The Rule of Nonsense at Harvard Law

The whiff of censorship is in the air at the Harvard Law School. Look for a push by the faculty’s left wing this fall to adopt a campus speech/"harassment" code-one of those affirmative-action models aimed at punishing insensitivity toward women and minorities while smiling on the stigmatization of white males.

And look for more demands for appointment of a faculty-student committee-selected by racial and sexual quota-to investigate the "atmosphere" for signs of a "hostile environment."

The stage has been set by the widely publicized outcry this spring over the unfortunate scribblings of two student members of the Harvard Law Review. A sampling of the reaction;

• An open letter by "15 faculty members including liberal luminary Laurence Tribe declared the article a symptom of a law-school environment "seriously hostile to women" and pervaded by "institutional sexism and misogyny," especially in its hiring practices.

• Professor Elizabeth Bartholet added that the "incident and the charges of related matters involving treatment of women … involve conduct that is arguably illegal under federal and state civil rights law governing sex discrimination and sexual harassment," and "possibly tortious."

• Professor David Kennedy pressed the law school’s administrative board to bring formal discipline against the offending students because their actions-"lie … at the point where sexual harassment verges into assault," and involve "a terrorization of women general and feminist women in particular"-even "a direct threat of personal violence."

This outpouring of learned nonsense was provoked by students engaging in what used to be called pure speech: the publication of a parody.

It was, to be sure, a horribly sick, deeply offensive parody, because it cruelly mocked the murder (as well as the radical feminist writings) of Mary Joe Frug, a New England Law School professor whose husband, Gerald Frug, is a Harvard Law professor.

But we’re still talking about words on paper. And outrageous as they were, the more ominous outrage is the sly, Orwellian effort by Harvard’s tenured radicals to equate non-coercive speech with sexual harassment and even violent assault.

"It’s really the classic PC slide," in the words of Professor Charles Fried.

Although the administrative board sensibly rejected (on May 20) Kennedy’s bid for discipline, that won’t be the end of it. The PC platoon can" now lament the lack of specific rules to punish inappropriate speech and apply its collective brilliance to writing some. (At one faculty meeting, Kennedy noted that freedom of speech "is just not my thing.")

Professor Alan Dershowitz predicts his censorial colleagues will cook up something aimed at stifling politically incorrect speech while insuring that "radical feminists can accuse all men of being rapists," and radical blacks can call all whites racists. Nary a peep of protest was heard from the speech police, he notes, when the law school hosted an anti-Semitic diatribe by a Black Muslim known for having accused "Jew doctors" of injecting the AIDS virus into black babies.

Anti-Semitic slurs by black militants are a mere distraction to Harvard’s censors, who see racism and sexism lurking under every bed.

It’s no surprise to hear such tripe from far-out lefties like Kennedy. But it is distressing-and reminiscent of liberal apologists for Stalinism, who could see "no enemies to the left”-to hear ordinarily sensible liberals like Laurence Tribe braying with the herd.

Tribe compared the authors of the parody to "Holocaust revisionists" and the Ku Klux Klan. He called their parody "hate speech," "a rape in all but biological reality," and part of "a slow-burning holocaust against women. "He has coyly flirted with, the notion that presenting women with such an article "might constitute harassment"-a buzzword for unlawful conduct.

Perhaps Tribe’s judgment was skewed by understandable horror at students who could make light of a brutal stabbing death on a Cambridge street of a woman he knew, mocking her as the "Rigor-Mortis Professor of Law" and her work with the title, "He-Manifesto of Post-Mortem Legal Feminism." (Frug’s "A Postmodern Feminist Legal Manifesto" had been published in the March Harvard Law Review as a memorial.)

Even-worse, the parody was distributed, as part of an annual collection called the "Harvard Law Revue," at a law-review banquet to which Gerald Frug had been invited, on April 4, which (unbeknownst to the student authors) was the anniversary of his wife’s still-unsolved murder.

The dean, the faculty, and the Harvard community should have forcefully condemned this tasteless act of personal cruelty. They did. The authors should have apologized. They did.

But it didn’t end there-as, one suspects, it would have ended if the memory of Mary Joe Frug had been cruelly mocked for, say, her views on environmental law.

The aftermath included Kennedy’s ugly effort to have the student authors and others involved in the publication disciplined and a blizzard of written denunciations from faculty and students at Harvard and other law schools-most of which, curiously, identify the principal aggrieved party riot as Mary Joe Frug’s bereayed husband, but as the female sex.

To shore up their indictment of the law review for sexual harassment, faculty censors like Kennedy disseminated vague, inflammatory, and completely unsubstantiated charges of harassing conduct by male law reviewers: alleged "reports" of women being "intimidated from speaking in class or expressing their views," of women becoming "physically afraid to work" at the law review "because of the climate of harassment," including "a working and academic environment hostile to women" and "physical and psychological intimidation." To this, a student named Susan Conwell helpfully adds (in an April 27 article in Legal Times) the utterly unsupported conjecture that Frug was "stalked and murdered … perhaps because she was a feminist."

The innuendo is that Harvard women have reason to fear deadly violence from the Harvard men associated with publication of the "Revue"-even, perhaps, to suspect them of having murdered Frug.

By the way, one woman somehow survived the ordeal of sexual harassment at the law review well enough to be elected incoming president. None has publicly made a specific complaint of harassment.

Now, Harvard Law is not exactly a nurturing place-for anybody. But the tiresome whining that it is sexist and racist, by privileged women and blacks and those who pander to their paranoia, is pernicious nonsense.

Their real beef is apparently the law school’s unwillingness to abandon its traditional emphasis on legal scholarship so as to load up the faculty with left-leaning women and blacks.

Compared with the nation’s population at large, the 63-member faculty already has a lot of liberals and leftists, a few moderate conservatives, and not one member of the hard right.

It still has only five women and three blacks, despite an energetic affirmative-action search; one reason for this is that the women and leftists on the faculty who most loudly bewail its white coloration unanimously opposed tenuring one highly qualified woman they deemed politically incorrect. Similarly, Professor Derrick Bell, who has mightily protested the faculty’s lack of a black woman, has also served notice that those "who look black, but think white" need not apply.

What made the sad episode of the "Revue" into a cause celebre was less the authors’ mockery of Frug’s murder arid disrespect for the dead-the only offensive things about it, in my view-than their mockery of her feminist extremism.

Now, if ever law-review article invited parody (and most do) Frug’s. It’s a painful progression of tiresome truisms, muddled musings, excruciating jargon, and breathtaking absurdities-30 pretentious pages of predictable pap, utterly barren of interesting ideas.

To characterize a parody of this article-or of any article-as sexual harassment not only chills debate on campus and smacks of censorship, it trivializes the victimization of millions of women by real sexual harassment.

It’s odd to think that we may have to look to the Rehnquist Court to protect, the right to make "vehement caustic, and sometimes unpleasantly sharp attacks" (to borrow from Justice William Brennan Jr.) upon the dogmas of the academic left.

And it’s sad to see a Laurence Tribe making common cause with the extreme left in floating the dangerous notion, that the publication of words can amount to illegal harassment."

Earth to Tribe: LT come home.