POLITICS JUNE 7, 1993
Once upon a time, law school psycho-dramas meant falling in love with moribund amourettes. These days, they're likely to involve racial emotions more intense than any post-adolescent epiphany. Old-style racism becomes conflated with a defense of standards. Affirmative action schemes earnestly meant to redress grievances create painful new ones. Nowhere is this paradox more clear than at Harvard Law School, where the fusion of political van guard ism with dog-eat-dog careerism has spawned bizarre new forms of academic intrigue.
Last spring the school's offer of tenure to four white males unleashed a spasm of revolt. Strikes, sit-ins and occupation of office buildings set the campus on edge, ending only after the faculty promised to make the appointment of minorities and women a "high priority." A student parody of slain feminist legal scholar Mary Jo Frug didn't help matters any. Outraged campus activists plastered the campus with WANTED signs displaying the names, faces and telephone numbers of the students involved. Since this was, after all, Harvard, the posters also supplied the telephone numbers of the offending students' future employers.
The Harvard Law Review, with ten of its forty slots set aside for minorities, should be the place where "diversity" works. It's not. "The place is Beirut," says a former review editor. "People just pitch camps and stay there." The review's polarization climaxed last fall, when law review president Emily Schulman--a white feminist activist--tried to pull two black student editors off a professor's tenure piece, hoping to reassign it to students she felt would do a better job. She was promptly hauled up on charges of racism. Though a 100-page report issued by an outside investigator appointed by the law review's board of trustees cleared her of any wrongdoing, she was censured by the law review's student leadership and prohibited from speaking at its annual banquet. The black students, both of whom had retained lawyers, were reassigned to the piece.
The author of the piece in question was professor Charles Ogletree, himself a beneficiary of the school's diversity hankerings. The law review article was his first sustained display of legal scholarship, the piece on which his future at Harvard presumably depended. Titled "Beyond Justification: Seeking Motivation to Sustain Public Defenders," the Ogletree piece would both ignite and come to symbolize the sort of anxieties over affirmative action that are usually repressed, papered over or held in check. Its tortured history shows how the excesses of victim politics have engendered a new skepticism on college campuses, a culture of suspicion in which rumors of inferiority can spiral out of control.
A soldierly and capable public defender best known for his role as counsel to Anita Hill, Ogletree's debarkation onto the Harvard tenure fast-track required some bureaucratic effort. A special resolution passed by the law school faculty on the occasion of his appointment announced a policy change: in the case of "clinical" faculty wishing to obtain tenure, "the relative weighing of the capacities and accomplishments we are looking for should reflect the primary importance of ... teaching and development functions," although "writing that makes a valuable contribution is still expected." The resolution covered exactly one faculty member: Ogletree. Decoded, it amounted to "an understanding that while what he published didn't have to be any good, he did have to publish something," according to an HLS professor. "It didn't say 'Charles Ogletree' in the text. But everybody called it the Ogletree resolution."
Administrators insist the loophole was part of a broader effort to bring practicing lawyers onto the permanent faculty. Yet no such allowances were made for the only other "clinician" hired as an instructor, a class-action litigator named David Rosenberg, who won no special clause explaining his hiring. Professor Paul Weiler, head of the Appointments Committee, doesn't foresee another practitioner who fits the Ogletree resolution coming along for another "ten, maybe fifteen years." Faculty members say that's no coincidence. "They wanted Ogletree," says one. "They felt he was a good black--a balancer, a steadygoer, not a loose cannon. So the threshold was dramatically lowered for him. It's true. It's absolutely true, and if they deny it, you've got a great story."
Merchants of controversy on the law review, meanwhile, were peddling an even bigger story. The tenure piece, they whispered, was a fraud, ghostwritten entirely by the entourage of Ogletree sycophants who had fought Schulman over control of the piece. "It's not uncommon for pieces to be heavily edited," a student on. the review told me. "But this wasn't a rewrite. It was a write. Ogletree submitted two or three pages of jottings on his career as a public defender. The entire article was manufactured by students." Discussions with Ogletree critics on the faculty seemed to confirm the scandal's underpinnings. "Look, of course we need more blacks," says one. "But Ogletree's a lawyer, not a scholar. He's just way beyond his depth here. I've been approached by students who tell me that law review editors wrote the whole thing." The student witnesses, cowed by the Mary Jo Frug avengers and their arsenal of employer phone numbers, said they were afraid to come forward for fear of being called racist. "The words I've heard are 'terrified' and 'petrified,'" says the professor "If race were not involved, they might feel able to go to the dean about it. But they're afraid they'll get pilloried. The whole thing is so unethical it's outrageous. It goes beyond affirmative action. It's … affirmative creation."
