A SKEWED VIEW OF FREE SPEECH AT HARVARD LAW

Academe, Jul/Aug 2006 by Delgado, Richard

A SKEWED VIEW OF FREE SPEECH AT HARVARD LAW The People v. Harvard Law: How America's Oldest Law School Turned Its Back on Free Speech Andrew Peyton Thomas. San Francisco: Encounter Books, 2005.

RICHARD DELGADO

In 2002, Kiwi Camara, a sixteen year-old prodigy from Hawaii, posted his notes from a first-year Harvard Law School class on a school Web site to serve as an aid to his fellow students and to preserve them for posterity. Those notes, which contained the term "nigs" in a number of places, including a description of a property case dealing with restrictive covenants that prohibited people of color from living in certain neighborhoods, ignited a firestorm from which Harvard has yet to recover.

Black law students erupted in fury, white supporters rushed to their aid, and after a series of tense meetings, the law school administration formed a Committee on Healthy Diversity to ponder a speech code and other measures aimed at improving the school's racial climate. While all this was taking place, one while male professor, sympathetic to the blacks' cause but concerned about the implications of a speech code, barged, unannounced into a colleague's class with an ill-considered plan to hold an impromptu mock trial that would explore some of the issues that the Camara affair raised. The other professor and his students were unimpressed by the interruption, and the second professor withdrew, unsatisfied.

A second white male professor, a conservative with a national reputation, startled his own students when he declared in a torts class that black scholars had contributed nothing to the left-leaning critical legal studies movement, a declaration that some of the students knew to he untrue.

Following a second outcry, the administration made attendance at the first professor's class optional and replaced the second professor in the classroom for the remainder of the term. Neither professor incurred any further sanction, and both are teaching at Harvard as tenured faculty members today. The diversity committee met for a few months and then went out of business without proposing a hate-speech code or anything more radical than a few workshops to improve communication around the school.

From these and other incidents occurring around the same time, Andrew Peyton Thomas draws the conclusion that Harvard is in the thrall of the radical left and that conservative students are the new endangered minority. In The People v. Harvard Law: How America's Oldest Law School Turned Its Back on Free Speech, he makes the case for this conclusion through interview material from right-leaning law students who told him that they felt powerless and silenced (even though the local chapter of the conservative Federalist Society is the main conduit to hotly sought judicial clerkships), that the faculty contained few Republicans (true throughout the academic world, in part because of its low salaries), and that, when they make conservative comments in class, other students roll their eyes or hiss. Thomas also points out that only one Harvard law professor qualifies as an extreme conservative in the mold of Antonin Scalia or Clarence Thomas, only one is pro-life, and only one other has been willing to criticize affirmative action publicly.

Even though the events Thomas recounts would seem to constitute a vindication of free speech-after all, no one was fired, no speech code was enacted, and the student whose crude remarks sparked the controversy graduated and found a job-he draws the opposite conclusion. Conservatives need protection (but not a speech code) from overhearing professors and snickering fellow students who disdain constitutional originalism and strict construction. Black and gay students, who often find themselves the butt of crude invective or frightening phone messages and e-mails, do not.

Readers with no strong position on these matters will find Thomas's book a case study of the role of authorial mindset and presupposition. Thomas's sympathies lie almost entirely with the student conservatives who insist they are beleaguered. No matter that they have plenty of company outside the law school, where members of the American public consider themselves conservative, rather than liberal, by a ratio of nearly two to one, and every branch of the federal government rests securely in Republican hands. The author urges state legislatures to enact a version of right-wing activist David Horowitz's "academic bill of rights," which would prohibit universities, public or private, from making employment decisions on ideological grounds and would punish professors who deviated from the lesson plan or made comments of a political nature in class. That some of these restrictions are similar to those he deplores in his book seems to have escaped Thomas's notice.

The book is well written and lively, but it exhibits bias on practically every page. Minority students who complain of racist e-mails or of professors who make uncomplimentary remarks about the contributions of blacks are dismissed as whiners and complainers. Conservatives who dislike their classmates' rolled eyes or find their bulletin boards defaced with left-wing slogans are martyrs and defenders of the cause. Even Thomas's descriptions of the careers of some of his central characters, such as prominent African American law professor Derrick Bell, are highly selective accounts that contain inaccuracies and omit relevant material.