05.12.2011
Copyright (c) 2011 by the President and Fellows of Harvard College
Harvard BlackLetter Law Journal
Spring, 2011
27 Harv. J. Racial & Ethnic Just. 49
LENGTH: 30138 words
Article: The Griswold 9 and Student Activism for Faculty Diversity at
Harvard Law School in the Early 1990s
NAME: Philip Lee*
BIO: * Doctoral candidate, Harvard Graduate School of Education;
former Assistant Director of Admissions at Harvard Law School and
former trial attorney in New York City; B.A., Duke University, 1996;
J.D., Harvard Law School, 2000. I am grateful to Julie Reuben, Sue
Lee, Liza Cariaga-Lo, Marc Johnson, and Rachel Rubin for very helpful
comments, to Doug McAdam for assisting my understanding of social
movement theory, and to Daniel R. Coquillette, Meira Levinson, Richard
Light, and Adela Soliz for stimulating discussion.
LEXISNEXIS SUMMARY:
... Sullivan, and many others, took ownership of what they had done
while students at HLS by creating a scrapbook detailing the history of
student activism at HLS focusing on faculty diversity issues,
including the Griswold 9's sit-in and subsequent trial, CCR's lawsuit,
and Professor Bell's protest from 1990 to 1992. ... Second, I contend
that the students framed the issue of faculty diversity into an
inclusive conception--incorporating the diversity of the members in
the coalition--that facilitated solidarity among many different groups
of students. ... Four White Males Appointed to Tenured Positions
Despite ongoing discussions between the students and Dean Clark
regarding hiring more minority and women faculty members, on Friday,
February 28, 1992, without informing the students beforehand, HLS made
tenure offers to four white men --two of whom were visiting
professors. ... As the meeting concluded, one of the students asked
President Rudenstine how he felt about the overwhelming presence of
white men on Harvard's faculty, the tenure of four more white men, and
the impending loss of Professor Bell--who represents one-third of the
tenured African American professors and one-sixth of the tenured and
tenure-track African American faculty at the law school. ... Around
fifty protestors arrived at Griswold Hall throughout the day; however,
when the Harvard University Police restricted access to the corridor
outside the Dean's office, many students left the area--the Griswold 9
remained. ... Later in the afternoon, Dean Clark arrived and talked
with Griswold 9 members Charisse Carney and Derek Honore, and incoming
Black Law Students Association President and CCR member Ronald S. ...
Defense counsels Professor Terry Fisher and Peter Cicchino, using the
same provisions in the Statement of Rights and Responsibilities,
argued that there is nothing "normal" about discrimination so the
"normal duties and obligations" of the University were not infringed
upon by the students' sit-in. ... Bonifaz and Anspach both played key
roles in organizing CCR activism. ... Finally, Dean Clark's comments
in the Wall Street Journal explaining the activism as being caused by
self-esteem issues that arise as symptoms of affirmative action
provoked the students to further escalate their protests.
HIGHLIGHT: This article reconstructs a mostly forgotten moment in
Harvard Law School history when the students organized in the early
1990s across race, gender, sexual orientation, and ability and
disability lines to push for faculty diversity. The new student
coalition, called the Coalition for Civil Rights, gave the students'
activism unusual momentum. This initiative included the first time
that law students, acting pro se, sued their law school for
discrimination in faculty hiring and the first time Harvard Law School
students were publically tried by their school's Administrative Board
for conducting an overnight sit-in at the Dean's office (i.e., the
Griswold 9 incident). Drawing upon social movement theory, the author
analyzes why the activism was so robust during this time period by
applying the concepts of signaling, framing, and resource mobilization
to the actions of the students. The author argues that the
unprecedented diversity of the coalition contributed to the activism's
intensity in key ways. First, the protests by this diverse group
signaled to the entire student body that the faculty diversity
movement was gaining momentum. Second, the ways in which the coalition
members framed an inclusive conception of diversity created a sense of
strong group cohesion among students. Third, the diversity of the
group served as a resource that enhanced the coalition's problem
solving abilities. The author concludes that although the most
vigorous activism was relatively short-lived, the students that were
involved in this coalition were nonetheless successful in making their
voices heard by Harvard University and the general public.
At some point, demands for change have an unacknowledged effect. Those
in authority eventually come to see the value of diversity and even
take credit for doing what they should have done much earlier. But it
is the Harvard Law School students who deserve credit for [a tenured
faculty appointment for a woman of color], and they can now celebrate
this positive step. ^n1
TEXT:
[*50]
Introduction
On November 20, 1990, a Harvard Law School (HLS) student organization
called the Coalition for Civil Rights (CCR) sued Harvard University
pro se claiming that HLS was engaging in discriminatory faculty hiring
practices. CCR was made up of a number of student organizations
including the Black Law Students Association, La Alianza (the Latino
Students Association), the Asian American Law Students Association,
the Native American Law Student Association, the Women's Law
Association, the Committee on Gay and Lesbian Legal Issues, the
Disabled Law Students' Association, and the National Lawyers Guild.
CCR was formed in the spring of 1989 to increase diversity at HLS. The
lawsuit was only one tactic they utilized to pressure the
administration to hire more minorities and women.
On April 6, 1992, nine CCR members, protesting the lack of any women
of color and members of other historically underrepresented groups on
the permanent faculty, staged a peaceful sit-in in the corridor
outside Dean Robert C. Clark's office. They began the sit-in around
noon and remained for twenty-four hours. As a result of their actions,
the students, who would become known as the Griswold 9, faced
discipline, potentially as severe as dismissal from school. The
Griswold 9 were composed of members and leaders of various affinity
groups at HLS. They were from different HLS class years and
undergraduate institutions. They were all, however, promulgating a
multifaceted conception of faculty diversity that went beyond the
African American men and white women professors that HLS had some
success in hiring during the previous twenty years.
Why was the student activism for faculty diversity at HLS so intense
in the early 1990s? In this article, I contend that this movement was
one of the first times that students organized across race, gender,
sexual orientation, and ability and disability to push for faculty
diversity. This diverse coalition gave the students' activism unusual
momentum, which included the first time that law students, acting pro
se, sued their law school to increase faculty diversity and the first
time HLS students were publically tried before the Administrative
Board for conducting an overnight sit-in at the Dean's office.
Drawing upon social movement theory, I explain how the diversity of
the coalition enhanced the activism. First, I argue that prior
successful student protests over the Dean's elimination of public
interest career advising at HLS signaled that the administration was
vulnerable and served as a catalyst for the subsequent faculty
diversity protests. As the CCR escalated its activities, this diverse
group's actions further signaled to the public that the movement was
increasing in strength and this propelled the activism forward.
Second, I contend that the students framed the issue of faculty
diversity into an inclusive conception--incorporating the diversity of
the members in the coalition--that facilitated solidarity among many
different groups of students. Third, I argue that the group's
diversity--in terms of the backgrounds and experiences of its
members--provided increased resources that enabled the coalition to
escalate its protest activities. Although the most vigorous activism
was relatively short- [*51] lived, the students nonetheless made their
voices heard by Harvard University and the general public.
I. The Coalition for Civil Rights
A. The Formation of the Coalition
As a result of the Civil Rights and feminist movements, HLS began to
diversify its exclusively white male permanent faculty. HLS appointed
its first African American male tenured professor in 1971 and its
first two white women as tenured and tenure-track faculty members in
1972. ^n2 Progress, however, was slow. In the early 1980s, expressing
dissatisfaction over minority hiring at HLS, Professor Richard Parker
stated, "I'm ashamed to be a member of a faculty with only two blacks
in 1983." ^n3 At the start of the academic year in the fall of 1990,
HLS had sixty-six tenured and tenure-track professors--five were
African American men, five were white women, and fifty-six were white
men. ^n4 In its 173-year history, HLS had yet to hire a woman of color
in a tenure or tenure-track position. Also at this time, HLS had never
had an Asian American, Latino, openly gay or lesbian, or disabled
member on its tenured or tenure-track faculty.
During the early 1990s, students unhappy with the status quo in terms
of the limited progress in faculty diversity, made their voices heard.
The Dean at the time was Robert C. Clark, who taught corporate law and
had been a tenured professor at HLS since 1979. ^n5 Clark was
appointed as Dean of HLS on February 17, 1989, despite objections from
some of his colleagues that he would polarize an already divided
faculty because of his public stance against the Critical Legal
Studies movement. ^n6 In addition, [*52] students and faculty members
said they were concerned that Clark would be insensitive to racial and
gender issues based on his past actions. ^n7
One of Clark's first acts as dean was to eliminate the only two public
interest career advising positions at HLS in an effort to reduce
costs. ^n8 The move was described by Clark as a "reorientation of
resources, away from things in the past that have been for symbolic,
guilt-alleviating purposes [rather] than to get a real result." ^n9
Clark's decision to eliminate public interest advising at HLS received
national attention. ^n10 It was followed by a year of student activism
that included letter writing, petition drives, support rallies, and
open forums. ^n11 In the summer of 1990, Clark conceded [*53] to
student demands by appointing Professor Christopher Edley as the
Faculty Director of Public Interest Programs and creating the first
independent public interest placement office in HLS history, which was
to be staffed by an attorney and an administrative assistant. ^n12
Dean Clark's first few years as dean would be marked with further
conflict.
Emboldened by their success with the public interest advising
protests, HLS students formed CCR in the spring of 1989 to address the
lack of faculty diversity. In explaining CCR's name, CCR co-founder
and La Alianza member John Bonifaz said, "It is particularly
appropriate for the problems we face. We want fair and equal treatment
of all our issues in the classroom, and fair representation in the
faculty and student body." ^n13 CCR's membership consisted of
representatives from HLS student groups including the Black Law
Students Association, La Alianza, ^n14 the Asian American Law Students
Association, the Native American Law Student Association, the Women's
Law Association, the Committee on Gay and Lesbian Legal Issues, the
Disabled Law Students' Association, and the National Lawyers Guild.
^n15 This new coalition to increase diversity at HLS cut across race,
gender, sexual orientation, and ability and disability lines. This
coalition was not to last--but for three years, it was strong. It led
to new forms of activist energy that pushed for an inclusive
conception of diversity.
B. The Multi-Pronged Campaign
The first nationwide class strike day on April 6, 1989, organized by
University of California at Berkeley's Law School in order to
encourage law schools to increase diversity in the faculty and student
body, was implemented at HLS by a precursor to CCR--a group called the
Student Coalition for a Diverse Faculty. ^n16 This coalition was made
up of La Alianza, the American Indian Law Students Association, the
Asian American Law Students Association, the Black Law Students
Association, the [*54] Committee on Gay and Lesbian Issues, and the
Women's Law Association. ^n17 The students' organized actions included
a study-in attended by approximately sixty students and a silent
protest outside a faculty meeting. ^n18 This coalition was more
focused on engaging in dialogue with the administration than
confrontation. ^n19 Professor Derrick Bell described this coalition as
a "worthwhile effort" and further noted that insistence by students
has been the root of all progressive change at Harvard. ^n20 The
diversity movement at HLS would gain momentum the following year with
the creation of CCR.