Affirmative creation! Here was no minor nugget of academic gossip. For chroniclers of campus political transgressions, the Ogletree incident seemed to portend a heretofore unexplored genre of outrage. "Frankly," mused a law review student, "this demonstrates that certain people are willing to do whatever it takes to ensure advancement of one of their own. It definitely has the potential to turn into a black-white tiling." With standard-issue P.C. stories having lost much of their fizz, the Ogletree story promised an exciting new confluence of themes. The Harvard press office's fumbling attempts at spin control only cemented suspicions of scandal. "Are you getting both sides?" an aide to Robert Clark, dean of the law school, asked me. "Politically, you realize that it's very complicated. We have, uh, a very charged atmosphere here."
Charged, and confused. The only problem with the story, for all its metaphorical elegance, was that it was untrue, an unwitting conspiracy of invention by students lacking firsthand knowledge and affirmative action critics lacking institutional insight into the law review culture. Ogletree's first draft, circulated among faculty members as early as last summer, was 289, not three, pages long. At least six tenured faculty members saw the draft, I've seen it too. Although the law review version is condensed, the major substantive arguments were retained. "The accusation is ludicrous," says Professor Martha Minow. "He presented it to faculty members during a works-in-progress workshop before he even submitted it to the law review. Something strange is going on here." Professor Charles Nesson, who also saw the draft, agrees. "It's racism," he says. "It's 'a black man can't write.'"
Essentially, they're right. To be sure, the Ogletree piece was extensively massaged, restructured and rewritten by his team of student "primary editors." But this kind of affirmative creation is an inalienable part of the law review culture. "I have to say I find it interesting that people are focusing on Ogletree's piece being ghostwritten," says a law review editor. "I had a supervisory role over the primary editors. I got to see the drafts at every stage. The primary editors or subciters are always going to complain about how much work they had to do, about how they basically wrote the whole piece. The Ogletree piece wasn't an especially egregious example. Some pieces just need a lot of work." At least one faculty member sees it differently. "On at least two and possibly three recent occasions," he told me, "faculty members submitted articles which were so butchered and hacked up by these smart little kids that they withdrew them. Some impudent little fellow called me up and said, 'I rather like your piece.' Then they made changes that made the piece worse. I raised hell. They said they'd restore it. They never did. Those little pisspots cheated me."
Ogletree admits to alienating his student editors with his crammed schedule and frequent missed deadlines. "They would say, we need this section by Tuesday, and I'd say, O.K., I'll have it to you on Friday," he recalls. "Our relationship did become a little frayed." "[The editors] carped," agrees Rebecca Eisenberg, a third-year law review student. "But they always carp. I don't know why it's just the Ogletree piece that people care about. It makes you wonder what people's motives are." Students new to the law review apparently overheard the carping and drew diabolical conclusions. They relayed the gossip to Ogletree critics on the faculty, who seized upon the story as a fable of affirmative action gone wrong. The crescendo of innuendo eventually reached the dean of the law school, who was forced to launch an investigation to quash the rumor. "We did look into it," says Clark. "We spent two weeks looking into it. And we found it to be completely non-credible. Frankly, I'm mind-boggled by the whole thing." In all likelihood, the witnesses who begged off a visit to the dean's office, citing fears of poster campaigns, were daunted not by visions of yuppie McCarthyism but by the fact that they didn't know what they were talking about,
The pseudo-scandal has energized racial politics across the campus. "Some members of the faculty feel affirmative action is a sin and shouldn't be indulged," says one professor. "That's what this is all about. People subconsciously impute to all categories covered by affirmative action a corrupt process." To the extent that it seemed to grant these suspicions a literal basis, the Ogletree story struck a resonant chord.
Meanwhile, conservatives are crying cover-up. "How do we know they're not just covering up their trail?" demanded one student. "They had plenty of time to prepare for reporters to descend on the law review. Are you sure the drafts were authentic?" They'd better be. The appointments committee just voted unanimously to recommend Ogletree for tenure.
Ruth Shalit is an associate editor at The New Republic.
By Ruth Shalit