Misconduct Hearings on Campus Are Rotten and Have to Change

Harvey A. Silverglate

April 4, 2012

I began representing students in 1969. A group of Harvard students took over University Hall in an anti-Vietnam War protest. There was a lot of violence, President Pusey called in the police, and 220 students were charged with trespass on the property of the President and Fellows of Harvard College. My law partners and I took the case, and they tried them in groups of 20 students at a time. Much to the consternation of the President and Fellows, and the district attorney of Middlesex County, the jury said not guilty to the first group. So they gave up the rest of the cases. They figured if the jury wouldn’t convict the first 20, they’re not going to convict the rest.

And that got me interested in this whole area. And two years later, in 1971, I had my first student disciplinary case in front of the now feared Harvard Administrative Board. That’s the disciplinary body. And it was a rather interesting case, and I want you to see where I’m coming from, what I experienced at the beginning of my career. And then I’ll tell you a little bit about the last 20 years.

No More Lawyers

So here we are in front of the Harvard Administrative Board. I was sitting in there, because in those days they allowed lawyers in the room. They no longer do. After they lost a few cases, they decided to get rid of the lawyers. [LAUGHTER] And here’s the charge: My clients, a group of Harvard undergraduates, were charged with following around Dean Ernest May, who’s still at Harvard by the way, he’s at the Kennedy School. The students followed Dean Ernest May closely, chanting “murderer, murderer, murderer.”

May was a consultant to the Department of Defense, in addition to having his Harvard hat. And the students considered him a war criminal, part of the group that brought us the Vietnam War, and they organized so that when Dean May left his house in the morning, there was a group of three or four undergraduates waiting for him. They staked out the house the entire night. And undergraduates could do that, because there’s such a thing called pizza. [LAUGHTER] And they would follow him through the streets of Cambridge to his class or his office, or wherever Dean May was going. And they would chant rhythmically, “murderer, murderer, murderer,” until he got to his destination. When he came out of class, they would follow him again to what his next appointment was, chanting “murderer, murderer, murderer.” They had enough kids doing this, so that they covered him 24 hours a day. And he filed charges with the Ad Board, saying that this was harassment. And the Ad Board acquitted the students on the ground that this was an exercise in the kind of free speech that we should be accustomed to on a university campus. They only insisted that there be a decent number of feet behind Dean May, so they weren’t actually chanting in his ear. But as long as they kept a respectable distance, they could chant and follow him all they wanted.

The Students Won–It Wouldn’t Happen Now

That is an extraordinary outcome, and I have to say it didn’t have that much to do with me. It had to do with the students who really defended themselves. And members of the Ad Board who actually had great respect for the ethos of that campus, as it was then. It is not like that now. They felt that this is a place where students should be able to exercise this kind of speech, even if Dean May didn’t like it. And he was not just a faculty member. He was a dean. In those days, deans actually taught. They actually did something. [LAUGHTER] And you know, he was a higher up. And the students prevailed. That would never, trust me, ever, ever happen today at Harvard, or in 98% of the other universities that you’ve heard of. And not because they have great respect for faculty members. They really don’t, if you really analyze it. But because they have no respect for the speech rights of students.

And now we’re going to fast forward to a few more recent events. In November, 2009, something happened at the Harvard Law School that has not gotten sufficient publicity, and I think not because we haven’t tried, but because these things are becoming so commonplace, that they’re no longer news. This is not man bites dog. These are just ordinary dog bites man stories on campuses.

