Massachusetts News 
By Naomi Schaefer 

Boston lawyer Harvey Silverglate didn’t think his “serious” book would stir much interest since it hit bookstores at the time of President Clinton’s sex scandals last year. But, The Shadow University: The Betrayal of Liberty on America’s Campuses, which Silverglate, a criminal defense attorney and civil liberties litigator, co-wrote with University of Pennsylvania Prof. Alan Kors, is stirring up not a few politically-correct hornets’ nests. The book exposes the PC speech and conduct codes on college campuses and how they seek to coerce conformity from both faculty and students. Massachusetts News caught up with Harvey Silverglate in his law office in Boston.  

Mass. News: Mr. Silverglate, we wanted to find out from you what reaction your book has caused. 

Silverglate: Well, we have gotten a terrific reaction from students. We have also gotten, by and large, a surprisingly supportive reaction from faculty members—a lot who have obviously repressed their ideology in favor of academic freedom. This is what political correctness does. It makes one hesitant to say something because you feel that by saying it you become a bad human being. 

The book seems to have made it respectable again for faculty members to pipe up in favor of academic freedom. Administrators can’t stand the book and university lawyers can’t stand the book with a couple of rare exceptions. So there is no surprise there. 

Mass. News: Were there any surprises? 

Silverglate: The surprise is that so many faculty members are supportive. We expected students to be supportive; they have been victims of this. In terms of faculty, the book was partly responsible for a vote by University of Wisconsin faculty in March to repeal its speech code. 

They have been debating this for two years. The best they could do was they had a report of an ad hoc committee, which was recommending a very minor amendment, a modification. And they thought that that was a lot. But the book radicalized several faculty members and the part of the code that was at issue was repealed. 
 

Mass. News: Why is it that you think the book radicalized faculty members? Was it that they weren’t really conscious of the repression under the speech codes or they weren’t conscious that there was a whole network of people in the same situation? 

Silverglate: Both. The second point is very important: People realized that there are people all over the country who have seen this happening and think it is completely outrageous and aren’t afraid to say so. It sort of took away the opprobrium. It was no longer a taboo. It made arguing for freedom a respectable position again. 

I think that the chapters on the origins of these codes had a tremendous impact on people, helping them to realize that they’re not talking here about a code mandating civility.  They’re talking about a code which is Orwellian in its language and in its implications. A code that is calling speech “verbal acts” so that they don’t have to admit that they are censoring speech; and the adoption of a notion of equality that says in order for black and Hispanic students and gays and women to be equal, they have to have superior rights and white males have to be repressed and censored. This notion, which is very Marxist—that the way you get freedom and equality is by depriving some people of it—is something out of George Orwell. The book’s coverage on this has had a tremendous impact. 

I got a lot of email that said,  “Wow, you realize that this [speech code] really comes from Herbert Marcuse?”, who was a Marxist philosopher at Brandeis in the ‘60s and ‘70s. So, the book had that impact on an intellectual level. On a practical level it had the impact of showing that we’re a lot of people out here, respectable people, who oppose those codes. 
 

Mass. News: A lot of people have trouble believing that tenured faculty  are really a repressed minority? 

Silverglate: You come to realize that tenure doesn’t necessarily provide backbone. You would think it does. But it doesn’t. 
 

Mass. News: From talking to other professors, do you believe that there are other factors besides job security? 

Silverglate: Oh sure, acceptance in your community, not being called a bad person. Nat Hentoff—who has been very supportive of the book and gave us a book-jacket blurb—has written about the book in his column in the Washington Post and the Village Voice. He also used it as a textbook for a seminar he taught at Princeton last year on the First Amendment. Nat is one of those people who has been fearless. He’s a liberal. He’s really a radical in a number of ways. He’s very tough. He takes an absolute free-speech position. He’s also pro-life. And here’s a guy who for years has had people accuse him of being sexist, a fanatic, and a-this and a-that, and it hasn’t bothered him one bit because he has principled reasons for being pro-life. Nat knows he is not a cruel guy. He knows he is not a troglodyte. But not everybody has his self-confidence. 

What the book has done is it’s given people more self confidence to say, “Hey, you know, to believe in freedom is not to be a bad person. It’s not that I’m not concerned about how black students do in school. It’s that I’m not willing to destroy the university to ‘eliminate a hostile environment.’” 
 

Mass. News: You said you’ve gotten good reaction from students? From all of them? Have you heard from leaders of the various “protected” groups on campus? 

Silverglate: Interestingly, we have not. We know that there are student leaders of these groups who don’t agree with us. What’s interesting is that we expected to have a barrage of these things. We expected pickets. We haven’t had any pickets. We have had a few students who have asked tough and sometimes hostile questions, but I don’t have a problem with that. 

