came upon an article in Wednesday's Boston Globe about
possible reform measures for the Harvard University Police Department (HUPD)
following recent allegations of racist conduct. I felt a sense of indignation,
not only because I had seen this in the HUPD many times before, but because the
reform mentioned in the article was, in my opinion, a prescription for failure.
I was compelled to write those involved a memorandum detailing why they need to
get tougher with the HUPD if they really want to see things
To: Committee to
Review the Harvard University Police Department Ralph Martin, Esq. William Lee, Esq. Professor Mark Moore Professor Nancy Rosenblum Matthew Sundquist, President of
Harvard Undergraduate Council Professor David Wilkins
Cc: Drew Gilpin
Faust, President of Harvard University Francis D. Riley, Chief of Police,
HUPD Professor Charles Ogletree Professor
J. Lorand Matory Robert
Iuliano, Esq., Harvard General Counsel Hon.
Margaret Marshall, Chief Justice, Supreme Judicial Court of Massachusetts Tracy
Jan, Reporter, The Boston Globe Renee Loth,
Editorial Page Editor, The Boston Globe James R.
Houghton, Harvard Corporation/President and Fellows Roger W.
Ferguson, Jr., Chairman of Harvard Board of Overseers Mitchell L.
Adams, Member of Harvard Board of Overseers Malcom A.
Glenn. President, The Harvard Crimson Andrea Saenz, Editor-in-Chief, The Harvard Law Record John S. Rosenberg, Editor, Harvard Magazine John
Reinstein, Legal Director, ACLU of Massachusetts Carol Rose,
Executive Director, ACLU of Massachusetts
Date: August 28, 2008
University Police Department and abuse of students and faculty
is addressed primarily to the members of the newly-appointed committee, chaired
by Attorney Ralph Martin, designated to look into problems that have arisen
(and been recognized) of late in connection with the Harvard University Police
Department's (HUPD) treatment of students and faculty members in a racially
offensive and problematic fashion. I am, however, copying certain other persons
in and out of Harvard who have expressed, or are likely to have, an interest in
this matter. Further, I am posting this memorandum on my weblog, The Free For
maintained on the website of The Boston
Phoenix (www.ThePhoenix.com), for
which I am long-time legal and civil liberties "Freedom Watch" columnist.
to Tracy Jan's front page story in
the August 27, 2008 Boston Globe, the six of you have been
selected by President Drew Gilpin Faust, in Jan's words, "to review the
diversity training, community outreach, and recruitment efforts of Harvard
police." (A follow-up piece appears in today's Globe) If, in fact, this is your Committee's designated approach to resolving
the problem of how the HUPD treats black members of the Harvard community, then
your work is destined to fail. The long-standing problems that beset the HUPD
are not going to be solved with more of the politically-correct, tendentious,
and ultimately unworthy thought-reform efforts connoted by the terms "diversity
training" and "community outreach." Rather, what is needed is some tough-minded
reform in HUPD governance. I have been a close observer of the HUPD for many
decades - ever since I entered the Harvard Law School Class of 1967. As a
criminal defense and civil liberties lawyer, I noticed an explosion in the
mid-1980s of student complaints about mistreatment by HUPD, with a majority
(but hardly all) of those complaints coming from black students and other
racial minorities. I also took some complaints from black faculty members.
In my 1998
book The Shadow University: The Betrayal
of Liberty on America's Campuses (The Free Press, 1998; paperback from
HarperPerennial, 1999), co-authored with Professor Alan Charles Kors, I tell the
story of Inati Ntshanga, a black South African undergraduate who, in 1993, was
subjected to mistreatment by the HUPD. I am enclosing with this memo a copy of
the relevant pages of my book (pp. 323-325), but I will proceed here to
summarize the incident, including how I tried both to obtain justice for
Ntshanga and effect some reform of, or at least supervision over, the HUPD.
To summarize the case: Ntshanga was
a proud student who had struggled against South African apartheid before coming
to the U.S. to
enroll in Harvard's Class of 1995. To support himself, he worked two campus jobs,
and one was at the HUPD headquarters, dispatching vehicles operated by a campus
shuttle service. One day in the fall of 1992, he claimed he was picked on,
without cause, by Sgt. Kathleen Stanford. An argument ensued, and though no
formal charges were brought, an air of acrimony remained. The following month,
Ntshanga was once again the subject of police inquiry. Four HUPD officers
approached him while he was performing his second job, collecting dirty laundry
from dorms during the Christmas period. The officers demanded that he produce
his student ID. Ntshanga did not have his card, he explained, at which point
one officer asked for "a welfare card." As tensions rose, Sgt. Stanford arrived
on the scene. Ntshanga was sure she would identify him as a student, even if
she didn't particularly like him. But, to his surprise and dismay, she denied
knowing him to be a student. The officers proceeded to arrest Ntshanga for
trespassing, breaking and entering, and possession of burglary tools (the keys
he used to enter the building - part of his job).
