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Minority Views Unsafe at Harvard Law; Dean Betrays Marketplace of Ideas

If you value a true marketplace of ideas, beware of Harvard Law School unless you are able to handle being denounced by the dean. According to Dean Martha Minow, it is shameful even to be intellectually open to considering certain scientific questions.

The case in point involves a third-year law student who, in a private e-mail to a small number of colleagues, examined the possibility of ... well, does it matter to you what the possibility is? Or are some ideas simply so toxic that questions about them cannot ever be asked, the research never done?

For the sake of human inquiry and knowledge a free university in a free society should not place any topic entirely out of bounds for discussion because an academic community, in human humility, does not really commit itself to declaring which view is true until we see the conclusive evidence. Even then, we must acknowledge that we may be wrong when new, unexpected evidence comes in.

That is apparently not how Harvard Law School functions, however, under Dean Minow. Put on your academic hat and read what the third-year law student wrote, in relevant part, according to the Above the Law blog, along with my commentary:

I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. I could also obviously be convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances.

The student is open to two different possibilities.

The fact is, some things are genetic. African Americans tend to have darker skin. Irish people are more likely to have red hair. (Now on to the more controversial:) Women tend to perform less well in math due at least in part to prenatal levels of testosterone, which also account for variations in mathematics performance within genders. This suggests to me that some part of intelligence is genetic, just like identical twins raised apart tend to have very similar IQs and just like I think my babies will be geniuses and beautiful individuals whether I raise them or give them to an orphanage in Nigeria.

The student provides evidence from similar examples to support one of the possibilities.

I don't think it is that controversial of an opinion to say I think it is at least possible that African Americans are less intelligent on a genetic level, and I didn't mean to shy away from that opinion at dinner.

The student repeats that she is open to one of the possibilities.

I also don't think that there are no cultural differences or that cultural differences are not likely the most important sources of disparate test scores (statistically, the measurable ones like income do account for some raw differences).

The student notes that even if one of the possibilities is true, its real-world effects might be small.

I would just like some scientific data to disprove the genetic position, and it is often hard given difficult to quantify cultural aspects.

The student says that scientific evidence would help her make up her mind.

One example (courtesy of Randall Kennedy) is that some people, based on crime statistics, might think African Americans are genetically more likely to be violent, since income and other statistics cannot close the racial gap. In the slavery era, however, the stereotype was of a docile, childlike, African American, and they were, in fact, responsible for very little violence (which was why the handful of rebellions seriously shook white people up). Obviously group wide rates of violence could not fluctuate so dramatically in ten generations if the cause was genetic, and so although there are no quantifiable data currently available to "explain" away the racial discrepancy in violent crimes, it must be some nongenetic cultural shift.

The student provides a detailed example of how investigation of a similar question suggests that cultural rather than genetic factors are the main factor in the variation.

Of course, there are pro-genetic counterarguments, but if we assume we can control for all variables in the given time periods, the form of the argument is compelling.

The student acknowledges that there are counterarguments but concludes that the cultural analysis is very persuasive on the similar question.

In conclusion, I think it is bad science to disagree with a conclusion in your heart, and then try (unsuccessfully, so far at least) to find data that will confirm what you want to be true.

The student warns about the biases of an investigator skewing the conclusions when the investigator only looks for data that does not challenge his views.

Everyone wants someone to take 100 white infants and 100 African American ones and raise them in Disney utopia and prove once and for all that we are all equal on every dimension, or at least the really important ones like intelligence.

The student acknowledges that the main issue cannot easily be resolved because the definitive study cannot be done. The student shows, however, that she wants the conclusion to be that the races are equal in intelligence.

I am merely not 100% convinced that this is the case.

The student shows the same kind of skepticism any responsible researcher, despite wanting the genetic argument to be found completely false. Try asking a scientist about the scientific method and which things she is "100% convinced" about.

Please don't pull a Larry Summers on me,

Indeed, the treatment of this student's sincere, private, inquisitive e-mail about genetic and cultural factors in certain differences by race reminds me a lot about the treatment of former Harvard president Lawrence H. Summers' sincere, somewhat less private, inquisitive presentation in 2005 about the relative influence of genetic and cultural factors in certain intellectual differences by sex. Summers faced enormous opposition from a wide variety of faculty membersHarvard and MIT faculty members, evenwho declared that Summers' argument for a possible genetic factor in this matter was simply unacceptable, even nauseating. (See also my article here on The Torch, "Larry Summers and ‘Academia at Its Worst.'")

Dean Minow could simply have declared that a student's opinion in a private e-mail really is not her business; one presumes (or did at one time presume, I suppose) that Harvard Law students are entitled to express their own opinions in private e-mails. Instead, Minow has publicly declared that it is unacceptable to even ask a controversial question and say that you are open to evidence on both sides.

