Harvard’s Flawed Response to Ronald Sullivan Joining Weinstein’s Defense Team
Students demanding his ouster have difficulty making the essential distinction between a lawyer and his client.
The criticism of Harvard Law Professor Ronald Sullivan by some student activists for his decision to join the defense team of Harvey Weinstein, and the ongoing response of Harvard University to that criticism, raise important concerns about the ability of Harvard to maintain an intellectual environment of high integrity.
This still evolving story weaves together four themes that are hardly unique to Harvard: the #MeToo movement and how universities should respond to it; the conflict between that movement and some fundamental principles of American jurisprudence; the approach of universities to the education and emotional comfort of their students; and how university leaders should respond when threats are made to their core institutional values. The concatenation of these issues in the Sullivan affair threatens to create a toxic brew.
The story begins with Ronald S. Sullivan Jr., a man of remarkable accomplishment. He is a graduate of Harvard Law School (HLS) where he served as President of the Harvard Black Law Students Association. Following graduation, he directed the Public Defender Service of the District of Columbia, practiced white collar litigation in two major D.C. law firms, and was a member of the Yale Law Faculty. He then joined the HLS faculty, where he is now faculty director of the Harvard Criminal Justice Institute. His expertise covers criminal law and procedure, legal ethics and race theory, and his career combines teaching, some research and substantial legal practice. An advisor on legal policy to the presidential campaign of Barack Obama, Sullivan was described in a Huffington Post headline as “The Man Who Dealt the Biggest Blow to Mass Incarceration.” During his career, he has represented many vulnerable clients, including the family of Michael Brown whose death stimulated the Black Lives Matter Movement. He stands as an extraordinary role model for Harvard students, and in particular black students for whom the provision of inspiring faculty role models is an explicit University goal.
The first chapter in the current story relates to another outstanding black professor, Roland G. Fryer, Jr., a superstar Professor of Economics, a recipient of a MacArthur “genius grant” and one of the youngest ever tenured economics professor at Harvard. Fryer has been the subject of an investigation over the past year for possible Title IX violations, a case that has garnered broad media attention. (Two alternative views of this investigation can be read here and here.) The Harvard Crimson quoted Sullivan as criticizing the investigation, alleging that Harvard investigators acted without “a semblance of due process or presumption of innocence,” a point he was well qualified to make. He further stated: “It shows what the current [#MeToo] movement, some blood in the water, and good coaching [of witnesses] can produce.” Although unrelated, his statement calling into question Title IX procedures was soon followed by a media announcement that he had joined the defense team of Harvey Weinstein, who is due to stand trial for several sexual offenses. With these two events, Sullivan could now be portrayed as an enemy of the #MeToo movement, an accusation that has proven perilous for many individuals.
Rob Montz
The second chapter relates to an additional role held by Sullivan, that of faculty dean of Winthrop House, one of 12 dormitories for Harvard undergraduates. The positions (formerly known as Masters) involve living in the houses with your family. Alongside their academic positions, the faculty deans oversee student life in the house and are responsible for the staff and the overall social environment. Ideally, they are role models and mentors to a diverse student body. Sullivan made history as the first black faculty dean at Harvard and four years ago his term was extended for a second five years.
When the news of Sullivan’s role in the Weinstein case broke, he was criticized by #MeToo activists, the Association of Black Harvard Women and in a Harvard Crimson editorial. A Change.org petition demanded his resignation as dean and others have called for the Harvard administration to forcibly remove him from the post if he doesn’t remove himself. The justification for these demands is that his legal advocacy for Weinstein is itself inconsistent with his role as faculty dean. Though it stopped short of demanding his resignation, the Crimson argued that because of Sullivan’s role in Weinsteins’s defense he would not be able to discharge his responsibility “to promote a safe and comfortable environment for victims of sexual misconduct and assault in his capacity as faculty dean.”
