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Decay at Harvard Law

Campus Follies: Lesson Nine

We leave the fever swamps of feminist male hating and the "campus date rape crisis" to enter another fever swamp -- Harvard Law School.

Reprinted below are excerpts from three articles from the Wall Street Journal dealing with Harvard Law School. The Journal publishes them, as any daily paper must, in scattershot fashion one by one.

Gathered together, they have a much greater impact, and give you a much clearer view of Harvard Law.

The first article demonstrates the difficulty Harvard Law encounters employing white males on its faculty. To regular readers of Yggdrasil's posts, the fury engendered by the employment of white males is well known. The article just places Harvard Law in the "terra cognita" of race conscious hiring so familiar to us all.

The second article is much more important. It demonstrates the internal dynamics of escalating racial demands inherent in all affirmative action programs. In that article, a Harvard Law Journal editor with impeccable feminist credentials manages to offend two "affirmative action" law student editors by replacing them on a "tenure" article submitted by an "affirmative action" professor in need of more protection in the editing process than the two "affirmative action" students were qualified to give.

And so it goes.

The third article was written by a Harvard Law Student back in 1982 and gives you an excellent earlier perspective on the trend toward radicalism and politicization that eventually leads to the racial strife you see chronicled in the 1992 articles.

But there is another reason for reprinting these three articles for you. They are written from a classic conservative Republican perspective.

All three exhibit a certain naive charm; - a sincere sense of surprise and hurt that a prestigious institution, one that they hold in such esteem, could push them into such a stressful position of cognitive dissonance.

Collectively, the articles display a common response of the conservative mind when confronted by clear evidence that an institution they revere hates them and all they stand for. A conservative will take the naive view that the revered institution is possessed of the best of intentions, and will right itself and correct the problem once the conservative explains to that institution the error of its ways.

This naive view fails to take into account how elite universities attract students and make money.

First, if all one wants is a solid legal education, one can get that at any number of excellent state schools at a tiny fraction of the cost of Harvard. For example, Michigan, Wisconsin, Ohio State, Boalt Hall, and Hastings all will provide in-state students with as good a background to become a business lawyer as Harvard.

The difference is that if you go to a good state school, you must graduate in the top 10%. If you do, and if you have an LSAT that would qualify you for Harvard, then you can get as good a job as any Harvard Law grad. With that background, you can go from the state school to any city and any law firm in the nation.

Thus, attending a state school and saving yourself $80,000 is a gamble. Are you competitive enough to make the top 10%?

What Harvard is really selling is insurance against the possibility of failure. Harvard's primary market is the children of well-to-do who, if they cannot graduate in the top of their class at Harvard Law, at least want the status of a Harvard Law diploma. Their egos could not stand merely graduating in the top third or top half of the class at a state school.

Thus, Harvard is selling status.

And it must differentiate itself from the mundane state schools in this regard to stay in business.

The state schools are "practical", "conservative" and "stodgy". Why would anyone pay extra to go to Harvard Law if it too were practical, conservative and stodgy? Harvard must remain "avant garde" and "radical" or it will fail to attract the status conscious children of parents of means, who are its financial main-stay.

The Harvard Law diploma provides $80,000 worth of ego protection against the threat of downward mobility. By devoting itself to "radicalism" it flaunts its students' ability to rise above the "practical," indulging their need to demonstrate that, while they certainly could have succeeded in a competitive contest with upwardly mobile state school students, they had the luxury of not having to try, - saving their energies instead for more high minded pursuits.

In truth, Harvard will never change. It can't change and survive in the primary market that it serves.

After reviewing these exerpts, one might fairly ask why conservatives, who are so effusive about the virtues of private enterprise, have such difficulty spotting obvious "invisible hands."

Mar. 25, 1992 Wall Street Journal p A12 C3
Rule of Law


Harvard -- "4 White Men Offered Tenure" read the shocked headline in the school's official newspaper. This news shared page one with an article detailing the plans of a black law professor to continue his walkout strike until the school agrees to hire a black woman. Welcome to Harvard Law School, where the stodgiest faction of faculty and students is being forced to come to terms with some new realities.