CCR's first public event was organized around the second nationwide
class strike day, which was in the spring semester following the
successful public interest advising protests. On Thursday, April 5,
1990, around 300 students attended a CCR rally at HLS and then marched
to Dean Clark's Office. ^n21 Dean Clark refused to meet with the
students. ^n22 CCR subsequently organized overnight sit-ins at the
Dean's office on that day and the following Monday--around eighty
students participated in each sit-in. ^n23 The students demanded that
a woman of color be hired by the fall and that faculty members suspend
a policy that delayed the permanent hiring of visiting professors for
at least one year after they finish teaching. ^n24 On Friday, April
13, 1990, Dean Clark met with law students at a forum to discuss
minority faculty hiring. ^n25 The students, once again, demanded
quicker tenure considerations for visiting minority professors. ^n26
Dean Clark responded, "I'm not inclined to waive the year-away policy
[for evaluating the tenure of visiting professors] under any
circumstances, but we'll see." ^n27 Clark maintained that the policy
was necessary to prevent undue pressure on visiting professors while
they are at HLS. ^n28 The subsequent inconsistent application of the
year-away policy would be one of main issues that led the protests to
escalate.
The spring of 1990 culminated with Derrick Bell, HLS's first tenured
African American professor, announcing that he would take an unpaid
leave of absence until HLS hired its first woman of color as a tenured
or [*55] tenure-track faculty member. ^n29 Professor Bell was hired by
HLS in 1969 after widespread student pressure to hire an African
American professor following the assassination of Dr. Martin Luther
King, Jr. ^n30 Bell left HLS to become Dean of the University of
Oregon Law School in 1981. ^n31 In the spring of 1985, Bell resigned
his deanship at Oregon in protest of the failure of his colleagues
there to appoint an Asian American woman to the faculty. ^n32 He then
returned to HLS. When Professor Bell announced his protest at HLS in
the spring of 1990, Dean Clark dismissed Bell's leave of absence as
mere "power politics." ^n33 Clark's vocal stance against Bell caused
CCR to organize a coordinated response.
The fall of the next academic year (1990-1991) started with a CCR
rally to increase campus awareness on the faculty diversity
issue--especially among the incoming class. ^n34 After the rally, CCR
decided to embark on a creative multi-pronged campaign that included
discussions with Dean Clark and other faculty members, ^n35 continued
support for the protest held by Professor Bell, ^n36 and direct action
to pressure the faculty on the diversity issue. ^n37 On Tuesday,
November 20, 1990, CCR members used their legal training to apply
pressure to HLS. Instead of hiring a lawyer, eleven CCR members, who
were all HLS students, represented themselves in court. They filed a
lawsuit against Harvard University in Massachusetts Superior Court at
the Middlesex County Courthouse in Cambridge, Massachusetts. ^n38
[*56] CCR co-founder and named lawsuit plaintiff John Bonifaz stated,
"We have negotiated. We have protested. We have taken to the streets.
Now we use the only instrument of power Harvard Law School seems to
understand." ^n39 This was the first time that law students, acting
pro se, sued their own school to diversify their faculty. ^n40 The
students were solely responsible for conducting legal research,
developing a theory of the case, and implementing their legal
strategies. In explaining the objectives of the lawsuit, named
plaintiff Keith Boykin stated, "The foremost objective is to end
discrimination at the school. The other objective is to call attention
to the shocking underrepresentation of minorities and women." ^n41
Their complaint, filed under Massachusetts antidiscrimination laws
prohibiting discrimination in employment (General Laws, Chapter 151B)
and in making and enforcing contracts (General Laws, Chapter 92,
Section 102), alleged that HLS's unofficial faculty hiring criteria
worked against women and minorities in the hiring process. ^n42 The
complaint further alleged harm to the students in the form of being
denied the social, educational, and professional benefits of an
integrated faculty. ^n43 The complaint also alleged that lack of a
diverse faculty denied equal and adequate educational opportunity,
perpetuated badges of inferiority, and fostered insensitivity and
intolerance. ^n44 The named student plaintiffs that brought the
lawsuit on behalf of CCR included Keith Boykin, Linda Singer, Laura E.
Hankins, Jeffrey Lubbell, Pat Gulbis, John Bonifaz, Inger Tudor,
William Anspach, Lucy Koh, Chris Jochnick, and Christian Arnold. ^n45
C. The Litigation and Protests Proceed
On December 20, 1990, the court granted CCR's motion that prevented
Harvard University from destroying documents related to the claims.
^n46 Harvard subsequently filed a motion for a stay of discovery until
the court ruled on a motion to dismiss that would soon be filed by
Harvard. Harvard's in-house counsel, Allan A. Ryan, informed CCR of
his intention of going to court on December 24, which was during the
students' winter break, to argue the motion to stay discovery. ^n47
Ryan refused the [*57] students' request for an extension of the
motion argument date until January 2, 1991, when the students would
have returned from vacation. ^n48 Ryan went before the judge on
December 24 without the students present and the judge told him to
return on January 2. ^n49 When Ryan and the students appeared before
the court on January 2, the judge granted Harvard's request to stay
discovery. ^n50
Shortly thereafter, Harvard filed a motion to dismiss CCR's complaint
claiming that the students lacked standing to sue. ^n51 On Friday,
February 15, 1991, the Massachusetts Superior Court heard arguments on
Harvard's motion to dismiss CCR's discrimination complaint. ^n52 Allan
A. Ryan argued for Harvard. ^n53 HLS students Linda Singer and Pat
Gulbis argued the case for CCR. ^n54 Ten days later, on Monday,
February 25, 1991, Middlesex Superior Court Judge Patrick F. Brady
dismissed the lawsuit on standing grounds. Judge Brady held that only
people who could bring employment discrimination claims were
employees, applicants for employment or former employees and the
students did not fall into these categories. ^n55 Further he held that
there was no discrimination based on the enforcement of any contract.
^n56 Although the students lost on these claims in the trial court,
Judge Brady was impressed with their advocacy:
Whatever shortcomings Harvard Law School may have, if any, in failing
up to now to provide a faculty sufficiently diverse to satisfy all
students' needs, it does not appear to be failing in its obligation to
produce first rate lawyers. The written and oral advocacy of the
students in this case has been commendable. ^n57
Professor Bell praised the students, claiming they "merit the support
of all those concerned about racial justice and effective legal
education." ^n58 The students planned to appeal the trial court's
decision. The publicity garnered by the lawsuit seemed to increase
other students' interest in campus protests.
A third class strike day at HLS, once again in conjunction with
University of California at Berkeley Law School's national strike day,
occurred on Thursday, April 4, 1991. ^n59 CCR organized a morning
teach-in, a rally at 12:00 noon, and an afternoon march to outgoing
Harvard President [*58] Derek C. Bok's office. ^n60 Two hundred
students, five professors, and Dean Clark attended the morning
teach-in. ^n61 At the noon rally, Professor Christopher Edley, who was
the fourth African American professor to make tenure at HLS, ^n62 told
the audience that Dean Clark would be held accountable if the school
fails to make progress on faculty diversity. ^n63 After the rally, the
students marched to Harvard Yard to confront outgoing President Bok.
^n64 When the police prevented access to the building, the students
proceeded to Dean Clark's office in Griswold Hall where they conducted
an overnight sit-in. ^n65 They curtailed their sit-in on Friday
morning after learning about the Thursday night murder of a feminist
law professor, Mary Joe Frug, who was the wife of an HLS professor.
^n66
Three days later, on Wednesday, April 10, 1991, a group of CCR members
staged a sit-in inside Dean Clark's office and blockaded all entrances
from 8:00 a.m. to 5:00 p.m. ^n67 CCR member Keith Boykin said "The
escalated tactics of the diversity movement are a response to Dean
Clark's undemocratic, virtually authoritarian, management style. Dean
Clark repeatedly rejects student concerns as mere cries of
'consumers,' which is how he sees the student body." ^n68 In a letter
dated Tuesday, April 23, 1991, Dean Clark wrote to the HLS student
body: "I am writing to put you on the clearest possible notice that
future disruptions like this one [blockading the office], or other
violations of Law School and University, will be immediately subject
to disciplinary action." ^n69 Dean Clark's warning did not deter the
students. CCR responded with its own letter on April 25. ^n70 It
stated that CCR would ignore the Dean's warning because it was a
violation of due process and lacked authority since it did not come
from the Administrative Board--the entity responsible for HLS student
disciplinary matters--of which Dean Clark was not a member. ^n71 On
Wednesday, April 24, 1991, exactly one year after Professor Bell
announced his leave in absence in protest of the lack of women of
color on the faculty, at a rally organized by CCR, fifty students
picketed outside the office of Dean Clark to advocate for more faculty
diversity. ^n72
[*59] Relations between Clark and the students were rapidly
deteriorating. Nonetheless, some students continued the conversation
regarding faculty diversity with the Dean in an attempt to assist the
administration in finding qualified minority candidates. Black Law
Students Association President and later member of the Griswold 9
Charisse Carney-Nunes ^n73 recalls, "As the President of BLSA, I
actually had some engagement with Dean Clark--more than I think the
average student." ^n74 For example, on Wednesday, May 1, 1991, Carney
distributed a letter to the HLS faculty, including Dean Clark,
attaching a paper entitled "Diversity in Legal Education: The Channels
of Access for Underrepresented Groups." ^n75 This paper included "a
compilation of almost 100 African American women law professors, their
areas of interest, and their scholarship." ^n76
The new academic year began without much progress in terms of the
student demands for further diversifying the faculty. On Friday,
October 4, 1991, CCR informed the HLS community that CCR filed its
notice of appeal in its lawsuit against Harvard. ^n77 To give a status
update on diversity at HLS, CCR wrote:
Today, Harvard Law School has 66 tenured or tenure-track professors.
Of those 66 faculty members, only five are women (all of whom are
white) and only six are African American (all of whom are male). The
rest are all white men. In its 174[-]year history, Harvard Law School
has never hired a Latino/Latina, an Asian-American, a Native-American,
an openly gay or lesbian person, a disabled person, or a woman of
color for its tenured faculty. ^n78
CCR once again focused on a multifaceted interpretation of diversity
including race, sexual orientation, gender, and ability and
disability. In November 1991, CCR's appeal was docketed by the
Massachusetts Court of Appeals. ^n79 In a highly unusual move, on
Wednesday, January 22, 1992, the Massachusetts Supreme Judicial Court
granted direct appellate review of the Superior Court's ruling
dismissing CCR's lawsuit for lack of standing. ^n80 Massachusetts'
highest court granted direct appellate review in cases involving novel
questions of law or issues of such public interest that justice
required full determination by this court. ^n81 On Wednesday, February
26, 1992, CCR held a public meeting to update HLS students on [*60]
the status of the lawsuit. ^n82 At this meeting, John Bonifaz stated:
"This is an unprecedented case. Never before have students taken their
school to court. Never before... . This is the Brown v. Board of
Education of the 1990s[,] make no mistake about it!" ^n83 Oral
argument in the Massachusetts Supreme Judicial Court was scheduled for
Tuesday, March 3, 1992.
