Last week, Harvard Law School alumna Olivia Warren testified to the House Judiciary Committee about the sexual harassment she experienced as a federal law clerk. Her account was brave and disturbing. Also disturbing was the outcome of her meeting with HLS Dean John Manning over a year and a half ago, at which she raised concerns that the school’s clerkship advising was putting other students at risk. “Nobody has communicated to me since that meeting what, if any, steps Harvard has taken to address the issues I raised,” she testified.
Since at least 2018, students have pleaded with HLS to take action on rampant harassment in federal clerkships. We have asked HLS to support a uniform, confidential, national reporting avenue for victims of harassment in the judiciary. We suggested annual faculty and staff trainings regarding harassment and discrimination in clerkships. We also urged HLS to ask the federal judiciary to establish its own climate survey, or partner with peer institutions to develop and distribute an anonymous climate survey for alumni who have clerked or externed for the judiciary.
In the past three years, we know of not one action HLS has taken to protect students — not after Ninth Circuit Judge Alex Kozinski resigned in 2017 after over a dozen former clerks and staffers accused him of sexual harassment and abuse, not after Ninth Circuit Judge Stephen Reinhardt died in 2018 amidst rumors of his harassment of his clerks, and not after Kansas District Court Judge Carlos Murguia was publicly sanctioned for sexual harassment of his staff in 2019. In the meantime, HLS students have submitted comments to the Judicial Conference and the House Judiciary Committee, applauded important (but insufficient) changes made by the D.C. Circuit, and educated our peers at HLS and other law schools about harassment and discrimination in the judiciary.
Meanwhile, HLS and Dean Manning have seemingly done nothing. With their inaction, HLS and Dean Manning are endangering future generations of clerks as they place students in positions where the school knew or should have known they would experience harassment and discrimination. When HLS and Dean Manning have ample knowledge and power to do something, why are they refusing to take any of the actions we’ve asked for? Perhaps the answer is that HLS, under Dean Manning’s leadership, cares far more about the number of prestigious clerkships that students get than our wellbeing.
There are likely judges still on the bench whose harassment and abuse remains an open secret known to many law school faculty and administrators but not most students. If these judges had even an ounce of shame, they would resign. Until then, HLS has apparently made the choice that it will continue to supply them with a never-ending stream of unsuspecting young lawyers that they can abuse with impunity. HLS faculty and administrators may claim that they have never heard rumors or reports of misconduct and thus couldn’t have done anything. But even if that’s true, Olivia Warren’s testimony showed us that when they do know, they still won’t take action. Because HLS has failed to support students or any of the solutions we have suggested, we are forced to rely on a whisper network that we have to be lucky to even have access to.
This abdication of responsibility puts the burden on students of color, LGBTQ people, people with disabilities, women, and others to uncover potentially abusive situations themselves and self-select out of opportunities where they may be targeted. It’s no wonder that clerks, especially those in elite clerkships, are overwhelmingly white and male. (And of course, one-third of the male Supreme Court justices have been credibly accused of sexual harassment or assault.) Harassment and discrimination systemically push talented law students and lawyers out of the pipelines to important professional and intellectual opportunities — including but not limited to clerkships — and ultimately this discrimination affects the law itself.
Ironically, the judiciary is exempt from basic employment protections like Title VII, and it is unable and obviously unwilling to hold itself accountable. Law schools’ complicity in permitting harassment and discrimination to continue unchecked — both in their own institutions and in the judiciary — has massive consequences. Not only does it push targets of discrimination out of the profession, it enables harassers to stay on the bench, and their rulings allow harassment to persist everywhere. Law schools’ inaction doesn’t just imperil law students; it undermines the rule of law for everyone.
It’s especially egregious that HLS tells us that not applying to clerk for unqualified, bigoted Trump-appointed judges is a “wasted opportunity” while simultaneously doing little — if anything — to protect us from harassment and discrimination. Since even before Olivia Warren reported the harassment she experienced to Dean Manning, we have suggested numerous first steps that HLS can take. Dean Manning must take additional measures to protect the safety of students and the integrity of our judiciary. In the meantime, students and alumni will continue to demand better from the legal profession.
Vail Kohnert-Yount is a 3L at Harvard Law School.