Dean Minow Gets It Wrong

A Harvard law student named Stephanie Grace was having a private dinner with some other students, and there was a discussion about race and intelligence, correlations between race and intelligence. And at the end, after the dinner, she sent around an email to the people who were at the dinner clarifying some of her remarks. And she said, you know, I really would like to see some research done on the issue of whether there is a correlation between race and intelligence. It’s a hot-button issue, and research is not encouraged in this area. And she said, it’s really too bad, because I think there are unanswered questions that scientific research could probably answer. And she said, hey, it’s an uncomfortable thought, but I really think it should be done. That email was forwarded by one of the people at the dinner to the Harvard Black Students Association, who then forwarded it to the dean of the law school, Martha Minow. And Dean Minow issued what she called a letter to the community, which means it went to all Harvard law students and faculty members and administrators, in which she excoriated this student for even suggesting that research should be done on this sort of hot button issue of race and intelligence. And in the course of sending out the email, she actually mischaracterized this student’s email. She said, this student has suggested that black people are inferior intellectually to white people. It was no such thing. You just had to read what the student wrote. She was basically saying what Larry Summers had said about the connections, if any, between, a correlation between women and science. For that, he got bounced from the presidency. And so she writes, the dean writes this letter excoriating the student, saying that, you know, well, you know, it’s true that there’s supposed to be a search for ideas, but there are limitations. You know, there are certain civility limitations. Civility limitations, she says on it, discussing these kinds of issues. And we are all upset at the hurt. That’s another, if I ever hear the word hurt again. [LAUGHTER] The hurt inflicted on some of our students. You’re not supposed to say anything that might upset anybody in a university. You’re not even talking undergraduates here. You’re talking law school. And the dean then says ominously, it’s a good thing that she apologized. The hint being, anybody who says anything this politically incorrect, either has to be prepared to apologize, or suffer the wrath of whatever the wrath is. Of course, a threat is more potent when you don’t tell them exactly what’s going to happen to them. You just make it clear that it won’t be pleasant.

I wrote a letter to the dean. I also wrote to the governing boards of Harvard, suggesting this was a firing offense for the dean, that she should be taken out of the deanship. [APPLAUSE] I was not prepared to say that she should be fired, because she had tenure. And I think that even a dean can say the stupidest thing in the world. I think tenure is tenure. I was willing to let her–I was willing to let her–[LAUGHTER] continue to teach. But I thought that she should not be the dean. I wrote the dean a letter. I never got a response. And that’s really interesting that she wouldn’t even answer me.

It’s Not Just the Hot-Button Cases

In 2010, there was another little case. You would not have heard of it. There was a little case where I advised a student. But it is indicative of what has happened to these disciplinary bodies. A student was charged by the Ad Board with having a party in the dorm without registering the party with the dean’s office. Yes, this is Harvard College now–we’re going down to the kiddies. We’re getting away from the law school. And so he’s charged, and he comes over to me for some advice. And I said, well, let me see. What’s the documentation? So he showed me an email, an email that he sent to the suitemate who was actually the one who was making the arrangements. And my client wrote this email and said, now, remember, there are regulations here, which by the way, there weren’t decades ago, but there are now, because the deans have taken over every aspect of student life. And you had to register this with the dean’s office. The kid wrote back to my client and said, don’t worry about it. I’ll take care of it. I will register this party. And then he didn’t do it. Just forgot. It’s such an absurd requirement, it’s very easy to forget some of these things that the administration makes up in order to employ more deans. [LAUGHTER]

So I said to my client, well, I know the Ad Board’s not the fairest tribunal in the world. But surely you show this to the Board, you’re going to be acquitted. You’ve got it in writing that you reminded him to do this. He didn’t do it. So he showed it, and he came back to me and said, I got convicted. I said, how could you get convicted? And he said, they told me that this was not a judicial tribunal–it was an educational tribunal, and I’ve learned a lesson. [LAUGHTER] Now, I wouldn’t have believed my client, except that I’ve heard this very frequently from clients. You’ve learned the lesson. You know what the lesson is? To hate the deans, to hate the whole system. That’s the lesson. And not to write a check when you graduate to the institution. That’s the lesson.

Now, lest you think that only Harvard and Yale suffer from this sickness, I’m going to take two minutes to just remind you of a case that I wrote about in an op-ed in the Wall Street Journal, a case at the University of North Dakota. A student named Caleb Warner was charged with essentially raping a female undergraduate with whom he had a relationship. It was a serious charge. The university convicted the student of sexual assault and threw him out. He would have to reapply to get in. But because the police had heard about it, they did an investigation. They looked at the email traffic between the man and the woman, and the police charged the woman with filing a false rape report, because the email traffic made it very clear that she invited him, that the whole thing was her idea. She was really into it, and there wasn’t a scintilla of evidence that this was a sexual assault. They actually charged the woman. And when the guy saw that the woman had been charged by the police on the basis of these emails that were uncovered, he applied to the university for reconsideration of his conviction, and they deny reconsideration, despite this news, and the fact that she’s now been charged with the crime of filing a false report. Now, I was not shocked by that, because it was just like the case at Harvard. Oh, it’s a learning experience. It’s got nothing to do with facts. It’s got nothing to do with truth. It’s got to do with the fact that you really have to learn a lesson. What is the lesson? Tell me what the lesson is. The lesson seems always the same. And this is what these tribunals have become all over the country.

