Advancing Religious Liberty
5/17/10 at 04:54 PM 0 Comments

Harvard, Hastings, and Andre Agassi

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Author: ADF Senior Legal Counsel Gregory S. Baylor

Back in the early 1990s, Canon launched an ad campaign for its "Rebel" line of cameras featuring tennis star Andre Agassi.  In the ads, he executes a series of "rebellious" moves:  tousling that crazy mullet he had back then, driving a jeep with no doors, throwing his shirt into the crowd, braving the streets of Las Vegas, etc.  (No, they don' t show him on a date with Barbra Streisand.  Thankfully.)  The tag line uttered by Agassi while adjusting his oh-so-cool black shades was, "Image is Everything."

Apparently, Martha Minow and Leo Martinez, deans of Harvard and Hastings law schools, respectively, have drunk deeply at the Agassian fount of wisdom.

In a Weekly Standard, Peter Berkowitz opens his essay entitled "Harvard Law vs. Free Inquiry" as follows:

Late last month, controversy erupted at Harvard Law School after a private email written in November was leaked to the law school community. In it, a third year student, clarifying her views after a dinner conversation with two close friends, explained to them that she wanted to understand the science and research on whether intelligence may have a genetic component and whether African Americans may be "less intelligent on a genetic level."

The private email was leaked, and it became a subject of discussion among Harvard's students.  Dean Minow felt compelled to issue a statement condemning the email.  Berkowitz's piece powerfully argues that Minow's move was inappropriate, as have numerous others.

Berkowitz's story quotes Dean Minow's statement:  "one student's comment does not reflect the views of the school or the overwhelming majority of the members of this community."  Well, of course not.  Is there any serious risk that the world would somehow attribute the "views" of the student (who, by the way, was simply asking a question, albeit a provocative and sensitive one) to Harvard Law School itself or to the majority of its students?

My hypothesis is that Dean Minow was really saying, "this isn't Harvard.  We're not like this student.  We disagree with her so strongly that we must condemn her.  We probably blew it when we admitted her.  We're sorry we failed to teach her not to ask such questions.  We won't let it happen again. You can hate her, but please, pretty please, don't hate Harvard, ok?"  Harvard felt that the email reflected poorly on Harvard, and Harvard needed to take decisive action to restore Harvard's reputation.  Image is everything.

I've always thought something similar was at work at Hastings in its dispute with Christian Legal Society over CLS's statement of faith requirement, which Hastings labeled "discrimination."  In its Supreme Court brief, Hastings remarkably argued that it needed to punish CLS in order to protect its own reputation.  It was intolerable to Hastings for others to think that it tolerated the allegedly intolerant.  It is reasonable to infer that Hastings was simply embarrassed that its student body included those who held religious and moral beliefs it deemed retrograde.  Hastings was unmoved by the fact that so many other public universities had accommodated the associational freedom of their religious student groups.  Indeed, there was sometimes a whiff of "we're going to be the ones who won't back down to the evil Religious Right."  In short, image was everything.

At schools like Hastings, if "image" gets in a fight with the Constitution, the Constitution sadly loses.

This post originally appeared here.

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