An Appeal for Transparency

Harvey A. Silverglate

When Alan Charles Kors and I wrote The Shadow University, published in 1998, describing in almost ghoulish (but accurate) detail the depredations upon liberty, decency, fair process, free speech and academic freedom on the typical modern American liberal arts campus, we naturally had a chapter named “Sue the Bastards?” That chapter title ended in a question mark because we recognized that there are only a few discrete areas where litigation is likely to make a substantial dent. For the most part, we are facing a problem of the culture of these campuses. And to change the culture, much more than litigation is required. We need a massive societal response to what ails our campuses—a response that lets the academic emperor know that he is not only without clothes, but that he looks utterly ridiculous in that state of nature.

And so The Shadow University’s concluding chapter is entitled “Sunlight is the best disinfectant,” poaching upon Brandeis’s oft-cited aphorism (incidentally, that’s the late Supreme Court Justice Louis Brandeis, not the university that is rather inappropriately, it often seems, named after him). Kors and my thesis was quite simple: University administrators and others who engage in the despicable and destructive actions chronicled in our book almost never would do and say in public what they do and say in private. While they have the most highly refined verbal rationalizations for their destructive rampages through free speech, free thought, and fair and rational fact-finding procedures, the fact is that on some gut level they realize that their rationalizations are just that, and that they simply will not survive in the sunlight of a free society.

In fact, there are a few areas where a high court opinion would be extraordinarily helpful. Consider, for example, co-called “harassment codes.” There is a massive confusion on the subject of the ways in which free speech must give way to censorship when that speech is seen by vulnerable members of “historically disadvantaged groups” as “harassment”—based on gender, race, ethnicity, sexual identity, disability, or any of a growing list of sub-categories of the human family. Actually, it is a massive disinformation campaign, promoted with the connivance of university general counsels who more and more seem to run the modern academy by utilizing scare tactics based upon predictions of legal exposure and vulnerability—the kind of risk reduction analysis appropriate for business entities but not for universities where free speech is a paramount value. It would take a single opinion of the Supreme Court to make clear that what is deemed “harassment” in modern academia is viewed simply as normal give-and-take in the rest of society that is fortunate enough to live in freedom. What one can say in Harvard Square, one learns here in Cambridge, one may not say in Harvard Yard.

It just so happens that Supreme Court Justice Samuel Alito, when he was a member of the US Court of Appeals for the Third Circuit, wrote an awesome opinion in a case in which the court declared unconstitutional the harassment code of an entire public school district because the code penalized a broad array of speech clearly protected by the First Amendment. This makes me think that when a case reaches the Supreme Court in which a university has relied upon its general counsel’s interpretation of federal harassment law, or upon the university’s so-called “harassment” speech code, in order to punish a student who tells an ethnic joke or laughs inappropriately at another student’s joke, the entire construct of university harassment codes will come crashing down. The Foundation for Individual Rights in Education (FIRE), indeed, launched a speech code project several years ago and is itching to take a case to the Supreme Court. Unfortunately, we tend to win most of these cases in the lower and intermediate appellate courts, and university attorneys seem tactically averse to taking an adverse ruling to the high court and risking making a nation-wide precedent.

But, for the most part, the most effective weapon in reforming the academy is the wise use of public opinion. Publicity about what really goes on in higher education serves not only to educate the general public, but also judges and lawmakers, donors and alumni, and, importantly, members of college and university boards of trustees. It likely will surprise very few in this room to hear that one of the major undertakings of any college administration is to keep its alumni, and, most particularly, its trustees, in the dark about what really is happening. Indeed, in The Boston Phoenix, an alternative newsweekly for which I have been writing a happily uncensored civil-liberties column for more than three decades, I posited the hypothesis that university administrators’ frantic desire to control the message to trustees and alumni accounts for the modern trend away from editorially independent or even quasi-independent alumni magazines, and toward the proliferation of in-house, self-congratulatory alumni rags. It was earlier in this decade, for example, that the Harvard Law School persuaded the Harvard Law School Association to cease its long-standing practice of mailing a free copy of the independent student-run-and-edited Harvard Law Record to each of its members, and to provide each Association member, instead, with a subscription to the official house-publication, the Harvard Law School Bulletin. “Control the message” is the mantra of the modern academic administrator. In this respect, as well as others, the modern university has largely adopted an approach more appropriate for the corporate world.

