Be Fair, Harvard

In theory, e-mail should make it easier to organize for social and political change. But, as recent events in my campaign as a petition candidate for Harvard’s Board of Overseers have shown, new means of communication can be used to relegate would-be reformers of the academy to dead-ends, and to keep the outsiders outside. If I might make a rough analogy to the familiar Star Wars trilogy: My initial undertaking of my petition candidacy, along with my fellow petition candidate Robert Freedman, has been followed by the second phase of the trilogy, namely The Empire Strikes Back. Freedman and I are now working to get to the third installment, Return of the Jedi. But I’m getting a bit ahead of the story.
I should not feel like an outsider – much less a barbarian knocking on Harvard’s gates, seeking a place at the table – but I can’t help feeling that I’m being treated like one. After all, I came to Cambridge in 1964, attended my law school classes with due attention (especially given the fact that I had to work full-time to support myself, my mother and younger brother after the sudden death of my father while I was a senior at Princeton), received my LL.B. in 1967, and remained in Cambridge to marry and live and to practice law in Boston. During that time, I became a legal affiliate-in-law at one of Harvard College’s undergraduate houses, where I still give unpaid “pre-law table” discussions once each semester. I’ve judged moot court arguments at Harvard Law School. I taught a course at the law school during a sabbatical-from-practice that I took in the mid-1980s. I’ve lectured to many an undergraduate class. And I continue to advise Harvard students, and even an occasional faculty member, when they get into trouble (with Harvard, as well as with the outside “real world”). Now, I’m running as a petition candidate for Harvard’s Board of Overseers, the university’s second most powerful governing body.
So why do I feel like an outsider?

In higher education today – and Harvard is no exception – anyone who disagrees with the prevailing ethos is deemed a threat and treated as an outsider. This has been true for quite some time in terms of academic disciplines, where post-modern approaches to the liberal arts brook little criticism. (The hard sciences have been less affected, and for good reason: Science and prescribed orthodoxies simply do not go together.) An intolerant and authoritarian approach to student disciplinary matters and to a broad range of student behavior – including enactment and enforcement of speech codes – crept in during the 1980s and remains enthroned. This caused Professor Alan Charles Kors and me to publish, in 1998, our book The Shadow University: The Betrayal of Liberty on America’s Campuses (paperback from HarperPerennial, 1999), after which we co-founded The Foundation for Individual Rights in Education (FIRE).
But recently I have endured yet another example – and another lesson – in how the entrenched leadership of our colleges and universities uses whatever tools are at their disposal to contain criticism from those who dissent from the reigning orthodoxies. The tool of which I speak is the administration’s control over the email lists by which anyone can, rapidly and with minimal expense, communicate with virtually an entire alumni body. It is a tool containing vast reform (if not outright subversive) potential, but also the potential for increased institutional control.
For a couple of years, I have had the honor and pleasure to represent Thurman J. “T.J.” Rodgers, a prominent and successful businessman (and libertarian) who undertook a run as an alumni-nominated petition candidate for Dartmouth’s Board of Trustees. I will not recount here the full, sad saga of the war that the entrenched Dartmouth administration and majority of its Board of Trustees have waged – largely successfully so far – against the presence, on Dartmouth’s Board, of independent-minded “alumni petition trustees”. But, briefly stated: For over a century, there had been in place a contractual agreement guaranteeing Dartmouth’s alumni the power to elect half of the college’s Board of Trustees. But through a series of deft maneuvers, that agreement has recently been severely undermined, and the administration, along with the pro-administration group of “charter trustees” (a self-perpetuating body, not nominated by the alumni), has wrested complete, unfettered control over the college. The majority’s dismissal in early April of an alumni-elected member of the Board, Professor Todd J. Zywicki, was recently recounted by Rodgers, who remains on the Board as one of that body’s dwindling contingent of independent voices of the alumni. (Caveat: I speak for myself in this article, not for my client Rodgers.)
Inspired by T.J., I joined with Harvard College (Class of 1962) alumnus Robert L. Freedman of Philadelphia, and we – one political liberal and one political conservative – launched a joint run as petition candidates for Harvard’s Board of Overseers. The Board is one of Harvard’s governing bodies, second in power only to the President and Fellows of Harvard College, a self-perpetuating body of six lifetime members plus the president of the University. (In an oddity of history, the Board of Overseers, although an older body than the President and Fellows, is less powerful.)
Freedman and I secured the signatures of over 250 alumni on our respective nominating petitions and, according to the clear rules, we had to be, and were, placed on the Overseers ballots. Mailed in early April to Harvard’s approximately 340,000 living alumni, the ballot contained a total of eight officially nominated (by the Administration-friendly Harvard Alumni Association) candidates, plus Freedman and me, for six places open on the 30-member Board.
Unlike Dartmouth before its Board’s machinations to change the rules, petition candidates have not fared well in Harvard’s recent history. In fact, two decades have passed since a petition candidate last gained an Overseers seat. South African Archbishop Desmond Tutu undertook a petition candidate’s run in 1989 on a platform calling for Harvard to divest from securities of companies that did business with South Africa, then governed by an all-white apartheid government. He won a seat. Two years later, a recent Harvard Law School grad named Barack Obama secured a petition place on the ballot, also on a divestment platform. By then, however, the university had changed the election rules ever so slightly… but importantly. When the ballot appeared, all of the officially named Alumni Association-nominated candidates were listed at the top of the ballot, and Obama was listed at the very end, in the “petition candidate” category. Alumni in a hurry would not likely get to the end of the ballot before exercising their allowed number of votes. Obama lost. (Presumably, a decade and a half later, Obama had learned how to protect himself from ballot manipulation by entrenched authority! Harvard, it seems, offered useful lessons for later dealing with Chicago-style politics!)
Already at a disadvantage because of ballot placement, Freedman and I had to work even harder. We launched a real campaign, gaining some attention in the university press and in the national press. We thought we were effectively getting our message of reform across, even without access to the alumni email addresses that were maintained by the university but not made available to outsiders.
Two weeks ago, however, I – and apparently every other Harvard-degree holder – received an email from the President of the current Board of Overseers, Roger W. Ferguson, Jr. In his April 15 message, he praised the HAA’s “efforts to keep Harvard’s hundreds of thousands of alumni engaged with the University.” He also urged all alumni to vote:
The Board functions with a remarkable mix of candor and collegiality that is rare in my experience. Its discussions feature a combination of persistent probing and deep concern for Harvard’s long-term well-being that makes it an invaluable resource for the University. Especially at a moment of unusual challenge for universities, in view of the global economic crisis, I hope you will cast your ballot.
Embedded in Ferguson’s message was a plea for “collegiality” and, it seemed to me and some others who read it, a subtle request that alumni vote for the official HAA candidates rather than the upstart petition candidates. But I could not be certain that Ferguson was in fact seeking to put his thumb on the scale, and so I responded directly. I suggested that his message was a bit one-sided, and I asked for access to the same email list he had used, and I went on to explain:
I read your email to all alumni and alumnae with great interest. I’ve been an alumnus of the Law School since 1967, and I cannot recall ever receiving another such message, much less from the president of the Overseers. I note with even greater interest your emphasis on a “mix of candor and collegiality.” I wonder if perhaps in recent years the latter has overwhelmed the former, and whether some of the university’s problems (and problems in other institutions of higher education) have been exacerbated by the reluctance of those in positions of influence and authority to be entirely candid about the direction the university has been taking. In short, has a crimped definition of “fiduciary duty” emphasized withholding public criticism and dissent, and promoted “going along in order to get along”?
Ferguson’s reply made it clear to me that he and his cohorts, including the entrenched Harvard Administration, were adamant about maintaining their control over the means of communication with alumni:

