‘Racial Sensitivity’ Divides HLS

Members of the Black Law Students Association are calling for Harvard Law School to adopt a racial harassment policy, alarming Law School professors who charge that such a measure would inevitably limit free speech.

At a town hall meeting Monday night, a representative of the Black Law Students Association (BLSA) called for the school to adopt an anti-harassment code protecting students from racial insensitivity.

In turn, Frankfurter Professor of Law Alan M. Dershowitz led critics of the BLSA statement and challenged the group to clarify what would constitute harrassment.

“With all due respect, what you stated is extraordinarily abstract,’’ Dershowitz said according to the Boston Globe, which first reported the meeting. “That’s like asking someone to first vote for censorship, and then figure out later what is censored.”

The meeting was the brainchild of the subcommittee of a committee formed last spring to improve race relations at the Law School after several racially charged incidents.

Last spring, the BLSA called for Law School Dean Robert C. Clark to punish Professor of Law M. David Rosenberg for telling students that “feminism, Marxism and the blacks have contributed nothing” to tort law. In a separate incident, one student had posted the epithet “nig” to a class website.

But the BSLA said it wasn’t their intention to offer a “concrete proposal” for a harassment policy, preferring to leave that responsibility to the committee.

Law school faculty expressed concern at the proposal yesterday, and the chair of the subcommittee Clark charged with drafting a potential policy on harasssment expressed reservations about the BLSA plan’s prospects.

Committee member Lacey A. Schwartz, a third-year law student who also serves on the BLSA, defended the group’s statement. She said yesterday that calling a potential racial harassment policy a “speech code” was a “mischaracterization” offered by opponents of any anti-harassment statement.

“I don’t think anybody is posing a speech code,” she said. “I think it’s similar to the way in which we have a sexual harrassment policy that took years of work, and I think the process to get a more expansive harrassment code...is going to take a significant amount of time.”

But Dershowitz said yesterday that the school’s sexual harassment policy, which he helped draft in 1995, differs from any potential racial harassment policy because it is “action-oriented” rather than speech-oriented.

“It’s about sexual, not sexist, comments,” he said. “A teacher is certainly permitted to say in a classroom things that would be deemed to be sexist in nature. But a teacher is not allowed to proposition a student.”

He said there was no equivalent racial harassment that was not already prohibited under school regulations and that racist speech should be protected.

“If it’s action-oriented, I would have no problem with it,” he said. “But once it deals with words, whatever you call it, it’s a speech policy.”

Several members of the committee said yesterday they did not support any code limiting speech and did not expect that the school would approve one.

“I don’t think we’ve started a process here that is something rather destined to end with a product,” said Walmsley University Professor Frank I. Michelman, who chairs a five-person subcommittee that will draft the policy.

“Instinctively, I’m pretty skeptical,” he said.

Michelman added thathis subcomittee, which was created a few weeks ago and may take the rest of the year to adopt a position, could propose anything from a broad statement of goals to a more specific prohibition of certain types of “personal hounding.”

Clark said in a statement that he had “grave reservations” about any potential speech policy, which would need to win the approval of the full Law School Faculty.

“I have never thought we would end up with a speech code or were starting toward a speech code,” added Ames Professor of Law Philip B. Heymann, who serves on the committee.

But Anthony J. Phillips, a second-year law student and member of the Michelman subcommittee, said he wants to make sure that the committee’s decision recognizes the impact of race on how a student looks at a certain court case or experiences the law.

“I think it would be too bad if the opportunity were lost in some cloud of ‘This is about quieting speech,’” he said. “I don’t think this is about quieting speech.”

Todd D. Rakoff ’67, Byrne Professor of Administrative Law and Dean of the J.D. Program, said the committee is also discussing the creation of an office of multicultural affairs as well as the school’s admissions policy and teaching strategies and that discussion of the speech code was only a small part of the two-hour meeting Monday night.

—Staff writer Elisabeth S. Theodore can be reached at theodore@fas.harvard.edu.