The slow death of free speech at Harvard

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.

The Harvard Law sexual harassment guidelines, 1996

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.

Censorship of The Harbus, November 2002

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.

The resignation of Lawrence Summers, 2005

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.

A student's private email on race and intelligence, April 2012

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....


Martha Minow

The Harvard College Class of 2015 "Kindness" Pledge

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.]

So Long Swamy: No room for hate rhetoric here

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.