D. Students Argue Before the Massachusetts Supreme Judicial Court
On Tuesday, March 3, at 9:00 a.m., the hearing began. HLS students
Caroline Witcoff and Laura E. Hankins argued the case on behalf of
CCR. Allen A. Ryan argued the case for Harvard.
Caroline Witcoff, argued first, noting that despite forty years of
civil rights gains, the "invidiousness of discrimination in education"
still characterizes HLS hiring practices. ^n84 Her argument was based
on Massachusetts General Laws, chapter 151B, which prohibited
employment discrimination based on race, color, religious creed,
national origin, sex, or sexual orientation. ^n85 To address the
standing issue, she contended that the students were "aggrieved"
within the meaning of this statute, and that they have suffered
"direct" and "substantial" harms as a result of HLS's discriminatory
faculty hiring practices. ^n86 She explained:
When students at Harvard Law School sit in the classroom every day for
three years and are never once taught by a single woman of color, or
Latino, or Asian-American, or Native American, or openly gay or
lesbian person, the discrimination that is the reason behind this long
history of exclusion sends students a devastating message: that while
we're good enough to sit in the classrooms at Harvard Law, we're not
good enough to sit on the faculty, and that's a stamping of a badge of
inferiority. It's the same stamping of a badge of inferiority
recognized as early as Brown v. Board of Education. The other type of
harm [that] Harvard's discrimination inflicts on students is a denial
of the benefits of association with an integrated faculty. ^n87
Attempting to analogize the teacher-student relationship to an
employer-employee relationship to address the standing issue, Witcoff
stated that "students' direct interaction and ongoing relationship
with professors" constitute a relationship akin to that of employee to
employer. ^n88 Harvard Law School students "work with professors on
third-year papers, serve as research assistants, and represent Harvard
in clinical programs." ^n89
Laura E. Hankins spoke next. She argued that the law students have
been discriminated against under the Massachusetts Equal Rights Act
[*61] (MERA), Massachusetts General Laws Chapter 93, S: 102, which
provided that all persons, regardless of sex, race, color, creed or
national origin have "the same rights enjoyed by white male citizens
to make and enforce contracts." ^n90 She argued that the students, as
payers of tuition, had a contractual relationship with HLS. ^n91 She
then cited the statistical evidence regarding the lack of women of
color on the faculty to show disparate impact and noted that further
discovery was needed to uncover documentation regarding the hiring
practices being challenged. ^n92 Hankins also covered CCR's breach of
contract claim based on Harvard's nondiscrimination statement included
in its handbook and other literature that students rely on when
choosing to attend Harvard. ^n93
Allen A. Ryan next presented argument on behalf of Harvard. With
regard to the employment discrimination claim, he contended that the
record before the Court fails to demonstrate any substantial harm to
the students or any other person. ^n94 In response to the contract
discrimination claim, he argued that whatever contractual rights
existed between the students and HLS, the "students are not inhibited
in any way, shape or form from studying at the law school and
completing their degrees." ^n95 Ryan further argued that the students'
claims amount to little more than the contention that Harvard is "too
male, too white and too heterosexual." ^n96 He ended his argument with
an admonition:
If students are allowed to go forward to prove that of the 1.9 percent
of Asian-American law professors in the country, Harvard does not have
its share, and are allowed to put forward the records and
qualifications of Asian-American professors who themselves had not
come forward to vindicate whatever rights they feel they have against
Harvard Law School, then I submit the force of law in this
commonwealth is moot. ^n97
After the arguments, the parties awaited a decision from the Supreme
Judicial Court. While the appeal was pending, a series of events
occurred at HLS that would culminate in a group of students risking
dismissal from school to make their voices heard.
E. Four White Males Appointed to Tenured Positions
Despite ongoing discussions between the students and Dean Clark
regarding hiring more minority and women faculty members, on Friday,
February 28, 1992, without informing the students beforehand, HLS made
tenure offers to four white men ^n98 --two of whom were visiting
professors. ^n99 [*62] The students were caught off guard by these
appointments--especially given the fact that students have been
raising faculty diversity concerns for years. ^n100 Dean Clark
announced the appointments as a politically balanced group that broke
through many years of ideological deadlock. ^n101
These tenure offers appeared to reverse an HLS policy requiring
full-time faculty candidates to leave HLS for at least one year (i.e.,
the year-away policy) before being considered for full-time faculty
positions. Over the last three years, according to John Bonifaz, the
law school had used this policy to deny consideration to three
minority candidates. ^n102 William Anspach reflects:
The same claim, which you always hear in opposition to activism is
that we have to do things slowly and these things take time. And then
all of a sudden, I do recall, there was a burst of hiring. I think it
was all white professors. Now, I think at the time, it was packaged as
a political deal--you had some left-wing people and some right-wing
people or something like that. Nonetheless, it was a slap in the face.
It belied all their claims that these things had to be done slowly.
^n103
On Thursday, March 5, 1992, Dean Clark held an open forum at HLS to
explain to more than 250 people that the faculty's decision to offer
tenure to four white male professors did not violate law school
policy. ^n104 During the open meeting, Dean Clark said a policy
barring visiting professors from tenure consideration while still
teaching had been suspended last spring. ^n105 The students were
unaware of this policy change. Clark responded to charges that the law
school administration ignored student complaints by referring to a
recent resolution to forward "several promising candidates who are not
white males" to the full faculty by next fall. ^n106
[*63]
F. Bell's Extension Denied and the Protests Intensify
As Professor Bell's protest reached its second year, Bell wrote to
Dean Clark requesting an extension of the two-year leave policy. ^n107
Harvard University's two-year leave policy allowed faculty members to
take up to two-year absences before the University would require the
professor to return to Harvard. ^n108 Bell reasoned that this rule
"doesn't apply to people who have walked away for reasons of
conscience." ^n109 After Dean Clark denied his request, Bell made an
appeal to the Harvard University President. On Wednesday, March 4,
1992, President Neil L. Rudenstine met with members of HLS minority
student groups to discuss their concerns about Bell's status, faculty
hiring, and diversity at the law school. ^n110 During the meeting,
President Rudenstine told the students that he would not grant
Professor Bell an extension on the University's two-year leave
policy--the final appeal would be decided by the Harvard Corporation.
^n111 As the meeting concluded, one of the students asked President
Rudenstine how he felt about the overwhelming presence of white men on
Harvard's faculty, the tenure of four more white men, and the
impending loss of Professor Bell--who represents one-third of the
tenured African American professors [and one-sixth of the tenured and
tenure-track African American faculty] at the law school. ^n112
Rudenstine replied that "he is very concerned and disturbed" and
assured the students that he is "committed to doing something about
the situation." ^n113
After the tenure offers were made to four white males and Bell's
extension request was denied, CCR members intensified their
activities. On Wednesday, March 11, 1992, CCR brought Reverend Jesse
Jackson to speak at HLS about the importance of faculty diversity.
^n114 Over 450 students and faculty were in attendance. ^n115 At the
presentation, Jackson said that just as students must fight apartheid
in South Africa, they must "also fight apartheid in the Law School
faculty here at Harvard." ^n116 The next day, which the students
referred to as "Zero Day" to mark the end of a countdown that would
culminate in protest activity, at 7:30 a.m., twenty students
confronted Dean Clark at his home. ^n117 At Clark's suggestion, the
group proceeded to the HLS student center where the students voiced
their concerns about the inconsistent application of the "year away
rule" [*64] to professors of color. ^n118 Dean of Students Sarah Wald
and twenty other students joined the discussion. ^n119 The meeting
lasted until 10:00 a.m. and concluded with Dean Clark agreeing to meet
again at 2:00 p.m. with other members of the faculty, along with the
entire HLS community. ^n120
Before the two o'clock meeting, 200 students met in the Ames Courtroom
at HLS to plan for the rest of the day. As part of their strategy, in
order to put pressure on the administration before the afternoon
meeting, over 100 students demonstrated in Langdell Hall in front of
faculty offices, shouting, "Diversity now!" ^n121 Sometime during the
day, HLS Vice Dean David Smith placed a letter in HLS students'
mailboxes, warning them not to disrupt the "normal functioning" of the
law school staff. ^n122 The letter warned that HLS students could face
suspension or expulsion for such disruptions. ^n123 Vice Dean Smith
attached a copy of the University Rights and Responsibilities to his
letter. ^n124 By distributing this letter, the administration was
giving notice to the student body of the possible consequences of
disrupting the "normal functioning" of the law school.
At two o'clock p.m., almost 300 people attended the meeting, including
twenty-one faculty members. ^n125 The discussion focused on procedural
issues such as student participation in hiring practices and finding
qualified applicants from underrepresented groups. ^n126 CCR member
Keith Boykin and other students expressed frustration at the
repetitive rhetoric from the administration about the "commitment" to
diversify the faculty. ^n127 Six days later, on Wednesday, March 18, a
group of students conducted a sit-in in Professor Charles Fried's
office. ^n128 The students stayed for fifteen minutes. ^n129 The
students that could be identified during the sit-in, including John
Bonifaz, Julia Gordon, Raul Perez, and Ashley Barr, ^n130 would be
known as the Fried 4. ^n131 On the following day, a group of law
students conducted a similar sit-in in Professor Reinier Kraakman's
[*65] office. ^n132 Fried and Kraakman, both members of the Faculty
Appointments Committee, were targeted because the students believed
that they were blocking women and minority hiring. ^n133 Katya
Komisaruka, CCR member and participant in both sit-ins, stated,
"[Clark] isn't the entire problem here. The fact is the rest of the
faculty is complicit in failing to diversify." ^n134 In a letter dated
Tuesday, March 31, 1992, Dean Clark informed the law school community
that "some students have chosen to test the limits of appropriate
behavior" and warned the community that such behavior "simply cannot
be tolerated." ^n135
II. The Griswold 9
A. Dean Clark Comments in the Wall Street Journal
Over spring break at HLS, Dean Clark made public comments in a
national newspaper that would incense many students. On Wednesday,
March 25, 1992, the Wall Street Journal reported:
Mr. Clark has an insight into why affirmative action is such a big
issue. "We have the highest percentage and absolute number of minority
students of any of the top 20 law schools. At some level, [the
minority students] are worrying about what role affirmative action
played in getting them here.["]
"The minority students need a sense of validation and encouragement,
with the fundamental problem being a need for self-confidence that
plays itself out as, 'Why doesn't Harvard Law School have more
teachers who look like me?'" Mr. Clark said.
