The Diversity Battle at Harvard Law

WHEN students arrived at Harvard Law School the morning of April 14, they found some startling news waiting for them.

A letter, printed on official-looking stationery and signed by Dean Robert Clark, announced that the law school would offer tenure to four "women of color" - including Anita Hill - in response to students' clamoring "for role models and a wide array of voices on the other side of the podium."

That morning, a delegation from the Coalition on Gay, Lesbian, and Bisexual Legal Issues was visiting Dean Clark's office to discuss the controversial issue of "faculty diversity."

"We asked Clark how he'll make the appointments happen," recounts Inga Bernstein, a second-year law student. "He looked a little puzzled. We weren't sure what was going on. But it slowly dawned on us that something was not right."

The letter, it turned out, was a hoax. Later in the day Clark issued a memorandum announcing: "The four scholars named in the letter have not been offered tenured positions." Before long, a shadowy group of radical students calling themselves the Sojourner Truth Squad claimed responsibility for the cleverly executed prank.

While some might dismiss the fake letter as an example of Ivy League high jinks, many here viewed it as only the latest fusillade in the long-running battle over the composition of Harvard Law School's professoriate.

For several years now, leftist students have been taking steps ranging from lawsuits to sit-ins in a bid to "diversify" the overwhelmingly white and male faculty at the Harvard Law School.

Although they haven't succeeded in their primary objective - tenuring a "woman of color" - the protests have helped to politicize the atmosphere and fray relations between students of different views and races.

Similar controversies are raging at law schools around the country, but with nowhere near the ferocity and rancor as at Harvard. Many blame the news media for that. By covering every detail of the controversy, some critics say, the press pours gasoline on the flames.

"The idea that a national newspaper takes an interest in this is appalling," Prof. Charles Fried, a former solicitor general in the Reagan administration, tells a reporter. "Don't you have anything more important to write about?"

Part of the interest in Harvard Law School stems from the mystique created by best-selling author Scott Turow's book "One L," a chronicle of his first year at Harvard Law, and the film "The Paper Chase," a fictional account of a student's similar ordeal.

But there is an element of truth underlying the myth: What is decided here will echo far beyond Cambridge, Mass.

Harvard is probably the best-known law school in the country and, although Yale has topped it in recent surveys, still one of the best. Its professors and alumni assume a central place in American society; just recently, for example, two Harvard Law faculty members were tapped for senior positions in the Clinton administration. What happens here will affect not only other law schools and not only the legal profession, but also society as a whole.

"Every major law school is feeling pressure from its students to make the faculty more diverse," says Yale Kamisar, a law professor at the University of Michigan in Ann Arbor. "These things are going on everywhere, but they've captured attention at Harvard because Harvard has always been a leader.... Everyone looks to Harvard."

What the world sees when it looks to the red-brick and white-granite buildings of Harvard is a debate with sharply drawn battle lines. Diverse student body

The pro-diversity forces argue that hiring more women and minority professors would enrich students' learning and provide vital role models for minority students. There are plenty of minority scholars Harvard could hire, they contend, but they say that the law school won't do so because the middle-aged, white male professors are not open to different perspectives. Some go further and say that the professoriate is guilty of "racism and sexism."

"Faculty diversity is such a painful issue because we have a diverse student body, but that fact is not represented on the faculty," says Ms. Bernstein, a short-haired, denim-clad leader of the homosexual group on campus. "Racial and ethnic minorities experience the world in its full oppression - and they may have a particular viewpoint that they bring to the classroom. They understand things that straight white men cannot understand to the depths of their being."

Hogwash, reply many students and faculty members. Prof. Alan Dershowitz - an outspoken attorney who has defended such famous clients as Mike Tyson, Leona Helmsley, and Claus von Bulow - says bluntly that the "quest for diversity is phony."

"Several years ago, we had a woman proposed by the appointments committee and every female professor voted against her because she wasn't sufficiently feminist," he says. "It's not about gender or ethnic diversity - it's about political conformity to the left."

Among the faculty members, two-thirds of whom must approve any candidate for tenure, there are enough professors who feel as Professor Dershowitz does to frustrate the demands of diversity demonstrators. Although Dean Clark has pledged to recruit more female and minority scholars - he says that half of the law school's appointments in the past decade have come from those groups - he has refused to sacrifice traditional standards of "excellence." He and others also say they have been stymied by factors be yond their control.

For instance, two women who were offered tenure earlier this year - Elizabeth Warren of the University of Pennsylvania and Carol Rose of Yale University - turned down Harvard, apparently for personal reasons.

One of the most popular female professors already on the staff, Kathleen Sullivan, has announced she is leaving for archrival Stanford Law School next year. "It's very discouraging," sighs Professor Fried, a member of the appointments committee.

The bottom line, as far as student radicals are concerned, is that little has been done. But it isn't for want of trying on their part. In recent years, the skirmishes between proponents and opponents of diversity have transformed Harvard into a place that some have dubbed "Beirut on the Charles."

