Meltsner responds to FYL criticism

A commentary criticizes HLS and FYL for an Ames moot court problem which raised claims under the Americans with Disabilities Act as to whether 1) a medicated condition limited the appellant’s major life activities and 2) the appellee was an exempt private club. The authors call use of this case “offhanded inclusion of segregationist and discriminatory course materials.” They also contend there was an absence of debate about what it means to be a professional in the class. These assertions are baseless and unfair to the teacher involved. Certainly, one side of this ADA case is more appealing to my sense of justice but, as the authors understand, in the real world cases are not always balanced and lawyers do not always have the luxury of choosing their clients. What they miss is that the statutory and other issues in this case are NOT open and shut, and that teaching lawyers to work with doctrine on behalf of the unpopular is an important craft skill. I found this out first in 1968 when I represented Muhammad Ali – then a man reviled as much as he is now celebrated. Secondly, last semester this section had a class with Professor Wilkins on the legal profession as well as one with a serious discussion of the lawyer’s role evoked by poignant excerpts from the film The Sweet Hereafter. There were also intense after-class discussions with the instructor about lawyer use of certain quantified analytic methods. No doubt, FYL teachers can do more on what it means to be both a lawyer and a humane person in an adversarially-driven profession, especially when so many HLS graduates will go to work for powerful corporate firms. But law students also have a responsibility to voice their concerns. I am particularly disturbed by the fact that the writers chose to present their views exclusively in the RECORD and not in class, or even privately with the teacher – making it impossible for him to deal with them until too late. I simply think this is not respectful of the teacher or the class and this failure is magnified by a totally-uncalled-for effort to link this Ames case to “recent events on campus.” – Professor Michael Meltsner Director, First Year Lawyering Program

Alumnus demands changes

Dear Deans Clark and Rakoff:

I write to express my concern and dismay at the recent spate of racially charged incidents that have occurred at the Law School. While I was saddened to read about racially insensitive remarks made by HLS students, I was mortified to read about Professor David Rosenberg’s bizarre statement. In my years at the Law School, I learned that students, even HLS students, can be as insensitive as the world at large. Faculty members, however, must be held to a higher standard.

Rosenberg’s remark that “Feminism, Marxism and the Blacks” have contributed nothing to his field of study (torts) or to the world at large is as indefensible as it is unintelligible. It is my understanding that, while Rosenberg has tried to “clarify” what he meant, he has staunchly refused to retract his statement or apologize. As an alumnus, I find that position unacceptable.

If Professor Rosenberg remains intransigent, he must be disciplined in some manner by the Law School. I will not speculate as to what form the reprimand must take – be it a suspension, a demotion or a categorical rebuke – but the action must be swift, it must be official, and it must be public. If the Law School does not take disciplinary action, all its public displays of sympathy and regret – and promises of “sensitivity training” – will be so much lip service.

Let me be blunt: If Rosenberg is not disciplined, I shall never make another donation to the Law School.

I have been in contact with several other recent alumni who feel as strongly as I. Now, realistically, as recent alumni, we realize that the loss of our contributions will not have as great an immediate impact as would those of our older, more affluent brethren. But if the Law School turns its back on our concerns now, we will not forget the slight in 10 years or 20 years, when the absence of our contributions will be more sorely missed. Twenty years seems like a long time, but it is a mere heartbeat in the life of an institution like HLS.

I implore you to show me, and those who share my sentiment, that the obtuse callousness displayed by Rosenberg will not be tolerated. If not, “Feminism, Marxism and the Blacks” will not be the only elements failing to contribute to Professor Rosenberg’s world. Angry alumni won’t be contributing either. – Jon-Peter F. Kelly A.B. ’94, J.D. ’97

Sanctions for “hate speech” wrong

As much as the recent use of racial epithets and racist insignia in Section IV disturbed me, I am equally disturbed at the reactions by so-called liberal student organizations. As a student of Jewish heritage – as well as one in favor of racial, religious, and sexual equality – I stand firmly against all types of prejudice and discrimination. However, with regard to the latest racist incidents, the most vocal of the HLS community have gone further than standing against hate speech – they have called for official sanction of it. This, in my opinion goes too far.

I cannot agree with the letter of the “affinity groups,” nor with critical race theorists such as Charles Laurence, when they say hate speech chills the speech of everyone else. Perhaps in Alabama in 1950 that was the case, but it is not so at Harvard in 2002. Clearly nobody’s speech was chilled when nearly the entire HLS student body either publicly or privately condemned the words of Camara, Scholl and the anonymous flyer poster. At least 400 students felt free enough to stand silently in protest with each other.

In some ways, the presence of racist speech made it easier for everybody to debate about racism and hate speech. Each of us realizes that we live among bigots, whether bigotry is expressed or not. Yet, I would be uncomfortable rallying against racism and anti-Semitism on campus if I had no affirmative evidence that any existed. Now I, along with hundreds of my classmates, debate the topic with ease because there is something concrete to rally against. Far from chilling speech, racist speech has impelled us to shout it down.

This is not to say that racist speech, or even speech that appears tainted with racism, by teachers should not be sanctioned. Since teachers are in authority positions, they must be careful not to express views that would make students feel that other views are unwanted in class. I believe a balance can be struck between this position and that of Professor Rosenberg – that we must be careful not to chill controversial academic speech by teachers as well.