* * *

Harvard Yard is now roiled by news of the four new professors, which Mr. Clark calls the result of "nine months of discussions, arguments and one-on-ones with the faculty." Adding new members of the faculty would be routine at most law schools. These four are politically noncontroversial. Still, the miracle is that a majority of the faculty relented to approve.

"Since I've been dean I've struggled to break this deadlock of the clash between CLS and the other scholars," Mr. Clark said. "This year we finally did." He called this a "tremendous achievement," but "many of the students don't see it. They just see, 'Four white men.' "

Indeed, this month a group of students took their law school to the highest court in Massachusetts, saying that they were harmed by a lack of minority professors. The students call their case the "Brown v. Board of Education of the 1990s," alleging legal injury because while minorities "may be welcome to sit in the back of the classroom, they are not welcome to stand up in front of the classroom."

"This case is not Brown v. Board of Education," a lawyer for Harvard told the judges, "and Rosa Parks is not in this courtroom." He said this was a political lawsuit to have judges rule that Harvard is "too male, too white and too heterosexual." A lower court ruled that the students don't have legal standing to sue under laws aimed at protecting job applicants. Ironically, Harvard's 20% is probably the highest share of minorities on the full-time faculty of any prestigious law school.

Only in the curious world of university campuses could anyone argue that professors should be judged by their skin color, gender or sexual practices instead of their merits as teachers. Yet this is the battle cry that Derrick Bell has raised for the past two years. Mr. Bell, the first black appointed to the Harvard Law faculty, declared that he would not continue as a law professor at Harvard until a black woman was given tenure. His form of going on strike has been to teach instead at New York University.

"The merit argument is no more than a smoke screen," Mr. Bell told a group of Harvard students. "It is a way of continuing a racist, sexist, homophobic tradition with words whose viciousness is cloaked by promises to seek more diversity - always, of course, within the context of what appears to be an insistence on excellence." Mr. Bell was back at Harvard this month to argue unsuccessfully that he should get an exemption from the rule that faculty members lose their tenure when they are away for more than two years.

Mr. Clark has an insight into why affirmative action is such a big issue. "We have the highest percentage and absolute number of minority students of any of the top 20 law schools. At some level, they are worrying about what role affirmative action played in getting them here.

"The minority students need a sense of validation and encouragement, with the fundamental problem being a need for self confidence that plays itself out as, 'Why doesn't Harvard Law School have more teachers who look like me?'" Mr. Clark said. "In a sense, we're dealing here with one of the symptoms of affirmative action. This means this debate could be a recurring theme through the 1990s or until we get to some equilibrium."

Not all the faculty yet has the courage of Mr. Clark's conviction that it's safe again to appoint faculty on merit. It passed a resolution requesting the appointments committee to "bring to the faculty for its consideration as soon as possible and no later than this fall, several promising candidates who are not white males, whatever the committee's recommendations about those candidates may be."

* * *

With 1,800 students and a staff of more than 300, Harvard Law has been the paralyzed giant of American legal education. For more than a decade it has earned a reputation for divisive politics, not incisive scholarship. If Mr. Clark can stay on his reform course, maybe Harvard Law can even help answer the ultimate legal mystery of why this country breeds so many lawyers.

Nov. 8, 1992 Wall Street Journal A17
Affirmative Action Backfires at Harvard Law Review


Harvard Law School, long acclaimed for its academic excellence, may soon become best known for its ugly internal strife. Among students and faculty, the political left and right are barely on speaking terms. The school lurches from open warfare to uneasy truce. Last year the dean and the appointments committee were both under attack for alleged insensitivity to the needs of women and minorities. And now the left has turned on one of its own, charging racism, sexism and an abuse of power--labels usually reserved for those in the enemy camp.

