Tuesday, May 14, 2019

EPIC Events on June 5

I have the honor to serve on the board of directors of the Electronic Privacy Information Center, aka EPIC. Based in Washington, DC, EPIC is the nation's leading privacy organization. It is a nonprofit and does lots of good work with a very small staff. I am most familiar with their litigation efforts. For example, it was EPIC that prevented the "Voter Fraud Commission" from inducing states to upload their voter lists; that court victory pretty much was the end of the Commission. EPIC is active right now on the Census citizenship question issue (the Census Bureau did not do the legally required privacy impact assessment). EPIC has just published a version of the Mueller Report it obtained under FOIA, with all the redactions marked with their justifications. Not only that, this version of the report is in a large format, so the type is readable!

June 5 is EPIC day in DC. Two important events are open to the public. From 1-3pm at the National Press Club, I will be moderating a panel discussion on "AI and Human Rights" with a distinguished group of panelists (free, but register at that link). And that evening at the same location will be the EPIC Champions of Freedom Awards dinner (there are several sponsorship levels for this event).

Hope to see you in DC. Or you can just donate to EPIC--it is a very worthy cause, and heaven knows privacy needs defending!


Sunday, May 12, 2019

The political execution of Dean Sullivan

Professor Ron Sullivan and his wife are out as faculty deans of Winthrop House, following the pattern of the Christakises at Yale. (I thought this might happen.) Sullivan, like Erika Christakis, was convicted of a political crime, and then publicly guillotined. The graceless announcement came yesterday in a letter that cynically invokes the notion of “dignity.” 

I know the counternarrative. The Crimson reported that there were problems with Sullivan long before l’affaire Weinstein. And so there may have been. But Harvard intentionally made Sullivan’s defense of Weinstein the tipping point of the decision to let him go. In the aftermath of Domínguez, the University decided that it couldn’t let the opportunity pass to make a very public #MeToo statement—even though it cut against the core principles of legal defense and the concept of separating professional activity from personal identity.

To explain, I need to refer back to a couple of old documents.

A recent "announcement" for Faculty Dean positions (included below) states, “Faculty Deans are appointed for a term of 5 years, beginning July 1st of the year following their appointment. These appointments are renewable for one additional 5-year term contingent upon a successful House review and approval from the Dean of Harvard College.” So the first question is why the decision to end Sullivan's tenure as faculty dean was not made simply on the basis that his ten years were up, given that the "position announcement" strongly suggests that these positions are limited to ten years. If the ten-year limitation is widely ignored, Harvard may have felt it needed a stronger rationale to remove him. So let’s assume that continuation beyond ten years is now routine. Still, it is clear from the announcement of Sullivan’s departure that he is not actually being removed; his term is up and he is not being reappointed. Under what conditions are faculty deans not reappointed?

Note in the “position announcement” the reference to “a successful House review.” That is to say, a normal review happens every five years, intended not just to review the performance of the faculty dean but to uncover other areas of concern and opportunities for improvement in the House. I don’t know what these “House reviews” consist of today; I include below a document showing what they looked like twenty years ago. A small committee talked to lots of people and reported back to the dean. The details don’t matter. The point is that there was—and according to the current “position announcement,” still is—a routine way to take the temperature of the House. Depending on the outcome of that review, the dean of the College would have the opportunity to sit down with the faculty deans and tell them, “Here is what the review turned up. I think you will agree that it makes more sense for you to announce your decision to move on to the next phase of your lives than for me to explain to the community what we have learned about your performance.” One of the reasons for term limits and reappointment reviews is to provide for the graceful and dignified handling of forced exits of people who will long remain in the community.

So why was there an out-of-the-ordinary, Orwellian “climate review” of Sullivan in Winthrop House? There should have been an ordinary quinquennial House review. That review would have uncovered whatever problems the climate review brought to light.

I can see only two possible answers. One is that those quinquennial reviews don’t actually happen, in spite of the "position announcement" stating that they do. In that case the dean of the College would simply reappoint whomever he wishes, independent of any pretense of informed evaluation. The very decision to conduct a “climate review” would then be political. Or else the normal review process took place and the “climate review” was added only in order to conduct a political trial of Sullivan’s decision to defend Weinstein.

It seems odd to characterize either possibility as "political," since Sullivan’s personal politics have not even come to light, and he seems to have defended a great many clients with whom the left would sympathize. By “political,” I mean the term in its latter-day, Domínguez-colored, #MeToo sense.

Consider an alternative political scenario, in which Sullivan defended a physician on trial for murder after performing an abortion. Committed students from Georgia, Ohio, Mississippi, and Kentucky, spurred to action by recent decisions of their state legislatures and governors, protest that they don’t want to be handed their diplomas by someone who defends infanticide. Or suppose that some other faculty dean had an abortion herself, and angry students spray-painted the word “MURDERER” on her door. 

Would Harvard conduct an extraordinary climate review under those circumstances and then announce that, coming on top of other performance problems, the climate created by the decision to defend an abortionist or to have an abortion was the straw that broke the camel’s back?

I doubt it. Instead we would have much rhetoric about learning to live in a diverse community with people who have different values, cultures, and ideals than our own. That no climate review would occur under those scenarios makes the decision to terminate Sullivan a statement of Harvard’s political preferences.

And since Sullivan was let go in part for political reasons, forgive my skepticism about the entire counter narrative – that is, whether the other alleged deficiencies in his leadership were major considerations in the decision not to keep him on. Certainly the students who were most vocal about Sullivan's defense of Weinstein are accepting the outcome as a victory for the #MeToo movement.

I hope Professor Sullivan does as well in his new life as Professor Nick Christakis has in his. And I hope Harvard can at some point think about what lessons such decisions are teaching its students (see Harvard's educational role and A teachable moment).