"In a sense, we're dealing here with one of the symptoms of
affirmative action. This means this debate could be a recurring theme
through the 1990s or until we get to some equilibrium." ^n136
CCR and other student groups were furious. Dean Clark, ignoring the
students' legal arguments about discriminatory practices at HLS,
attributed student demands for increased faculty diversity as arising
from self-esteem issues created by affirmative action policies.
When HLS students returned to campus, they publically responded to
Dean Clark. CCR posted flyers around the law school campus declaring,
"The issue is discrimination, not self confidence." ^n137 On April 2,
1992, [*66] CCR organized the fourth annual class strike day at HLS,
including a noon rally in front of the Harkness Commons, which was
attended by 400-500 HLS students and others. ^n138 One of the flyers
advertising the rally referenced the recent hiring of four white males
and Dean Clark's quote in the Wall Street Journal. ^n139 In a letter
dated April 4, 1992, CCR wrote to HLS alumni:
As Alumni, you hold the purse strings and hence the power to help
bring change at HLS. We urge you to read the attached [Wall Street
Journal] article and let the Dean know your response. We urge you to
let the Dean know that faculty diversity is not about an imagined
stigma felt by minority students but about the empowerment of
traditionally-disempowered communities to help share in the
development of the law, the countering of pervasive institutional
biases, the expansion of perspectives and backgrounds represented on
the HLS faculty, and the resulting increase in the importance and
excellence of HLS as a leading educational institution. ^n140
Furthermore, in a letter dated Tuesday, April 7, 1992, HLS students
Camille Holmes and Jeffrey Lubell ^n141, writing on behalf of CCR,
wrote an open letter to Dean Clark in response to the Wall Street
Journal article. Citing the US Supreme Court case that upheld the
separate but equal doctrine, they wrote:
So there is no confusion, let's be very clear. Your statements are
patently offensive and insulting to minority students and those
engaged in the struggle for a diverse law faculty because they
belittle and deny the reality of the stigma that flows from exclusion.
This strategy has frightening roots. In the infamous case of Plessy v.
Ferguson (1896), the United States Supreme Court used strikingly
similar logic to justify the forced segregation of the races:
[sp'1.6']We consider the underlying fallacy of the plaintiff's
argument to consist of the assumption that the enforced separation of
the two races stamps the colored race with a badge of inferiority. If
this be so, it is not by reason of anything found in this act, but
solely because the colored race chooses to put that construction on
it. ^n142
The escalation in protest activity was about to reach new heights.
[*67]
B. The Griswold 9 Escalate the Struggle
While the CCR lawsuit was a strategy in which the students put their
legal advocacy skills to work in their activism, another group of
students--that would become known as the Griswold 9--applied a
different form of pressure on the administration. Julie Su, only a
first year law student at the time and Griswold 9 member, recalls why
she felt compelled to act:
I was among [the] students who were taking our time to research women
of color, other faculty of color and openly LGBT faculty around the
country and coming up with slates for HLS to invite. Then Dean Clark
came out in the Wall Street Journal saying that those of us who
advocated for diversity were really just insecure, and our activism
was a "symptom of affirmative action." For me, that made it clear:
this was much deeper than just who got an invitation to teach at HLS;
it was about racist notions of inferiority that could never be
addressed through talks and committees. ^n143
On Monday, April 6, 1992, Julie Su and others, wearing paper masks
that portrayed the visage of Dean Clark, staged a peaceful sit-in in
the corridor outside the Dean's office, which was located in Griswold
Hall. ^n144 After explaining that the students created the masks by
copying and enlarging the picture of Dean Clark that appeared in the
Wall Street Journal article, Jill Newman, Griswold 9 member, recounts
why the students wore the masks:
We were trying to make ourselves kind of all the same--like the ironic
statement about, "here we were, this very diverse group of people
putting on all this--the face of a white man." And it was also
confronting Dean Clark with his statements [in the Wall Street
Journal]. ^n145
William Anspach, another Griswold 9 member, wrote a chronological
account of the sit-in three days after it happened. ^n146 He noted:
At about 12:20 p.m., on Monday, April 6, about ten of us headed for
Griswold from the Labor Law Project office. When we entered the
hallway outside the door to the office area containing Dean Clark's
office, we discovered that this door was locked. We sat down in the
hallway a few feet from the door. Most of us put on our masks.
Personnel inside the office area immediately got on the phone and
security showed up a few minutes later and entered the office area.
^n147
[*68] Around fifty protestors arrived at Griswold Hall throughout the
day; however, when the Harvard University Police restricted access to
the corridor outside the Dean's office, many students left the
area--the Griswold 9 remained. ^n148
A few hours into their sit-in, the Griswold 9 blocked Vice Dean Smith
from entering the office. Anspach wrote:
I think that it was around 2:30 p.m. that Vice Dean Smith first
appeared. I think that this was the first time we made a concerted
effort to block someone from going through the door. We all clustered
around the door and told him the office area was closed. I believe
this was also the first time we received a warning that our action was
a violation of the University Rights and Responsibilities and that we
might face disciplinary action. ^n149
In explaining what the group was trying to accomplish during the
sit-in, Anspach wrote:
Our intention was not to intimidate anyone or to cause trouble in any
generalized way, but rather was specifically to stop "business as
usual" in the office area. Furthermore, the only people we really made
a point of preventing from entering the office area were Clark and
Smith. On a number of occasions, we let office personnel enter the
office area. ^n150
Later in the afternoon, Dean Clark arrived and talked with Griswold 9
members Charisse Carney and Derek Honore, and incoming Black Law
Students Association President and CCR member Ronald S. Sullivan.
^n151 Carney recalled that during this discussion, she asked Dean
Clark if his quote in the Wall Street Journal article was misquoted or
taken out of context. ^n152 When Clark responded that the quote was
accurate and he meant what he said, Carney decided that, regardless of
consequences, she must sit-in overnight. ^n153 Anspach described what
happened next:
After a short while, Clark stood up and approached the door. He said
that he wanted to go to his office. We clustered around the door again
and told him the office area was closed. He was very angry, but did
not try to force his way inside. I believe that Smith was there at
this time and that Smith told us again that we were doing something
that could get us in trouble. ^n154
[*69] For eight-and-a-half hours, Harvard Police officers prevented
the students from using the restroom, which was located a few steps
away from the office corridor. ^n155 The police officers informed the
students that they would not be allowed back into the corridor if they
left to use the restroom. ^n156 After much discomfort, the students
eventually negotiated bathroom privileges with the officers. ^n157 At
9:00 p.m., Harvard University counsel Daniel Steiner confronted the
students with claims that HLS students were being arrested outside of
Griswold Hall ^n158 --not intimidated by these statements, the
students remained in the corridor and told Steiner that the
administration had "underestimated their commitment to ending
discrimination in hiring practices." ^n159
Two dozen students remained outside throughout the night. ^n160 The
Griswold 9 members stayed in the corridor; they relied on hand-held
walkie-talkies to communicate with the students on the outside
throughout the sit-in. ^n161
C. The Next Day
On the morning of the second day of the sit-in, Vice Dean Smith
appeared again and argued with the students. In his account of what
happened, Anspach wrote:
[Smith] approached the door and said that he wanted to enter the
office area. I told him that the office was still closed. He said,
"Under what principle?" I responded clumsily, "Under the principle of
democratic control of the hallway." He was either impressed or baffled
by this answer. While he stood there, we began to chant, "The office
is closed." He did not stay long. ^n162
During the sit-in, the Griswold 9 members anticipated that they would
be arrested. ^n163 This did not happen. Instead, the law school
administration prepared to deal with the students through a
disciplinary proceeding. During the sit-in, Harvard employees took
pictures of the [*70] student protestors without their masks on. ^n164
The Administrative Board convened an emergency meeting on early
Tuesday morning to consider bringing charges against the Griswold 9,
who were identified by the photographs. ^n165 Although not a member of
the Administrative Board, Dean Clark was present at this emergency
meeting and talked to the Board members. ^n166 The Administrative
Board issued a statement later in the morning that indicated that it
could "issue charges against the individuals involved that, if
sustained, could lead to reprimand, suspension, or dismission [sic]."
^n167
By 7:00 a.m. on Tuesday, April 7, seventy-five students had joined the
supporters outside, informing the national media of the protest. ^n168
Professors Christopher Edley, David Charny, Frank Michelman, and
Duncan Kennedy were allowed to enter the corridor to give the students
advice about their sit-in. ^n169 Anspach wrote:
[Duncan] Kennedy told us that if we pushed Harvard too hard, too much
attention that week and over the coming months would be focused on the
issue of disciplinary action rather than diversity. Kennedy's argument
had a big impact on us, I believe. We were not acting in order to
promote ourselves or nihilistically to create chaos, but rather in
order to spur the faculty and administration to end discrimination in
faculty hiring. We hoped that we would both inspire people on our side
and pressure people on the other side. ^n170
The Griswold 9 ended their sit-in around noon. ^n171 At a rally
immediately following the protest, the Griswold 9 issued a formal
statement of their purposes. ^n172 Trained as legal advocates and
anticipating that the HLS administration would argue that the students
violated the University Statement of Rights and Responsibilities
regarding the interference of the normal duties and activities of the
school, the Griswold 9 stated:
The Dean can take no comfort in the University Statement of Rights and
Responsibilities, which asserts that "interference with members of the
University in performance of their normal duties and activities must
be regarded as unacceptable obstruction of the essential processes of
the University." There is nothing "normal" about discrimination; the
"essential processes" of the law school [*71] cannot be served by the
exclusion of women and minorities from the legal academic community.
^n173
The protestors also issued a number of demands including a request for
"a special faculty meeting to be held to adopt a package of diverse
candidates for tenure positions." ^n174 They also demanded that Dean
Clark publicly apologize for his statement in the Wall Street Journal
article and Clark send a written invitation to Professor Bell, asking
him to return to HLS. ^n175 Charisse Carney read a statement to
cheering supporters at the rally in which she concluded, "We have
reached our goal today. We have successfully escalated this struggle."
^n176
CCR members explained the meaning of the Griswold 9 sit-in. William
Anspach, wrote, "What we seek is change. And we want change at the
rapid pace the law school showed itself capable a few weeks ago when
it made tenure-track offers to four white men." ^n177 Ronald S.
Sullivan, incoming President of the Black Law Students Association who
was present during the early part of the sit-in, commented, "I
personally support this group's goals and methods. This faculty has
created a situation in which there is no other recourse but to create
an environment in which the faculty is forced to make changes." ^n178
In response to some student complaints that the sit-in was harming
diversity efforts on campus, CCR member Camille Holmes remarked,
"People who say sit-ins are 'counter-productive' have to realize that
statements such as those in the Wall Street Journal are also
counter-productive and undermine Dean Clark's credibility." ^n179
On Thursday, April 9, 1992, the HLS Administrative Board sent the
Griswold 9 members, by Federal Express, letters informing the students
that they had been "tentatively identified as participating in an
incident," and that the "Administrative Board will soon be considering
whether to issue formal disciplinary charges in connection with [the]
incident." ^n180
D. Who Were the Nine?
The CCR members that comprised the Griswold 9 were not radicals. They
were law students engaged in mainstream campus life and involved in
various student affinity organizations and public service activities.
