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Harvard Law's schism over free speech

By Rachel Alexander
web posted May 16, 2005

With The People V. Harvard Law: How America's Oldest Law School Turned Its Back on Free Speech Andrew Peyton Thomas, the district attorney for Maricopa County, Arizona, and a graduate of Harvard Law School, has put together a well-written, intriguing expose on the state of free speech at his alma mater, providing an insider's perspective of the top law professors in the country. Oddly enough, the friction over free speech is not between the political "left" and the "right," because there are practically no conservatives in the administration or on the law faculty, and the majority of students offered admission are also of the leftist persuasion. The battle over free speech is between the "left" and the "far left." (p. 170) Conservatives are rarely mentioned in the book; the major players consist of traditional leftists like Alan Dershowitz versus the new leftists, known as "Crits."

"Crits" is the abbreviation for proponents of Critical Legal Studies, the legal offshoot of postmodernism. The underlying goal of Crit theory is that current societal structure and laws should be torn down because they were created by sexist white males. While every other aspect of society is "critically" assumed to bear this stigmata, the assumption itself is a matter of sacred belief and cannot be questioned. Crit legal classes generally consist of initiations into feminism, homosexual studies, race, and class conflict. Critical discussions of these beliefs are not welcome.

Old left opponents of Crit theory contend that it lacks any plan for improving the current societal structure, instead only focusing on criticism, which comes from the perspective of the left's latest favorite oppressed interest-group. (p. 13) While the "Crits" are quick to point out that they are defending the oppressed, the interests of these oppressed coincides all too often with the interests of the elites at Harvard Law. The Crits' philosophy lacks any serious epistemology, consisting mainly of emotional rhetoric. The lack of intellectual rigor in postmodernism theory was embarrassingly revealed in 1996 and again in 2005, when academics submitted nonsensical papers written in postmodern style with pretentious rhetorical slogans as a prank to academic conferences, which were accepted without question.

Thomas relays a long list of disturbing events that have taken place at Harvard Law as a result of the "Critsizing" of Harvard Law. The Crits insisted that Harvard Law Review publish articles like "A Postmodern Feminist Legal Manifesto" by Crit Mary Joe Frug, which cited Madonna as authority and included profanity: "We are raped at work or on route to work because of our sex, because we are **** ." (p. 79) Torts Professor Jon Hanson told his students that "we should hold a chainsaw manufacturer liable if someone misuses it." (p. 130) Not to be out-Crited, Professor Charles Ogletree became a leader in the movement to pay reparations to descendants of African slaves. (p. 72)

Without any conservatives to attack, the Crits focused their hostilities on the traditional leftists on the faculty and administration who did not conform to all of their radical views. When one of the old style leftists, Professor David Rosenberg, criticized Crit theory by stating that feminism, Marxism, and black race theory have contributed nothing to tort law, the Crits convinced the administration to punish him. The administration announced that attending his class was optional, a move which seriously harmed his career. (p. 95)

The Crits sought to silence or remove anyone who spoke up with a viewpoint contrary to theirs, and loudly complained that there were not enough Crits on the faculty. However, they were only interested in Crits whose physical characteristics fit their special categories, e.g. women, minorities, and homosexuals. It should be noted that there is not a single conservative on the law faculty (there is one moderate Republican), yet there are several Crits. (p. 127) The candidates for tenure proposed by the Crits were under qualified and lacked the academic rigor necessary to teach law. Thomas discusses several of these candidates and how Crits the administration was pressured into hiring, like Derrick Bell, ended up as an embarrassment to Harvard Law. Bell freely acknowledged that he lacked the qualifications of the other professors. (p. 34) He stated that the articles he wrote were just story telling and did not contain the academic rigor of law review articles. (p. 35) He had his students grade each other's papers. (p. 34) He declared that liberal black professors who didn't share his far left views "look black but think white." (p. 37) At one point, Harvard Law assigned another professor to teach Bell's classes for him since he was frequently absent. (p. 35) Yet in spite of the poor performance of professors like Bell, Harvard Law was becoming increasingly dominated by professors of his ideology.

What aided the Crits in their squelching of free speech at Harvard Law was the lack of constitutional protection for free speech at Harvard. Since Harvard is a private school, most First Amendment protections granted to speech at public institutions do not apply. Consequently, the Crits have had considerable success prohibiting non-Crit viewpoints. Recently they attempted to stifle criticism by creating speech codes. The purpose of the speech codes would be to prohibit anyone at Harvard Law from criticizing anyone within one of their special categories or pointing out anything that might be viewed as critical of those categories. Thomas relays the showdown in 2002-2003 between famous Harvard Law professor Lawrence Tribe, who supported the speech codes, and Alan Dershowitz, who successfully (so far) fought them off.

Andrew Thomas has painted a grim picture of free speech at Harvard Law School. At the end of the book one is left wondering whether conservatives, fair-minded people in the legal profession and those considering going to law school should bother with Harvard. Has Harvard Law departed so far from its former intellectually rigorous high standard by caving into sub-standard Crit vagaries that it should be avoided altogether? There is certainly a growing niche for a conservative law school to compete academically with Harvard Law. Just as Fox News grew out of the descent of the major news networks as they slid too far to the left, perhaps it is time for a truly fair and balanced yet erudite law school to replace Harvard Law's reign as the heavyweight law school. As Thomas concluded, "What remained to be seen was whether America's leading law school would reclaim its tradition of celebrating dissent, or continue to thwart the very constitutional liberties that once gave the school life and purpose." (p. 196)

Rachel Alexander is the editor of IntellectualConservative.com and a former Assistant Attorney General for the State of Arizona.

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