Outside Scholars Evaluate Law School Controversy

Three years ago, when Michael McConnell first decided to become a law professor, he began searching for a school at which to teach. He looked at Stanford, Yale, the University of Michigan, and the University of Chicago, but he didn't look at Harvard.

"I did not want to get mixed up in an ideological debate,' McConnell said.

McConnell, now an assistant professor at the University of Chicago Law School who recently testified in favor of the Supreme Court nomination of Judge Robert H. Bork, said that the political debates which have plagued Harvard Law School for several years make it a less attractive place to come and teach.

"[The political debates] must have some effect on the recruitment of faculty at Harvard, and it must be negative," he says. "I don't want my academic life to be consumed in academic infighting."

Harvard Law School's faculty has gained a reputation for destructive division among legal scholars across the country. In interviews during the past month, professors and deans from other law schools said that the political debate, which has attracted national media attention, will hurt the school in the long run. They said Harvard will find it more it difficult to recruit young scholars and that the division could create an adverse educational environment.

The bitter debate is a result of the rise of Critical Legal Studies (CLS) and, in turn, its vocal opponents at Harvard Law School. The schism between these two relatively small but intellectually agressive factions has grown wider and more public over the past few years--leading to full-fledged scholarly war during the past six months on the battlefield of tenure decisions.

CLS is a radical school of legal thought which holds that the law reinforces prevailing social and economic norms rather than representing fixed, abstract notions of justice. Those opposed to CLS, considered to be conservatives, argue that the teaching of law is based on absolute definitions of what is just. The natural academic battle between CLS adherents, called crits, and the conservatives has wracked the law school making the tenure process extremely volatile and public.

The only two assistant professors to be denied tenure since 1969 were crits. The second of these, Clare Dalton, asked President Bok in July to review her case. Last spring, she missed the two-thirds majority needed to recieve a permanent post by only three votes.

Dalton and her supporters have charged that a small group of conservatives launched an attack against her work after she received favorable tenure recommendations from outside reviewers. Bok has returned her case, with the internal criticisms that came after the outside review, to those same reviewers.

In addition, last spring a large majority of the faculty voted to offer Visiting Professor David Trubek of the University of Wisconsin a lateral appointment, but Bok overturned that decision at the request of a small group of professors. Trubek, a crit, was opposed by the conservatives. This case was the first time the president of the University overturned a decision of the Law School faculty.

Both these cases smoldered throughout the spring and summer. Dalton threatened to sue the University if Bok did not tenure her, and Trubek coined the phrase "the Beirut of legal education" to describe Harvard Law School.

As the crits and their supporters continue to make headlines, their opponents are reluctant to talk. Professors and administrators hesitate to speak about the internal problems of the faculty, saying that the tenure process should remain confidential.

Those outside the University say that the Law School is suffering badly from these battles both in recruitment efforts and public perception.

Although the 24 outside legal scholars contacted for this article have not all benefited from first hand experience of life at Harvard--and many refused to comment because they said they had imperfect information--all had read about the problems at the Law School and heard about them from their friends at the University.

The outside scholars, who range across the entire legal scholarship spectrum, pointed to many areas of school life on which the division is likely to have made an impression--from classroom atmosphere, to hiring difficulties, to professors leaving.

"The environment in which students study and teachers write and teach makes a great deal of difference. My own experience is that there is a problem [at Harvard] in that area at least as far as students go," said Georgetown University Law School Professor Wendy Williams, who is considered to be a legal scholar who sympathizes with the left.

Williams said in the winter of 1984, when she was a visiting professor at Harvard Law School, students told her they had to tailor their comments in class around the political views of the professor.

"You had to try to psyche out what the professor's political views were, and either purport to agree with them or come out in total opposition. In other words, there was a polarization which students felt limited their ability to explore different options and find their own answers," Williams said.

"I think a classroom should be a place that's safe enough that people feel that they can express their views without going on the line," she said. "I had to make an extra effort to create that atmosphere in my classroom."

Other professors said that while they had no, first-hand experience at Harvard it is possible for the faculty to have ideological differences that would not affect a student's educational experience.

