Misrule of Law

“Intersectionality” becomes a feeding frenzy as self-styled victim groups vie for primacy

This essay first appeared in Law & Liberty as “Harvard’s Disgrace” on May 15, 2019 (here). Thank you, Instapundit! (here) And thanks to Acton Institute’s PowerBlog (here).

Utopian social movements often degenerate into unruly—and sometimes vicious–mobs. During the French Revolution, the slogan “liberty, equality, fraternity” quickly led to the guillotine as the Jacobins unleashed the Reign of Terror. Call it the law of unintended consequences. We are witnessing a similar display at Harvard, America’s most elite university, where Ronald Sullivan, an African-American law professor, faces professional retribution for the sin of representing a (presumed innocent) client accused of sexual assault. Harvard Law school professor emeritus Alan Dershowitz denounced the incident as “The new McCarthyism comes to Harvard.”

Capitulating to the noisy complaints of a small number of undergraduates, and a sit-in protest at the dining hall, the Harvard administration recently announced that, effective June 30, Sullivan and his wife, Stephanie Robinson (who likewise teaches at Harvard’s law school), would be removed as “faculty deans” at the school’s Winthrop House—a student residence where Sullivan and Robison also lived.  (Sullivan remains as a law professor.) When appointed as residential deans in 2009, Sullivan and Robinson were the first African-Americans to hold that position at Harvard, according to The Harvard Crimson.  The decision to remove Sullivan and Robinson was made by Dean of the College Rakesh Khurana, who had reportedly joined the students’ sit-in protest, dubbed “Reclaim Winthrop.”

Students absurdly charged that Sullivan’s representation of a criminal defendant charged with sexual assault—by itself–made them feel upset, and contributed to an unsafe and hostile educational environment.

Never mind that procedural due process (including the right of criminal defendants to zealous representation) is a critical tenet of the Anglo-American legal system, and that criminal law professors have long practiced criminal defense on the side, without controversy. Never mind that Sullivan previously represented other high-profile clients without incident, including accused terrorists and former New England Patriots tight-end Aaron Hernandez in his 2017 double murder trial. That was then.

The #MeToo movement sweeps away such precedents as inconvenient impediments to achieving a higher state of virtue, just as the Robespierre-led Committee of Public Safety eliminated many “enemies of the people.” It is tempting to ignore the horrors of the French Revolution, or to dismiss them as an aberration of history, but then—as now–idealistic reformers believed with moral certainty in the righteousness of their cause.  

The new “enemies of the people” are patriarchy, “white privilege,” and a capitalist system deemed responsible for income inequality and climate change. The amorphous (and broad-based) nature of the perceived foes complicates the identification of their “victims.” In the zero-sum game of identity politics, however, victimhood confers power, so the precise hierarchy of victim status is critically important. Not all victims are equal. Accordingly, “oppressed groups” compete with each other for primacy. The stakes are high. Conventional feminism faces challenges from the LGBT movement. Do “transgender” athletes (who are biologically male) trump the interests of actual women in sports competitions? Is it bigoted to assert that only women have vaginas?

At Harvard, the kerfuffle involving Sullivan pits several different groups against each other in the intersectionality sweepstakes: people of color, criminal defendants (once the darling of the ACLU), and feminists. Progressive activists are furious that Sullivan was willing to represent disgraced Hollywood mogul Harvey Weinstein—until recently an influential Democratic donor—against charges of sexual misconduct.  The apex movement du jour—at least on elite college campuses–is #MeToo, and defending Weinstein is somehow more repugnant than representing accused murderers such as O.J. Simpson and Claus von Bulow, as Dershowitz did with nary a complaint in recent decades. Sullivan’s Harvard Law colleague, Charles Ogletree, advocated on behalf of convicted cop killers (such as Troy Davis)–without objection from Harvard’s sensitive students. And never mind that Sullivan has announced his withdrawal from Weinstein’s defense team. Too late. The damage has been done. The “trauma” to the delicate student body was irreparable.

Alas, Harvard students—surely the least marginalized group of people on this planet–have gotten “woke.” The moral calculus in progressive circles, which once accorded great importance to protecting the rights of accused criminals and safeguarding the advances of African-Americans, has abruptly changed. Not only must “survivors” of sexual assault always be believed, those accused must not be defended (although different rules apparently apply to Virginia Lt. Gov. Justin Fairfax). To progressives, consistency—like logic itself—is the hobgoblin of little minds.

This sad spectacle puts our supposedly “elite” institutions in a most unflattering light. University administrators cower in fear of “triggered” students behaving like spoiled children.  Outside of the Ivy League student bubble, Harvard’s cowardly willingness to throw Sullivan and Robinson under the bus has elicited nothing but scorn. Dershowitz declared that Sullivan’s removal was “the worst violation of academic freedom during my 55 year association with Harvard.” 

Writing in The Atlantic, Conor Friedersdorf dismissed the concerns of Harvard undergraduates as “discomfort rooted in difficulty tolerating moral difference, not in having to report sexual assault to Sullivan, as some have erroneously suggested.”  Friedersdorf called Sullivan’s removal “shameful” and warned that “Harvard’s decision may deter ambitious young lawyers from undertaking the defense of any potentially controversial client, including indigent men who stand accused of rape or sexual assault. That raises the odds of wrongful convictions, especially among the poor.”

Other commentators were equally disdainful. Legal Insurrection asked “Does Harvard have any idea how damaging this is to their brand? People see this for what it is. Sullivan is being punished because social justice warrior students don’t want Weinstein to be represented by a Harvard law professor. Has no one explained to these students that law professors often take on high profile and controversial cases in order to write about them and use them in their teaching?” Fifty-two members of the Harvard law faculty, understanding the damaging signal represented by Sullivan’s ouster, expressed their public support for their colleague. Legal Insurrection concluded that “This is a sad day for Harvard. They have put the anger of a campus mob ahead of the very foundations of our legal system.”

Reason’s Robby Soave concurred:

This is a disaster. The administration has endorsed the ridiculous notion that serving as legal counsel for a person accused of sexual misconduct is itself a form of sexual misconduct, or at the very least contributes to sexual harassment on campus. It is no exaggeration to say that Khurana has undermined one of the most important principles of modern, enlightened justice. He should be ashamed of himself.

By caving to the mob, Harvard has shown student-activists that it takes seriously their demands for a kind of broadly-defined safety that includes protection from ideas they don’t like. This outcome will undoubtedly embolden them.

Capitulating to the petulant protests of intolerant snowflakes does not create a “safe space”; it defeats the essential purpose of higher education, which is to promote critical thinking, expose students to uncomfortable ideas, and challenge their presuppositions. Harvard’s craven submission to students’ puerile demands will only embolden the mob, its appetite for power now whetted by success. Now that the “woke” activists at Harvard–seemingly intent on devouring their own–have humiliated an African-American trailblazer committed to civil rights, who will be their target?