We have expected demonstrations. We haven’t had that. I expected to be shunned at Harvard because I was very tough in the chapter on Harvard Law School and on the College. And yet I was invited to speak at the Harvard Law School Forum. So I think that what we have done is by writing a reasoned book, which is also extremely well-documented, we have kind of broken through. This is what we planned to do. We didn’t intend this book to be a polemic. 

We’re actually thrilled and now the paperback rights have been bought by HarperCollins. And they’re bringing out a paperback in October that they believe will be a major seller for courses on campuses. That’s what Alan and I have really been aiming at. 
 

Mass. News: Are these for courses on the First Amendment like Nat Hentoff’s? 

Silverglate: Well, this book is appropriate for a course on the First Amendment. It’s appropriate for a course on academic freedom. It’s appropriate even for a course on the uses and abuses of the English language. I can see this in an English course. There are many aspects. The perversion of the English language by these codes and these administrators can be sort of the unspoken subtext of all of this. We can see it in any number of courses. 

But HarperCollins really wants to help us in a subversive way. This is a very subversive book. We’re delighted that such a good publisher is going to help us subvert. (Laughter.) 
 

Mass. News: Tell us a little bit about what you have heard from the students who do support you. 

Silverglate: Well, the most profound discussions we have had have been with the students at the University of Wisconsin. I don’t know how much you know about the process by which the speech code there got repealed. Here’s what happened: On the ad hoc committee, which reviewed the code, were three students appointed by the administration. And it was clear that the administration anticipated that these students would vote for the status quo—that is, to retain the speech code. And the reason for that is: They put on a gay male, an Asian-American female, and a white female; they figured that these are all people who are considered to be historically disadvantaged groups, within the meaning of these codes. But all three students voted for repeal. They were far more radical on this subject than the faculty members on the committee at the beginning. 

They were on the committee with a few faculty members who initially thought they were going to have to settle for a minor revision of the code. They [the students] helped those faculty members come back to the position that the faculty members really wanted. And that pulled in other faculty members who had never said anything, but who secretly had feelings about it. 

I have listened to a tape recording of the January [1999] meeting. In the tape that I heard it was very interesting to hear faculty members who got up and said, “I’ve never spoken on this before, but I have to tell you I view these codes as remnants of totalitarian regimes.” 

There was one guy who said, “Look, I was a professor in Franco’s Spain. I know what it is to have a government that tells people what to say. I’ve been thinking about it and, frankly, I’d rather be in a place where once in a while we offend each other, where no one can tell me to shut up.” 

And he voted for repeal. And one after another, faculty members got up, particularly in the sciences, which is interesting, because they’re not usually so socially active. And it was a romp! It was a very moving event. 
 

Mass. News: How can people learn more about this? Do you have a website? 

Silverglate: Yes, we have a website and an email address. We have gotten literally hundreds of emails. I have 25 or 30 I have to answer. It’s very hard to keep up with them. It’s very rare that a day goes by that we don’t get an email from a dozen, or so, students, telling us that they are inspired by the book. They’re dedicated to fighting this. It’s exactly what we were hoping when we wrote the book. The book is kind of making its way around by word of mouth. We didn’t expect that we were going to have a huge bestseller—a  serious book like this that was published in the middle of a presidential sex scandal. 

It’s very hard getting the attention of the nation. But we have been reviewed in just about every major newspaper. What’s happened is that the sales have continued and the book is still getting attention. 
 

Mass. News: Some of the cases in your book involved sexual assault and date rape and the colleges prosecuting the cases independently of the court system. Do you have opinions about the most recent Harvard rape cases? [Two students were accused of acquaintance rape in the past year. The faculty voted to dismiss both of them.]

Silverglate: I thought that the faculty really caved in because if you read the facts in the case—even taking them at their most unfavorable for the male student—this is a case in which clearly there was ambiguity in the question of what the woman’s intentions were. And to call that rape is a misuse of the English language. One of the things that we really dwell on in this book is the perversion of the English language to connote things that they really don’t mean. This is not a rape and the faculty didn’t have the guts to call it what it was. It was certainly something. 
 

Mass. News: Is your opinion on this tempered by the fact that there was a court decision prior to the faculty decision? 

