Torts Chamber?


It took nerve for first-year Harvard Law student Tel Cary-Sadler to deliver a two-minute speech before 80 students during his torts class, blasting his professor for making racist comments and requesting a public apology. Students at this 180-year-old law school—in a rare position of privilege—are better known for putting aside their personal needs to get the ultimate designer degree than confronting senior faculty. For Cary-Sadler, who took the chance, nervy or not, that apology will never come.

In fact, the professor, David Rosenberg, who repeatedly said in class that “feminism, Marxism, and the blacks have contributed nothing to torts,” has said his comments were simply misunderstood. By “blacks,” he was referring to supporters of critical race theory, he says. Moreover, instead of an apology, he wrote in an open letter that limiting his or any speech would have “a chilling effect” on campus debate.

The beef between Rosenberg and his students is only one of a head-spinningseries of racially charged events occurring on campus within about four weeks in late March and early April. They started with the posting of the word “nigs” in reference to black people on a public student database and mushroomed into mass distribution of a strikingly hostile e-mail, circulation of anti-Semitic and racist flyers, and offensive comments by a professor in yet another first-year torts class.

This was the “breaking point” for the Black Law Students Association (BLSA), according to one of the organization’s leaders, Lacey Schwartz. Now BLSA is demanding that faculty and administration take swift and drastic steps to curb future problems. Among those possible steps would be the implementation of a policy against harassment—an old sore spot on the campus left open in the ’90s from the p.c. wars and the painful process of implementing a sexual harassment policy then.

After a silent protest attended by more than 300 students (25 percent of the student body) and an open letter from BLSA accusing faculty of “indifference” toward its complaints, faculty could be up against a wall. This may be the point at which past, present, and, most importantly, potential students will learn just how far professors—black and white—are willing to go to create an educational environment comfortable for students of color. It’s no coincidence that BLSA organized the rally on one of two days that students admitted for the fall semester were visiting campus. BLSA members reported that students who have applied to the law school often question the racial climate on campus before they attend.

First Amendment advocates see the institution being forced to take a stand in the age-old debate about whether anti-harassment rules limit academic freedom.

“Over my dead body,” says free-speech warrior and professor Alan Dershowitz, regarding a possible harassment policy. “These students say they are adults, yet when they are insulted they go running to Mommy and Daddy, dean and president—criminal law is all about race and gender and controversy. Nobody is going to tell me how to teach issues like racial profiling.” Ultimately, the fate of the BLSA’s demands is in the hands of 70 faculty members, including Dershowitz, who could end up voting on policy changes.

Already “academic freedom” has been used as a shield by some accused in recent incidents. Earlier in the semester, when a black student came across the notes that contained the reference “nigs,” she filed a complaint with the administration. Immediately after, she received an anonymous e-mail that was later widely circulated and reproduced in flyers decorated with swastikas, reading: “We are at Harvard Law School, a free, private community where any member wishing to use the word nigger in any form should not be prevented from doing so.” The author continued: “If you, as a race, want to prove that you do not deserve to be called by that word, work hard and you will be recognized.”

Rosenberg made his “no contribution to torts” comments just a week later, though with no apparent relation to the prior incidents. And the problems didn’t stop there. Longtime professor and former civil rights advocate Charles Nesson, known for quirky teaching and admitting that he smokes pot before class, offered to defend the author of the derogatory e-mail in a mock trial. Apparently for Nesson, the incident presented more of a “teachable moment” than a need to take action against racial tensions.

The administration did not immediately respond to the initial complaints, but BLSA members ultimately met with Todd Rakoff, dean of the doctor of laws program, and Robert Clark, dean of the faculty, who have allowed the association to address faculty. BLSA wants to see research begin for an anti-bias policy, yet its members are “leery of shaping what that means,” says Cary-Sadler, choosing to dodge the bullets that come with calling for a speech code.

But BLSA does reject the idea that limiting comments like Rosenberg’s squashes academic freedom. Rosenberg’s class was an “abusive environment” that did not create a space in which all students could present “alternative viewpoints,” says Cary-Sadler.

BLSA is also requesting a center with a full-time harassment claims officer, such as exists to enforce the sexual harassment policy. The deans, neither of whom returned calls for this story, said they will devote a portion of the summer faculty workshops to discussing race and pedagogy. They also plan to create a committee to research a harassment policy, and they have committed resources to developing a training program for students and faculty to help them better negotiate issues of race.

Nesson stepped down from teaching his first-year torts class for the remainder of the semester as another concession. Rakoff will pinch-hit, with Nesson sitting in the back row. But that’s not exactly a major win for BLSA, considering he has recently been the target of heavy criticism by colleagues for drug use. As for Rosenberg, there has been no public talk of punishment coming his way.

Ultimately, the concessions proposed by faculty so far offer little promise for definite change. Students remain “hopeful but skeptical,” Schwartz says. But members of the group were certainly surprised by what they called Clark’s “naive” response. “He thinks these are a series of isolated incidents,” says Cary-Sadler. And there is a fear of being fleeced by faculty members who see students as “expendable.” Words like “immediately” and “rapidly” come from BLSA members when asked how quickly the committee should move on its research. Ask faculty members—including those who are not as extreme as Dershowitz—the same question, and be ready for a long, academic response.

Even six African American professors who signed a letter of support for BLSA are not exactly passionate about the harassment policy. Senior faculty member and Harvard Law alum Charles Ogletree says the letter, signed by professors Lani Guinier, David Wilkins, Chris Edley, Randall Kennedy, and Ken Mack, was meant to “encourage our dean and faculty to take seriously [BLSA’s] concerns.” Cary-Sadler said the professors who wrote the letter were a little more “moderate” than he expected.

Yet Ogletree, who praised the deans’ rapid response, didn’t betray his colleagues or the academic-freedom argument. “Some of the issues really reflect serious scholars [who are] fair-minded, but don’t have the pedagogical tools to [discuss the issues].” Ogletree also warns “you can’t ignore the importance of academic freedom.” Having attended Harvard, Ogletree agrees similar racial incidents have occurred over the years, though he tempers that by saying, “It is small-minded to think that this is a Harvard problem.”

If the implementation of the sexual harassment policy in the mid ’90s is any indication of things to come, the Harvard campus could be in for a year or more of heated debate and could wind up with a Swiss-cheese policy with concessions that try to please all sides. Still Ogletree, who was involved in that process, said it was “some of the most fruitful and productive” debate he has seen at Harvard.