This is the text of a speech given March 28, 2012 at a Manhattan Institute luncheon in New York City.
I began representing students in 1969. A group of Harvard students took over University Hall in an anti-Vietnam War protest. There was a lot of violence, President Pusey called in the police, and 220 students were charged with trespass on the property of the President and Fellows of Harvard College. My law partners and I took the case, and they tried them in groups of 20 students at a time. Much to the consternation of the President and Fellows, and the district attorney of Middlesex County, the jury said not guilty to the first group. So they gave up the rest of the cases. They figured if the jury wouldn’t convict the first 20, they’re not going to convict the rest.
And that got me interested in this whole area. And two years later,
in 1971, I had my first student disciplinary case in front of the now
feared Harvard Administrative Board. That’s the disciplinary body. And
it was a rather interesting case, and I want you to see where I’m
coming from, what I experienced at the beginning of my career. And then
I’ll tell you a little bit about the last 20 years.
No More Lawyers
So here we are in front of the Harvard Administrative Board. I was
sitting in there, because in those days they allowed lawyers in the
room. They no longer do. After they lost a few cases, they decided to
get rid of the lawyers. [LAUGHTER] And here’s the charge: My clients, a
group of Harvard undergraduates, were charged with following around Dean
Ernest May, who’s still at Harvard by the way, he’s at the Kennedy School.
The students followed Dean Ernest May closely, chanting “murderer,
May was a consultant to the Department of Defense, in addition to
having his Harvard hat. And the students considered him a war criminal,
part of the group that brought us the Vietnam War, and they organized
so that when Dean May left his house in the morning, there was a group
of three or four undergraduates waiting for him. They staked out the
house the entire night. And undergraduates could do that, because
there’s such a thing called pizza. [LAUGHTER] And they would follow
him through the streets of Cambridge to his class or his office, or
wherever Dean May was going. And they would chant rhythmically,
“murderer, murderer, murderer,” until he got to his destination. When
he came out of class, they would follow him again to what his next
appointment was, chanting “murderer, murderer, murderer.” They had
enough kids doing this, so that they covered him 24 hours a day. And he
filed charges with the Ad Board, saying that this was harassment. And
the Ad Board acquitted the students on the ground that this was an
exercise in the kind of free speech that we should be accustomed to on a
university campus. They only insisted that there be a decent number of
feet behind Dean May, so they weren’t actually chanting in his ear.
But as long as they kept a respectable distance, they could chant and
follow him all they wanted.
The Students Won–It Wouldn’t Happen Now
That is an extraordinary outcome, and I have to say it didn’t have
that much to do with me. It had to do with the students who really
defended themselves. And members of the Ad Board who actually had great
respect for the ethos of that campus, as it was then. It is not like that now. They felt that this is a place where students should be able to exercise this kind
of speech, even if Dean May didn’t like it. And he was not just a
faculty member. He was a dean. In those days, deans actually taught.
They actually did something. [LAUGHTER] And you know, he was a higher
up. And the students prevailed. That would never, trust me, ever, ever
happen today at Harvard, or in 98% of the other universities that
you’ve heard of. And not because they have great respect for faculty
members. They really don’t, if you really analyze it. But because they
have no respect for the speech rights of students.
And now we’re going to fast forward to a few more recent events. In
November, 2009, something happened at the Harvard Law School that
has not gotten sufficient publicity, and I think not because we haven’t
tried, but because these things are becoming so commonplace, that
they’re no longer news. This is not man bites dog. These are just
ordinary dog bites man stories on campuses.
Dean Minow Gets It Wrong
A Harvard law student named Stephanie Grace was having a private
dinner with some other students, and there was a discussion about race
and intelligence, correlations between race and intelligence. And at
the end, after the dinner, she sent around an email to the people who
were at the dinner clarifying some of her remarks. And she said, you
know, I really would like to see some research done on the issue of
whether there is a correlation between race and intelligence. It’s a
hot-button issue, and research is not encouraged in this area. And she
said, it’s really too bad, because I think there are unanswered
questions that scientific research could probably answer. And she said,
hey, it’s an uncomfortable thought, but I really think it should be
done. That email was forwarded by one of the people at the dinner to
the Harvard Black Students Association, who then forwarded it to the
dean of the law school, Martha Minow. And Dean Minow issued what she
called a letter to the community, which means it went to all Harvard law
students and faculty members and administrators, in which she
excoriated this student for even suggesting that research should be done
on this sort of hot button issue of race and intelligence. And in the
course of sending out the email, she actually mischaracterized this
student’s email. She said, this student has suggested that black people
are inferior intellectually to white people. It was no such thing.