Friday, May 10, 2019

Harvard succeeds in crushing the women's clubs

I long ago told the Faculty that the social club sanctions would hurt women more than men. At the year's final meeting of the Faculty of Arts and Sciences on May 7, I asked Dean Khurana the following question about that:
Dean Khurana, my question concerns the policy you announced 3 years ago in order to push certain off-campus social clubs to go co-ed, a policy that this Faculty discussed at some length. You were quoted in the Crimson on February 22 to the effect that you were pleased with the success of the policy. The Crimson also reported, however, that while the policy has wiped out almost all the women’s clubs, it has had only a small impact on the men’s clubs. So that the faculty may know the facts of the matter without relying on the Crimson, can you tell us as of today, how many of the men’s clubs have gone co-ed (perhaps under a new name), how many went out of business, and how many remain all-male; and similarly for the women’s clubs, how many went co-ed, how many went out of business, and how many remain all-female? 

Harvard Magazine explains the question and reports Dean Khurana's reply.
The point of his question was that the policy has made it difficult for women to maintain their recently established social organizations, while the long-established male final clubs (including those with private facilities in Harvard Square, and in some cases significant endowment resources built up over many decades), have been relatively less affected to date—an outcome perhaps different from the one Khurana sought, or that faculty members who voted for the policy in late 2017 intended. Khurana pointed to data available from the dean of students office. Among 13 social organizations now qualifying as gender-neutral (and therefore recognized, so that membership does not expose a student to the sanctions), he said, four were former fraternities; eight were former sororities; and one was a final club. Seven final clubs or similar male fraternal organizations had not become gender-neutral, and therefore remain unrecognized social organizations, whose members are subject to the new policy’s sanctions.
A knowledgeable undergraduate helped me parse the accuracy of this answer.
  • The statement that "eight were former sororities" can't be right, since there have never been more than four sororities at Harvard.
  • The statement that "one was a final club" seems to refer to the Spee. But some women's final clubs went co-ed, so it seems that when Khurana refers to "final clubs" he is referring only to the male final clubs. Perhaps he is equating the formerly women's final clubs with sororities, even though they do not have national parent organizations. But the numbers still don't seem to add up.
  • And it is hard to reconcile the statement that "Seven final clubs or similar male fraternal organizations ha[ve] not become gender-neutral" with the facts that six male final clubs remain all-male (AD, PC, Fly, PSK, Owl, and Fox, none of which is applying for recognition) and two fraternities (SX and SAE) remain all male and have sued Harvard. (The Fox at one point promised to go co-ed and then reversed course. The Delphic, a men's final club, and the Bee, a women's final club, seem to have effectively merged to form a recognized co-ed club.)

Bottom line: there seem to be eight all-male clubs left and zero all-female clubs, while there used to be thirteen all-male clubs and ten all-female clubs. And at gender-neutral Harvard, this counts as success.

Added May 11: One of the sororities that shut down seems to have technically re-opened, with almost no members, mainly to join the fraternities in their lawsuit against the University. Last spring a new female final club was reported to have been formed, but I can't find any recent information about its status.


Wednesday, March 20, 2019

New Book Out!

Happy spring!

Yesterday was the official publication date of Essential Discrete Mathematics for Computer Science, co-authored with my former CS20 teaching assistant Rachel Zax, now at Google. It's meant to be a quick trip through all the mathematical subjects students need to do computer science but wouldn't get in their calculus and linear algebra courses. The publisher, Princeton University Press, has done a great job holding the price down. They have made it available in electronic form at an even lower price than the print edition.

This project started when I designed CS20 almost ten years ago (see "Reinventing the Classroom" for the genesis of that course). I needed an affordable text that covered a variety of topics not usually packaged together. There wasn't one (remember, I said "affordable"). I made do with a variety of online materials, mostly designed for a more mathematically sophisticated audience. Rachel, who had worked with me on the course when I taught it for the first time in the spring of 2012, suggested we should write a book. Here's the end result, only seven years in the making!

The cover art illustrates a famous theorem treated early in the book. The English language statement of the theorem is that in any group of six people, there are either 3 who all know each other or 3 who are mutually unknown to each other. (Take your pick as to which of red and blue represents knowing and which represents not knowing.) It's a nice example of how to translate that into math-speak and then prove that it's always true--pretty typical of the material in the book!

The acknowledgements thank (by name) everyone who was a teaching assistant while I was teaching the course; a terrific group, mostly of Harvard math and CS undergrads. They really made it fun to teach this material, and I hope that comes through in the book!


Sunday, March 10, 2019

Harvard's educational role

Several clear-headed pieces have appeared about the student demands that Professor Ronald Sullivan resign from—or be removed from—his position as faculty dean of Winthrop House because of his service as counsel to Harvey Weinstein. I blogged earlier about Professor Randall Kennedy’s commentary in the Chronicle of Higher Education. (This link should work for readers with Harvard Library privileges.) In The Atlantic, Conor Friedersdorf, a staff writer for the magazine, has an equally thoughtful piece called “In defense of Harvey Weinstein’s Harvard lawyer.” He cites the student petition, which states that Sullivan’s “defense of such a figure induces a great amount of fear and hurt in victims of the crimes that Weinstein is accused of,” and then discusses John Adams defending the British soldiers, which Kevin Cullen used as a basis for his satirical column, but puts a less comic spin on it by quoting Adams himself on the price he paid:
In the Evening I expressed to Mrs. Adams all my Apprehensions: That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.
The pattern has been repeated throughout U.S. history. “Defense attorneys for Communists made many feel angry and unsafe,” Friedersdorf writes, recalling the McCarthy era, and then moving to the present, “Defense attorneys for al-Qaeda terrorists made many feel angry and unsafe.”

