BOOKENDS: What Kiwi Taught Us About HLS

In The People vs. Harvard Law, Andrew Peyton Thomas puts his alma mater on trial for sacrificing free speech on its campus in the name of political correctness. His readers shouldn’t be surprised if they come away from the book with a guilty verdict.

Thomas’ argument is that since the late 1970s the Harvard Law School (HLS) campus has been taken over by far-left “Crits,” or followers of the Critical Legal Studies school of thought. As “postmodernism [applied] to law,” Critical Legal Studies aims to deconstruct the biases inherent in the legal system.

But according to Thomas, the movement’s alternative practices, spurning the traditional rigors of scholarship, have only “sapped the intellectual regimen” of HLS. Crit professors have come to dominate intellectual life on the school’s campus—and have tried, with great success, to see their brand of radical theory seep into the curriculum and influence the next generation of lawyers. Most perniciously, Crits have attempted to remake society through laws, to purge society of all its biases—racial, gender, or otherwise. They try to do this through censorship of all dissenting views, Thomas argues, and the results are disastrous.

Thomas frames his book around a series of events that rocked the HLS campus in 2002. The free speech crisis began when a 16-year old first-year law student—a prodigy named Kiwi Camara— submitted class notes to a school website that included the epithet “nig” as an abbreviation for African Americans. After one student complained, another student sent an anonymous e-mail to many members of the freshman class in which he complained about the response of African Americans to Camara’s email, adding that “I have actually begun using the word ‘nigger’ more often than before the incident.”

Two days later, Professor Charles R. Nesson ’60 went into another instructor’s class and revealed the anonymous e-mailer to be first-year law student Matthias Scholl (who had given Nesson permission to disclose his identity). Nesson proposed that the class hold a mock trial of Scholl. For that proposal, Nesson would eventually be asked by a dean to stop teaching his freshman torts class.

These events occurred within a month of an incident in Professor David Rosenberg’s first-year torts class in which the often-blunt professor stated that “Feminists, Marxists, and the blacks have contributed nothing to torts.” According to a later clarification, Rosenberg was referring to Feminist, Marxist, and black Crits, but this made no difference. In the already-tense climate of HLS, his comments did not go unpunished. Administrators would later declare attendance of Rosenberg’s course to be optional, effectively repudiating the Socratic method—HLS’s rigorous method of questioning students—for that course.

These incidents led a black student group to call for a speech code on campus. Thomas’ book follows HLS through the next three tumultuous years, during which time a speech code was a very real possibility. But he does not stick religiously to the plot: as Thomas introduces different professors and administrators, he often gives extensive histories of their legal and political careers. It is in these biographical sketches that he is harshest.

Most notably, Climenko Professor Charles J. Ogletree comes across as a man more interested in furthering his chances of being appointed to the Supreme Court than in performing genuine academic work. And former HLS Dean Robert C. Clark is dubbed “Boneless Bob,” an unprincipled administrator who otherwise believes in free speech but was cowed into submission by the Crits.

It quickly becomes clear that what Thomas dislikes most is a lack of principles, a “bonelessness” that he detects in both Ogletree and Clark. Neither are willing to stand for principles, he contends—only for power. To Thomas, this is worse than being a Crit. Crits and other far-left advocates will always exist and can be expected to advocate loudly for their cause. They even will continue to throw around accusations of racism against those who show insufficient support for affirmative action, in order to intimidate others to go along with their goals. Thomas argues it is the obligation of those who disagree with the Crits to stand up in the face of their accusations. He suggests that Clark and others, however, decided to go along with the charade rather than stick up for what they might otherwise believe is right. According to Thomas, the collective experiences of Nesson and Rosenberg taught other professors that dissent from Crit theory would be met with loud, potentially career-ending protests. Too many professors began to follow the route of least intellectual resistance, and the result was the intellectual suicide of America’s oldest and arguably most prestigious law school.

In this light, it becomes clear why Professor Alan Dershowitz is the unlikely hero of the book. A steadfast free speech advocate, he stands up against the calls for a speech code, arguing convincingly that they are both impractical and oppressive. A man who shares Thomas’ free speech absolutism, Dershowitz becomes the author’s archetype for how all left-but-not-far-left professors should have responded to the crisis.

Because the book has so much of an ideological slant—it is more Sean Hannity than Bob Woodward—the reader may find himself questioning whether Thomas gives a complete account of what happened at HLS in 2002. He certainly does not present his readers with some of the stronger arguments for limiting certain racist speech on campus. Thomas uses a clever tact throughout the book to preserve as much of an appearance of impartiality as possible: rather than voicing his own opinion, he peppers his book with commentary by Harvey Silverglate, who according to Thomas has “represented numerous students in disputes with the Harvard University administration over violations of their free-speech rights.” But in a book where virtually all the other commentary are made either by Thomas or by HLS professors and students, Silverglate’s ubiquitous presence seems out of place—unless he is understood as a vehicle for Thomas’ own commentary.

Thomas also shies away from a substantive debate about the merits of permitting free speech on campuses. He is a free speech absolutist, and comes down clearly on one side of the debate of whether academic institutions ought to be allowed to limit hate speech on their campuses. But he does not engage much with the philosophical issues at play. He finds absurdity in the actions of his ideological opponents, and is probably right on that point, but he does not actually argue why we should all be free speech absolutists as he is. Because he only asserts this as a given and does not back it up with much if any persuasive force, he won’t change many minds with his book. If you disagree with Thomas going in, you’ll likely feel the same way all 198 pages later.

But everyone who approaches the book with an open mind—even those who are sympathetic to campus bans on hate speech—will come away feeling uneasy at the intimidation tactics he attributes to some law school students and professors. It is difficult not to feel outraged and disappointed upon hearing, for example, how Rosenberg was removed from his class for his comment that “the blacks have contributed nothing to torts”—clearly within the context of referring to black Crits. Rosenberg’s comments about his own case may be applied broadly to the climate that ruled HLS circa 2002—and probably still rules there today: “For a faculty member to be strongly criticized—and even threatened with formal sanctions—for making critical remarks about a genre of scholarship in class strikes at the very heart of academic freedom.”

As it currently stands, there is already an alarming paucity of academic diversity at HLS. Thomas reports that in 2003, there were no professors at HLS who adhere to the conservative “originalist” interpretation of the Constitution, despite the fact that it is the philosophy of choice of many leading jurists, including Antonin Scalia and Clarence Thomas. Conservative students report being routinely hissed and booed after making comments in class.

Now, Andrew Peyton Thomas argues, the far left is attempting to silence even the moderate left. Though one may disagree with his opinions, the facts he provides do not lie—and they should unsettle us all. After reading the book, one cannot help but agree that academic freedom at HLS is under attack—and that its diminishing ranks of defenders are losing the battle.

—Staff writer William C. Marra can be reached at wmarra@fas.harvard.edu.