You just had to read what the student wrote. She was basically saying
what Larry Summers had said about the connections, if any, between, a
correlation between women and science. For that, he got bounced from
the presidency. And so she writes, the dean writes this letter
excoriating the student, saying that, you know, well, you know, it’s
true that there’s supposed to be a search for ideas, but there are
limitations. You know, there are certain civility limitations.
Civility limitations, she says on it, discussing these kinds of issues.
And we are all upset at the hurt. That’s another, if I ever hear the
word hurt again. [LAUGHTER] The hurt inflicted on some of our
students. You’re not supposed to say anything that might upset anybody
in a university. You’re not even talking undergraduates here. You’re
talking law school. And the dean then says ominously, it’s a good thing
that she apologized. The hint being, anybody who says anything this
politically incorrect, either has to be prepared to apologize, or suffer
the wrath of whatever the wrath is. Of course, a threat is more potent
when you don’t tell them exactly what’s going to happen to them. You
just make it clear that it won’t be pleasant.
I wrote a letter to the dean. I also wrote to the governing boards
of Harvard, suggesting this was a firing offense for the dean, that she
should be taken out of the deanship. [APPLAUSE] I was not prepared to
say that she should be fired, because she had tenure. And I think that
even a dean can say the stupidest thing in the world. I think tenure is
tenure. I was willing to let her–I was willing to let her–[LAUGHTER] continue to teach. But I thought that she should not be the
dean. I wrote the dean a letter. I never got a response. And that’s
really interesting that she wouldn’t even answer me.
It’s Not Just the Hot-Button Cases
In 2010, there was another little case. You would not have heard of
it. There was a little case where I advised a student. But it is
indicative of what has happened to these disciplinary bodies. A student
was charged by the Ad Board with having a party in the dorm without
registering the party with the dean’s office. Yes, this is Harvard
College now–we’re going down to the kiddies. We’re getting away from
the law school. And so he’s charged, and he comes over to me for some
advice. And I said, well, let me see. What’s the documentation? So he
showed me an email, an email that he sent to the suitemate who was
actually the one who was making the arrangements. And my client wrote
this email and said, now, remember, there are regulations here, which by
the way, there weren’t decades ago, but there are now, because the
deans have taken over every aspect of student life. And you had to
register this with the dean’s office. The kid wrote back to my client
and said, don’t worry about it. I’ll take care of it. I will register
this party. And then he didn’t do it. Just forgot. It’s such an absurd
requirement, it’s very easy to forget some of these things that the
administration makes up in order to employ more deans. [LAUGHTER]
So I said to my client, well, I know the Ad Board’s not the fairest
tribunal in the world. But surely you show this to the Board, you’re
going to be acquitted. You’ve got it in writing that you reminded him
to do this. He didn’t do it. So he showed it, and he came back to me
and said, I got convicted. I said, how could you get convicted? And he
said, they told me that this was not a judicial tribunal–it was an
educational tribunal, and I’ve learned a lesson. [LAUGHTER] Now, I
wouldn’t have believed my client, except that I’ve heard this very
frequently from clients. You’ve learned the lesson. You know what the
lesson is? To hate the deans, to hate the whole system. That’s the
lesson. And not to write a check when you graduate to the institution.
That’s the lesson.
Now, lest you think that only Harvard and Yale suffer from this
sickness, I’m going to take two minutes to just remind you of a case
that I wrote about in an op-ed in the Wall Street Journal, a case at the
University of North Dakota. A student named Caleb Warner was charged
with essentially raping a female undergraduate with whom he had a
relationship. It was a serious charge. The university convicted the
student of sexual assault and threw him out. He would have to reapply
to get in. But because the police had heard about it, they did an
investigation. They looked at the email traffic between the man and the
woman, and the police charged the woman with filing a false rape
report, because the email traffic made it very clear that she invited
him, that the whole thing was her idea. She was really into it, and
there wasn’t a scintilla of evidence that this was a sexual assault.
They actually charged the woman. And when the guy saw that the woman
had been charged by the police on the basis of these emails that were
uncovered, he applied to the university for reconsideration of his
conviction, and they deny reconsideration, despite this news, and the
fact that she’s now been charged with the crime of filing a false
report. Now, I was not shocked by that, because it was just like the
case at Harvard. Oh, it’s a learning experience. It’s got nothing to
do with facts. It’s got nothing to do with truth. It’s got to do with
the fact that you really have to learn a lesson. What is the lesson?
Tell me what the lesson is. The lesson seems always the same. And this
is what these tribunals have become all over the country.
