The Moral Community in the Wake of Postergate

The first editorial published in the Harvard Law Record this year was entitled “We Owe Each Other a Moral Community.”  This project — of doing the hard work of turning spaces into places, strangers into neighbors, and a professional training ground into a moral community — has seen better weeks than this one.  It is strange to see warring groups of our neighbors communicate via the symbolic tit-for-tat of postering, ripping, and re-postering.  It is disturbing to see one of our neighbors videotaping another one so as to provide clickbait for his political tribe’s media outlets. The events of the last two days may have created new heroes and villains, may have scored a few points for a few folks within their respective filter bubbles, and may have made most of us — and the distant readers reading about us — angry.  But what these events did not do was build understanding.  This is a shame, because if we are to build a moral community together, we must work to understand each other.

The Catholic heroine Dorothy Day — herself a masterful moral community builder — once said that compassion arises out of curiosity. To show compassion to our neighbors, we must be curious about their actions, feelings and plights. Failures to care are often failures of wonder: failures to ask “I wonder what it’s like to live like that” or “I wonder what they are trying to say” or “I wonder what made someone make that choice.”  If we are to be a community, we must work to tame our impulse to respond to surprising arguments and actions with dismissive judgment, rather than compassionate curiosity.

In that spirit, I would like to share my best understanding of the tangled knot at the center of our campus, as well as some thoughts on steps forward. Before I do, it is important to note that, because I am me — a white suburban guy and also, more significantly, a flawed, uncertain soul — this is a limited understanding, so take only what you want from it.  In fact, the best way to understand what is going on is to listen to the people involved themselves, who have, on multiple occasions, explained their message. My only aim here is to, by speaking in a venue and vocabulary separate from the fight itself, help surface the kindest readings of our neighbors’ messages in the hopes that it might spark some much-needed curiosity, compassion and understanding.

The plague of racial disparity

Any attempt to understand this controversy must begin with taking seriously the enduring civic plague at the center of it: racial disparity in America.  The problem has been articulated multiple times by Reclaim Harvard Law, but it is always worth restating. Four in ten black children in our country live in poverty. The 2011 median white household had $111,146 in wealth holdings, while the median black household had $7,133.  Among Fortune 500 CEOs, only five are black, while 75 corporations in the S&P 500 have not a single black director. The NFL, NBA, and MLB have 92 teams, of which only one is principally owned by a black man.  While only 1.4% of the top 1% of households by income are black, 40% of incarcerated Americans and 35% of death row inmates are black. This racial disparity is a national emergency to which our generation must urgently respond.

To those who think “that’s just the way that the world goes ‘round,” we must remember that most of these disparities were created by racial policies often designed and implemented by lawyers very similar to our future selves. The New Deal and The GI Bill  — the building blocks of the American middle class in this past century — had racial disparities built into their execution. It was the explicit policy of the Federal Housing Administration to bar suburban subdivision developers from qualifying for FHA loans if they did not commit to excluding black Americans.  When technological changes revolutionized the workplace over the past decades, white suburbanites had access to well-resourced public schools — the keys to the new information economy — while urban schools populated by black and latino children were significantly under-resourced. During the housing bubble, black Americans were more than twice as likely as comparable white Americans to be targeted by subprime lenders. Despite using and selling drugs at remarkably similar rates, black men are nearly twelve times as likely to be imprisoned for drug use as white men.  Racial disparity is not “just the way it is”: it is the creation of public policies that our generation — and especially our generation of well-resourced lawyers — has the ability to reform.

When racial disparities linger — as they have for four centuries on this continent — they become imprinted on our collective psyche. Our brains — all of our brains — learn and use patterns to navigate our daily lives. Most of these patterns are good for us: we quickly associate fire with burns, ice cream with happiness and people wearing ski masks and holding knives with danger. But this pattern-making is dangerous when racialized policies and disparities — even ones that have been partially ameliorated in the past decades — leave a legacy of racial prejudice in the form of implicit racial biases: inaccurate racial pattern-making wired into our brains; racial pattern-making that reams of psychology studies show we cannot easily escape even if we consciously believe something different. This is the dark imprint of slavery, Jim Crow and the Drug War: 95% of respondents, when asked to envision a drug user, seeing a black man despite white and black Americans using drugs at similar rates; job applications with names like Emily and Greg being selected over equal applications from Lakisha and Jamal; and doctors recommending fewer treatments to black patients than white patients for chronic illnesses, even when those two groups have the same insurance status.

Implicit bias is a significant factor in how an institution like Harvard can be both colorblind on paper and yet still suffer under racial discrimination in practice; in how a group of Harvard students can be both empowered in one way, yet marginalized in another.  Indeed, relative to the nation as a whole, even the most marginalized Harvard Law students are some of the most empowered Millennials in America. It is insulting to the fifty-one percent of working Americans making less than $30,000 a year (five times less than the starting salaries of Harvard Law students entering corporate interest law jobs) to not acknowledge this. Indeed, Harvard is one of the more racially progressive institutions in our country.  It is insulting to prior generations who fought for that racial progress to not acknowledge this.  