Countering the flood of propaganda, lies, evasions and half-truths that spill with regularity from the public relations offices of our campus deans and presidents, and opening up, for the world to see, the absurd and destructive violations of academic freedom and common decency once deemed synonymous with enlightened thought and practice, require that we go public. To some extent it means enlightening as well the news media that are often incredulous that we are speaking the truth. And often newspaper reporters and radio and television news and documentary people are politically disinclined to believe, or to want to believe, what we tell them. But when the proof becomes overwhelming, they often will come around and report what’s really happening.

I recall two recent turn-of-the-century incidents at Columbia University. Both occurred in the year 2000. On one occasion, FIRE came to the aid of Professor George Fletcher, world renowned expert in domestic and international criminal law. Professor Fletcher had given a hypothetical, on a basic criminal law exam, which featured a member of a fanatic anti-fertility cult who had attacked a woman in the late stages of pregnancy and killed her fetus. The woman, who had been seeking, without success, a late-stage abortion, told her physician that she wished to send a note to her attacker, thanking him for giving her the abortion she had been unable to obtain. The attitude of the female victim of the attack toward her male attacker was relevant to certain issues of criminal liability and degree of guilt of the attacker. Professor Fletcher wanted his students to analyze the problem, which, incidentally, was a composite of elements of a number of real cases. (It is difficult to make up a hypothetical for a criminal law exam that does not bear some similarity to something that has actually happened and become the subject of a reported court opinion. Such is the bizarre world of the criminal law!).

Two women students complained to two women faculty members. They complained to the then-dean of the law school that the exam hypothetical raised “legal questions under the rubric of creating a ‘hostile environment’ for women.” The law school dean then wrote to Professor Fletcher that an inquiry was being launched because the women’s complaint constituted “a plausible suggestion of liability an[d] unlawfulness” as to whether Professor Fletcher had committed sexual harassment by using a hypothetical that was gratuitously disturbing to women. The dean wrote: “I am required to consult with the University’s office of legal counsel, which I expect to do within the next couple of days.”

FIRE wrote to the dean. I met with the dean over a typical academic lunch at a faculty eating facility. It was all very genteel, but with the undercurrent of my strongly held and expressed view that it would not be helpful to Columbia Law School’s reputation, nor that of the faculty and its dean, for this to become a front-page newspaper story (or even, one supposes, a major motion picture). When the dean asked why there should not be a mere investigation, I countered with a line that had been suggested to me by my friend and cohort Alan Charles Kors in advance of the meeting—the obvious fact that there was nothing to investigate—it was not a sufficiently close case to pretend that Professor Fletcher’s exam was not fully protected by academic freedom. No one in the real world would disagree, I pointed out. That ended the matter.

In another instance that year, FIRE attacked the then newly enacted Sexual Assault Policy of Columbia’s undergraduate college. It was enacted in order to make it easier—indeed, very easy—to convict any male student accused by any female student of sexual assault. In my view as an experienced lawyer in criminal and civil liberties matters, it would have been virtually impossible for any accused students to be acquitted by that tribunal. When Columbia’s administration stubbornly refused to abolish the policy—afraid, obviously, of more “take-back-the-night” candlelight vigils—and when even press attention did not seem to work, FIRE wrote a letter to each member of Columbia’s distinguished Board of Trustees. We sent these letters directly to the trustees’ home or office addresses, rather than through the university’s office, just to make sure that they would actually be delivered. The U.S. Postal Service did its duty, and the policy was rescinded almost immediately thereafter.

It was after this experience that it occurred to me that the single most potent weapon for reforming the more Orwellian, Kafkaesque, and anti-intellectual aspects of American higher education would be to assemble an email list of not only every national, regional, and local news outlet in America, but also every alumnus and alumna, every donor, and every trustee of each institution. FIRE is working on it. It is a winning strategy.

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