^n181
[*72] The only third year law student in the group was Charisse
Carney. She was a graduate of Lincoln University and a joint degree
student at HLS and the Harvard Kennedy School of Government. Carney
was the outgoing President of the Harvard Black Law Students
Association and was instrumental in helping establish the Charles
Hamilton Houston Fellowship, which addressed the long-term goal of
expanding the pool of women and minority professors in the country.
Seven members of the Griswold 9 were second year law students. William
Anspach, a graduate of Haverford College, was involved in the Labor
Law Project, and worked to establish an independent organization, the
Unemployment Compensation Advocacy Project, which was designed to
provide unemployed citizens with student representatives before the
Department of Employment and Training. Jodi Grant was a Yale graduate
who was active in Student Funded Fellowships, the Big Brother/Big
Sister Program, and served as an editor for the Human Rights Journal.
Derek Honore, a graduate of UCLA, was the outgoing Chair of the
Academic Affairs Committee for the Black Law Students Association. He
was also the incoming Executive Editor for the BlackLetter Law Journal
and Membership Chair of the Black Law Students Association. Lucy Koh,
a graduate of Harvard College, was active in the Tenant Advocacy
Project, Student Funded Fellowships, Battered Women's Advocacy
Project, and the Asian American Law Students Association. She was also
a research assistant for Professor Christopher Edley. Elizabeth Moreno
was a graduate of University of California at Berkeley. She was
outgoing Co-chair of the Women's Law Association and worked as a
research assistant for Professor David Westfall. Jill Newman was
active in the Woman's Law Association as Co-chair of the Quality of
Life Committee and the Student Funded Fellowships as the Chair of the
Phonathon Committee. She was a graduate of Cornell University.
Marie-Louise Ramsdale, a graduate of the University of South Carolina,
was a Co-chair of the Women's Law Association and a Board Member of
Student Funded Fellowships. She had served as a teaching fellow for
the "Women and the Law" course taught at Harvard College and was
Managing Editor of the Women's Law Journal.
The only first year law student in the Griswold 9 was Julie Su. Su, a
second-generation Chinese American and a Stanford University graduate,
was the incoming Co-chair of the Asian American Law Students
Association and a general editor for the Civil Rights-Civil Liberties
Law Review.
Although they came from different backgrounds, the Griswold 9 were
united in a common commitment to diversify the HLS faculty.
After the sit-in, the Griswold 9 received external support in various
forms. On Friday, April 10, 1992, CCR distributed a letter to HLS
faculty explaining the purposes of the sit-in. ^n182 Further, before
the hearing, HLS [*73] students circulated petitions including one
urging the Administrative Board not to suspend the student protestors
and another urging the Administrative Board not to formally punish
them. ^n183 Additionally, in a letter dated Wednesday, April 15, 1992
that was sent to Dean Clark and the Administrative Board, Reverend
Jesse Jackson urged HLS not to discipline the Griswold 9. Jackson
wrote:
Harvard Law School must not align itself with the authoritarian
practices and responses of British-run India or the segregated South.
It must seek a higher ground in 1992. The students who staged a
24-hour nonviolent sit-in outside Dean Clark's office should not be
disciplined for acting on their convictions and fighting injustice.
Rather, they should be honored for their commitment to building a
multi-racial and pluralist society. They, like their predecessors,
represent the best of America's youth. For Harvard Law School to now
clamp down with vindictiveness on their cries for justice demeans the
Law School's mission of teaching and moral inquiry. ^n184
E. The Call for the Dean's Resignation and Charges Against the
Griswold 9
At a press conference on Thursday, April 16, 1992, a joint statement
was issued by CCR along with a number of student affinity groups. This
statement called for Dean Clark's resignation. The statement read, in
part:
In response to the Dean's hostility and to the discrimination against
women and minorities for faculty appointments, a number of students
held a 24[-]hour sit-in outside Dean Clark's office. The Dean then
quickly initiated a Kafka-esque administrative disciplinary proceeding
against the students. Despite the fact that other students had
conducted peaceful sit-ins for years without repercussion, the Dean
suddenly chose to prosecute the students who took part in the most
recent sit-ins. The difference between the most recent sit-ins and
those of previous years is that this time the students involved were
overwhelmingly women and minorities. ^n185
[*74] Despite Jesse Jackson's plea and the students' denunciation of
Dean Clark, on Friday, April 17, 1992, the Administrative Board
formally charged the nine students with interfering with the normal
functions of the University and individual freedom of movement by
obstructing access to Dean Clark's office and refusing to leave when
asked to do so. ^n186 The public Administrative Board Hearing was
scheduled for Monday, May 4 at 4:15 p.m. in the Ames Courtroom at HLS.
^n187 Professor William (Terry) Fisher, who was not yet tenured,
agreed to represent the Griswold 9 and Professor Detlev Vagts agreed
to present the case against the student protestors. ^n188 HLS student
Peter Cicchino assisted Professor Fisher with the defense of the
Griswold 9 and HLS administrator Janet Katz assisted Professor Vagts.
^n189 At the time, Cicchino was a third year law student who had
served as Co-Chair of Harvard's Committee on Gay and Lesbian Legal
Issues. ^n190 He was also involved in a clinical course offering legal
assistance to indigent criminal defendants in Roxbury, a poor,
predominantly African American neighborhood of Boston. ^n191 Julie Su
recalls her meetings with Professor Fisher, Peter Cicchino, and the
other students in preparation for the trial:
We had countless meetings among the 9 of us, Prof. Fisher and Peter.
We talked about our options over and over, esp. when we were offered
"plea agreements" ^n192 by the Law School. We had difficult [*75]
conversations about principle vs. pragmatism, what message we would
send by going to trial vs. the diversion that might become from our
ultimate goals, and whether we would gain more support or turn people
off by having a public trial. Many of these conversations had us in
tears, partly out of frustration, partly out of fear, and partly out
of exhaustion. ^n193
The hearing was scheduled to begin on a Monday that was three days
before the start of law school final exams. ^n194 The Griswold 9,
through its counsel, requested that the hearing be moved to an earlier
date, preferably Monday, April 27. ^n195 In support of the protestors,
several hundred HLS students signed a petition urging an earlier
hearing date. ^n196 Citing scheduling difficulties for individual
board members, the Administrative Board denied the request. ^n197
According the Dean of Students and member of the Administrative Board
Sarah Wald, as the hearing approached, "an enormous number of letters"
was sent to the Administrative Board, most of them calling for
leniency. ^n198
F. The Trial of the Griswold 9
The Administrative Board was charged with "matters involving student
discipline and exceptions to faculty and administrative rules." ^n199
Membership on the Board was to include three faculty, three students,
and two administrators. ^n200 In the spring of 1992, the HLS
Administrative Board consisted of Professors Arthur Miller, James
Vorenberg, and David Shapiro; students Barry Langman, Juan Zuniga, and
Dorothy DeWitt; and Dean of Students Sarah Wald and Registrar Sue
Robinson. ^n201 Suzanne Richardson, another administrator, served as
Secretary to the Board. ^n202 This body of faculty, students, and
administrators was to decide the fate of the Griswold 9.
The procedures of the Administrative Board were set forth in a
three-and-a-half page document called "Administrative Board Procedures
for Disciplinary Cases." ^n203 This document consisted of eighteen
articles that described the purpose, jurisdiction, and procedures of
the Board. ^n204 The Administrative Board had the authority to issue
charges only "if the Board believes it reasonably likely that the
charged infraction can be established [*76] by clear and convincing
evidence." ^n205 When the Board formally issued charges, the students
were entitled to a hearing with representation by legal counsel or lay
advisor. ^n206 Formal rules of evidence did not apply; the Board was
allowed to consider any evidence it deemed "relevant and trustworthy."
^n207 While Administrative Board hearings were normally private,
students had the right to request a hearing that was open to the
public. ^n208 The Griswold 9 members were the first defendants to
exercise the right to a public hearing in the history of the
Administrative Board. ^n209
In a letter dated Thursday, April 30, 1992, the Administrative Board
informed Professor Fisher who it would allow to attend the hearing and
other procedures:
Those who may attend include members of the Law School community, one
or two authorized representatives of the broader Harvard community,
one or two authorized reporters from the Harvard Crimson.
Identification will be necessary at the door. (In addition, each
participant in the hearing may obtain a ticket from Suzanne Richardson
for an immediate family member or significant other.) Cameras,
videotaping, or audiotaping will not be allowed, except for the
official audiotape that will be kept as part of the record. ^n210
The parties were concerned about procedural fairness. Prior to the
hearing, the Griswold 9 alleged that the Administrative Board had
violated student rights by engaging in ex parte conversations with
Dean Clark at the Tuesday, April 7 emergency meeting. ^n211 After much
discussion, the Administrative Board agreed to disregard the testimony
from the April 7 meeting. ^n212 The Administrative Board offered a
plea agreement before the trial began. On the day before the hearing,
the Administrative Board notified the Griswold 9 that it would issue a
warning to any student who wrote a letter of apology. ^n213 Elizabeth
Moreno was the only student who took the deal. ^n214 Although nine
students conducted the sit-in, eight were to be put on trial.
[*77] The hearing began on Monday, May 4, in the Ames Courtroom at
HLS, with many students unable to attend because the room was filled
to capacity. ^n215 The eight students entered to a standing ovation
from the audience members. ^n216 Peter Cicchino later wrote a
description of the room set-up:
Like judicial theater in the round, several hundred faculty, staff,
and students surrounded eight long tables arranged as a square. The
tables were draped with red cloths (Harvard's color is crimson) and
microphones stood in front of each speaker. At the northern end of the
square sat the members of the administrative board--the judges for the
evening. On the western side of the square sat the prosecutor. Facing
him, on the east, were Terry Fisher, myself, and the ... defendants.
Finally, completing the square on the southern side were a lone chair
and microphone--the witness seat. ^n217
To support his case, Professor Vagts relied on the Harvard University
Statement of Rights and Responsibilities, which provided, in part:
The University places special emphasis ... upon certain values which
are essential to its nature as an academic community. Among these are
freedom of speech and academic freedom, freedom from personal force
and violence, and freedom of movement. Interference with any of these
freedoms must be regarded as a serious violation of the personal
rights upon which the community is based... . Therefore, interference
with members of the University in performance of their normal duties
and activities must be regarded as unacceptable obstruction of the
essential processes of the University. ^n218
Vagts commented, "Obstructing access was a problem. If Dean Clark had
really tried [to access his office] it might have escalated." ^n219
Professor Vagts first called the two secretaries from the Dean's
Office as fact witnesses. ^n220 Professor Vagts also called Vice Dean
Smith, Harvard University Police Officer Rocco E. Forgione, and
Harvard University Police Sergeant John M. Francis, as fact witnesses.