And yet, no American community — no matter how colorblind it is on paper; no matter how empowered its members are — is immune from the implicit racial biases deeply imprinted on our national psyche by centuries of racial discrimination. This reality’s impact on Harvard is starkly documented in the Socratic Shortcomings blog, which has provided students an opportunity to share what fellow student Bianca Tylek has called the “things that happen — whether it’s walking down the hallway or in classes; things that professors say or things that the students say — that just kind of tell you what position you hold within the community.”  If you read the studies on implicit racial bias — or if you experienced the hard end of bias yourself — the blog posts are not surprising: raised hands not called on, ideas dismissed, perspectives ignored, and minds condescended to. No matter how far down you feel that the project of “ensuring that all Harvard Law students feel included” should fall on the list of national priorities, such work — of diversity and inclusion, of surfacing alternative perspectives — should always be a high community priority. It is our duty as neighbors to care about it.

Even more, because of Harvard Law School’s influence in national politics, changes made in Harvard community dynamics can help spur change nationwide.  If more Harvard Law graduates — who are disproportionately represented in positions of national political and legal power — leave Harvard with a better understanding of the experiences and perspectives of marginalized groups (because those groups’ presence in the community and curriculum was increased), they may better serve those groups’ needs during their career. If more Harvard Law faculty come from diverse backgrounds, more legal research and curricula will be devoted to issues that are important to a wider range of people.  If issues of racial disparity are prioritized in the public discourse — an objective achieved by Reclaim Harvard Law in the past year — then implicit bias is weakened, for such bias thrives when it is left unsurfaced.  

Acknowledging all of this — that racial disparity is a national emergency in our country, that implicit racial bias has not been overcome in even the most colorblind communities; that reforms at Harvard not only can change our school but can help change the country — it seems like the major question at hand is not whether Reclaim Harvard Law is overzealous, but rather why the rest of us are not zealous enough.  No matter what one thinks of their tactics, those in Reclaim Harvard Law are some of the only students who have put forth a solution to this public problem of racial disparity at Harvard. 

Debating tactics

And yet, despite this emergency, the entire discussion seems stuck on debating tactics.

Reclaim Harvard Law’s theory of change has been to surface the issue of racial disparity through ‘claiming’ a public space for the purpose of publicizing their cause, thus breaking through the noise of the dozens of issues fighting for our attention. Claiming spaces for political causes has a long and often successful record in the history of American protest. In fact, claiming public spaces temporarily for public causes was so important in American history that we enshrined it in the Constitution, with the right to assemble, and in the design of our nation’s capital, with the National Mall. Their theory of change has been somewhat successful: the Royall crest has been removed, most national news stories about Harvard Law in the past year have spotlighted racial disparities at the school, and the administration has been forced to prioritize discussions of diversity and inclusion. This is not half bad for a year of political work.

Of course, this theory of change’s feature — being disruptive — is also its bug.  Eventually, those with other goals wonder: why cannot we use this space, too?  This question was dramatized by this week’s provocative conservative posterers. When their dissenting posters were torn down by Reclaim Harvard Law members, they cited it as an example of left-wing students not wanting to hear dissenting speech.  However, I believe a more accurate reading of why Reclaim Harvard Law students tore the posters down is that they — like all activists — simply did not want their public message to be muddled.  It was not that they did not want anyone to hear the opinion of, say, Trump supporters, but rather that they did not want people walking by their tightly messaged public display to be confused by the mixed signals that come from opening up the space to multiple messages. If other causes entered the space, their method of breaking through the noise would be rendered inert and their message would fade back into noise.

This splits the events at hand into two questions: the original question of what are we are to do about racial disparity at Harvard and in America; and the meta-question of what are we to do about surfacing public causes in public spaces at Harvard Law School.  It was heartening to read in a recent email from Dean Minow that the project of answering the second question has already begun: “The Law School will shortly provide a centrally located space for students to post their opinions, express their dissent, voice their protest and exchange views.”  If this work of building civic spaces is successful — if disruption is built into our civic infrastructure, better facilitating the surfacing of public problems and solutions in our community discourse — then future students will not have to disrupt spaces designated for other purposes.  This is a project all sides can come together on: balancing the need to surface issues of importance in public spaces with the need to maintain open access to those spaces.