Silverglate: Well the court decision was one in which it was not rape. It was not rape in court, and the reason I say that is because it was a plea bargain. The reason it was a plea bargain was that the D.A. was not going to be able to prove it. I don’t think you could have gotten a jury to convict on rape, even though the Harvard faculty certainly considered it rape. And it isn’t clear to me the student would have been convicted of anything. But the fact that he plea-bargained in order not to take the risk of a rape charge made it easy for the faculty. But, nonetheless, the faculty still didn’t do its duty of looking critically at facts in a fair, dispassionate manner. And it’s hard for me to understand why the man and the woman were not treated pretty much alike. 
 

Mass. News: Do you think that colleges should really be involved in this sort of deliberation at all? 

Silverglate: Well, let me put it this way. Where a charge is a crime and is adjudicated by a court, the college should defer and wait until the court system has dealt with it. I believe that because I think the court system is better able to deal in a dispassionate manner with these kinds of cases. That having been said, if there is a conviction, then the college can leverage off of that. But the college shouldn’t make it worse. If the student is convicted of assault and battery but not rape, then the school should not consider it rape. They’re not really fit to do that. 
 

Mass. News: Do you think that you have had a practical effect on the situation at universities? Do you see it improving in the next few years? 

Silverglate: I do. I think that part of it—I don’t take all the credit—is that we happened to time the book right. The high water mark of this totalitarianism I think we’ve seen, and I think the pendulum is now swinging back. And everywhere we’ve gone we get reports that people’s backbones have been stiffened. I just got a call this morning from a fellow up in Maine. I had spoken to some alumni of the University of Southern Maine and of Bowdoin. And he was telling me about how they’ve introduced a bill in the legislature to try to outlaw these kinds of speech codes. And they’re just suddenly stirring. 
 

Mass. News: How do you feel about outlawing the codes? 

Silverglate: I would much prefer to have faculty’s like Wisconsin’s repeal them. I think it’s much better to not go to court and to simply use all the guerrilla tactics that are there, including publicity. I think the colleges’ independence in the long-run is much better off if they are not ordered to do things. I think they should do them voluntarily. The faculty and administrators of these colleges have a duty to pass on free colleges to the next generation—as free as the ones they inherited.  And that’s an obligation I would like to think that faculty members and administrators will honor without being ordered to do so. It’s that simple. 
 

Mass. News: Are you currently involved in your role as a lawyer in cases that are relevant to these free-speech issues? 

Silverglate: I do have three college cases right now, which I am not at liberty to talk about. But mainly what I’m doing now is going on campuses and trying to rally the troops. I have been advising some groups that are looking to get rid of their speech codes. I have not tried to encourage them to do so with litigation. And so I have not been in court myself on that. I really would like to see this done without court involvement, if that’s possible. 
 

Mass. News: Are you working primarily on campus with students or faculty or both? 

Silverglate: Both. 
 

Mass. News: Are you going through organizations that are already formed? 

Silverglate: That’s right. That’s what I usually do. Or if there’s some kind of a speaker’s forum, they invite me. Sometimes it will be a group of alumni who will invite me. However, I can get a foot on the campus without being called a trespasser. 
 

Mass. News: Are there any cases that you know about that are in Massachusetts that we should be paying attention to? 

Silverglate: I can tell you that at Mt. Holyoke they are now studying the code, which is interesting because they are usually pretty politically correct. That was spurred by a request by a faculty member who read a review of my book.  I also spoke at the Harvard Law School forum and recommended that they abolish the sexual harassment guidelines. 
 

Mass. News: Do you think there is any chance of Harvard Law School repealing its sexual harassment code? 

Silverglate: I do, I do. I think it’s going to take some time. But I think that they will repeal it because they can’t defend it. 
 

Mass. News: How did your speech go over there? 

Silverglate: The room was packed. And it was a very supportive audience. Again, there were no administrators there. There were faculty members and there were students. 
 

Mass. News: Were administrators always so separate from the faculty and students? 

Silverglate: No, I don’t think that was true 30 years ago. It wouldn’t be true 15 years ago. When I was in college, for example—I went to Princeton as an undergraduate—the president of the university was someone who was taken from the faculty. He was president for eight years or so and then went back to teaching. You can’t have a separate culture when you have that. 

Now there are professional administrators—a whole army of these people. They’re like locusts. And they add to the number every year. Just the number of people in charge of diversity and multiculturalism is staggering. They go around the country. Whenever there is a national search for a president, what are they talking about? They’re talking about interviewing the presidents of three other colleges. Did you ever hear them take someone from the faculty and make them president? Not any more. But that’s how it used to be. 
 

Mass. News: Is it the result of fundraising? 

Silverglate: Well, if that’s an inescapable fact of life—that you have to have someone as president of a college who is a good fundraiser—then you shouldn’t have him in charge of student life and you shouldn’t have him in charge of curriculum. Let’s just call him what he is: president for financial affairs. 
 

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