has been hurt by my actions.
Dean Minow, in turn, sent an email message addressed "Dear members of the
Harvard Law School community." Here are excerpts from that email:
I am writing this morning to address an email
message in which one of our students suggested that black people are genetically
inferior to white people.
This sad and unfortunate incident prompts both
reflection and reassertion of important community principles and ideals. We seek
to encourage freedom of expression, but freedom of speech should be accompanied
by responsibility. This is a community dedicated to intellectual pursuit and
social justice. The circulation of one student’s comment does not reflect the
views of the school or the overwhelming majority of the members of this
community.
As news of the email emerged yesterday, I met with
the leaders of our Black Law Students Association to discuss how to address the
hurt that this has brought to this community…. A troubling event and its
reverberations can offer an opportunity to increase awareness, and to foster
dialogue and understanding. The BLSA leadership brought this view to our meeting
yesterday, and I share their wish to turn this moment into one that helps us
make progress in a community dedicated to fairness and justice.
Here at Harvard Law School, we are committed to
preventing degradation of any individual or group, including race-based
insensitivity or hostility. The particular comment in question unfortunately
resonates with old and hurtful misconceptions. As an educational institution, we
are especially dedicated to exposing to the light of inquiry false views about
individuals or groups.
I am heartened to see the apology written by the
student who authored the email, and to see her acknowledgment of the offense and
hurt that the comment engendered….
Sincerely,
Martha Minow
The emanations from these incidents showed up at the start of the academic year in
2011 in quite another context. Dean of Freshmen Thomas Dingman announced that a
"kindness pledge" would be posted in the entryway of every freshman residence
hall, and each member of the Class of 2015 would be asked to sign the oath on a
line designated for his or her signature. The pledge read, in part: "we commit
to upholding the values of the College and to making the entryway and Yard a
place where all can thrive and where the exercise of kindness holds a place on a
par with intellectual attainment."[Emphasis added.] The Oath would
remain posted in the entryway of each dorm all year, so that it would be
visible, for all to see who in the class presumably valued kindness and who did
not or, put another way, who was a good and righteous human being and who was
not.
Perhaps Dean Dingman was not prepared for the reaction that quickly followed.
Mind you, the "kindness oath" was aimed not just at influencing conduct, but at
pressuring freshmen to adopt Dean Dingman’s point-of-view on the relative
importance of kindness, versus academic achievement, at a liberal arts
institution of higher learning.
Most potently perhaps, Professor Harry Lewis, Gordon McKay Professor of Computer
Science, who served as Dean of Harvard College from 1995 until 2003,
severely criticized
Dean Dingman’s initiative, in Professor Lewis’ widely-read and highly-respected
blog, "Bits and Pieces." Professor Lewis expressed worry that such an initiative
would "set a terrible precedent." He noted that throughout its history, "Harvard
has a deep and ancient antipathy to pledges and oaths." Professor Lewis traced
this antipathy back to the very founding of Harvard College. More recently, he
noted, President Nathan Pusey "raised his voice in 1959 to object to US
legislation that would have demanded that certain scholarship recipients swear
to uphold the Constitution. Loyalty oaths, even ones affirming unexceptionable
principles, are, as Pusey put it, ‘odious.’"
Dean Dingman backed down. But the following year he had a surprise awaiting
incoming members of the Class of 2016. No pledge this time (that was too visible
to the administration’s critics), but, instead, without any public announcement
such as doomed the prior year’s attempt at freshmen thought reform, Dean Dingman
managed to slip a stealth attitudinal re-education program into Harvard’s
freshman orientation week. Harvard undergraduates are now instructed in
kindness, its belief and its practice, as a requirement, but this is done not in
public, but in private orientation sessions.No wonder Justice Brandeis
famously wrote: "sunlight is said to be the best of disinfectants."
[Note to the reader: The following section on the Swamy case was included in the
original typescript of the lecture, but was eliminated due to a lack of time
when the speech was orally delivered.]
This was the headline of
a Harvard Crimson
staff editorial that appeared on December 12, 2011. The paper
reported that a week earlier – on December 6th – "the Faculty of Arts
and Sciences voted by a large majority to exclude Indian economist Subramanian
Swamy’s course from this year’s Harvard Summer school offerings." I quote
further from the Crimson editorial:
The
proposal, brought forward by Comparative Religion Professor Diana L. Eck,
referenced Swamy’s inflammatory op-ed published last year in the Indian
newspaper Daily News and Analysis. In the piece, Swamy calls for the destruction
of mosques as retaliation for terrorist attacks in India, as well as the
disenfranchisement of Indian Muslims who refuse to acknowledge Hindu ancestry.
Swamy’s op-ed clearly constitutes hate speech, by even the most lenient
definition. As a matter of principle, there is no place for hate speech in the
Harvard community. Regardless of whether Swamy’s article actually has the
ability to incite violence, the worthless, hateful bile contained therein itself
ought to disqualify the man from teaching at our University. The faculty’s
decision to remove Swamy from the teaching roster was wise, just, and
reasonable."
After going on for a while in this vein, the Crimson editorial concludes:
"The Harvard community has an obligation to maintain
a minimum standard of decency among its members. Those who stand for bigotry,
hatred, and violence have no place instructing students or wearing the Harvard
name. We commend the faculty for their principled decision."
Why
am I so disturbed by this editorial, written by Harvard undergraduate
journalists? Well, in the past the Crimson tended to be a bastion of
support for free speech and academic freedom. But we see, in this editorial,
student journalists’ supporting the faculty’s censorship based entirely upon a
professor’s expression, in an off-campus venue in his native country, of views
deemed unacceptable at Harvard.
It
is Harvard Yard that has become dangerous for the dissenting voice, in contrast
to Harvard Square where anything goes. Surely this is a clarion call for us
alumni. It is a rather large canary uttering a warning in our academic coal
mine.
Harvey Silverglate, a Boston criminal defense and civil liberties
lawyer and writer, is the co-founder and Chairman of the Board of Directors of
The Foundation for Individual Rights in Education (www.thefire.org). He
co-authored The Shadow University: The Betrayal of
Liberty on America’s Campuses.
Minding the Campus, November 3, 2013
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