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DECODING THE "SPEECH CODE" DEBATE AT
HARVARD LAW SCHOOL

Garrett Moritz
3L, Harvard Law School
JURIST Guest Columnist

There has been a good deal of recent press regarding a potential Harvard Law School 都peech code directed at racially offensive or harassing speech in the classroom. For example, in a Wall Street Journal op-ed, Dorothy Rabinowitz claimed it was one symptom of Harvard Law going soft, becoming a place where 都kill in hard combative argument is no longer prized. A headline on CNN.com pondered, "Is Harvard Law getting touchy-feely?" Other news outlets arched similar journalistic eyebrows, invoking strong principles of academic freedom. This flurry of media attention depicts a Harvard Law where free-thinking academics are at the mercy of political correctness and thought police, where the administration quashes all dissent, and, worst of all, where a former training ground for the nation痴 hard-nosed legal thinkers has become a love-in where caring, sharing, milk, cookies, and muzzling the political right trump open debate.

All of this would raise deep and troubling questions of academic freedom and apple pie were it true. But as a student on the ground here at Harvard Law - although one not personally involved with either side of the 都peech code debate - I致e watched the events reported in the press unfold over the last couple of years, and from my vantage point, the current reportage seems rather misdirected in its hunt for a headline.

For instance, the reporting favors the abstract 滴arvard Law School: 滴arvard Law School wants to do this, 滴arvard Law School hopes to enact that. This simplification leaves all but the most eagle-eyed readers with the impression that the school痴 administration has unilaterally decided to crusade, top-down, against all racially offensive language. In fact, 滴arvard Law School, if such a term can be used precisely, is a large institution with a sizeable bureaucracy, and if it has any real concern, it is the long-term financial and reputational well being of the school. Many idealistic students, with a short three-year exposure to the school, are inevitably frustrated by this focus, but ultimately it is grounded in practicality, perhaps wisdom. An institution with such preoccupations doesn稚 go out of its way to rock the boat by considering speech codes. Indeed, for better or for worse, the default tendency of 滴arvard Law School is to respond to student concerns by officially doing little or nothing, waiting for internal problems to blow over, whether because of student turnover or otherwise.

Thus, it was not 滴arvard Law School in the abstract that initially responded to remarks many found racially offensive. (Most notably, a student痴 use of 渡ig in an online outline and a professor痴 classroom statement that 甜T]he blacks have contributed nothing to tort law.) Rather, it was a vocal group of outraged students. Contrary to what one might expect from the national media depiction, 滴arvard Law School did not instantaneously respond to the Black Law Students Association痴 polite requests for administrative action. Rather, it went to its default rule, and waited. BLSA, however, did not give up, but engaged in an effective public relations campaign, taking their complaints to as many forums as they could, including both campus and national press. Only as the story began to make major national papers did 滴arvard Law School begin to take serious notice of the concerns. Feeling victory in the air, BLSA announced several demands to improve life on campus for minority students. Many of these demands were not and almost certainly will not be met, but the school administration did take some modest steps toward mollifying the outraged students. It was, in the final analysis, a compromise.

Among the progeny of this compromise was the unfortunately named 鼎ommittee on Healthy Diversity. A student-faculty combo, the Committee was charged with thinking about solutions to the kinds of problems that wracked the school the previous spring. While the press has seized on the Committee as an example of how Harvard Law has become some kind of left-wing circus, campus scuttlebutt mostly recognizes that the Committee was sandbagged from the start. Lacking power to pass anything of which the full faculty does not approve, the Committee痴 consideration of a 都peech code hardly merits national media uproar. Indeed, committee creation is a classic gambit allowing higher-ups to demonstrate responsiveness to a problem while risking little in the way of actual change as the committee becomes mired in disagreement. Moreover, as time passes, the most vocal student proponents come closer to graduating and being locked away in firms or clerkships. On top of that, the faculty痴 genius for disagreement is an almost certain final barrier to passage. Ironically, the very Committee the press plays up as a sign of Harvard Law痴 desire to silence offensive classroom speech may well be a strategic move by an administration that has always been deeply skeptical of such policies, but wants to appear to have given them due consideration.

But beyond the administration痴 commitment to academic freedom, which I mostly laud in principle (if not execution), there is a further, deeper irony in the notion that these events represent the demise of Harvard Law as a bastion of confrontation and argumentative combat. Indeed, the only reason the Committee exists at all was because a group of disaffected students stepped up, spoke out, criticized those more powerful than them, and actually got the administration to come forward with some modest changes. Whatever one thinks of the substance of BLSA痴 viewpoint, one has to have respect for the argumentative vigor with which they advocated for their position. It was only after skillful use of numerous forums that the administration began to take their grievances seriously.

Students using the classroom and the media to challenge a professor or an administration with which they disagree, and to work for change within the school, is hardly a sign that bare-knuckled argument is dead at Harvard Law. Indeed, that students are capable of advocacy so forceful that the administration feels compelled to respond shows that the spirit of debate is as alive as ever at Harvard Law School. Of course, as some journalists have noted, it is hard to imagine Professor Kingsfield apologizing and agreeing to a diversity committee in 典he Paper Chase. But that, after all, was just a movie.


Garrett Moritz is currently a third-year law student at Harvard Law School and is Managing Editor of the Harvard Law Review. He also holds a B.A. in History from Harvard and maintains a blog, gTexts.

November 27, 2002

GUEST COLUMNIST

JURIST Guest Columnist Garrett Moritz is currently a third-year law student at Harvard Law School and is Managing Editor of the Harvard Law Review. He also holds a B.A. in history from Harvard and maintains a blog, gTexts.