Silverglate seeks spot as university overseer

February 19, 2009

On October 19, 1869, during his inaugural address as President of Harvard College, Charles William Eliot described the central role alumni would play in the governing of the University: "The real function of the Board of Overseers is to stimulate and watch the President and Fellows. The Overseers should always hold towards the Corporation an attitude of suspicious vigilance. They ought always to be pushing and prying."

The Board of Overseers is a group of 30 alumni, five of whom are elected by the over 300,000 University alumni each year to serve six-year terms. This year, alumni will choose a sixth overseer to complete the term of Arne S. Duncan, who has joined President Barack Obama’s administration as Secretary of Education. Usually, the candidates are selected from a list nominated by the Harvard Alumni Association. Indeed, it is notoriously difficult to win a seat without an official nomination. Just ask President Obama ’91, who ran for the position in 1991 as one of three petition candidates put forward by the group Harvard-Radcliffe Alumni/ae Against Apartheid. Indeed, the last petition candidate to win a seat on the board was Nobel Peace Prize-winning human rights activist Desmond Tutu in 1989.

Undaunted by seemingly long odds, Harvey A. Silverglate ’71, criminal defense attorney and author of The Shadow University, has successfully petitioned to be a Candidate for Overseer of the University, joining eight nominated alumni, including noted legal journalist Linda Greenhouse, on this year’s ballot. Silverglate is working closely with another petition candidate, Robert L. Freedman, A.B. ’62, on the "campaign trial."

Silverglate would add to the presence of HLS alumni on the Board of Overseers, which includes: Roger W. Ferguson Jr. ’79, Judge Merrick B. Garland ’77, Richard Meserve ’75, Robert N. Shapiro ’78, and Susan S. Wallach ’71.

Record Editor-In-Chief Andrew L. Kalloch sat down with the Silverglate and Freedman to discuss their candidacies and how they believe the Overseers can positively affect life at HLS.

Why did you decide to run for the Board of Overseers?

RF: I don’t know another organization there is at Harvard that has some authority…Some people are active in the Alumni Association but I don’t think the Alumni Association gets involved in some of the things I am interested in…The biggest [Alumni Association] grievance is how I get good tickets to the football game…it’s mainly a networking and social thing…and that’s what it should be.

HS: From the outside, it seemed impervious, so ‘m going to try to do something from the inside… There is a culture that has developed in higher education that is not good for fairness and disciplinary proceedings or free speech and academic freedom. There has been a corporatization of the Academy that allows a lot of these things to happen…and the governing bodies have fallen down on their duty. They have let this happen with nary a discussion. And the reason is because the administration now controls the governing body…The agenda is prepared by the administration and you discuss the things they want you to discuss…It is time for the overseers to be more proactive and inquisitive… I decided to run because I have been an observer at Harvard since I graduated law school. I have represented students from the very beginning of my legal career, including those who took over University Hall during President Pusey’s administration…and students before the administrative board…

I’m not that social but I do think there is a very important role for alumni that goes beyond showing up at football games and reunions The role is to make sure that the University is governed honestly and effectively…

We’re not against Harvard. We’re more for Harvard than the Administration is for Harvard because we have a better idea of what Harvard should be and what it should be doing.

Have you spoken to other alumni who have served or currently serve on the Board of Overseers?

RF: Yes, I have spoken to one person who told me that being on the Board was "the most disappointing experience of his life," that they did nothing.

HS: From talking to people on the Board, to me it sounded like a dinner party. I did not get the notion that they are looking to study the place and effectuate any kind of change. But that’s part of the culture of bureaucratization and corporatization of the Academy.

What are the biggest issues facing the Law School in the coming decade?

HS: The law school is not immune to corporatization and censorship of free speech. I have been an opponent of the sexual harassment guidelines since they were adopted. And free speech is no more protected at the law school than any other school at Harvard.

With respect to the curriculum…the criminal law courses are almost entirely taught from the perspective of the Department of Justice. I happen to think that the Department of Justice is a very dangerous organization. I have not trusted the FBI since the late 1970s when I believe they broke into my law office during a controversial case I had. Ultimately, I just think someone in the governing ranks should be raising these issues for discussion.

RF: People come to us out of law school and we are one of the top law firms in the country [Dechert], but the fact is that they don’t know how to write…People are paying good money to go to Harvard Law School, so if they cannot get a job at the end or have to take a remedial course, something’s wrong.

You have described the Administrative Board as "one of the worst, if not the worst, student disciplinary tribunal in the country." What will you do to change the way the Board functions?

HS: The Harvard lawyers tell me the Administrative Board is an educational experience. I say, yeah, just like a hanging. And I’ve never seen a proceeding as irrational, as uninterested in facts and truth.

How are you qualified to speak about the issues facing HLS and the University community at large?

HS: I actually know more about what goes about on the Administrative Board than most students do…and I have great sources of information. I am confident that I know more about how Harvard works than just about any member of the current Board of Overseers and that is because I don’t depend on the Administration giving me a packet five times a year to tell me how the place works…Once I get on the Board, I’ll be in an even better position to learn how Harvard works, because right now Harvard stonewalls me a lot when I represent students.

What do you say to people who view the condemnation of certain speech, like the parody of Mary Jo Frug’s work in 1992, as less about censorship than about civility and respect for others?