So people always get upset at lawyers who defend unpopular clients, and societies that value civil liberties and individual rights have to teach every new generation why lawyers should not be identified with their clients nor subjected to any guilt by association. Ever. 52 Harvard Law School professors make the point in a letter in the Boston Globe. President Drew Findling of the National Association of Criminal Defense Lawyers made the point very bluntly in a powerful statement (in the NACDL Twitter feed):

NACDL notes with chagrin the tenor of the student protests against Professor Ronald S. Sullivan Jr. related to his representation of Harvey Weinstein. There are few constitutionally-ordained roles in our democracy. One such role is that of the criminal defense lawyer. Indeed, the Sixth Amendment specifically provides that 'In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel[.]' There are no exceptions, ever, and no lawyer should ever be criticized or condemned for taking on any criminal case. Ever. This is a fundamental tenet of this nation. To the extent that there may or may not be other issues on the Harvard campus that bear on Professor Sullivan's role at Harvard, those issues should be addressed by the Harvard community without compromising or denigrating the right to counsel.

Writing for BloombergProfessor Steven Carter of Yale Law School makes similar arguments.

Judging the morality of lawyers by the morality of their clients carries echoes of the McCarthy Era, when Red-baiters would smear lawyers who represented Communists. The organized bar, rather than protect its members, joined in the condemnation. The result was predictable: Rather than take on unpopular clients, lawyers cowered in what U.S. Supreme Court Justice William Douglas decried as a “black silence of fear.” …

More worrisome still is Harvard’s ominous promise to look into the “atmosphere” at Winthrop House. It suggests that the university believes that a faculty member’s choice of clients is a matter of administrative significance. And let’s not pretend to be naive: Nowadays, being investigated by campus authorities is tantamount to being convicted by them.

We’re a far cry from the days of Abbot Lawrence Lowell, the president of Harvard who developed the “house” system. Yes, Lowell had his many warts, but he did some good things. Here’s one of them: A century ago, during the runup to World War I, a Harvard professor was accused of supporting Germany. Editorialists wanted his head. Lowell’s response has justifiably gone down in history: “If a university or college censors what its professors may say, if it restrains them from uttering something that it does not approve, it thereby assumes responsibility for that which it permits them to say.”

The same reasoning, it seems to me, should apply to the selection of a client. Harvard could certainly adopt a rule holding that no faculty shall engage in outside legal work. Absent that, however, once the school decides to punish a professor for choosing the wrong client, it implicitly endorses the clients of others who are not punished.

If that’s the business Harvard wants to be in, then in all fairness the administration might as well come out and publish a list, right now, today, of acceptable and unacceptable clients. We might as well get a good clear look at the future.

Perhaps students are not making the error of conflating the client with his attorney. Perhaps they are passing judgment on their dean simply for the discomfort he causes them by the choices he makes in his private life. That explanation, while troubling, has the merit of consistency with Harvard’s view that students’ own off-campus associations (choosing to join a women’s club, for example) are its business—that having any “wrong” relationship may justify the College in passing judgment against you. 

It is hard to know where such an extended reach would end, and for that reason I suspect any such basis for complaint is either not well thought through or a pretext for something else.

Whatever the underlying logic, the College, by instituting a review of the “climate” Sullivan is alleged to have created by his choice of clients, is honoring that confusion rather than trying to correct it. It is a chilling idea that a dean might be removed for creating a “climate” simply by associating, even professionally, with other people. It would be awfully hard to proscribe associations in order to avoid the risk that they might engender negative feelings in the House. A friend asked me: Could a faculty dean acknowledge having voted for Donald Trump without creating the sort of climate that would legitimize similar student feelings of unsafety? If so, Harvard would need to create a list of acceptable political positions, so both faculty and students could be warned in advance what they were allowed to think and say in the Houses.

It would be good, as they institute a review of the “climate” in Winthrop House, for the Harvard leaders to articulate the climate-creating role of the faculty dean. One is led to infer from the complaint and the response that faculty deans are expected to create a climate in which no one ever feels uncomfortable. I don’t know how else to interpret Harvard taking seriously the claim that Sullivan’s professional representation of Weinstein, who has as far as I know never set foot on Harvard property, makes them feel uncomfortable or unsafe. In an excellent interview in the New Yorker,Sullivan claims he is the first subject of such a climate review, but is contradicted by a Harvard spokesperson, who notes there was a climate review of another House on the basis of discomfort felt by LGBTQ students. It’s an interesting example, because that complaint seems to have been that the House was insufficiently “welcoming” to gay students. But there are religiously conservative students who have expressed discomfort about co-ed bathrooms and about the possibility they might have to live in a House headed by a same-sex couple. Their discomfort was rightly handled without a climate review threatening the removal of the dean. Why is the College taking so seriously the discomfort of the complainants against Sullivan? 

Discomfort is part of life in a diverse community. That does not mean that it is OK for anyone to be unsafe, but a feeling of unsafety cannot be used as club to get rid of people or to make political points. And no one at Harvard has a right to safety from ideas they don’t like, for example, the idea that good lawyers defend terrible clients.

Medical School professor and former dean Jeffrey Flier argues that in failing to support Sullivan, Harvard’s leaders are not doing their full job.

What about the University’s response? Apart from Kennedy’s powerful piece and a few isolated tweets, there has been no official, institutional response from Harvard in support of Sullivan, although some other faculty have spoken up in his defense, many of them quoted in a recent piece about the brouhaha in the Atlantic. Sources tell me that a large number of HLS faculty penned a strong confidential letter defending Sullivan and sent it to University leaders, but so far it hasn’t received a reply. Dean of Harvard College Rakesh Khurana met with Sullivan, after which he told the Crimson: “I take seriously the concerns that have been raised from members of the College community regarding the impact of Professor Sullivan’s choice to serve as counsel for Harvey Weinstein on the House community that he is responsible for leading as a faculty dean.” Khurana “communicated that that the College believes that more work must be done to uphold our commitment to the well-being of our students”— hardly a ringing endorsement of Professor Sullivan. He later announced a “climate survey” to assess the state of the Winthrop House community, an approach that, at a moment like this, seems to empower those seeking Sullivan’s removal.