"A faculty can have some very substantial divisions on philosophical issues for a long time and still continue to do its thing in the classroom," said Jesse Choper, dean of the Law School at the University of California at Berkeley.

"A faculty can be deeply divided in its legal philosophy and political views, but still remain committed to creating a community in which they are able to work together peacefully. One hopes that Harvard will return to that category again," Williams said. "It's not there now."

Others do not share Williams' pessimism about how much the advanced state of Harvard's problems affects students' lives. "I don't think it affects the kind of legal education that the average student gets," said Jack Friedenthal, associate dean for academic affairs at Stanford University Law School.

"If people weren't coming, or if faculty members had to have a particular philosophical moral belief before they came, maybe it would affect students. But I don't see much danger there myself," Friedenthal said.

But many scholars said that the problems at Harvard, if they are not having a severe impact now, will certainly hurt the school in the long run.

Professors said young scholars might not choose to come to Harvard because of its reputation for division and political consideration in the tenure process.

Stewart Macauley, a professor at the University of Wisconsin Law School, continued his colleague Trubek's metaphor. "I don't want to move to Beirut," he said. "There may be wonderful things going on in Beirut, but you and I don't know."

"Many people don't want to be in a war. Why would one want to play in the Beirut symphony, for instance? It may be a great symphony, but there must be another place for me to play my trombone," said Macauley, considered to be sympathetic with the more liberal legal scholarship.

And even if a scholar wants to brave Beirut, he may still stay away if he doesn't think he'll receive a lifetime post there.

"People who want to teach at law schools have other options" than going to Harvard, said Duke Law School Dean Paul Carrington, a vehement opponent of the crits. "If there is a perception that there are various problems in the tenure process, it might be more difficult for a school to secure appointments."

Established professors at the Law School also might choose to leave the School for the same reasons that assistant professors do not want to come. Two years ago, Professor Paul M. Bator left Harvard for the more conservative University of Chicago, and many professors said that others dissatisfied with the situation at Harvard could follow suit.

"I can imagine a dean at another law school perceiving that Harvard might be a reasonable place to fish for a catch from the faculty. People might think that if there is fighting, there may be somebody who wants to leave," said Carrington, who provoked an uproar in 1984 when he wrote that crits were "nihilists" and should not be allowed to teach in law schools.

All of these possibilities are based on the assumption that the perceptions about the political division at Harvard are true. Every outside scholar said that there was a line between healthy debate and destructive fractiousness.

But that line is sometimes difficult to determine as law schools thrive on intellectual differences. "Disagreements over doctrine, arguments over approaches to the law and where we're going, occur and hopefully will occur in any law faculty," Friedenthal said. "A law school should be on the knife edge of debate."

Friedenthal said that a school's environment was affected by "any dispute that raises itself to the level where those involved begin to lose sight of the overall educational value of dissent."

"If people are no longer valued for their merits and if faculty members begin to disparage their colleagues, all the advantages of intellectual debate are gone," Friedenthal said. "Within the confines of respect the debate is fine, but once the issue is who's going to be allowed onto the faculty, you have a serious problem on your hands."

"It's extremely unfortunate if people are making ideology a criterion for the tenure process," Choper said. "There could be more effect on the long term nature of the institution, if quality is submissive to ideology. It could even damage a great law school like Harvard."

But this damaging division does not necessarily grow out of intellectual debate. Friedenthal said that Stanford has a substantial number of professors sympathetic to the tenets of CLS--considered to be the second largest concentration of crits after Harvard--without the debate spilling over into the tenure process.

Once a school crosses the line, however, it is difficult to cross back. "The whole thing's a shame," Williams said. "I am reasonably convinced that most of the faculty that are so divided up there wish that it weren't so polarized. But once a faculty is polarized, it's hard to find a way back to community."

And to those outside the University, Harvard Law School has crossed the line. "It's a joke--that's what people are saying about you here, you know," Macauley said. "It's a fine law school, but it's rather sad. It's both a joke and terribly sad."