The current crisis involves the Harvard Law Review, to which trouble is no stranger. Last spring, the Review's annual satiric "Revue" contained a tasteless spoof that was widely seen as a symptom of the school's "hostile environment of sexism and misogyny," in the words of Prof. Laurence Tribe. On the Review itself, however, the atmosphere was expected to change with the election of Emily Schulman as president this year. Ms. Schulman, a third-year student, has impeccable credentials as a radical feminist, with close ties to critical legal studies advocates among the faculty.

Ms. Schulman has clearly meant to do right. It has just turned out to be harder than perhaps she imagined, and therein lies a tale for our times.

As president of the Review, she is ultimately responsible for its quality. But she has a problem: Not every editor can be assumed to do good work. Jobs on the entirely student-run Review used to go only to those with the highest academic qualifications. Today, while some still come to the Review by the old-fashioned, good-grades route, other editors are picked on the basis of their writing alone; still others are chosen to fill affirmative action slots. Only minority students fall into the last category. As a result, not even the most correct among the politically correct, faced with assigning editorial work to an untested black student, can be totally sure that student will be up to the job. Did the student get on the Review because of academic excellence or because of his or her minority status?

In the case of Emily Schulman, her anxiety was undoubtedly heightened by her early discovery of inadequate work by one of the black women editors. The work was quietly reassigned, although not quietly enough, since that action became part of the subsequent case against Ms. Schulman. The real trouble came, however, after a piece by Charles Ogletree Jr., an assistant professor at the law school, arrived. Mr. Ogletree is black - the "right" sort of black, moreover. (He served as an adviser to Anita Hill.) His article was immediately accepted by the Review.

Normally, articles accepted for publication are edited by a student picked from a pool of those who have, in effect, raised their hands. (When a piece is accepted for publication, a notice is usually posted, giving student editors an opportunity to express interest in doing the work.) The editing of Law Review articles often involves additional research and substantial rewriting.

In the case of Mr. Ogletree, however, the normal competitive process was circumvented. The article was simply assigned by the co-chairmen of the articles office to two black women - a decision Ms. Schulman, it is alleged, immediately labeled "a disaster." One of the editors to whom the work was assigned was in her third year at the law school and thus well known on the Review; the other was a newcomer. Editors charge not only that Ms. Shulman called the decision to assign the piece to the third- year student "complicated," but that, through her faculty connections, she tried to check on the grades of the second-year student in order to assess her level of actual skill.

In a nutshell, here's the paradox of affirmative action. This was Mr. Ogletree's tenure article, the one upon which his future in theory depended. But because he is black, the staff (it seems) assumed he might need extra protection; if treated like everyone else he might not succeed. Hence the unusual process by which the editing of his article was assigned. And because the student editors are black, Ms. Schulman apparently feared they could not be trusted to provide the requisite help.

Affirmative action policies, in short have cast their usual cloud of suspicion upon the work of every black at the School. In the eyes of even the most racially sensitive; (in which camp Ms- Schulman would certainly place herself), skin color still denotes quality.

Of course, the Ogletree tale, as well as that which preceded it, prompted outrage among the black students. That outrage has been widely shared, in part because most students on the Review think of themselves as politically left and in part because Ms. Schulman's style of management had already alienated a good many students. In any case, the sustained anger and consequent turmoil (interminable meetings, ostracized students, ugly memos and letters) have now removed the matter from the hands of the student editors. The Review's board of trustees, which includes Dean Robert Clark, has appointed an outside investigator to explore the entire mess. The students involved have retained lawyers.

* * *

Perhaps more important, however, the basic problem that triggered the current crisis will remain. In an affirmative action setting, white signifies "competence": while black denotes "needs help."

No facts uncovered in the course of an inquiry can possibly calm the anguish and anger among both blacks and whites that message brings.

Mrs. Thernstrom is an adjunct professor at Boston University and author of "Whos' Votes Count: Affirmative Action and Minority Voting Rights" (Harvard, 1987).

