BY MATHEW PARKE
In the search for a new Dean, the Harvard Law School faculty may be getting left out of the process.
The faculty has tabled further discussion regarding whether they ought to follow a faculty resolution requiring them to elect their own Dean Search Committee. The resolution was adopted by a four-to-one vote in 1985, and was used for the first time in 1989 during the selection process leading to Dean Clark’s appointment. At that time Prof. Laurence Tribe praised the process, calling it “the first decision-making body selected from the HLS faculty designated to be representative of a broad spectrum of viewpoints.”
Authority to appoint the deans of all Harvard schools ultimately rests with the President of the University. Instead of relying on the faculty committee, President Lawrence Summers has already selected an advisory group consisting of nine Harvard Law School faculty members (Profs. Charles Fried, Lani Guinier, Christine Jolls, Louis Kaplow, Randall Kennedy, Frank Michelman, Martha Minow, Mark Roe and Laurence Tribe) and two professors from the Faculty of Arts and Sciences. Faculty members tell The RECORD this advisory group was put together without consulting the faculty as a whole.
The faculty subsequently met in December to discuss what some viewed as President Summers’ disregard of the 1985 resolution. But in January, the faculty voted to table the issue rather than take action. No faculty member contacted by The RECORD was willing to say how the vote broke down.
The origins of the 1985 resolution lie with Dean Vorenberg’s appointment of a committee to study deanship selection. That committee consisted of Professors David Shapiro, Lou Sargentich, Todd Rakoff and Vern Countryman, who acted as chair. The Countryman Committee proposed that the faculty use a proportional representation voting system to elect a six-person committee. The elected committee, to be known as the Faculty Dean Search Committee, would then conduct a search among qualified candidates and make a final recommendation to the University President. In their report, the Countryman committee wrote that “involving an elected committee increases the likelihood that the voice heard by the central administration will be one that better reflects all our thoughts and aspirations and does not give disproportionate weight to those with easier access to Massachusetts Hall.” The faculty overwhelmingly adopted what became known as the FDSC process.
The process worked well to ensure that competing factions were heard during the 1989 selection of Dean Clark. Professors Tribe, Robert Clark, Shapiro, David Kennedy, Gerald Frug and Bernard Wolfman served on the FDSC — representing the right, left and middle in a then-polarized law school. Clark resigned from the committee a month before the committee made its final recommendation after it became apparent that he was being seriously considered.
The process used to select deans at other law schools varies. University of Chicago Law School faculty have customarily used a process similar to that recommended by the Countryman committee — with faculty choosing a committee that then vets potential candidates. At Stanford, the University President, in consultation with the outgoing dean, usually appoints a search committee — although the entire faculty remains heavily involved in the recommendation process. When Kathleen Sullivan was appointed dean at Stanford four years ago, however, University President Gerhard Casper and Provost Condoleezza Rice did not want collective faculty participation. They instructed the committee to give the Stanford faculty no information about its deliberations or whom they were considering — a condition that, according to Professor Bill Simon, created a good deal of resentment over the process.
Professor Richard Parker likened the HLS faculty’s current tabling of the ’85 resolution to a decision to undercut an institution’s established constitutional law. “There are some who would say that it is better to trust one enlightened President than a whole bunch of people who, given the stereotypes of professors, are not much good at running anything. I understand that. I don’t agree with it.”
Parker suggested that while Summers has power to appoint deans of his choice, the process by which even absolute power is exercised ought to respect the practices of an institution. Parker believes that the dean committee election process was pre-empted, without prior consultation of the faculty, by President Summers’ appointment of the advisory committee. He also expressed disappointment with Dean Clark’s decision to dispense with the established FDSC process — suggesting that Summers’ appointment of an advisory group need not have stopped the faculty from electing its own complementary committee.
When asked about the ’85 resolution, Clark agreed that it was not being followed and pointed out that Summers already has an advisory group. He added that the majority of the faculty voted to ignore the resolution. In response to whether he had a personal preference in how the new dean is selected, Clark expressed “a mild preference for a Presidential process with his own committee.” Clark added that “the President ought to have a committee he trusts and will listen to. That is good so long as it is big enough to represent everyone.”
In response to inquiries about the ’85 resolution, Summers’ office noted that Summers uses the same procedure when appointing deans to any of the University schools. Summers has expressed a willingness to listen to input from faculty, alumni and students in regards to the selection of the new law school dean and has established a confidential email account, firstname.lastname@example.org, to facilitate communication.
Professor Duncan Kennedy told The RECORD that “while there will be broad consultation, the composition of the current committee has political consequences here by weighting the process to the center, away from the left and right, who would probably be more represented in an elected committee.”
Kennedy said he sees the question as one of process and suggests that by adopting a “pragmatic” approach the faculty risks disempowering itself. He added that “pragmatism comes with some element of humiliation as its price.”