Facts and Rules Don’t Seem to Matter
You haven’t seen kangaroo courts until you have seen these student
tribunals. And by the way, it hardly matters what rules they operate
under. You might say, well, what’s the standard to convict? It doesn’t
matter. You could have reasonable, beyond a reasonable doubt. They
will convict because it is in their nature. Now, sometimes these are
political cases, like the rape cases are invariably political. But
sometimes not. A student registering a student party. That’s not a
hot-button political issue. But it is in the nature of these
institutions to ignore facts, to ignore logic, to not look at evidence,
to look at where they want the outcome to be. That is the sickness of
these colleges and universities. But most of the cases I get do involve hot-button
issues involving gender and race and sexual orientation. Not all of
them do. The simplest case can come out with a bizarre conclusion
because some administrator decided that he wants to teach the student a
And so we do have to get rid of speech codes. We do have to get rid
of kangaroo courts. But I have to tell you, you can make all the
changes in the world. You can change these institutions, and you’re not
going to change the result until you have changed the culture, the
culture of American institutions of higher learning. Without a change
in the culture, all the other reforms are just rearranging the deck
chairs on the Titanic. And I’m sure, as KC Johnson says, Yale is
beyond. Yale is beyond the need to just change the standard of proof,
the institution. There’s got to be a vast cleaning out of the
administration and a vast change even of the governing boards. The
governing boards are interesting, because very few if any of them know
what’s really going on. The administrations have really taken over the
governing boards. They set their agendas. They give them all the
information that they are entitled to. And so the governing boards have
very little sense of what’s really going on in the institutions that
they supposedly govern.
And I’ll conclude with just telling a story that I told a few people
at the table a little while ago, and that is, I ran for the second most
powerful governing board at Harvard, the Board of Overseers. This was
two years ago. I decided it was time to put up or shut up. And so I
ran a petition candidacy. I got enough signatures to get on the ballot.
Harvard was, of course, horrified at this notion. [LAUGHTER] And I
started getting a lot of publicity, actually, the Boston Globe and the
Herald and the radio. And Harvard struck back. And what Harvard did
was, they sent out a communication to all, some 350,000 living alumni,
an email communication, from the president of the Board of Overseers
talking about what a wonderful official slate they were running.
[LAUGHTER] All the time and energy that they put into this slate, all
of the candidates on the official slate are supportive of the
university. And then at the very end said, oh, yes, there also are a
couple of petition candidates.
The System Has to Change
And I wrote him an email, and I said, I notice that you sent out to
all of the living alumni, and presumably some of the dead ones
[LAUGHTER], you sent out this little letter about the election, and I
notice you didn’t say very much about me. I have a few things to say,
actually, to the voters. And so I am giving you a little paragraph, no
longer, it’s no longer than the paragraph you sent out, extolling the
official candidates. So I’d like you to send out another letter as a
little supplement and tell them this is what Silverglate has to say
about why he’s running. I get back, my first request was, send me the
list, and I’ll send them out. I get back a letter saying, oh, no, no,
we never give out this list. I knew that was coming. I said, oh,
that’s OK, you send it out for me. I’m deputizing you. Send it out for
me. He writes back and says, no, we really can’t, because we don’t use
the list for these kinds of purposes. [LAUGHTER] That’s what he said.
And at that point, I realized the next time I run, and my wife’s going
to kill me if I do run, but the next time I run, I want to have a list
of the electorate, and I want to let them know what’s being done at the
institution that they’ve graduated from.
I believe they will be shocked, because it isn’t the same place.
Anybody who went there more than 20 years ago, or 25 years ago, will not
recognize the place. And this is not just Harvard. This is not just
Yale. This is all over the country. We have got to figure out a way to
change the culture, because the culture has become very rotten.
Harvey A. Silverglate, a Boston lawyer, is the co-founder and
Chairman of the Board of The Foundation for Individual Rights in
Education (FIRE), and the co-author, with Alan Charles Kors, of “The
Shadow University: The Betrayal of Liberty on America’s Campuses.”
13 thoughts on “Misconduct Hearings on Campus Are Rotten and Have to Change”
This explains ALOT.
May and Grace. Count on Harvard to get it wrong BOTH times.
Perhaps a group of students should organize and pursue the notoriously sensitive Henry Louis Gates chanting “token, token, token” just to see what happens and then cite the May case a precedent.
As you well know, in either case, it all depends on what is contemporaneously politically correct.
“But it is in the nature of these institutions to ignore facts, to ignore logic, to not look at evidence, to look at where they want the outcome to be”.
Applause ! Great line !
In my decades at a so-called respected private institution of higher learning ,it is clear that the desired “outcome” is the first and only consideration for any committee – student or otherwise. Members are almost always selected for their willingness to support whatever agenda (and decision) is handed to them with subsequent meetings being used merely to roll out that decision and also to highlight the proverbial “teaching moments” so highly valued in academia.