I appreciate your question about having a message from you sent to alumni by way of the University’s e-mail list. That is not an avenue made available to any of the candidates for Overseer or HAA elected director, whether running as nominees of the HAA nominating committee or by petition. All candidates have the opportunity to present themselves through 250-word statements accompanying the ballot, and those statements have also been posted at http://www.harvard.edu/alumni/candidates_overseers.php.

This was not the first time I’d noticed the importance, to the administration, of its control over the means of communication to alumni (and even to students). I had written a November 2006 article that referenced the Harvard Law School administration’s successful efforts to replace the student-edited Harvard Law Record with the administration-edited Harvard Law School Bulletin. This, I said, was a sign of the “corporatization of the academy.” Little did I know then that I was understating the case. Even on a matter as important as the alumni elections for the Board of Overseers, the administration – not the candidates – are alone privy to direct communication with voters. And, interestingly, at Dartmouth, none of the petition alumni candidates for the Board of Trustees was ever allowed use of Dartmouth’s email list of alumni so as to send out their campaign messages to the electorate, all the while the entrenched powers-that-be used the list to communicate their own messages favoring the establishment.
As goes Dartmouth, so goes Harvard. And elsewhere in the academic world the same picture prevails. Alumni, students, parents, and the general public are barraged with fund-raising and self-congratulatory propaganda, but are unable to employ these same modes of inexpensive mass communication in order to mobilize for change – or send out any other mass message, for that matter – at their respective institutions.
And just as I completed the first draft of this blog entry, I received in the mail my May-June 2009 issue of Harvard Magazine, the university’s self-proclaimed independent bi-monthly for alumni. I turned to the “John Harvard’s Journal” feature that appears in every issue. There I found a “Cast Your Vote” admonition, followed by a note that “the official candidates’ names appear in ballot order below, as determined by lot.” And, indeed, all of the official Harvard Alumni Association nominees are listed. Then there is the afterthought: “In addition, two alumni have qualified to run as petition candidates,” and Freedman and I are listed. Suffering the same treatment accorded Obama, we were not included in the lottery that determined the order in which the official candidates were listed; we followed at the end of the bus.
Even more startling, however, was a full-page color advertisement that appeared on page 21 of the issue. “VOTE For the HARVARD ALUMNI ASSOCIATION SLATE for Board of Overseers,” commanded the ad text. The eight official candidates were then listed. Nowhere in sight were the names of the two petition candidates. At the bottom, was a notation that “this advertisement was paid for by Charles J. Egan Jr., ’54, President of the Harvard Alumni Association, 1989-1990; co-chair of the Harvard College Fund, 2000-2003.” I asked my research assistant Kyle to ascertain the cost of a full-page color ad in Harvard Magazine. He informed me that the listed cost is a hefty $18,360! (I wonder if Mr. Egan was given a courtesy discount!)
Bob Freedman’s and my campaign for the Harvard Board of Oversees thus remains an uphill, but eminently worthwhile battle. I have already informed Board President Ferguson – by email, of course – that if I’m elected to the Board, one of the first issues I plan to raise is the monopoly maintained by the Harvard establishment over the messages sent out to alumni via the email list.