RECORD Editorial: HLS needs harassment policy alternatives

BY

One week after the Harvard Business School administration threatened its student newspaper editor with sanctions over a “deeply hurtful” comment in a cartoon, the Law School is confronted with its own free speech conundrum.

The mission of the recently-formed Committee on Healthy Diversity is to improve the racial climate on campus and promote more positive interaction. So far, the Committee has taken some admirable steps, including the Diversity Festival and the “Difficult Conversations” workshops.

Criticism of the “Difficult Conversations” workshops, in national papers such as The Wall Street Journal, is wrongheaded. The workshops are not radical thought reprogramming, nor is their mission worthless. While critics say that the Law School should expect its students to speak and interact like adults, last year’s racial incidents clearly indicate that some students here need help.

However, the Committee’s proposed “racial harassment policy” will not further its mission. Such policies, historically, have been grossly ineffective, instead spurring inappropriate and disturbing prosecutions such as the infamous “water buffalo” incident at the University of Pennsylvania. Here at HLS, the result might be no different. As Dean Robert Clark himself has asked, is a harassment code worth that risk?

Prof. Martha Field argues that although the type of speech the code might prohibit could not be limited by the government, HLS should take steps to restrict speech that might be offensive and hurtful, especially if part of a larger pattern of harassment. Yet it seems that a professional school which, by its nature, trains its graduates to perform primarily outside of academia would not want to impose false constructs and standards that do not exist in “the real world.”

The BLSA leadership argues that the harassment policy is not a “speech code,” but instead a method of preventing larger patterns of discrimination. But what does the policy really prevent? If physical threats are at issue, ample rules are in place to deal with them. Even Field’s contemplated example – of a student following around another student shouting racial epithets – would run up against current regulations. An additional harassment policy, one which lacked the physical/action component of the sexual harassment guidelines, could only serve to restrict offensive types of speech, and would likely be infeasible as well.

While we deplore the behavior of the students involved in last spring’s controversy, freedom entails both the freedom to outrage and to be outraged. The mission of the Law School, rather than silencing disturbing or inappropriate speech, should be to subject that speech to light of truth. Truth is arrived at through discourse, through debate and through reason. Mechanical rules restricting speech cannot change the irrational and hurtful beliefs behind it.

The problem with community standards codes was made clear by the recent controversy at the Business School. There, a fuzzy rule designed to promote a “mutual respect” was used to silence a student newspaper. Thus far, proponents of a harassment policy at HLS have been unable to articulate any clear guidelines for delineating between harassment and speech – the same problem the Business School code has.

It seems unthinkable that HLS students would want to live under a harassment code regime that could punish them for even mild criticism of the administration. It is even more inconceivable that one of the groups advocating such a code has also been one of the administration’s most outspoken critics, going so far as to hold public demonstrations on the Law School campus.

Harvard Law School is already a rarified atmosphere, insulated from many of the troubles of the real world. Racial discrimination and bigotry are pernicious evils felt here and elsewhere. They will not be eradicated by keeping them in the dark. What Harvard Law School can do to fight racial harassment is to do what it does best: foster an environment open to the widest range of perspectives possible, where all speech – even inappropriate or offensive – can be heard.

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