What about Harvard’s other leaders? So far, they have said nothing. It is likely that back room discussions are dominated by institutional defensiveness, concerns about legal and communications matters, and barely concealed fear, given the explosive nature of such issues at other campuses. Title IX controversies are a constant concern, at Harvard and elsewhere, and Harvard has made serious mistakes in the past. The University now employs a large and increasingly complex organization to deal with claims of unwelcome environment, harassment and assault, as well as issues of “diversity and belonging,” a newly articulated goal now permeating the University. While diversity, belonging and sexual assault are unquestionably important issues, they are tangential to this situation, which concerns a respected faculty member whose supposed transgression is participating in the legal representation of an unpopular defendant. Perhaps the administration should strike a better balance between addressing student concerns and supporting a distinguished faculty member whose advisory role is being inappropriately questioned.

Even better, the administration could educate students about navigating the difficult transition to adulthood, which involves developing compartmentalized working relationships with people from whom we cannot easily step away. The world can be complicated, and the different roles we all play can interact in ways that require nuance and compromise. One of the things we don’t expect of high schoolers but do hope for from college graduates is to understand how to put up with imperfection in one place in the pursuit of larger ideals. If you discover that your landlord has a sexual assault conviction on his record, you cannot easily stop paying him rent money, or stop asking him to get rid of your cockroaches. If the father of your children disagrees with your politics, you can’t easily replace him with another. If your boss’s boss is abusive to his family, you can’t easily give up a good job and find one with better people all the way up the management chain, or demand that the company do something about matters in which you are involved only very peripherally. And if you don’t like some of the clients your lawyer has defended, you don’t go looking for one who defends only good people.

Of course, some of these analogies are imperfect. Everything Sullivan has done is honorable—just as John Adams said that his defense of the British soldiers was “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.” These hypotheticals are simply examples of the kinds of uncomfortable situations they will encounter in their daily lives once they leave Harvard. We all face such situations regularly. It is possible in each case to get the discomfiting individual out of our lives—we can move out of the apartment, or quit the job, or get a divorce. But the cost is in each case high—and the new situation is likely to be no better than the old, and to be deficient in some other way. So what we generally do, in order to live productive lives rather than constantly seeking to avoid discomfort or expecting others to protect us from upsetting conditions, is to find proportional responses to our grievances so that we can focus our energy on the pursuit of our important objectives. That is not compromising our ideals; it’s pursuing them maturely.

So there is an important lesson Harvard should be teaching students about the civics of legal representation. But that is not all: it should also be helping them learn to live with the ambiguities of the world. The capacity to do that is one of the things we hope distinguish an 18-year-old high school graduate from a 22-year-old Harvard graduate, but Harvard can’t effect that change in students simply by sheltering them and waiting for four years to elapse. I made some suggestions earlier on (A teachable moment) on the educational opportunity here. It is not too late.

Saturday, March 9, 2019

Queen Elizabeth's Instagram post

Queen Elizabeth made a lot of news yesterday with her first Instagram post. It was a letter from Charles Babbage to Prince Albert, Elizabeth's great-great-grandfather and the husband of Queen Victoria. Babbage was the first person to design a programmable computer, but he could never get it fully functional, in part because it was purely mechanical and it was extremely difficult, before mass production, to machine parts to the necessary tolerances for a contraption of the scale he envisioned. Babbage's name is associated today with that of his apprentice Ada Augusta, Countess of Lovelace, arguably the first computer programmer.

Babbage's story has much fascinating detail, some of which the letter brings to life. Babbage was a distinguished mathematician, the holder of Isaac Newton's chair at Cambridge. His work was funded by the British government, and he kept running out of money and needing more, until finally he was cut off completely and the project died. Here is a transcription of the letter, done with the aid of a CS191 student:
Sir,
In presuming to place in your hands the accompanying volume I am actuated by a feeling beyond the mere desire of expressing my dutiful respect.
When you did me the honor of exercising the Difference Engine Your Royal Highness proved that you not only understood generally the nature of the mechanism, but also its important bearing upon human knowledge.
Having myself abstained from my publication on the subject solely because I wished to apply my whole effort to the completion of the invention, it has been my good fortune to find in a distinguished Italian Philosopher an excellent interpreter of the mathematical part of the subject,  and also a Translator and Commentator whose comprehensive views have done full justice to the original.
The control of the Analytical Engine over all the great Astronomical questions on which the the safety of the Navy so much depends can scarcely fail to impart to the subject an interest in the mind of Her Majesty: that interest may perhaps be still further increased when the Queen is made acquainted with the fact that the Author of that admirable commentary is an English Peeress the daughter of the late Lord Byron.
                I am   Sir
            With the most profound Respect
            Your Royal Highness'
            Most Obedient Humble Servant
                C. Babbage
Dorset [unreadable suffix]
    Manchester Square
    15 September 1843
 There is no explicit ask in the letter, but how many aspects are present here of a modern progress report to a funding agency?

  • "Your decision to fund my research shows how smart you are."
  • "It's coming along. I'm doing everything I can to finish it."
  • "I found someone to write the documentation, though I had to go abroad to do it."
  • "Remember, this work is essential to the national defense."
  • "Please be sure your female boss knows that I hired a woman to work on it too."

Some things never change.

Thursday, March 7, 2019

“Professor Sullivan Deserves Our Respect”

Guest post by David McCallum

[Like the anonymous op-ed in the pervious post, this piece was submitted to and rejected by the Crimson, and has since been make public. It is worth noting that Professor Randall Kennedy's op-ed, which appeared in the Chronicle of Higher Education and is the subject of my post "A teachable moment," was also submitted to and rejected by the Crimson.]