In a statement sent throughout the law school yesterday morning, Dean Minow wrote, in full, again with my commentary:

Subject: [HLS] A Moment to Pause and Increase Awareness

Awareness of what? Good start, though, because awareness is a fine principle for a marketplace of ideas.

Dear members of the Harvard Law School community:

 I am writing this morning to address an email message in which one of our students suggested that black people are genetically inferior to white people.

Minow's opening salvo is wrong about what the student suggested. See the actual text of the e-mail and my commentary above.

This sad and unfortunate incident prompts both reflection and reassertion of important community principles and ideals.

OK, but "community principles and ideals" in a marketplace of ideas means respect for a diversity of views, and honest inquiry. Or is Harvard Law School not such a place? We will find out in a second what Dean Minow means.

We seek to encourage freedom of expression, but freedom of speech should be accompanied by responsibility.

This was a private e-mail. Does Dean Minow really mean that it is irresponsible to honestly express one's sincere views to a small number of people via e-mail? Dean Minow appropriately suggests a distinction between official punishment, which would not be acceptable under free speech principles, and moral condemnation, which is within Dean Minow's own right to offer. Yet, is it really appropriate for a Harvard dean to condemn sincere, private academic inquiry?

This is a community dedicated to intellectual pursuit and social justice.

"Intellectual pursuit" was what the student was doing. Does Dean Minow really mean that intellectual pursuit is OK only if if fits her (unspecified) view of social justice? This declaration is not the same as the "Dean's Welcome" in which she states that "Harvard Law School is a place for people who love ideas because ideas make a difference in the world; [...] and who pursue the legal profession's service to society."

The circulation of one student's comment does not reflect the views of the school or the overwhelming majority of the members of this community.

Instead of making sure that a minority view, as Dean Minow reads the e-mail, is protected, Dean Minow suggests that certain minority views ought to be marginalized. There is nothing wrong with suggesting that, but Dean Minow has lost a chance to state that arguments and theories are better tested by evidence and argument than by declarations of outrage and condemnation.

As news of the email emerged yesterday, I met with leaders of our Black Law Students Association to discuss how to address the hurt that this has brought to this community. For BLSA, repercussions of the email have been compounded by false reports that BLSA made the email public and pressed the student's future employer to rescind a job offer. A troubling event and its reverberations can offer an opportunity to increase awareness, and to foster dialogue and understanding. The BLSA leadership brought this view to our meeting yesterday, and I share their wish to turn this moment into one that helps us make progress in a community dedicated to fairness and justice.

These moves toward a "more speech" reaction look promising. The rhetoric of dedication to "fairness and justice" is a good starting pointincluding fairness and justice for all students at Harvard Law School, including the student who wrote the e-mail and all the students who have been expressing their opinions about the "incident."

Here at Harvard Law School, we are committed to preventing degradation of any individual or group, including race-based insensitivity or hostility. The particular comment in question unfortunately resonates with old and hurtful misconceptions.

Is the problem here simply that the student's private e-mail "resonates with" views that the student did not actually express? Is this really Harvard Law School's standard for the bounds of responsible, sensitive intellectual inquiry? See also my article here on The Torch, "Insensitivity Is Not a Crime."

As an educational institution, we are especially dedicated to exposing to the light of inquiry false views about individuals or groups.

Now we see that for Dean Minow, the student's alleged statement (not even what the student actually wrote) is simply false. It is very good that Dean Minow argues for "exposing [views] to the light of inquiry." Yet, she begs the question when she implies that the alleged statement is falsenot only that, so false, irresponsible, and insensitive that it requires a campus-wide e-mail from the dean, if not also an apology simply for expressing a sincere thought:

I am heartened to see the apology written by the student who authored the email, and to see her acknowledgement of the offense and hurt that the comment engendered.

Again, the implication by Dean Minow is that people should be ashamed to express honest scientific skepticism about a question.

I would like to thank the faculty, administrators, and students who have already undertaken serious efforts to increase our chances for mutual understanding, confrontation of falsehoods, and deliberative engagement with difficult issues, and making this an ever better community.

These are important values in a marketplace of ideas guided by freedom of expression. Unfortunately, the rest of Dean Minow's letter does not quite express them.


Martha Minow

Dean Minow's e-mail is a problem not just for the marketplace of ideas but for the Law School in particular. If you had to go on trial and had the chance to choose your judge, would you choose the one who was open to any reasonable argument and would let herself be persuaded by the facts, or the one who was sure she already knew the truth and that your alleged view was false and reprehensible?

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