The Association of Black Harvard Women argued that Sullivan’s involvement in Weinstein’s defense “will only work to embolden rape culture on this campus.” Not surprisingly, the chain of reasoning that led to this alarming conclusion was not disclosed, prompting the eminent black HLS Professor Randall Kennedy to refer to it as “reckless,” and lacking “any theory, much less evidence, supporting it.”
Two important issues require analysis: the role of defense attorneys in our system of jurisprudence, and the role of faculty deans in the life of the University. Regarding the former, Sullivan made a robust case on his own behalf in an email to the Winthrop community:
Every citizen charged with a crime is cloaked with the presumption of innocence. It is particularly important for this category of unpopular defendant to receive the same process as everyone else—perhaps even more important. To the degree we deny unpopular defendants basic due process rights we cease to be the country we imagine ourselves to be.
During his career, Sullivan has defended both those who were guilty and not guilty, all at the mercy of the flaws of an imperfect legal system. These facts are well known to any interested observer. Students demanding his ouster have difficulty making the essential distinction between a lawyer and his client.
The approach of universities, including Harvard, to meeting the needs of their students is another part of this story, one that has dramatically changed over recent decades. When I attended college between 1964–68, a time of intense student activism related to the Vietnam War, administrators were typically seen as a source of difficulty for students, rarely to be trusted. It would have been impossible to imagine wanting them to act in loco parentis—as caretakers of our well-being. Between then and now, much has changed. Though students may still be wary of administrators, they (and their parents) nonetheless expect close care-taking by administrators to create a welcoming and attentive environment.
The 12 Harvard “houses” are where many undergraduates live during their last three years at the University, and faculty deans play a key role in house life. Since the position entails living among the students, and taking responsibility for many aspects of their non-academic lives, those assuming these positions must be greatly interested in student life and welfare. They should also serve as role models. But this case raises many important issues, starting with the one that initiated this furor. Is Sullivan’s professional role on the Weinstein defense team “trauma-inducing,” producing “fear and hurt in victims of the crimes that Weinstein is accused of,” as the Change.org petition maintains? Would this be a good reason for him to relinquish his role as dean? It has become commonplace for student activists to invoke “trauma” and “violence” when exposed to ideas or opinions they find objectionable, and to argue that universities have a responsibility to clamp down on the expression of heterodox views or risk being complicit in creating an “unsafe” environment for students. I have little sympathy for that position.
In response to some students’ concerns, Sullivan identified another member of the Winthrop House team as a primary contact should residents have sexual assault-related concerns. But was that necessary? Randall Kennedy addressed this in a recent piece in the Chronicle of Higher Education:
The skills, capacities, and dispositions that help to make a person a valued defense counsel are also the skills, capacities, and dispositions that help to make a person a valued faculty dean. These features include poise, close listening, mastery of relevant information, and a willingness and ability to safeguard the rights of all sorts of people, including outsiders, the ostracized and, indeed, the villainous… The opportunity for students to have as their mentor, counselor, and friend a person with that range of experiences and skills is extraordinary. It should not be squandered.
If Professor Kennedy is right, as I believe him to be, what needs addressing is not Sullivan’s legal advocacy, but the confusion of this group of students. They need to better understand the role of criminal defense in humane jurisprudence, and the distinction between those accused of crimes and the lawyers who defend them. There is an unfortunate tendency among contemporary political activists to demonize people with whom they disagree, a general feature of our increasingly polarized society, fueled by social media. It is both deeply ironic, and especially tragic, that Ronald Sullivan, who has earned the respect and admiration of the legal community—an example of black achievement at the highest level of academia and law—is being treated in this way.
