Does the Shield Conversation Really Have Two Sides?

Thursday at 12:00pm – Students meet in Professor Charles Nesson’s office

 

Professor Nesson:     “I want to leak your email.”

Me:    “No. Please don’t forward it. I want to clean it up and write the story. If nothing else, I’m sure there are typos.”

Professor Nesson:     “Don’t worry about typos! I put them in my emails on purpose—they make them look more natural.”

Me:     “Professor, please don’t. I know I can do it more justice.”

Professor Nesson:     “Fine. We’ll wait for your article.”

 

Saturday at 8:10am – Professor Nesson forwards email to HLS students, faculty, and  Harvard Law Record editors.

When you’re a tenured white male professor at Harvard Law School you can acknowledge your privilege daily and still not recognize how you exercise it. You can pledge your support for student activists and still undermine their autonomy. You can commit yourself to dialogic processes and still ignore minority voices.

Just a few minutes after seeing his email, I called Professor Nesson and shared my honest frustration. I realized that asking him to simply respect my decision was sadly not enough to bar his own; he needed to understand why I can’t operate with the freedom he can. I spent my Saturday morning explaining what perhaps I was too tired to a few days earlier, that no one would challenge his intelligence like they’d challenge mine over just one misspelled word.

I offer this anecdote not to expose or chastise Professor Nesson, who has been an ally to many minority students, but to illustrate the elusive nature of “white privilege”—the way in which it perverts even our most well-intentioned, outspoken, liberal white allies. I offer this to explain why Professor Randall Kennedy’s arguments, which understate the impact of micro-aggressions born of this nuanced “white privilege,” are so palatable and dissents viewed as disrespectful. I offer this to encourage humility.

So, after all that, what was this email about?

It was an email chain that outlined a strategy we developed to foster honest dialogue about the HLS shield and captured the revealing responses of our HLS community.

***

Over the past few months, many have accused student activists from Cape Town to Cambridge of engaging in polemic behavior and creating hostile campus environments. Critics have argued that, in doing so, activists are killing productive discourse, ignoring the implications of the sound of silence, and exploiting terms like “white privilege.”

In conversation last Monday, Professor Nesson described the recent debate about changing the HLS shield given its ties to slavery as an opportunity to distinguish ourselves from polemic student protests—we could set the standard for a dialogic process and protect its legitimacy.

I pushed back on this general characterization of student activists and those at HLS in particular, explaining the many ways in which they have tried to intellectually engage both the undecided and opposition (e.g. fireside chats). With that said, I encouraged him to consider whether we’d be discussing the shield at all without some student incitement.

I also rejected the notion that the existing process outlined by the HLS shield committee, charged with making a recommendation on the shield to the Harvard Corporation, was insufficient. After all, the committee, composed of faculty, alumni, staff, and students, invited all members of the HLS community to submit their opinions about the shield via email and hosted two open community forums to further discuss them.

Nevertheless, I had to admit that I too had heard some students claim that those with views opposing the Royall Must Fall movement to change the shield had felt “brow-beaten.” Thus, perhaps strengthening the dialogic process would protect the legitimacy of a recommendation to change the shield.

To that end, we organized a few students to host a series of anonymous online conversations in which participants could freely share opinions without the fear of personal retort. We agreed to launch the series with a debate between two pairs of professors, one in support of changing the shield and the other against it.

We quickly secured the co-sponsorship of the Black Law Students Association (BLSA), the Federalist Society (FedSoc), and the American Constitutional Society (ACS). While we did not look to attribute any particular perspective to each organization, it would be naïve for us not to have acknowledged that BLSA and ACS had both signed the Royall Must Fall petition while some of FedSoc’s members were among the loudest voices against the shield change. Nevertheless, we amicably worked together to scan the faculty for professors willing to argue in our proposed debate, prioritizing the less active voices.

By Wednesday, we had two professors committed to arguing for changing the shield—Professors Ron Sullivan and Nancy Gertner. Consistent with our instinct, both professors insisted that we identify sincere opponents (not those simply playing devil’s advocate) in order to effectively represent students with those perspectives. Unfortunately, neither Professor Sullivan nor Gertner could identify a colleague who satisfied this requirement, but each suggested polling conservative professors likely to defend tradition.

We reached out to Professor Charles Fried, the faculty sponsor of FedSoc, though he had openly shared his support for changing the shield in a prior HLS shield committee forum. What we intended to be a short meeting turned into more than an hour-long debate about the broader issues of race at HLS— the “manufactured” problem outlined by student activists and their “outrageous” demands. He was frankly not interested in discussing the shield, seeing it as an incredibly inconsequential “logo” developed by a public relations professional with no meaningful connection to the institution. Accordingly, if it had come to offend students, he could not find a rational argument against changing it.

The FedSoc board member present made an effort to explain that while he presumed the majority of its membership was indifferent, there were members who adamantly believed it should not change and surely they had some valid arguments. Professor Fried nearly leaped over the table, screaming “WHO?!” He vehemently insisted that FedSoc not engage in such a ridiculous conversation, stating “we’re not in the business of defending preposterous positions.”

Professor Fried continued by explaining that neither BLSA nor ACS should define the position that FedSoc takes on an issue and that they should not assume the organization always stands in opposition. He joked that as organizations we should not “stereotype” each either. Known for a lack of political correctness, Professor Fried went as far as to say that if we wanted a co-sponsor to defend the shield, we should petition the Office of Mental Health—make what inferences you will.

While the FedSoc board member continued to push back, Professor Fried went on to say that he would rather FedSoc write a letter in support of changing the shield than it make a mockery of itself trying to defend it. He then recited the contents of his imaginary letter. Professor Fried concluded by saying that he could not identify any professors who would defend the shield except those who would debate even a “lunch menu.”

As we walked out, the FedSoc board member present said he would need to raise our conversation with leadership to decide whether the organization wanted to go forward with the co-sponsorship. I explained that while I understood its members might have a range of perspectives on this matter, if FedSoc pulled out as a result of Professor Fried’s guidance, it would suggest that the organization was adopting his opinion that the shield should change. Within the hour, FedSoc withdrew their co-sponsorship.

Yet, we didn’t end our efforts there. Looking for another neutralizing organization, we pitched the event to the Student Government. President Kyle Strickland agreed to sponsor the debate if we could indeed find professors who would defend keeping the existing shield. With his support, we continued our search.

One conversation after another with people across the political spectrum and it started to become clear that we weren’t going to find even one professor interested in sincerely defending the HLS shield, let alone two. These professors weren’t scared to share an unpopular opinion; instead, the overwhelming majority agreed that it should change for a variety of reasons. Only one declined to share a perspective given her position on the HLS shield committee.

By Friday, we were forced to call off the debate. We had given it a fair shot. Now, we were left questioning the underlying hypothesis that antagonistic student activists were silencing opposing voices through a polemic rather than dialogic process.

Are students opposing the shield change in fact being condemned or simply outnumbered? Have student activists just amassed more social capital? Do opponents find themselves in the uncomfortable position of being the short stack at the table? Are they reluctant to go all in on this hand? Have they folded, saving what they have left for the next one?  Dealt what we were, would they have played any differently?

Professor Noah Feldman explained that he’s confident that anyone who might want to defend the status quo at HLS has the courage and ability to do so. He questioned the notion that student activists opposed to the shield have a duty to bend over backwards and invite the other side to a debate, thus potentially strengthening and encouraging a perspective with which they disagree. “Let them organize themselves,” he said. “They’re perfectly capable of it.”

Bianca Tylek is a 3L at Harvard Law School.

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