Facts and Rules Don’t Seem to Matter

You haven’t seen kangaroo courts until you have seen these student tribunals. And by the way, it hardly matters what rules they operate under. You might say, well, what’s the standard to convict? It doesn’t matter. You could have reasonable, beyond a reasonable doubt. They will convict because it is in their nature. Now, sometimes these are political cases, like the rape cases are invariably political. But sometimes not. A student registering a student party. That’s not a hot-button political issue. But it is in the nature of these institutions to ignore facts, to ignore logic, to not look at evidence, to look at where they want the outcome to be. That is the sickness of these colleges and universities. But most of the cases I get do involve hot-button issues involving gender and race and sexual orientation. Not all of them do. The simplest case can come out with a bizarre conclusion because some administrator decided that he wants to teach the student a lesson.

And so we do have to get rid of speech codes. We do have to get rid of kangaroo courts. But I have to tell you, you can make all the changes in the world. You can change these institutions, and you’re not going to change the result until you have changed the culture, the culture of American institutions of higher learning. Without a change in the culture, all the other reforms are just rearranging the deck chairs on the Titanic. And I’m sure, as KC Johnson says, Yale is beyond. Yale is beyond the need to just change the standard of proof, the institution. There’s got to be a vast cleaning out of the administration and a vast change even of the governing boards. The governing boards are interesting, because very few if any of them know what’s really going on. The administrations have really taken over the governing boards. They set their agendas. They give them all the information that they are entitled to. And so the governing boards have very little sense of what’s really going on in the institutions that they supposedly govern.

And I’ll conclude with just telling a story that I told a few people at the table a little while ago, and that is, I ran for the second most powerful governing board at Harvard, the Board of Overseers. This was two years ago. I decided it was time to put up or shut up. And so I ran a petition candidacy. I got enough signatures to get on the ballot. Harvard was, of course, horrified at this notion. [LAUGHTER] And I started getting a lot of publicity, actually, the Boston Globe and the Herald and the radio. And Harvard struck back. And what Harvard did was, they sent out a communication to all, some 350,000 living alumni, an email communication, from the president of the Board of Overseers talking about what a wonderful official slate they were running. [LAUGHTER] All the time and energy that they put into this slate, all of the candidates on the official slate are supportive of the university. And then at the very end said, oh, yes, there also are a couple of petition candidates.

The System Has to Change

And I wrote him an email, and I said, I notice that you sent out to all of the living alumni, and presumably some of the dead ones [LAUGHTER], you sent out this little letter about the election, and I notice you didn’t say very much about me. I have a few things to say, actually, to the voters. And so I am giving you a little paragraph, no longer, it’s no longer than the paragraph you sent out, extolling the official candidates. So I’d like you to send out another letter as a little supplement and tell them this is what Silverglate has to say about why he’s running. I get back, my first request was, send me the list, and I’ll send them out. I get back a letter saying, oh, no, no, we never give out this list. I knew that was coming. I said, oh, that’s OK, you send it out for me. I’m deputizing you. Send it out for me. He writes back and says, no, we really can’t, because we don’t use the list for these kinds of purposes. [LAUGHTER] That’s what he said. And at that point, I realized the next time I run, and my wife’s going to kill me if I do run, but the next time I run, I want to have a list of the electorate, and I want to let them know what’s being done at the institution that they’ve graduated from.

I believe they will be shocked, because it isn’t the same place. Anybody who went there more than 20 years ago, or 25 years ago, will not recognize the place. And this is not just Harvard. This is not just Yale. This is all over the country. We have got to figure out a way to change the culture, because the culture has become very rotten.

Source: http://www.mindingthecampus.com/originals/2012/04/misconduct_hearings_on_campus_are_rotten_and_have_to_change.html