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 Bloomberg, Professor 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.