And there will be a photograph to document the proceedings, which shows the chair person pointing sternly at someone with that unmistakable look of righteous authority. Within hours the photo, along a fawning article, will be published on the Web site, maybe even with a “breaking news” auto-mail to the entire campus.
What *is* highly valued are discussions on how to insulate administration from potential criticism and how to minimize and redirect any existing scrutiny. In my experience the driving philosophy behind many committees relating to any serious problem is to find the most direct path to “making it go away as soon as possible”. (An actual quote from a senior administrator).
Very good speech. Glad to see there are still defenders of free speech on campus.
One factor you did not mention but perhaps should have. The students you mentioned in the 60’s, who ended up having their speech rights protected, were making speech from the left. But most of the students nailed in these speech situations today are making statements from the right or middle. And I have noticed that muslims can say whatever vile things they want about jews, and leftists can say any vile thing they want about conservatives, and nothing happens, but god help them if they offend anybody on the left, or any black, muslim, or gay. This leads me to conclude that leftists support free speech for other leftists, but not for anybody else.
About 1995, my alma mater, Kenyon College, which went coed about 1970, decided it was unfair that younger female alumnae weren’t getting elected to the Board of Trustees. Their solution was to assume for themselves the right to appoint trustees. I asked that my name be removed from the alumni mailing list so that I would save them the expense of soliciting donations that I was never going to give them. I think if more alumni followed this course, the better it will be for everyone.
Sadly, I agree with the undercurrent here, and am sad for it.
The Western educational system is promoting, contrary to the free-thought and -exchange that is required of actual education and learning, an ideological gulag of sorts.
Then again, what do we expect of a system that takes A HOUSE worth’s of buy-in to be “in” (e.g. earning a PhD) and then expects these experts to become “adjunct” faculty or “lecturers.” “Adjunct” and “Lecturer” are titles given simply because “Indentured Servant” is too hard on the ears.
It’s a sad thing to see the West go through, shedding our intellectual identity. No, it’s worse than this–I doubt most in the system under about 50 years of age would even have the foggiest notion of just WHAT this intellectual identity and ancestry entailed.
At my university I was walking across campus late one night when I pass a bunch of Fraternity members who were partying in the middle of campus. They decided to surround me, throw me to the ground, and punch me in the head. After a few minutes the campus police showed up and told me to either leave or be arrested. When I met with the police chief the next day, I was told the only thing I could do was have some sort of tribunal (untrue, they could have been charge with a real c rime by the real district attorney). At the tribunal (which was run by my teachers and administrators) all the guys who beat me up lied and said I just came up to them and attacked them. I was ordered by my University to pay them all money or not be allowed to graduate. Oh, also, when they informed the other students that I was “charging them with a crime” they sent the students all of my personal information, including my social security number and address, so they just sent a few of their frat friends over to my house to ask me how I could feel safe on campus after accusing their Fraternity of something. It was a scary year.
“… it isn’t the same place. Anybody who went there more than 20 years ago, or 25 years ago, will not recognize the place. And this is not just Harvard. This is not just Yale. This is all over the country. We have got to figure out a way to change the culture, because the culture has become very rotten.”
But Harvey Silverglate should be able to figure out how to change the culture of universities, because he has already helped to do so once. His article starts out explaining exactly that. It used to be the case that students could get into trouble by taking over and occupying property they had no right to, or by performing extreme acts of harassment. But Silverglate helped to change all that, and helped to give control over universities to these monsters. And so now students get into trouble by simple polite exchange of ideas.
I have great respect for the work Silverglate has been doing recently. But it appears that he has much to atone for.
The irony of all this is that the students who followed the dean around back in the early ’70s, chanting “murderer,” are now the same fascists responsible for the problems that so concern (and rightfully so) Mr. Silverglate. The first inclination of the left is to “silence” any and all opposition – preferably in the crib. Free speech for me but not for thee!
I have to wonder if a threat to charge abusive boards under 18 USC 241 might not work here, at least in those institutions where there’s a government tie-in. Even reading the law’s first paragraph to a board before it started its deliberations might concentrate their minds wonderfully.
!8 USC 241, excerpted:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same… They shall be fined under this title or imprisoned not more than
ten years, or both….”
This is what courts look like when they are unmoored from the concept of individual rights. Show trials. Red Queen type nonsense. Little bastions of tyranny in a sea of freedom.
Excellent! Thanks for all you and FIRE do on behalf of free speech for students. Best line? “And not to write a check when you graduate to the institution. That’s the lesson.” That has cost the universities I attended a LOT of donations over the years, as that money has instead gone to other places that DO believe in freedom of speech.
Harvey – big fan of your work in this field, but must correct you on one point: Ernest May is no longer at the K-School, having died in June 2009.
Please do run again. We alumni could count on the board doing some overseeing, should you win.