^n221 Administrative Dean Sandie Coleman was also called to testify;
she detailed the costs incurred as a result of the sit-in. ^n222
[*78] Defense counsels Professor Terry Fisher and Peter Cicchino,
using the same provisions in the Statement of Rights and
Responsibilities, argued that there is nothing "normal" about
discrimination so the "normal duties and obligations" of the
University were not infringed upon by the students' sit-in. Cicchino,
relying on free speech principles, stated that "the crucial issue is
the way in which the Law School would respond to a completely
non-violent expressive act of dissent motivated solely by legitimate
concern for the institution's treatment of women and minorities."
^n223
The defense called Professors David Charny, Christopher Edley, Duncan
Kennedy, and Frank Michelman as character witnesses for the students.
^n224 The testimony was heated at times. For example, during Professor
Charny's testimony, even though formal rules of evidence did not
apply, Professor Vagts nonetheless objected to the fact that Charny
was using his notes to refresh his recollection. ^n225 Professor
Charny, in a rage, responded by throwing his notes at Professor Vagts
in front of the entire audience. ^n226 Charny then threw his paperback
copy of The Brothers Karamazov at Vagts. ^n227 The audience was
shocked. "You could have heard a pin drop," said one student. ^n228
The defense also called a law student, Raul Perez, who ran the
communications between the Griswold 9 and the outside, and another law
student, Julia Gordon, who testified as an "expert in comparative
civil disobedience" at the law school. ^n229 All eight Griswold 9
members testified as well, explaining their motivations for the
sit-in. John Bonifaz, who was present during both evenings of the
trial, recalls that during this portion of the testimony, he heard an
HLS administrator say that these students "were the best of Harvard
Law School." ^n230 Most of the student protestors said that they had
not planned to engage in an overnight sit-in but a conversation with
Dean Clark in which he affirmed his statement from the March Wall
Street Journal article convinced them that the protest was necessary.
^n231
In closing arguments, instead of ending on his strongest legal points,
Professor Vagts expressed his remorse that HLS had to endure such a
process and explained that he only acted as prosecutor because nobody
else would do it. ^n232 Professor Fisher, in contrast, gave an
impassioned twenty minute closing, arguing that even if the students
did disrupt the functioning of Dean Clark's office, they did not
violate the University Statement of Rights and Responsibilities
because the Dean's conduct with [*79] regard to faculty diversity did
not constitute "normal." ^n233 He contended that "the students have
tried many different ways of halting a pattern of insensitivity and
discrimination in this institution--and each time were rebuffed[,]
This protest, they reasonably believed, was the only way in which they
could make themselves heard[.]" ^n234
Further, Fisher argued that HLS's own hiring policies were in
violation of the University's affirmative action policy and
obligations imposed by other portions of the Statement of Rights and
Responsibilities. ^n235 He posited that if a violation was found, the
limited response of the students to the Dean's actions should be
treated with leniency. ^n236 He concluded with a flourish:
The Harvard Law School Community is undergoing a crisis[.] The events
of the past month have been traumatic[,] the levels of distrust,
resentment and alienation within all the constituent parts of our
community are extremely high[,] classroom discussions of controversial
issues are either muted--because of students' fear of provoking the
wrath of their fellows--or distorted by outbursts of fury[.] One only
has to watch a few casual, hallway contacts between students and
faculty to see the deterioration[.] People snap at each other[,]
search desperately for some neutral ground of conversation or merely
avert their eyes. Our educational mission--and the quality of our
collective life--is seriously threatened[.] Under these circumstances,
it would be especially inadvisable to impose serious penalties on the
defendants[.] This is a time for healing--healing and reform--not
recrimination and sanctions. ^n237
After two days of evidence and arguments from both sides, about eleven
hours total, the trial ended when the audience gave Professor Fisher a
standing ovation. ^n238 The Administrative Board had to meet over the
next few days to discuss the evidence and the fate of the Griswold 9.
Immediately after the trial, reactions were mixed. Griswold 9 member
Jodi Grant commented that "it was a very moving experience for both
professors and students." ^n239 Other members of the Griswold 9
complained about the lack of procedural due process they were afforded
by the Administrative Board. For example, Marie-Louise Ramsdale
complained about the Administrative Board's exclusion of the outside
press, which she believed was essential to protect the group's due
process rights. ^n240 Julie Su noted that "it's amazing that a place
like HLS, where we [*80] learn about due process, had such egregious
process violations in dealing with us." ^n241 Su later explained:
The due process violations were numerous and severe. They were
particularly ironic given that they were perpetrated by a university
whose mission included teaching the meaning and importance of due
process protections. The violations ranged from secret phone calls
between the Dean and the Ad Board and attempts to turn our right to a
"public" trial into a private one by excluding all of the press except
the school paper, to which Peter [Cicchino] responded publicly, "As is
said in the Scripture, those who live in darkness fear the light."
^n242
On the other hand, a student member of the Administrative Board,
Dorothy DeWitt, explained that "we struggled to balance the procedural
rights of the Griswold Nine with the need to resolve the hearings
quickly, before the exam period commenced. I think the Ad Board
hearing and the decision process were fair and consequently
successful." ^n243 CCR member Camille Holmes said "that the people who
sat in made an important statement. It's awful that they were put
through that trial, forced to divert their attentions away from their
studies to be prosecuted ... out of it came a sense of unity behind
this issue and in support of these students that gives us hope for the
future." ^n244
III. The Aftermath
The Administrative Board's decision was released on Friday, May 8,
1992. ^n245 The Administrative Board rejected the defenses set forth
by the students through their counsel and, in a five-to-three vote, it
gave the eight students who stood trial official warnings, to be
removed from their student files at graduation if no additional
violations of University or law school rules were found. ^n246 The
Administrative Board also recommended that the registrar include
additional language in the Harvard Law School Catalog that gave notice
to future students that the sanction may be more severe in the future.
^n247 The Administrative Board concluded, "This proceeding has been a
difficult, arduous one for all involved, and we hope it will not need
to be repeated in any other context." ^n248
Current HLS Dean Martha Minow ^n249 recounted the commencement
ceremony of that year's graduating class:
[*81]
The Dean [Clark] objected to the selection of Peter [Cicchino] as
commencement speaker at Harvard Law School in 1992. After all, Peter
had defended student protestors, the Griswold 9, who had occupied the
Dean's hallway to protest the law school's failure to pursue diverse
faculty appointments! But the students' choice prevailed. His fellow
law students picked Peter to speak at commencement not only as a sign
of utter respect, but also because they wanted Peter's words as their
send-off, their admonition, their hope... . He told the students,
"Take your arrogance and afflict the comfortable. Take your
contentiousness and articulate genuine political alternatives. Take
your sense of entitlement to act in the world--to run things--and do
so: govern, lead." ^n250
During the summer, Jodi Grant commented that "it would be a travesty
if it were all for naught ... most of us are still active and involved
in CCR. For example, some of us in New York this summer gave out info.
to alumni at the [annual summer alumni] reception and now that school
is beginning, CCR is continuing to push for better faculty diversity."
^n251 Despite its best efforts, CCR received unfavorable news in July.
On Thursday, July 9, 1992, the Massachusetts Supreme Judicial Court
affirmed the dismissal of CCR's lawsuit. ^n252 While the lower court
decided the case on standing grounds, the Commonwealth's highest court
found in favor of Harvard on the students' substantive claims as well
as the procedural standing issue. ^n253 Julie Su, member of the
Griswold 9, stated, "Certainly CCR is thinking about taking further
legal action. A lot of things have happened over the summer which
tried to undo what we did last spring in which we have to respond."
^n254 HLS student and named CCR lawsuit plaintiff Jeffrey Lubbell
commented, "It was a victory that we even got to the [Massachusetts]
Supreme Court at all. We brought attention to the diversity movement
and the lack of women on the HLS faculty. And there are still many
things that can be done." ^n255
[*82] Later in the summer, CCR received more bad news. On Friday,
August 21, 1992, Professor Bell announced that his final appeal to
extend his unpaid leave of absence beyond the two-year limit was
denied by the Harvard Corporation. ^n256 The Corporation made its
decision after Bell, along with his counsel on this matter, Professor
Frank Michelman, ^n257 presented a three-hour appeal before a meeting
of the Joint Committee of Appointments. ^n258 On Tuesday, July 1,
1992, Harvard University Provost Jerry R. Green announced that Bell's
refusal to teach his classes would be construed by Harvard as a
resignation from his tenured position. ^n259 HLS student Camille
Holmes said, "This is a tremendous loss. He represents the strength of
spirit and commitment to inclusion that the law school has been
fighting." ^n260 In the fall of 1992, Professor Bell, who was now
teaching at NYU Law School, returned to HLS to speak to the students;
he urged HLS students to continue the fight for faculty diversity, in
particular for a woman of color to be hired. ^n261
During the start of the 1992 academic year, in a letter to the Harvard
Law School Community dated September 8, 1992, Dean Clark wrote:
The events of last spring were disturbing and difficult for many
members of this community. As a result, many have felt a need for
improved communication at various levels. Most agree that issues
relating to race and gender will continue to require discussion and
debate that is more open and more respectful. It has become apparent
that the ways in which we deal with each other ought to be improved.
^n262
Professor Laurence Tribe commented that the letter "is an
acknowledgement of a genuine need for discussion of issues relating to
race and gender, and an acknowledgement that those discussions need to
take place in a more open way." ^n263 Dean Clark subsequently created
a new committee, called the "Project on Community," comprised of both
students and faculty, to address the law school's "decaying sense of
community." ^n264 Dean Clark appointed negotiation expert, Professor
emeritus Roger [*83] Fisher, to lead the project and enlisted the help
of Professors Charles Ogletree and Alan Stone. ^n265
As stated by the Administrative Board in its written decision
regarding the Griswold 9, in the start of the next academic year, new
language was inserted in the 1992-1993 Harvard Law School Catalog.
^n266 As a warning to future student protestors, the language
provided:
In recent years, there have been a number of occasions when students
"sat in" or obstructed access to administrative offices, faculty
offices, and other school facilities as a form of protest. The
Administrative Board imposed the sanction of a "warning" for such
conduct in the spring of 1992, but the Board wishes to give notice
that a principal reason that the sanction was not more severe was that
it was the first instance in many years in which formal charges had
been brought and a sanction imposed for conduct of this kind. ^n267
The fall of 1992 started with CCR organizing a silent vigil for
increased faculty diversity in which seventy-five students attended.
^n268 CCR subsequently met with Harvard President Neil Rudenstine to
further express their concerns about this issue. ^n269 On Friday,
October 23, 1992, the newly formed Project on Community and CCR
sponsored a panel for alumni titled, "Preparing HLS for the Future:
Promoting Diversity in our Community." ^n270 At this forum, HLS
students and alumni connected to discuss the issue of increasing
faculty diversity at HLS.