Aug. 6, 1982 Wall Street Journal p14 c4
Learning the Law at Harvard


The proper role of the judiciary in creating and directing social policy has been a contentious issue In American politics. At various periods courts have challenged the constitutional limits placed on their powers, either by abusing judicial review or, more recently, by adjudicating political problems they have traditionally avoided. For example courts have in recent years undertaken the management of school systems, hospitals and prison facilities. Judicial management of our society is now so extensive that Congress is considering legislation to remove jurisdiction over certain issues from the federal courts. But whatever Congress does, legal education, particularly at Harvard Law School, will continue to contribute to the problem of an overweening judiciary.

Harvard Law School's reputation for producing corporate lawyers belies the school's current educational environment. Among the Harvard community, visions of remaking society are now much preferred to expressions of interest in a corporate career. The law school faculty, which to a large degree shares the antipathies and aspirations of its students encourages these visions with its instruction. The first year Harvard student is taught today that a lawyer need not be an attorney for a corporation or an individual client, but rather an advocate for society at large. The student is informed that the lawyer's principal activity, litigation, is often less a means of resolving a dispute between two adversaries than a device for implementing social change. In short, Harvard's legal education now seems aimed at developing social engineers rather than lawyers as traditionally envisioned.

A Euphemism for Controversy

Civil procedure, the course that focuses on the nature of litigation, emphatically proclaims at Harvard the decline of the traditional notions of the lawyer and the lawsuit. Traditionally, the lawsuit was regarded as the battle for retrospective redress, and the Impact of the contest was generally limited to its participants. This notion of litigation has been replaced, one Harvard professor explains, by a new model called "public-law litigation."

Public-law litigation is a euphemism for all the controversial activities that judges have undertaken: creating remedies unrelated to the lawsuit's principals or even to the issues before the court, administering the remedies over years, and even delegating the responsibility for creating these solutions to experts and masters. Public law litigation, as conceived of and taught by Harvard professors, is a very powerful mechanism for achieving specific notions of social reform.

Obviously, the relegation of the traditional lawsuit to a less significant status signals a corresponding change in the roles of lawyer and judge. The lawyer, formerly an advocate for a client, is now the initiator of a bureaucratic process that supplements or overrides legislative efforts. He may choose to represent people who do not know him and have not consented to his representation, and he seeks redress for conditions that he believes require sweeping social change.

The judge becomes a broker of remedies, often actively participating in a continuous bargaining process between the adversaries in an effort to negotiate a solution to a problem often more political than legal. Judge Arthur Garrity is an example of the new type of jurist. His management of Boston's public-school system for the past 10 years, a complete failure, is exactly the sort of activity envisioned by proponents of public law litigation.

Notably, only the clients have diminished in importance In public law litigation. In the typical public-law case, clients merely fulfill the requirement that the lawyer represent someone. The presence of clients gets the case into court, so that judges can wrestle with the larger social issues that lawyers seek to address.

* * *

Judicial Restraint Needed

* * *

It's unlikely, however, that students who accept the public-law perspective will infer any need for judicial restraint from their policy-preparation courses. Many students enter Harvard Law School with firm convictions about the need for swift change in American society. For them, the message of public-law litigation is a welcome one, delivered by professors who sympathize with the causes these students support. On the other hand, students who enter Harvard unfamiliar with the law and uncertain about their reasons for studying it are being molded into social engineers, a disparaging phrase invented by the late dean of Harvard Law, Roscoe Pound.

Whatever the merits to Harvard's legal training, its presentation and conclusions capture an attitude that permeates the law school. That attitude, explicitly stated in a New York Times editorial by Harvard Law School Professor Lloyd Weinreb, is an impatience with the workings of a democratic society: "One might accept the call for judicial restraint with more equanimity if it were accompanied by as loud a call for greater activism elsewhere."

In short, if the pace or the direction of government is not to the liking of Harvard's Mr. Weinreb, the court system should provide a speedier alternative to the goals that he and some legal elite support. At root, the attitude is anti-democratic, and, if it is accepted by the students it is offered to, the nation can anticipate destructive conflict between its legislative and judicial institutions.

Mr. Troy is a student in Harvard's combined law and business program.


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