------------------

I spent 29 years in prison for a murder I didn’t commit. I was a teenager when I was put away, not much younger than many of you in college at Harvard. I was exonerated because of the work of Professor Ron Sullivan.

I am not a lawyer. I spent half of my teenage years, all of my 20’s and 30’s, and half of my 40’s in prison, so I missed that time to make a career and many other milestones of adult life I hope students in college can look forward to. I missed decades of my mother’s home-cooked food, taking care of my older sister through her deteriorating health, my friend’s marriages and childbirths and funerals, and the freedom to take a walk outside. But I do know a thing or two about the justice system. I know because I lived it. So please hear me out.

When I was 16 years old, I was questioned for a crime I didn’t commit. I was scared, confused, intimidated, and alone. I knew I was playing handball with my sister and her friends in a park near my home during the entire time this murder took place.

There was no one in the room with me, and I was questioned without a lawyer. The police said if I confessed I could go home. So I gave them their false confession. But when I asked if I could go home, I was put behind bars instead.

Things moved fast in the name of “justice”. It’s still crazy to me how few protections there were against injustice. Sure, I was asked if I wanted a lawyer. After I had already ‘confessed’. Sure, the police let my mother come see me. After I had already ‘confessed’. The system was swift in convicting me. I screamed that I didn’t do it, testified during my trial that I didn’t do it, and had lawyers appeal my conviction until all my appeals were exhausted - but it didn’t matter, because everyone with any power over my freedom at the time thought they knew the truth. It was too late.

So to prison I went. And I spent most of my life there. It wasn’t until Hurricane Carter drew attention to my case that my story started to become high profile. People started paying attention, and Professor Sullivan found me. He was helping the Brooklyn DA’s office at the time with conviction review, and I hand-wrote him a letter asking him for his help. I told him what I had been saying all along: that I was innocent. He listened.

Professor Sullivan personally pored over my file, found every hole in the prosecution’s version of events, saw that there was no valid evidence whatsoever, and he pushed the DA for my release. Professor Sullivan was never my defense attorney and he wasn’t the prosecutor either. He was a good lawyer seeking truth and justice, no matter which side of the courtroom he had to stand on to get it for me.

It takes a celebrity bringing attention to a case or to an issue, like Hurricane Carter did for me, for the holes in the criminal justice system to be exposed. When good lawyers take unpopular stands and defend people assumed to be guilty, like what I read that Professor Sullivan is doing for Harvey Weinstein, people pay attention to how the system works and take the time to dissect what’s wrong with it while he’s doing the same thing from the inside. That’s why when some lawyers called me about this resistance Professor Sullivan is experiencing for his Weinstein representation, I knew I had to respond. The image of Professor Sullivan in that courtroom when I was exonerated is seared in my memory, and I take it as a personal offense that anyone might challenge his capability to achieve justice.

Attention brings scrutiny, and scrutiny brings change. But press isn’t enough. Good lawyers are needed on both sides in order to use this attention to highlight every single problem in the system and to push for change from the inside. We can’t fix a system until we know exactly what parts are broken. When I first saw Professor Sullivan’s TED talk, I was moved to tears for that reason. He gets it, and he’s doing everything he can to identify and fix what’s broken.

I think we can also all agree that if I had someone like Professor Sullivan with me when I was on trial 35 years ago, my life would have been very different.

Innocent people deserve good lawyers from the minute they enter the system. In America, people are innocent until proven guilty. So, everyone deserves good lawyers from the start. If you believe otherwise, you would be supporting the same system that made me lose 29 years of my life to prison. A vigilante system where innocence is determined by public opinion and not evidence. I am a product of the dangers of that environment. Professor Sullivan is pulling us away from it, and I am following him as he creates the criminal justice system this country needs. I hope you will, too.

"Harvard does not deserve Ron Sullivan"

I am posting below an op-ed that was submitted to and rejected by the Crimson. The author has made it public and I am posting it here with her permission. It describes her sexual assault, and is tough reading.

----------

At the end of my first semester at Harvard, I was sexually assaulted by a classmate. He was over half a foot taller and at least 50 pounds heavier than I was. He came into my bedroom, got on top of me, and penetrated me, all within seconds. He stopped only when I told him that it hurt, and that I was a virgin. (For the career victim-shamers: both were true).
He invited himself to sleep next to me that night, but I don't remember sleeping. I do remember that on the morning of my first day of 'freedom' after finals, this man's large body was on 'my' side of the bed, obstructing my clear path to the door, and I was still in vaginal pain and bleeding. I lived alone. That was the last time I lived alone.

I only told two people about this incident. My best friend from my section, and Ron Sullivan.

There has been a lot of talk about what Dean Sullivan may or may not say, or do, or feelings he might provoke from victims who may disclose sexual assault to him. We don't have to speculate. This situation has happened before, many times over. So if you are a woman who purports to care about other women, or a concerned male ally, and you are protesting Sullivan on the bases of these concerns, please put your picket signs down and please listen to the very real emotions of a victim who has been in the exact situation you are trying to protect me from.

There were a lot of reasons that I chose to 'outcry' to Dean Sullivan, including his exceptionally kind, warm, and caring nature for which he was well-known amongst the student body. But principally, his high-profile career of successful representation of rape defendants is exactly what drew me to disclose to him. This was his world, and he knew how to rip allegations apart. I didn't have DNA evidence, no one else was around, and people saw me drinking on Mass Ave earlier that night. Did I have a case? What, if anything, could I do to preserve it? Where does formal reporting even begin? Would Harvard hold it against me in the future? What would the rest of the process look like? Was it worth it?

Dean Sullivan answered these and many other questions - and he preempted even more questions I had not thought of - but first, he listened. Then, he led with comforts that this was a "judgment-free" zone; that he would never do anything with the information I gave him that I didn't explicitly want him to; that I had done nothing wrong; and he thanked me for telling him. Put simply, he validated my experience and made me feel safe, and it was in a way that screamed to me: he's done this a lot before.