I think those who have called for official sanctions and codes for speech that is not “threatening” or clear “patterns” of “harassment” have done themselves a personal and political disservice. First, by reacting with more than simply counter-speech, such people have infantilized themselves. We all realize that there is covert hate out there. We should be adult enough to be able to operate fully despite of it. There are no speech codes in the real world. Second, centrists and those on the right who might be skeptical of the BLSA-type organizations in the first place can now claim that multi-cultural organizations are simply groups of hypersensitive students who wish to stifle opposing speech. In the long-run, the demands of the “affinity groups” will undermine their credibility. – Aaron Katz, 1L

Student leaders suggest changes

(This letter was written before we received Dean Clark’s 4/23 e-mail.)

We are deeply troubled by the recent rash of offensive incidents at HLS. Their recurrent nature demands more than an ad hoc solution. We live, study and work with articulate, inquiring, passionate individuals in an environment where conflict is routine and welcome. Yet our handling of conflict and communication must improve in order to achieve shared goals of scholarship, understanding and community. We encourage ever
yone at Harvard Law School to focus on the following objectives, all of which should be implemented by the beginning of next fall:

Students: We must embrace our collective responsibility for transforming the quality of our dialogue and creating a community in which diversity is welcomed and understood. Student organizations should work together, independently of the faculty and administration, to develop structured ways that this dialogue can take place. We should do this in a way that does not unduly burden individual students to function as spokespersons for underrepresented minorities.

Administration: The Law School should develop a policy that defines and disciplines discrimination and harassment, and promotes tolerance and inclusion. The Administration should also provide appropriate training to entering students and new faculty.

The Law School should employ a full-time, trained member of the administration, with all necessary support, to function as a mediator and trainer and as an advocate/adviser for students who become victims of racial, religious, cultural or gender/sexual orientation-based discrimination or harassment.

The Law School should make available information regarding HLS and University procedures for reporting such behavior.

Faculty: The immediate wake of an incident is a counterproductive time to lead an intellectual discussion of what has just occurred.

We realize that not all faculty deem it appropriate to address racial, cultural, religious or gender/sexual issues and that many who do are uncertain how to proceed. One proactive approach would be for faculty to lead periodic discussions about these issues.

Professors who have repeatedly offended minority groups in class should not teach non-elective courses.

We insist that all parts of the HLS community demand as much of ourselves in addressing these challenges as we demand in other respects. We believe that the pain of facing our shortcomings and failings squarely must be experienced now to make HLS a much better learning environment in the immediate future.

– Bill Dance President, Law School Council and the entire membership of LSC – This letter was also signed by the leaders of 27 student organizations, speaking only for themselves. For a complete list, e-mail wdance@law.harvard.edu

HLS should support academic freedom

I write in support of Professor David Rosenberg and in defense of principles of academic freedom currently under assault at the Law School.

The administration’s response to Rosenberg’s remarks includes: a) making class attendance optional and b) asking that he allow supplemental lectures from “additional torts perspectives.” With respect to the first measure, the Harvard Law School Catalog provides: “Regular attendance at classes and participation in class work are expected of all students.” To make an exception to this policy for students who disagree with what is being taught in class is both foolish and hypocritical.

As for the second measure, the Law School’s “Rights and Responsibilities” state that “freedom of speech and academic freedom” are “essential to its nature as an academic institution.” Furthermore, “Interference with any of these freedoms must be regarded as a serious violation of the personal rights upon which the community is based.” The choice of materials to be included in a professor’s syllabus is critical to any exercise of academic freedom. To control or curtail it for ideological reasons is inimical to the interests the law school purports to uphold.

BLSA has gone further, asking that Professor Rosenberg be publicly censured for his academic expression and be barred from teaching 1L courses. Besides this obvious attack on First Amendment values, if implemented, these changes would significantly impoverish the 1L experience. As a veteran of Rosenberg’s Federal Litigation class, I know that his “tough love” style of teaching can be provocative. But his functionalist approach, and the “line-by-line feedback” from one of America’s most brilliant litigators, are one of a kind. This is precisely the “robust exchange of ideas” Justice Powell praised in his Bakke opinion defending diversity in higher education. People of color do not enjoy a monopoly in contributing to intellectual diversity, and Professor Rosenberg’s contributions are at least entitled to tolerance and respect.

The measures taken against Professor Rosenberg to date are unacceptable; to cave in to BLSA’s further demands would be disastrous. – Carlos M. Lazat’n, 2L

Dershowitz a hypocrite?

Regarding Professor Dershowitz’s remarks chronicled in “Dershowitz discusses terrorism and Arafat” (RECORD, 4/18): Yes, terrorism really works – for Israeli extremists. The bulldozing of settlements of fanatic Israeli fundamentalists are tangible proof.

Yes, terrorism really works – for desperate Palestinians who want to end their suffering and that of others with suicide.

Dershowitz seems to think everyone else in the world has his socioeconomic mobility and can simply up and leave the unpleasantness in their lives behind them in exchange for some imaginary comfortable supra-nationalist haven. Isn’t it more likely that populations will wait for extreme force to coerce mass refugee flows? The history of genocide in the 20th century seems to prove this human habit.

Someone who passed through our suite last month remarked “shouting hypocrite” upon seeing Dershowitz’ new book, “Shouting Fire.” How appropriate.

Perhaps Dershowitz fans could raise enough money for Attorney General Ashcroft to replace that nasty statue of blind Justice with naked breasts with a more appropriate naked, fig leaf-less and blindfolded advocate-supporter like himself, with a line of grad students in tow lugging briefs.

Humanity this year seems once again ready to take its favorite holiday of all – war. Happy holidays to us all. Support the UN. – Peter KubaskaStaff member

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