Speech Chilled at Harvard Law

By May 3, 2010

The prominent law-oriented blog The Volokh Conspiracy has been remarking extensively on the latest speech-related controversy at Harvard Law School (HLS), where Dean Martha Minow publicly mischaracterized and then criticized a private e-mail sent by one of the school’s students to, it seems, a small number of colleagues several months ago. UCLA law professor Eugene Volokh, in a four-part series on The Volokh Conspiracy that begins here, takes essentially the same view that I took last Friday. The point is that by so strongly criticizing a privately expressed opinion, Dean Minow has declared that certain ideas—even certain academic questions—are not acceptable on campus, betraying the marketplace of ideas. (Do you agree, or do you want to know what the question is first?)

The chilling effect is already being felt on campus. Volokh has posted a response to the controversy from a person claiming to be an incoming first-year HLS student (Volokh writes, "I certainly saw no cues suggesting that it was insincere or otherwise not credible"):

I wish I were a tenured professor, and was able to say reasonable and true things freely, like the idea that things that haven’t been proven yet remain unproven.

Instead, I’m an incoming student at Harvard Law next year. And even though I’m neither interested in nor well-informed about the IQ-race correlation debate, I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it. I have no idea what I would say if someone asked me if I could categorically rule out the possibility that there was a correlation between race and IQ… but the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

And I wish that I could write an op-ed or something about it, except I realize that if this is the reaction to stating these kinds of ideas in a forwarded private e-mail, imagine what people would say about a published argument…

And I wish I could send this email to Dean Minow instead of you, except that I know now that she doesn’t seem to condemn or criticize the forwarding of private emails, and I don’t know where it would end up, and I realize that it is privately rational for me to just shut up and pretend I agree with everyone else, and I wonder how many people are doing that….

In the fourth part of Volokh’s series, he compares the situation with a childhood experience when his family lived in the Soviet Union:

It’s a pale echo, but of something so bad that we should be wary even of pale echoes. Say, comrade, didn’t I see you reading The Bell Curve and the articles criticizing it? Would you say that this means you "do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent"? Tsk, tsk, comrade, I wonder what the Dean will say. But don’t worry! Perhaps if you publicly apologize, all will be forgiven.

Now of course all societies, even the freest, have their taboos. I’m deeply and constantly grateful to my parents for having brought me to a place that treats many fewer ideas as taboo than the Soviet Union did, or that nearly all societies throughout human history have done. And I understand why this taboo is indeed present in our society.

But that doesn’t make it right, and it doesn’t make it right for me to sit quietly, enjoying my tenured professorship, while this is happening.

In response, a person claiming to be "Tim," a HLS third-year student, comments:

Bravo.

Thank you for putting what so many of us here at HLS are afraid to say into print. This whole incident (especially the dean’s public crucifixion after a disingenuous reading of the original email ) makes me sick. The pursuit of truth shouldn’t be subverted because it would make some things easier to believe. That goes for religious dogma. That also goes for PC dogma.

Sincerely,

a very liberal 3L at HLS who nonetheless hates having to follow scripts and/or not study things because doing so could lead to uncomfortable realities.

Sadly, this is far from the first time that HLS has chilled expression on campus (if not also censoring and punishing it). See, for example, this article by FIRE Co-founder and Board Chairman Harvey Silverglate, which shows that HLS has a 20-year track record of this kind of thing. Now Dean Minow has gone even further than usual for HLS. She criticized a student not for expressing an idea in the public sphere but for entertaining an idea in a private e-mail to fellow students. Is Harvard Law School really as anti-intellectual as that?

Schools: Harvard University