He asked me about evidence I would have never thought would be useful. He asked me questions about the order of events that made me realize the importance of certain details that night I was otherwise trying to forget. He tried to identify potential witnesses. He vividly and patiently walked me through the formal processes that could ensue, including AdBoard/Title IX proceedings as well as criminal prosecution. He prepared me for various potential outcomes of all of these avenues, rooted clearly in his significant experience through each of them. He emphatically encouraged me to speak to law enforcement, counselors, and Title IX staff, and he offered to represent me at any and all proceedings to the very end pro bono. He asked if he could walk me to a Title IX Dean's office himself, knowing all the while that my assailant was another one of his students. And he kept the entire conversation anchored in what I felt and what I wanted, to the extent that I knew. I had access to the premiere expert in tearing down a case in order to build mine up, and he was even better at it than I could have ever expected.

And I need you to know this: he was sad. And he was angry. He is a father and a husband and when his status as a mastermind of criminal law was not at play across the table, his paternalistic protectiveness was. I can't put my finger on exactly what made me feel this way, but he made me sure that he was ready to dismantle Harvard if he needed to in order to get justice for me.

He did small, conscientious things, too. We had many conversations about this incident and other related issues, and he would always call his secretary at the end of these meetings to ask the students lining up to leave because something came up - just so I wouldn't have to walk by fellow students when I left his office. He fought like hell to make sure no one knew I was a victim. And he was generous with his time. As other survivors can attest, this is not a five-minute conversation. He took great pains to make sure I never felt I was a burden or that our conversation was incomplete, and he was always there when I needed him. While I cannot disclose how my incident played out because it might identify me or my assailant, I can say confidently that Dean Sullivan could have made six to seven figures in the time he spent helping just me. Over the years, I have used the 'it's urgent' card rarely, particularly given his stature, but when I have, he is there - whether messaging me back in the middle of a class he is teaching, while seated before a judge at trial, or when standing at the gate at an airport, all just to make sure I'm okay.

I am not the only one. During one of our long conversations about this incident, he got a call and asked me if I could leave his office for twenty minutes and come back. As I left, I noticed a sealed plastic evidence bag next to his feet and I saw a uniformed police officer walk into his office. When I returned, the bag was gone, and I asked why law enforcement had come to his office. He said that he was representing a victim of a gang-rape and because she was too scared to talk to the police, he was giving a detective her clothes as evidence. I later met this brave woman and she confirmed what I already knew: Dean Sullivan helped her, too. There were other times in his office where I would see on a back shelf print- outs of what appeared to be iPhone text message screenshots or on another occasion a print-out of a very long statement he seemed to be editing carefully in red pen; when I asked him what he was working on, he told me he had an AdBoard sexual assault case he was helping out with. In each of these cases, he said he was representing the victim. Not the accused. I remember, because you don't forget the joy of knowing that others are being rescued in the way that you were.

Once as I was leaving his office, I asked his secretary how he has the time to take on these cases. She told me that he barely sleeps and spends most of his days on pro bono work, and that she tries to transfer email requests for pro bono representation all over the country into another folder so that he does not see them as they come in. She said she did this because she knew he was "a sucker for a sob story" and could never say no.

His fights are never about himself, and I know that he will attack the hand that feeds him and starve if it means justice. He is that stubborn about being consistent and ruthless in the exercise of one's duties and giving more than lip service to these legal cornerstones. To the extent that any potential overlap arises between his duties, all I have seen him do is take the student-victim side (like mine, or these other women's), rather than the student-assailant's. Given that his private client at issue is in New York, and his Winthrop House students are in Massachusetts, and there is no evidence of any overlap between the two, I believe that Dean Sullivan is not only able to perform all of these duties with the same obstinant protectiveness: his experience qualifies him to perform them even better. I wouldn't want a Dean who will listen, nod, validate me, then walk me to the Title IX office. I want the Dean who will listen, nod, validate me, represent me as one of the best criminal defense masterminds in America who would eviscerate the arguments of anyone who challenges me, to walk to me to the Title IX office. Wouldn't you?

The irony is that you will never hear from him about my story or these other countless women he has helped. Not even by reference. Not a word. His respect for confidentiality tracks attorney-client privilege, which is sacrosanct and survives death. He is, still, protecting us. The man who has rushed to so many people's defense refuses to publicize the one thing that will defend him now: that he has represented more victims in Harvard sexual assault cases than the accused, and that he has done so with a fire that makes victims like me feel no one else could have possibly come close in advocating for us. Sharing this would threaten the unconditional basis from which he helps people, which I believe is inspired by his faith and his ethics.

But I think you deserve to know. And I do not recognize the man you purport to be protesting. That is not the Sullivan that I know. I revere him as a sexual assault victim - what does it say about you for telling me I should fear him?

I cannot counter-protest at Harvard, nor can any of the other survivors Dean Sullivan has helped, because to do so would identify us. So, please, stop speaking for us. You are promoting the caricature of women as helpless beings without agency when you protest our ability to make choices about what we do with information about our attacks against our bodies and in whom we confide. All this does is set us back to a pre-Me Too era, in a way not unlike men making decisions about whether a woman can have an abortion or vote. I have spent much of my time since my assault advocating for other victims of sexual assault. I am confident that the current discourse, promoting overwhelming and convoluted analyses of what we should allow victims to do (premised on the idea that such decision-making power should be transferred away at all), will disincentive reporting. It is hard enough to muster the courage to disclose an incident like this without having to be concerned about whether your classmates will judge and undermine you for who you told.

The only voices that should matter in the manufactured debate of whether Dean Sullivan responds to sexual assault victims appropriately are those with any sort of authority on this issue, i.e., the victims who have disclosed to him. That is it. Everyone else should see their privilege and their place and step back to make room for the victims to express whether there are any concerns with his actual handling of our allegations.