The first tenured woman of color at HLS was hired in 1998; however,
initial hiring discussions regarding her appointment started earlier.
Specifically, HLS offered a visiting professorship to Lani Guinier in
1992. ^n271 Because of her nomination for Assistant Attorney General
for Civil Rights by President Clinton and for personal reasons, she
was unable to accept the visiting offer until January 1996. ^n272 In
January 1998, Lani Guinier became the first female African American
professor in the 181-year history of HLS. ^n273 Upon hire, Guinier
stated, "Though I am the first woman of color to join the tenured
faculty, I know that I will not be the last, and this is important to
me." ^n274
[*84]
IV. The Significance of the Diverse Student Coalition
The dearth of minority and women tenured or tenure-track professors
was an issue before CCR's most vigorous activism from 1989 to 1992,
and it continues to be an issue today. As reported in the Harvard
University Office of the Senior Vice Provost's Faculty Development &
Diversity Annual Report for 2009, ^n275 out of eighty-four senior
ladder faculty members at HLS, ^n276 18% are women (i.e., fifteen
total). ^n277 Out of ten junior ladder faculty members, 40% are women
(i.e., four total). ^n278 Therefore, out of ninety-four total ladder
faculty members, nineteen are women (i.e., 20% of the total). ^n279 In
terms of women senior faculty, HLS has the lowest percentage of women
compared with law schools at its peer institutions--including Columbia
University, Cornell University, Northwestern University, Stanford
University, University of Michigan, University of Pennsylvania,
University of Chicago, and Yale University. ^n280 Furthermore, out of
ninety-four total ladder faculty members, the Senior Vice Provost
reports that HLS has two Asian Americans, six African Americans, one
Latino, and one Native American--a total of ten self-identified people
of color out of ninety-four professors (i.e., 11% of the total). ^n281
An additional ladder faculty hire was made after this data was
reported. In the spring of 2010, HLS hired Annette Gordon-Reed as a
tenured faculty member. ^n282 Professor Gordon-Reed is only the second
African American woman professor to hold a tenured or tenure track
position in the history of the school.
Given the consistently low percentages of permanent minority and women
faculty at HLS both before and after the early 1990s, I inquire as to
what could have caused this intense period of student momentum for
faculty diversity (1989-1992) that was unprecedented at the time and
that has been unmatched through today. In this part, I utilize the
concepts of [*85] social movement theory, bolstered by primary source
material and oral histories of the former activists, to explain why
the early 1990s were such a robust period of student activism.
A. Signaling and Group Momentum
Political opportunity theory posits that certain political contexts
can be conducive for activism. ^n283 Within this theoretical
framework, signaling occurs when activists observe changes in the
political environment, looking for encouragement for their
mobilization and advocacy. ^n284 Debra C. Minkoff contends that if
early activists are successful, "a demonstration effect encourages
protest by other groups because success signals the vulnerability and
responsiveness of elites." ^n285 Further, Doug McAdam writes that
"initiator" movements "signal or otherwise set in motion an
identifiable protest cycle." ^n286 The subsequent "spin-off"
movements, "in varying degrees, draw their impetus and inspiration
from the original initiator movement." ^n287
Student protests aimed at Dean Clark's termination of the public
interest advising positions ^n288 served as the initiator movement
that catalyzed CCR activism. CCR protests for faculty diversity became
a spin-off movement. The primary driving mechanism for the spin-off
movement was signaling--the re-instatement of the public interest
advising positions, after a year of continuous activism, demonstrated
to the HLS community [*86] that the administration was vulnerable to
student pressure. Lisa Otero, former La Alianza Co-Chair and CCR
member, recounts:
When I came in as a first year student, the activism didn't really get
rolling around this [faculty diversity] issue. What started the
activism was we had a new dean--Dean Clark--who came in at the same
time we did. And Dean Clark abolished the public interest office ...
so a group of us that came to the law school with public interest work
in our future--were completely set on that--were quite upset. And we
started protesting around that the day we walked in the door. And that
got that movement going. And that was fairly quick. And after that, I
think the students were fairly emboldened to look around and say, "all
right, what else needs to happen around here." That's when ... people
started talking about [faculty diversity], people started reading
articles about it, and it was also happening on other campuses as
well.
***
I really want to stress that early experience we had of speaking out
about the closing of the public interest office, and the Dean hearing
us... really gave us the sense that it's good to speak up, that it can
be positive, that you can actually get justice--maybe that was a
dangerous thing for us to think as 1Ls... . We felt that our voices
were very powerful if we worked together and if we stood strong... .
And those public gatherings we would have our demonstrations and
actions and demonstrations did make people bolder and more invested.
^n289
The successful protests against the elimination of public interest
advising at HLS, therefore, inspired future faculty diversity activism
by signaling to the students that their actions could make a
meaningful difference in law school policies and practices. Laura E.
Hankins, oral advocate in the CCR lawsuit, recalls:
For me, part of what was also going on at the law school at the time
had to do with public interest law. So CCR, as I recall, got formed
either at the end of my first year or the beginning of my second. But
what was also going on in my first year--which was the first year that
Bob Clark was the Dean of the law school--was one of the first things
he did at least when the school year started ... was to fire the
public interest advisor. And so the students who were interested in
working for big law firms and pursuing corporate law all were
continuing to get completely supported in their efforts. And students
who were interested in public interest law weren't at all--had
nothing. And so a group of students started organizing around that
issue in public interest law and that sort of carried over [to the
diversity faculty issue]. ^n290
Charisse Carney-Nunes, former Griswold 9 member, also remembers being
part of the protests around the termination of the public interest
advising [*87] positions during her first year at law school before
continuing with her CCR protests in later years. ^n291
In addition to signaling, another driving mechanism behind the
spin-off movement was the overlap of organizational context and
resources. ^n292 For example, Professor Edley, who was active in the
public interest advising debates and who later became the Faculty
Director of Public Interest Programs, ^n293 was also active in the HLS
faculty diversity movement. Indeed, Edley's consistent presence during
both social movements created much overlap in terms of public faculty
support for the students' demands. During the years of CCR's most
aggressive activism, Edley spoke out against Dean Clark, ^n294 advised
the Griswold 9 during the sit-in, ^n295 served as a character witness
for the Griswold 9 during the Administrative Board hearing, ^n296 and
signed off on the open letter to the HLS community calling for the
dismantling of the current faculty hiring committee. ^n297
CCR's diversity of backgrounds became another signal--this
multi-racial group of men and women was not just advocating for
minority issues, but issues that affected everyone. Jodi Grant
recalls, "If you look at the coalition--and it was the like the
Griswold 9, the Fried 4, the lawsuit--if you look at the people, it
was people from every background. This was about trying to really
showcase that [faculty diversity] was really better for all of us."
^n298 Marie-Louise Ramsdale remembers, "We brought both genders
together. And more than that, we showed that it was a very broad group
of people--I mean literally like Jesse Jackson's Rainbow Coalition ...
and it was varied in so many other ways ... because you're talking
about the gay and lesbian groups as well... . We really touched almost
everyone in the law school in some way or another [through] our
group." ^n299
CCR's acts of protest also served as a signal to the HLS community and
beyond. Indeed, the signaling had ripple effects across other schools.
For example, after the two sit-ins that were part of the law students'
protests for the second national class strike day, ^n300 on Tuesday,
April 17, 1990, the Minority Student Alliance at Harvard College
staged an undergraduate class boycott and rally outside Memorial
Church, which was attended [*88] by 300 protestors. ^n301 Cara Wong,
leader of the Minority Student Alliance, said, "In February, we talked
about the idea of a demonstration, but we thought it was too radical.
But after the law students protested, we were inspired; we realized it
could be done." ^n302 At the time, ninety-two percent of tenured
Harvard College faculty members were male and ninety-three percent
were white, which was barely a one percent gain in minority and women
professors in the previous ten years. ^n303 Similarly, at the Harvard
Graduate School of Education, the students organized to confront their
dean after learning of the law school protests. Peter Kiang, a student
at the Harvard Graduate school of Education, said:
After the first sit-in, I read the article in The [Boston] Globe and
thought, 'That's fantastic,' and wanted to find out more. After the
second sit-in, we realized that this was not a one-shot deal--that the
law students were really committed and that they deserved our
[support.] Furthermore, I realized that we needed to re-raise the
issue of faculty diversity at our school. ^n304
Furthermore, John Bonifaz recalls that the Harvard Kennedy School of
Government and other schools contacted CCR to inquire about how to
protest their own schools' lack of faculty diversity. ^n305 The
signaling to students outside HLS generated by CCR's public protests
was evident in the fourth class strike day at HLS, on April 2, 1992,
where a noon rally drew 400-500 students--about 300 from HLS, and the
rest from the Harvard Kennedy School of Government, the Harvard
Divinity School, and the Graduate School of Education. ^n306 About
twenty students from Brandeis University joined the rally as well.
^n307
B. Framing Processes and Group Cohesion
Social movement theorists have analyzed how activists frame issues in
order to resonate with the public and gain support. ^n308 Robert D.
Benford and David A. Snow, contend:
Social movements are not viewed merely as carriers of extant ideas and
meaning that grow automatically out of structural arrangements,
unanticipated events, or existing ideologies. Rather, movement actors
are viewed as signifiying agents actively engaged in the production
and maintenance of meaning for constituents, antagonists, and
bystanders or observers. They are deeply embroiled ... in what has
been referred to as "the politics of signification." ^n309
[*89] As signifying agent, CCR framed its struggle in relation to a
vision of diversity that was inclusive of different races, sexual
orientations, genders, and other characteristics and identities. Since
the 1970s, HLS had only made progress in hiring a few black men and
white women. ^n310 CCR member and named plaintiff in the lawsuit Ketih
Boykin said, "When [HLS administrators and faculty] talk about women
and minorities, they mean black men and white women." ^n311 Boykin
stated, "I say this as a black male, but that's not the end of what
diversity means. It's not even the beginning of what diversity means."