HS: Number one, a certain amount of discomfort is part of living in a free society. The First Amendment and academic freedom made that choice. When those principles are diluted, they just decay. Number two…students, left to their own devices in terms of their conversations with one another and in class, by and large develop their own civility codes. The notion that students need codes…in order to not kill each other is a figment of administrator’s imagination. It is a fraud they’ve perpetrated on the outside world in order to hire yet another administrator.

RF: People who promote speech codes think we have to enforce civility, but it does not work. When you try to enforce civility, incivility will come in through the back door. The way to do it is to let people say things they want to say. The speech codes are counterproductive…The whole point of the academic world is that people can speak freely. That is the whole point of tenure.

HS: The fact that Randy Kennedy writes a book called Nigger and gets the flak that he got…it just tells you there is something wrong with the Academy.

What about the sexual harassment policy at HLS-do you think it is different than the free speech issues at stake?

HS: No, it is a speech code. I look at it the same. That parody [of Mary Jo Frug in the Harvard Law Review's Revue issue of 1992] was no more uncivil than the parody of Reverend Falwell written by Hustler magazine and no more upsetting than the Fuck the Draft jacket worn in Cohen v. California. Harvard should be more welcoming to upsetting speech than the society at large, not less.

What is the "corporatization" of Harvard, as you’ve described it?

HS: The very fact that you cannot get beyond the PR office…tells you there is something wrong. They are acting more like a corporation than a University and they cannot defend what they are doing…Now Universities are run by principles of risk reduction. You don’t do anything that is likely to have something sue you, embarrass you, question you. You cannot run a University and not risk having people be upset about what’s going on and what students say to each other…Business corporations have a duty to their shareholders not to lose money. Universities have a different obligation and they have lost sight of that obligation: the pursuit of truth…These schools have the fancy schools with the slogan [Veritas] but they don’t really believe them any more.

What led to the "corporatization" of Academia?

RF: A lot of organizations in the country have become a lot more bureaucratic. There are a lot more administrators who are not on the front lines teaching and grading papers…When you get a lot of administrators, they think the work they do is really crucial…but it isn’t. It is totally secondary…It’s not because they are bad people. It is the system.

HS: In the 1980s, University administrators decided that they had to do something to reign in students. Now mind you, the anti-war fever had passed by then, but somehow administrators are always fighting the last war and they decided that they had to crack down.

I represented a group of undergraduates charged with harassment of Dean Ernest May [now the Charles Warren Professor of American History]. Ernest May was a consultant to the Department of Defense…and students organized so that in the morning, there would be three students following him chanting "murderer, murderer," all the way to his office or classroom. 24 hours a day they organized…Alan Dershowitz and I represented the students at the Ad Board. We argued that it was free speech. The students followed him closely but they kept a respectful distance. We convinced the Administrative Board that this was protected activity.

This would never happen today. The definition of harassment has now become so broad and covers so much protected activity that you wouldn’t have a prayer to win a case like that. Today, the Ad Board does not allow law professors to appear before the Administrative Board.

What effect, if any, do you perceive Allston as having on the Law School experience?

HS: I think that the Allston expansion is an example of the corporatization. In many ways it is a terrible idea. If there is no room in Cambridge I can understand going across the river for a discrete purpose of adding to the science facilities. Allston is an example of uninhibited expansion. One of the few beneficial consequences of the financial collapse is that it may destroy the dream of having another Harvard across the river.

Why is the expansion necessarily bad? Harvard is one of the largest employers in the region and biotechnology is a crucial engine of economic growth in Massachusetts?

HS: I said it was OK if you have a need-science facilities have to be expanded…But that is not what is driving this. What is driving it is this notion that Harvard should be bigger and richer. It is like a business. The more outlets you have, the more people buy your widgets. The real problem is the lack of real consultation. The bottom line is that this came as a surprise to a lot of people, including faculty members, and that is a very corrupting thing. It makes you question the vision of the University.

Just months ago, President Drew Faust announced historic declines in University endowments. This came on the heels of some Massachusetts lawmakers’ efforts to tax the University’s endowment. As an alum and prospective Overseer, what do you believe the University should do with its still mountainous pile of cash?

HS: It may be reasonable for Universities to hoard money because they foresee that there will be very bad times in the future. But I think it should be a private judgment. As to spending the endowment, I think tuition is way out of control. Tuition should be cut in half…I think it is terrible, I see these law students with unconscionable debts of $250,000 between college and law school. They are forced to go into firms making $160,000/year salary.

RF: As a University, the financial crisis offers a unique opportunity to reassess priorities and to do things you wouldn’t usually do. Everybody is in a panic because the endowment is down. The fact of the matter is that the endowment is probably where it was about five years ago. Nonprofits are not subject to taxes. The state should not appropriate money in that way. That is not a reasoned approach. I would not be adverse to a federal law that said if you are a nonprofit or private foundation, you have to pay out 5% of your money each year [a proposal put forth by Iowa Senator Chuck Grassley in the 110th Congress]. I agree with Harvey that tuition should be slashed. A 1% increase in endowment expenditures would enable the University to cut tuition of all students in all its schools by $10,000/student.

Harvard has some of the most coddled and privileged students in the world. HLS graduates frequently made $200,000 as first-year associates. Why should these students get financial aid at all?

RF: The bottom line is Universities are nonprofit enterprises, but they act like they are a ruthless business. They want to charge all the traffic will bear…They could charge $1 million a year and Harvard would attract applicants. But from the student’s point of view, tuition is too high because they come out of school and have these huge loans. I see the young people in my firm and it is a terrible burden that they have.

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Schools: Harvard University