So, please stop speaking for victims of sexual assault at Harvard, and do not take away our support in Dean Sullivan. You are disservicing victims and your protests do more harm than help us. You do not and will not stand for us. If you cannot see how your protests are rooted in a savior mentality and are totally obstructionist to a woman's independence of thought and agency, you do not deserve to speak on our behalf against a hero. You do not deserve Dean Sullivan.
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Friday, March 1, 2019

A teachable moment

Professor Randall Kennedy has an excellent piece in the Chronicle of Higher Education about the demands that Professor Ronald Sullivan step down as faculty dean of Winthrop House. “Harvard students are outraged over Ronald Sullivan’s legal work,” reads the subtitle. “They should learn from it instead.” Kennedy here puts his finger on a particularly troubling aspect of the way this situation is unfolding. 

Harvard’s first job is to educate its students. Having them in residence provides an extraordinary opportunity to teach them about the complexities of life, the ways in which human beings are multidimensional and communities of different human beings with different histories, ambitions, and ideals can cooperate and foster progress. Residential life can thereby teach a key element of democratic citizenship, so threatened today: how to engage in a spirit of civic optimism with people whose decisions and actions you find disagreeable.

So far that sounds like a standard justification for diversity, with which no one could disagree. But the next step is where the rubber meets the road. A society in which each member plays multiple roles, and in which those constellations of personae differ from individual to individual, can hold together peacefully and productively only through the exercise of reason applied to deep but sometimes competing commitments to individual freedom and to the common good. Such a commitment requires both sublimation of one’s own emotions and empathy toward others. It is inconsistent with a view that discord is intolerable and personal comfort is supreme. As Kennedy says, 
Those calling for Sullivan’s resignation or dismissal as a faculty dean … are displaying an array of disturbingly widespread tendencies. One is impatience with drawing essential distinctions such as that between a lawyer and his client. Another is a willingness to minimize or dispense with important safeguards like fair trials. Yet another is a tendency to resort to demonization.

The public response of Harvard officials thus far has been to draw a sharp divide between Sullivan’s educational and pastoral roles, seemingly restricting “education” to book-learning. According to the Crimson,
“When we think about the faculty dean role, part of it is the faculty dean as an educator, someone that’s helping to connect students to, frankly, the excitement of intellectual and academic life,” [FAS Dean Claudine] Gay said. “But there’s also a pastoral role, sort of an expectation of a special responsibility to the well-being of the students who are part of the community.”
On that score, Dean Gay found Sullivan’s handling of the controversy “insufficient.” Dean Khurana echoed those sentiments, while coldly defending Sullivan’s “academic freedom.” I am not at all sure that is the right category; does Dean Khurana mean to suggest that rights to academic freedom end at the gates of the Harvard Houses, lest someone do or say something that offends other residents?

Dean Khurana then charged former Freshman Dean Tom Dingman to conduct a “Climate Review” of Winthrop House. Having more or less publicly thrown Sullivan under the bus, that is, Khurana has asked Dingman to find out how students are feeling and apparently plans to hold Sullivan to a spookily vague climatological standard. (Dingman is a loyal servant of Harvard and an old friend, but he is also the dean who, invoking the same troubling dichotomy between intellect and feelings, asked students for a public pledge of their commitment to the principle that “kindness holds a place on a par with intellectual attainment.”)

I suspect that it is very hard for Sullivan to speak up for himself in the way that Kennedy has supported him and indeed has supported Harvard’s full educational role. Sullivan is in a more ethically constrained situation than the nurse I mentioned in an earlier post. A medical professional can say what she wants about the patient she is treating as long as she treats him and respects his medical privacy. But Sullivan, having agreed to defend Weinstein, can speak about him only in the voice of his lawyer.

Yet there is no reason why Harvard—Khurana, or Gay, or President Bacow, or a student group, or some department, or the Safra Center, or some other Harvard entity—could not stage a thoughtful educational forum to explore this nuanced situation. I am thinking of the sort of thing the Harvard Federalist Society and the American Constitution Society sponsored about single-gender organizations, though it would not have to be framed as a debate. In the absence of any effort to raise the discussion to a more rational level, an important teachable moment will be lost. “We can only hope,” as Kennedy concludes, “that Harvard authorities will decline to defer to expressions of noisy discomfort and instead adhere to those intellectual and moral tenets that sometimes must bear the uncomfortable burden of complexity.”

Wednesday, February 27, 2019

"Auditing" the membership practices of student organizations

The College’s Committee on Student Life is considering an audit of “comp” processes — membership training or vetting exercises for student organizations — to eliminate requirements which some committee members believe are “detrimental to campus culture,” according to several attendees of the Feb. 14 committee meeting. (Harvard Crimson)
Does no one hear how creepy this sounds?
In the Church of Scientologyauditing is a process wherein the auditor takes an individual, known as a "preclear", through times in their life and gets rid of any hold negative situations have on them. … Auditing is considered "a technical measure," that according to the Church, "lifts the burdened individual, the 'preclear,' from a level of spiritual distress to a level of insight and inner self-realization." The process is meant to bring the individual to clear status. (Wikipedia, "Auditing – Scientology")

Tuesday, February 19, 2019

What about John Adams?

Kevin Cullen of the Boston Globe has a hilarious column on the Winthrop House story. John Adams defended British soldiers who opened fire on American rebels. Should he have lost his Harvard library privileges?

It is never a good idea to read the comments on newspaper pieces, but I couldn't resist. Leaving the trolls aside, it's amazing how self-righteous and humorless some of them are. Weinstein, as one comment and many previous opinions have argued, is entitled to a lawyer. But anybody could have defended him, so Sullivan should have turned him down. But the whole point of the column was to force the question of whether Adams should have turned down the British soldiers. I have never heard it said that he was the only one who would take them on.

