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Death of Parody at Harvard Law: A follow-up

            My Freedom Watch column on the death of parody on American college campuses, which appears in the Boston Phoenix ’s August 1st issue, provoked more of a response than any of my columns in recent memory. My email in-box was jammed with messages, largely from those who agreed with me, but a few from less-than-convinced (or at least less-than-happy) readers. I encouraged some of the more perspicacious writers to direct their comments to the letters-to-the-editor page. Overall, I got a sense of declining respect for campus culture – which, I have to admit, has been precisely my own response to the takeover of campuses by the post-modern sensibility that values propaganda over free speech and elevates cultural and political goals over due process and fact-finding in student disciplinary proceedings. (My fuller arguments concerning these dangers are laid out in Alan Charles Kors’ and my 1998 book, The Shadow University: The Betrayal of Liberty on America’s Campuses (paperback from HarperPerennial, 1999).

            Among the more interesting comments, however, were those concerning the central part of my column: how censorship came to Harvard Law School (HLS) just as Barack Obama was graduating from both the school and from his position as President of The Harvard Law Review. One administrator at HLS commented on the piece generally without referring to the central role the school played in my discussion of the death of parody in academia at large. In other words, mum’s the word or, as they say in the real world, “no comment.”

A faculty member said that things at HLS were as bad as ever, although it had been my personal impression that the current dean, Elena Kagan, was a significant improvement over her predecessor Robert Clark, who seemed willing to sacrifice just about any principle in order to keep the restless natives quiet and calm on his watch.

Still another faculty member reminded me that the overwhelming faculty vote for adoption of the infamous HLS Sexual Harassment Guidelines, which swept within its prohibition a broad variety of speech traditionally protected by academic freedom, perhaps understated the degree of faculty opposition to the censorship inherent in the measure. As I noted in the piece, the radioactive atmosphere led some fair-minded faculty to vote for the Guidelines as the lesser of the available evils.

            I did, in my column, point out that the HLS faculty’s peripatetic fighter for liberty, Alan Dershowitz, voted for the Guidelines with major reservations and only after certain modifications were made to the Code. Dershowitz did, indeed, defend the rights of the parodists, arguing vociferously that the parody was protected speech under both the First Amendment and principles of academic freedom. He managed to get a provision inserted into the Guidelines that purported to exempt from prohibition any speech that would be protected under the First Amendment. (However, this “First Amendment savings clause” provision found its way into only one section of the Guidelines, and it was still the student’s risk that he or she would potentially guess wrong as to whether a particular parody would fall within the protected category.) Dershowitz and perhaps a few others voted for the Guidelines only because it was the best alternative in a situation that was rife with faculty and administration anger at free speech. A couple of faculty members, utterly disgusted with the goings-on, refused to show up for the faculty vote at all. It is hard to say that these were “purists” for heroically boycotting the whole scene, or whether they simply threw in the towel and thereby enabled the censors.

            All in all, it was a very unhappy time at HLS, and it may well be that there would be more opposition to the Guidelines had the parody arisen today rather than in 1992. But I wouldn’t bet on it.  The small number of faculty members who opposed the Guidelines, including Dershowitz who voted for them, are much nearer to the end of their careers than to the beginning, and they are being replaced by younger faculty members whose fidelity to academic freedom in the face of a demand for politically-correct placating has not yet been sorely tested. The sad fact, in my estimation, remains: There are still things Harvard Law students could safely say in Harvard Square that they wouldn’t dare utter in Harvard Yard.

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