The first shot was fired in 1990 when Derrick Bell Jr., Harvard Law's most senior black faculty member, made national headlines by taking a leave of absence from the school to protest the fact that no "woman of color" had been granted tenure. No black woman has been added to the school's permanent faculty since his protest, however, and - after unsuccessfully seeking an exemption from the law school's policy limiting leaves of absence to two years - Professor Bell quit for good last year.

The same year that Bell took his leave of absence, some law students organized a group called Harvard Law School Coalition for Civil Rights and filed a lawsuit charging the school with discrimination. The case was dismissed by the Massachusetts courts on the grounds that such an action could be brought only by someone who has actually been denied tenure.

Another flurry of activity came last year. First, the law school tenured four white male professors. Then Dean Clark was quoted in the press making some slighting comments about the pro-diversity demonstrators. But the most controversial incident occurred when a group of conservative law students produced a satire of a Harvard Law Review article, published posthumously, by Mary Jo Frug, a New England Law School professor who had been stabbed to death on a Cambridge street (she also was the wife of Gerald

Frug, a member of the Harvard Law School faculty). Ms. Frug's article was called, "A Postmodern Feminist Legal Manifesto." The conservatives' spoof: "He-Manifesto of Post-Modern Legal Feminism," by the "Rigor Mortis Professor of Law." Furor over parody

That sent the campus into a tizzy. Student radicals staged numerous protests and even occupied the dean's office. The most liberal students and professors argued that the parody was a product of the "sexist" atmosphere created by Harvard's alleged lack of diversity; Prof. David Kennedy called for the authors of the parody to be punished.

Other scholars, led by Dershowitz and Fried, defended the parody's authors on freedom-of-speech grounds. The school's disciplinary board decided to take no action. "The censors lost that battle," Dershowitz crows.

This school year - which ends with commencement ceremonies June 10 - the diversity debate has been more muted.

In the fall, controversy broke out over alleged racism by the editor of the Harvard Law Review, who removed two black student editors from a sensitive assignment (she was cleared of all charges by an independent investigator).

In the spring, there was a small brouhaha when Catharine MacKinnon, a controversial feminist scholar from the University of Michigan, fell a few votes shy of the two-thirds faculty majority needed to be granted tenure. But since the decision occurred just before spring break, there was no major outbreak of protests.

Raul Perez, the leader of La Alianza, a Latino student group, attributes this year's relative calm to the fact that the administration has avoided confrontations with student radicals. "[Dean] Clark has done what all good politicians do: He's listened to the activists, nodded his head a lot, and said we have to have committees look into it. Then the issue goes on the back burner and slowly dies," says Mr. Perez, a second-year student.

Camille Holmes, a third-year student sitting next to Perez in the law school's Harkness Commons, points to another factor: burn-out. "People are just exhausted with hitting their heads against the walls. Nobody wants to reach that level of conflict again," says the soft-spoken Ms. Holmes, who is outgoing president of the Coalition for Civil Rights.

Most students have been happy to go about their studies this year without becoming involved in the diversity debate, Holmes and others say. The committed activists, both liberal and conservative, are a small number. But the activists' agitation has affected even those who are, as first-year student Rory Verrett puts it, more interested in "what power tie to wear than in faculty diversity."

Neil Glazer, a third-year student active in the conservative Federalist Society, says the diversity movement has helped to politicize every aspect of campus life. "It's hard to stay apolitical here for long. Some do and they tend to be alienated; they find themselves at the fringes," he says. "The vast majority of students are organized along ideological lines. People say there are no social activities here that don't revolve around [political] issues."

Dershowitz cites another consequence: The diversity protests, he says, have fostered an atmosphere of political correctness that has had an "informal chilling effect on junior faculty members and students." Some confirmation of this comes from a group of students sitting around a lunch table in the law school's cafeteria.

"Conservatives feel hushed," says Tony Barkow, a first-year student who describes himself as a liberal.

Another first-year student, who refuses to give his name because he's "worried about my career," says: "I'm liberal and I feel hushed. I, literally, when I said something in class about white males I was shaking in anticipation of the hisses. If you say something that's not politically correct, there's overt or covert pressure."

At bottom, the protests have only contributed to an atmosphere of "alienation and student-faculty confrontation," says Roger Fisher, a retired professor.

Last year, the dean appointed Mr. Fisher, author of the 1981 bestseller "Getting to Yes: Negotiating Agreement Without Giving In," to head a group of students and faculty members who are trying to bring civility back to the law school. But even Fisher acknowledges that the Project on Community hasn't made much of a dent in reducing the law school's confrontation level.

Others are more blunt. "No matter what their politics, people here think the Project on Community is a joke. It's useless. It won't accomplish anything," Mr. Glazer says.

But Fisher won't give up easily. His experience as a negotiator between the government and rebels in El Salvador and South Africa gives him reason for hope. "When people say this place is conflict-prone, I reply that in South Africa the political-murder rate is 10 a day," he says. "Harvard is a much more peaceful place."