At the same time, a new task force has been announced, the Working Group on Symbols and Spaces at Harvard College, to be chaired by the estimable Professor Ali Asani. The interview is quite abstract, so it is hard to tell where this project is going. There is a nice reminder of the importance of the randomization of the Houses that occurred almost 25 years ago, pursuant to a recommendation of a faculty committee I co-chaired. In part the discourse seems to be about re-asserting the mission of the Harvard Foundation for Intercultural and Race Relations; its future has been somewhat in doubt since the death of its remarkable founding director, Allen Counter. So that is all to the good too.

And I wonder how far this example goes:
 It is natural for these students who are discovering facets of their ethnic, religious, cultural, and racial identity as part of the College experience to want to explore those facets within affinity groups. 
Was gender intentionally omitted from that list, lest it suggest that women should not be punished for getting together with other women off-campus? On the other hand, the interview goes on to say,
We see people are retreating into their own communities, engaging only with people like themselves. We can see such tendencies on campus. For example, the central concern regarding final clubs were policies that led to certain students excluding other students from their social networks, determining who belonged and who did not.
This sounds to me like another revision of the history, or at least a very different emphasis on a matter for which the University has offered a variety of explanations. The trouble with this argument -- that the decision was about social exclusivity, as opposed to the idea that it was all about either sexual assault or gender exclusion -- is that no one ever showed any data documenting what the ethnic or social demography of the Final Clubs was today. At best, the University would from time to time fall back, without evidence, on the implication that they were all full of Hornblowers and Wigglesworths as they allegedly were in the nineteenth century, just hiding places for those damned Puritans we excised from Fair Harvard. I am pretty sure that is not what they look like today. And of course, the sororities were never socially exclusive, so if that is the revisionist argument, maybe the committee can rethink the decision.

In the worst case, the committee will spend its time on the discomfort students are said to experience because of the presence at Harvard of buildings with objectionable names, or speakers with objectionable views or histories. If that is where the committee chooses to go, Cullen has given it quite a list of cases to consider. Is it time to rename Stoughton Hall? After all, who would want to live in a building named in honor of the judge who cruelly sent the innocent Salem "witches" to their graves?

Wednesday, February 13, 2019

The illogical attack on Dean Sullivan

Should Ronald Sullivan limit his pastoral care of students to good people?

That is the question raised by the attacks to which he has been subjected on the basis that he has professional relationships with bad people, such as Harvey Weinstein and Roland Fryer. Sullivan explained himself pretty well on this, I think; the American system of the rule of law demands that even bad people be given the benefit of due process and competent legal defense. Rights, once taken away from unpopular figures, are more easily compromised for the rest of us. 

Yes, goes the retort, Weinstein and Fryer have a right to counsel. But that doesn’t mean that Sullivan has to defend them. They can instead hire someone who doesn’t have pastoral responsibility for students in Winthrop House.

But then shouldn’t Sullivan also be limiting his pastoral care of students to just the good people in the House? After all, Houses are full of people involved in peer disputes in which one of the parties must have done something wrong, and also people holding political and social views which most members of the House consider indefensible. Heavens, Winthrop House may even have a few sorority members in its population, and we KNOW that those people are, in President Faust’s words, out of step with Harvard’s “deepest values.”

Is it a faculty dean’s responsibility to pick and choose the good people among those in the House, and let someone else provide support to the others? Does the dean dishonor himself and undermine the House community by providing a sympathetic ear to a student who is accused of serious wrongdoing, or who simply holds views other students find offensive (say, those of the Republican party or the Roman Catholic church)? 

And if it is OK for a faculty dean to support unpopular people within the House, why should Sullivan’s outside professional connections have to be limited to people meeting a majoritarian morality test? 

Several faculty deans are physicians. If Weinstein had cancer, would we want these deans to treat him? There are plenty of doctors in the world, after all. Why should deans who provide pastoral care to Harvard students taint themselves by helping keep hated people alive?

Because that is the ethical requirement of their profession. The trauma doctors and nurses who treated Dzhokhar Tsarnaev, the Marathon bomber, celebrated when they saw he had been captured, and then, exhausted though they were from days of caring for his victims, did everything in their power to keep him alive.

Of course, this entire train of logic is ill-founded. Professionals are not human extensions of the people they serve. They fill professional roles that may have nothing to do with their personal values. Their moral obligation is not to withhold their services from bad people; if anything, their professional responsibility is to provide those services. 

Sullivan explained this. But the logic of his detractors fails for a second reason.

What makes all these questions not just ill-founded but absurd is the presumption that it can be determined in advance who is good and who is bad, so the deans could withhold their succor from the bad. The point of housing a diversity of students under one roof is precisely to get them all past their Manichean systems of prejudicial classification. Students are housed together so that they will learn to withhold judgment, to listen empathetically, and to refrain from formulaic judgments. When President Lowell created the House system, having insisted that “each House should be as nearly as possible a cross-section of the College,” he explained why: 
The problem of the college is a moral one, deepening the desire to develop one’s own mind, body and character; and this is much promoted by living in surroundings and an atmosphere congenial to that object. … The Houses are a social device for a moral purpose.”

I am startled that deans Gay, Khurana, and Eck have joined the chorus of Sullivan’s public critics; I don’t recall anything like that happening before. This is starting to feel a lot like the sorry situation of the Christakises at Yale

Almost three years ago, I wrote to dean Khurana to express my concern that by attacking nonconformists (members of single gender clubs, in that case), he was “passing from creating community to molding a monoculture, in which people of whom we have every reason to be proud are afraid to do or say things that are lawful and generally considered harmless.”

Sullivan, too, is a nonconformist. Not many others at Harvard are speaking up for the rights of Weinstein and Fryer. Maybe there is more to Sullivan’s story than I know. But on the basis of the public statements of Harvard officials, I am even more worried today about their determination to create a monoculture here.