However, amidst this meta-work, we cannot ignore the original question of what we, as a community, can do to fight racial disparity at Harvard and in America. If one quibbles with Reclaim Harvard Law’s tactics, the best action is not to solely fight their tactics, but to provide an alternative means of achieving their same ends. Or, if one quibbles with their ends, perhaps the best action is to provide an alternative answer to their same questions. Conservative — as well as moderate liberal — solutions to the problem of racial disparity would not only deepen the discussion of solving the problem of racial disparity; it would also deepen the projects of conservatism and moderate liberalism. But to dismiss the project as a whole — to dismiss the important questions asked by Reclaim Harvard Law — is inadequate, unneighborly, and unbecoming of moral community members.

Cultural conservatives in the heart of corporate liberalism

However, if we dismiss the vocal critics of Reclaim Harvard Law as (at best) priggish or (at middle) provocateurs or (at worst) racist, we miss the chance to understand an issue of importance to a small group of culturally conservative Harvard students. There is a dominant cultural and economic ideology at Harvard: corporate liberalism.  Most Harvard Law students are secular liberals on cultural issues and corporate-minded technocrats on economic issues. Put another way, they are skeptical of moral language and groups (with the exception of rhetoric around individual rights and tolerance), but faithful to the powerful, centralized institutions — be they powerful law firms, corporations, universities, media outlets or government entities — that most of them populate after graduation.  Meanwhile, half of American believe the opposite: almost half of American women are pro-life; about half of Americans say grace before meals; Rick Warren’s The Purpose Driven Life is the best selling hardcover book in American history; and trust in national institutions is at an all-time low. The silence around this disparity is a source of consternation among our campus’ few cultural conservatives.

I think it is disingenuous to argue that this disparity is on par with the racial disparity in our country. Racial disparities have plagued almost every institution in our country since before its founding.  They have inflicted immense suffering on and shackled the dreams of millions of Americans. The supremacy of corporate liberalism in American culture is only a generation or two old. Cultural conservatives — even those in Northeast liberal colleges — have well-resourced institutions to turn to: organizations, alumni, donor networks, and political coalitions.

Nevertheless, the experience of being a cultural minority in an institution with a dominant cultural ideology should not be ignored. Students should not have to fear discussing how their religious faiths inform their worldviews. Our policy discourse should be broadened beyond questions about the individual and the state (issues of special interest to cultural liberals) to include questions about the mediating institutions of family, church, neighborhood and moral culture (issues of special interest to cultural conservatives). Without ceding ground on the inclusion of diverse lifestyles in our pluralist institution, we can open up conversations about the values and inheritances that inspire and inform cultural conservatives. Without forcing our beliefs down each others’ throats, we can re-introduce morality — questions of duty, of what we ought to do — into our language.

Harvard Law School’s political culture of corporate liberalism not only excludes cultural conservatives; it excludes left-wing folks, too.  As a labor-minded lefty raised on Catholic social teaching, I too have felt out of place here, as words like dignity, solidarity, community, grace and even labor union are seldom spoken in the halls of Harvard Law School. I suspect those in Reclaim Harvard Law — like me, like cultural conservatives — also feel alienated by a culture dominated by corporate liberalism. (Indeed, if one is concerned about Harvard’s role in exacerbating racial disparities, what should be thought of the fact that we send a vast majority of our graduates to work for organizations designed to advance the legal interests of groups who are disproportionately white — wealthy people, corporate managers, and corporate stockowners — while sending only a tiny sliver of our graduates to work for organizations designed to advance the legal interests of groups who are disproportionately black — legal aid clients, impoverished Americans and incarcerated Americans?)

When you feel different than the dominant ideological group, free speech becomes especially important to you.  This is why, I suspect, the conservatives who hung the provocative posters this week are so passionate about their posters being torn down: they saw the ripping as a symbol of how Harvard treats their views; they saw it as a perfect example of the double-standard over how their outside-of-the-box views are treated differently than Reclaim’s outside-of-the-box views.

The reality is that both worldviews are not dominant at Harvard Law.  You are not going to hear the Harvard Law School administration — nor most Harvard Law students — speaking in terms of family values and the sanctity of life, but you are also not going to hear them speaking in terms of anti-colonialism and critical race theory. It is in the interest of both the cultural conservatives and those in Reclaim Harvard Law to loosen the grip of corporate liberalism on campus politics and cultivate a flowering of true ideological diversity on campus.

A surprise in Spring

What better time to cultivate this flowering than the beginning of Spring? After this week, the prospect — of Reclaim’s critics actively joining the project of tackling racial disparity at Harvard or of Reclaim joining forces with conservatives to loosen the grip of the dominant campus ideology that both groups feel alienated by — seems improbable.  

However, whenever something seems improbable, I take solace in a Pope Francis meditation in which he said that “God is a God of the Law, but also a God of surprises” and challenged us all to be “open to the God of surprises” rather than attached to our closed systems of ideas.

We still owe each other a moral community. To get there, we will need to surprise.

Pete Davis

Pete Davis is a civic reformer from Falls Church, Virginia and a member of the Harvard Law School Class of 2018. Email Pete at Tweet at Pete at @PeteDDavis.
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