Harvey Silverglate
What about the University’s response? Apart from Kennedy’s powerful piece and a few isolated tweets, there has been no official, institutional response from Harvard in support of Sullivan, although some other faculty have spoken up in his defense, many of them quoted in a recent piece about the brouhaha in the Atlantic. Sources tell me that a large number of HLS faculty penned a strong confidential letter defending Sullivan and sent it to University leaders, but so far it hasn’t received a reply. Dean of Harvard College Rakesh Khurana met with Sullivan, after which he told the Crimson: “I take seriously the concerns that have been raised from members of the College community regarding the impact of Professor Sullivan’s choice to serve as counsel for Harvey Weinstein on the House community that he is responsible for leading as a faculty dean.” Khurana “communicated that that the College believes that more work must be done to uphold our commitment to the well-being of our students”— hardly a ringing endorsement of Professor Sullivan. He later announced a “climate survey” to assess the state of the Winthrop House community, an approach that, at a moment like this, seems to empower those seeking Sullivan’s removal.
What about Harvard’s other leaders? So far, they have said nothing. It is likely that back room discussions are dominated by institutional defensiveness, concerns about legal and communications matters, and barely concealed fear, given the explosive nature of such issues at other campuses. Title IX controversies are a constant concern, at Harvard and elsewhere, and Harvard has made serious mistakes in the past. The University now employs a large and increasingly complex organization to deal with claims of unwelcome environment, harassment and assault, as well as issues of “diversity and belonging,” a newly articulated goal now permeating the University. While diversity, belonging and sexual assault are unquestionably important issues, they are tangential to this situation, which concerns a respected faculty member whose supposed transgression is participating in the legal representation of an unpopular defendant. Perhaps the administration should strike a better balance between addressing student concerns and supporting a distinguished faculty member whose advisory role is being inappropriately questioned.
What might we expect in the near future? After due consideration, Harvard’s leaders might offer a robust defense of Professor Sullivan, pointing out the distinction between defender and accused, and celebrating Sullivan’s service as a role model for legal scholarship and practice as well as diversity and inclusion at Harvard. They might use this as a “teachable moment” for a balanced discussion of the #MeToo movement and the tension between giving women who claim to be survivors of sexual assault the benefit of the doubt—#BelieveWomen—and the presumption of innocence, as well as the tendency of student activists to condemn as morally abhorrent those they disagree with, and the lack of critical thinking by some members of Harvard’s community. Unfortunately, the most likely scenario is that when the climate survey of Winthrop House has been carried out the University will remove Professor Sullivan from his role as faculty dean, perhaps pretending it has nothing to with his presence on Weinstein’s legal team. The message will be sent, and it will be heard, loud and clear.
Should this be the outcome, the damage will not be to the reputation of Professor Sullivan, whose accomplishments will remain for all to see, at least to fair-minded people. Rather, it will have the unintended consequence of limiting true diversity and inclusion at this great university, on whose faculty I have proudly served for 41 years. That would not benefit the Harvard community.
However, a positive result could emerge from this outcome. The shameful treatment of this outstanding faculty member and Harvard’s apparent acceptance of the notion that its students require “protection” from challenging ideas, might finally provoke an inflection point in the unwelcome march towards irrationality and group-think now underway at our leading universities. Such an inflection would require faculty and administrators to speak out forcefully for an environment in which diverse scholars and students can interact in a mature and respectful manner, without fear that their words and actions will be seen as inducing trauma, something they’ve proved reluctant to do so far.
In researching this piece, I reached out to many faculty, including several at HLS. All were passionate in agreeing that this episode speaks poorly of Harvard and its current values. Randall Kennedy told me he regrets what he now sees as his own complacency in response to similar events in the past, where he convinced himself they were “one-offs,” or that others would speak up. No longer, he says.
I can find no better ending to this article than the closing words of Kennedy in his piece for the Chronicle of Higher Education. His essay concluded:
That “progressive” activists could denounce so bitterly a person who has demonstrated so clearly a commitment to inclusive, humane, liberal values and practices is indicative of a concerted illiberalism that is menacing university life. As this controversy unfolds, one can only hope that Harvard authorities will decline to defer to expressions of noisy discomfort and instead adhere to those intellectual and moral tenets that sometimes must bear the uncomfortable burden of complexity.
I enthusiastically concur, and implore my colleagues to speak out on this issue. Much hangs in the balance. Silence is complicity.