A county prosecutor, shocked that
the HUPD had gone to such lengths, dismissed the charges. As Ntshanga's lawyer,
I wrote a complaint to Margaret Marhsall, the then-Vice President and General
Counsel of the University, now the Chief Justice of the Supreme Judicial Court
of Massachusetts. She assigned the investigation to University Attorney Allan
Ryan. Ten months later, he issued a report clearing all officers, saying that
none of them - including Sgt. Stanford - knew Ntshanga was a student. He also
deemed the "welfare card" statement to be "standard procedure when a person
says he has no identification." There were obvious holes in the investigation,
such as Ryan's failure to interview witnesses to the first argument who could
attest to Stanford's knowledge of Ntshanga's status as a student. But, appeals
to both the Harvard president and the secretary to the faculty of arts and
sciences produced no response. Ntshanga returned to his native South
Africa with a bitter taste.
Ntshanga case bears a remarkable resemblance to one of the stories recounted in
the aforementioned Globe article.
Working at his summer job on campus, a Boston
high school student was confronted by HUPD officers as he tried to free his
bicycle from a broken lock. It is likewise similar to the experience told by
Professor S. Allen Counter in 2004, when he was mistaken for a black robbery
suspect while walking across Harvard Yard to his office. It is similar as well
to the 2007 incident when an HUPD officer inquired whether those attending a
black student group-sponsored Field Day were Harvard students or had permission
to be on the Radcliffe Quad, despite their having had a permit to do so.
of course, is that history has repeated itself many, many times. The first
time, as it is said, might be tragedy, but by the second time it begins to
resemble farce. For every case reported, there were obviously many that went
un-reported. Too many have had to simply swallow the insult and proceed with
have received so many complaints over the years from affected and offended
Harvard students, that I took the extraordinary step of placing a paid
advertisement in the Harvard Crimson
of October 29, 1993.
I specifically appealed to "Harvard students who have tangled with the Harvard
University Police Department." (A photocopy of the actual advertisement is
appended hereto). In the advertisement, I noted that my law firm had "in recent
years been involved representing students in unfortunate incidents with the
Harvard University Police Department" where the students had been abused. I
asked for other victims to communicate with my firm, and I then collected their
incidents. The results confirmed my suspicion - that abuse was more
widespread than one would have thought. I think that repeating such an outreach
effort today would yield helpful information.
In my view,
I've never been able to get adequate remedial action by the university in any
of my cases because the HUPD, simply put, is more police than Harvard. The
HUPD is unionized, and the university is very hesitant to deal forcefully with
the members of the Department. Many of the same reasons that municipal and
state police departments, in Massachusetts
and elsewhere, are hard to reform with regard to mistreatment of civilians
certainly apply to the HUPD. (Indeed, at the very time the Ntshanga case was
pending, then-General Counsel Marshall, who had jurisdiction over the HUPD, was
negotiating a new contract with HUPD. It proved not to be a propitious time to
get strong action from the university against misfeasance by HUPD officers.)
HUPD needs is, assuredly, not some form of diversity or sensitivity
training. Such programs, for one thing, intrude upon the right of private
conscience - they are more appropriately
the tool of totalitarian governments and are unworthy of a liberal arts university.
Besides, such programs clearly do not work; all they do is make administrators
feel morally superior and give universities public relations opportunities to
claim that they are working to bring about equal rights. They are a public
relations fig leaf - a façade. The goal of the university administration should
be to guarantee citizens of the university the right to fair and equal
treatment, not to make anyone "feel good" and not to seek to force anyone to
believe, or to disbelieve, any particular proposition. The HUPD need not have
their minds and attitudes reformed (that's impossible, of course); they need
simply to understand that failure to abide by the rules will result in
dismissal from the department.
"community outreach" or enhanced or reformed "recruitment efforts" make a
difference. There is a certain ill culture at HUPD that is more likely to
transform new recruits than the recruits are likely to reform the organization.
What we have learned in the study of municipal police forces is that black and
Hispanic police officers, once recruited, often have the same tendency to abuse
citizens, including black and Hispanic citizens, as do the white members of
those forces. An organization's culture is very powerful and does not readily
change just because different skin colors and tones are added to the mix. Nor
have I seen any convincing evidence that "diversity training" makes much of a
difference. Dismissal of offenders works - not only to rid the department of
offenders, but also, in the long run, to change the culture.
suggestion is that you drop the whole idea of doing an in-depth study of HUPD.
In particular, I urge you to refrain, at all costs, from recommending that the university implement "diversity training" or
any similar "feel-good" program. Instead,
your committee should remain a standing committee of university governance, and
it should examine, with the aid of a small staff, each complaint of mistreatment
of anyone in the Harvard community by
a HUPD officer. When an officer, after receiving due process, is found guilty,
he or she should be fired. I can assure you that in a very short time, the
abusive culture of HUPD will change.
* * * *