^n312 CCR's definition would be much broader. This new coalition,
thus, made its members think carefully on how to be inclusive in its
goals and demands. Upon reflection, CCR co-founder John Bonifaz said:
We were quite proud of the fact that ... we had united all together on
this ... And that we were careful in our demands to make it clear ...
what all of us together were demanding in terms of the changes in the
hiring practices for the faculty, and I think what's made that
movement so strong over the period of time that it was happening--as
you really had all those organizations involved and all the student
members [that were] part of those organizations. ^n313
The inclusive vision for diversity created a sense of cohesion among
the group. In explaining the significance of the new coalition, Morrie
Ratner, a member of CCR and the Committee on Gay and Lesbian Legal
issues, stated, "This university traditionally has pitted minority
groups against one another. If one minority group asks for something
... they deny it on the grounds that all the other minority groups
will ask for it. One of our goals is to cut that response off at the
beginning. We are unified from the start, and we can't be pitted
against each other." ^n314 The power of this inclusive framing of
diversity manifested itself when students who were not part of the
sit-in stood in solidarity with the actual protestors. For example, on
the day that the Administrative Board announced possible charges
against the Griswold 9, the Executive Board of La Alianza sent a
letter to Vice-Dean Smith, in which it wrote:
Although only nine students sat-in on April 6th, we feel that they
were acting for all of us and for the ideals that we have been
struggling to realize for decades... . Any [disciplinary] action
against the nine students is an action against all those who are
concerned about our community. ^n315
This letter from the Latino students association illustrated the
multi-racial cohesion of the coalition. Furthermore, Peter Cicchino
explained his motivation for defending the Griswold 9:
[*90]
More than anything else, gay and lesbian people are oppressed by the
sense that we are the alone in the world. Most of the pain of being a
gay adolescent flows from one source: the sense that you are the only
one. It just seemed to me that it would be wrong to leave the Griswold
9 alone to face their fate. And so I agreed to coordinate their legal
defense. Later, I would make a pledge to the Griswold 9 that if they
were suspended--an outcome I found outrageously immoral--I would go to
the Dean's office, chain myself to the doors, and be suspended myself.
^n316
Cicchino's linkage of his own life experiences to the experiences of
the Griswold 9 was reflective of the multi-faceted conception of
diversity that created a sense of solidarity beyond individual
identities. Here, an openly gay man who felt kinship with the Griswold
9 was willing to be suspended from school in act of solidarity with
the protestors--all in an attempt to pressure the faculty to hire a
more diverse faculty.
C. Resource Mobilization and Enhanced Group Outcomes
Resource mobilization theory posits that it is not dissatisfaction
with the status quo per se, but increased resources that give rise to
activism. ^n317 I argue that the very diversity of the student
coalition was the source of increased resources for the activists--for
both the lawsuit and the sit-in. ^n318
The diversity of the CCR members who planned and implemented the
lawsuit served as a resource that enhanced the group's work and
expanded the inclusivity of the group's demands. Named CCR lawsuit
plaintiff Linda Singer said about the diversity of the coalition, "I
think it made us more thoughtful about our positions. We were, in many
ways, the change we wanted. I think we also worked together more
powerfully--often having to overcome real differences in outlook--to
make decisions." ^n319 CCR co-founder and named plaintiff in the
lawsuit John Bonifaz states:
I think people learn to work together in ways that perhaps hadn't
occurred previously within the silos of the various organizations... I
know, for example, that Mark McGoldrick--who was in my [graduating]
class [in] 1992--was part of a new organization that he had started
[for] students with disabilities [that] heightened awareness for all
the other students in the ways in which the school needed to improve
in its dealings both with students with [*91] disabilities and also
recognizing this as a concern for faculty diversity. ^n320
The student plaintiffs, thus, had to incorporate their varied
backgrounds into an inclusive vision for a better Harvard. CCR's
complaint was telling. As part of its prayer for relief, the complaint
requested the court to "enjoin Defendant from employing hiring
practices which have a disparate impact on [white] women, women of
color, Latinos, African Americans, Asian Americans, Native Americans,
openly lesbian or gay persons, and persons with disabilities." ^n321
As discussed in Part IV.B, supra, this inclusive framing of diversity
created stronger group cohesion.
Similarly, the varied backgrounds of the Griswold 9 served as a
resource that enhanced the group's decision-making and problem-solving
capabilities. ^n322 The Griswold 9 consisted of seven women and two
men. Two of the members were African American, two were Asian
American, one was Latina, and four were white. Charisse Carney and
Derek Honore had leadership roles in the Harvard Black Law Students
Association. Elizabeth Moreno, Jill Newman, and Marie-Louse Ramsdale
had leadership positions in the Women's Law Association. Julie Su was
the incoming Co-chair of the Asian Pacific American Law Students
Association. William Anspach was active in labor law issues, while
Lucy Koh and Jodi Grant were involved in a number of public interest
activities. These background traits and organizational affiliations
gave each member of the Griswold 9 unique perspectives that enhanced
the group's decision making. Julie Su reflects:
We definitely benefited from our diversity. I think the fact that it
was primarily women brought a warmth and sisterhood to it that I
really treasured. The value of having students from all races
certainly symbolically demonstrated our power, and I think in all of
those discussions leading up to how and whether we would defend
ourselves, the diversity of perspectives brought by our different
experiences made for rich and thoughtful and sometimes contentious
discussions that made us all stronger. ^n323
Also, the Griswold 9 members' diverse language skills enhanced their
activism. During the sit-in, the students used walkie-talkies to
communicate with students outside of Griswold Hall. ^n324 When the
protestors suspected that their communications were being intercepted
by Harvard Police officers, they utilized the Spanish-speaking skills
of some their group. ^n325 When the Griswold 9 subsequently realized
that the Harvard Police [*92] brought in a Spanish-speaking officer in
response to this tactic, ^n326 Julie Su spoke in Mandarin to the
group's Mandarin-speaking outside student contacts. ^n327 One of the
members, Lucy Koh, could speak Korean, but her skills were not
employed because the Harvard Police did not bring in a Mandarin
speaker to intercept Su's conversations. ^n328
Furthermore, some of the varied life experiences of the CCR
members--particularly around organizing in college--served as an
additional resource that facilitated multi-racial coalition building.
For example, John Bonifaz had an extensive history of organizing
before enrolling at HLS. Bonifaz started his activism in high school
working for nuclear disarmament. ^n329 As an undergraduate at Brown
University, he was involved in the anti-apartheid movement,
participating in a coalition called Brown Divest Now, which worked to
pressure the university to divest from any businesses doing business
in South Africa. ^n330 Bonifaz said, "Both that work and my
involvement in the 1984 Jackson presidential campaign on campus were
multiracial efforts that, I think, helped shape my understanding of
coalition-building." ^n331 Also, former Griswold 9 member William
Anspach had considerable experience with organizing before attending
HLS. As a high school student, he campaigned against the Briggs
Amendment--banning gay people in California from teaching in public
schools. ^n332 At Haverford College, among other things, Anspach
headed the campus divestment from South Africa movement, in which he
organized the takeover of a campus building, and he organized the
Crunch Action Team, which brought students to union picket lines in
Philadelphia, in return for union's support of peace causes. ^n333
After college, he worked on the Jesse Jackson presidential campaign in
1984. Anspach reflects:
As a white organizer involved in protests often centering around
issues particularly impacting on minorities (e.g., the Briggs
Amendment, the anti-apartheid movement), I learned how people of
different backgrounds could work together. On the most obvious level,
this meant that the movements could neither be overly dominated by
white organizers (which would be considered paternalistic) nor by
minority organizers (which would turn off whites and/or appear too
self-interested). I believe the Griswold 9 and the surrounding
circumstances reflected this. ^n334
[*93] Bonifaz and Anspach both played key roles in organizing CCR
activism. ^n335
Conclusion
The robust activity at HLS during the early 1990's appears to have
been made possible by a "perfect storm" of people and events that
culminated in the spring of 1992. First, Dean Clark terminated and,
amidst student protests, re-instated two public interest advising
positions. These successful protests served as a catalyst for future
student activism. Indeed some of the same students who protested
around public interest advising spearheaded the faculty diversity
hiring efforts. Second, Professor Bell became increasingly vocal in
his opposition to the lack of diversity on the faculty, taking a very
public unpaid leave from HLS. Bell's actions created momentum for the
students to act. Third, HLS's appointment of four white men as tenured
professors, amidst the ongoing dialogue and protests, created a
rallying point for the students. Finally, Dean Clark's comments in the
Wall Street Journal explaining the activism as being caused by
self-esteem issues that arise as symptoms of affirmative action
provoked the students to further escalate their protests. In
conjunction with these events, the diversity of the student coalition
led to a particularly robust period of student activism. Throughout
this period, the students' protests created signals for the community
that the faculty diversity movement was gaining momentum. The fact
that this solidarity cut across race, gender, sexual orientation, and
ability and disability lines was creating further momentum--through
signaling and increased resources that resulted from this diverse
group. The trial of the Griswold 9 was the highpoint of the conflict.
The activism was to subside soon thereafter. ^n336
By the fall of 1993, CCR began to experience problems in sustaining
its coalitions. Indeed, a year after the Griswold 9 sit-in, citing
communication issues, La Alianza dropped out of CCR. ^n337 And the
activism that CCR sustained from 1989 to 1992 dissipated by 1993.
^n338 By 1994, the campus was relatively quiet once again. ^n339 By
this time, many of the original activists had graduated and started
their legal careers. The subsequent classes [*94] of students used
different means for pushing for diversity. Sit-ins were replaced by
diversity celebrations and litigation was replaced by "lobby days,"
where students would set up appointments with HLS professors to
discuss diversity issues. ^n340
This ebb and flow of protest activity did not diminish the
accomplishments of the HLS students in aggressively pushing for change
in the early 1990s. They made their voices heard at Harvard and across
the nation. John Bonifaz states:
From the standpoint of having a vibrant movement that engaged the law
school community--the students, the faculty, the administration, [and]
the alumni--that engaged those outside of the law school--the public
at large, the media--and [that encouraged] the general debate around
diversity in faculty at institutions of higher learning, I think it
was a huge success. ^n341
Jodi Grant further reflects:
I think that one of the stories behind this is that your voices do
matter. And students' voices do matter. And students' voices can help
elevate alumni voices, and faculty voices, and voices in the legal
community. And so I hope that maybe one of the stories about this is
that students should feel empowered. ^n342
In celebration of Lani Guinier's appointment in 1998, HLS alumni,
including Charisse Carney-Nunes, Jodi Grant, Camille Holmes, Lucy Koh,
Jill Newman, Lisa Otero, Ronald S. Sullivan, and many others, took
ownership of what they had done while students at HLS by creating a
scrapbook detailing the history of student activism at HLS focusing on
faculty diversity issues, including the Griswold 9's sit-in and
subsequent trial, CCR's lawsuit, and Professor Bell's protest from
1990 to 1992. This scrapbook, titled HLS Diversity: A Celebration of
the Movement, was created on October 30, 1998; two copies were filed
with the HLS library. ^n343
The HLS alumni authors explain the broader significance of the
"efforts of brave women and men of all backgrounds" that have engaged
in student protest to increase faculty diversity. ^n344 While
observing that HLS had made notable progress in hiring white women
since 1992, the authors wrote, "We hope that HLS will now show the
same courage by developing a plan of action and stating its commitment
to address its poor record of hiring Black women, Latinos/as, Asian
Americans, Native Americans, openly gay or lesbian persons, and
disabled persons." ^n345
[*95] Change has been slow in coming. In recognition that the
diversity struggle is not over with the appointment of Professor
Guinier, the authors of HLS Diversity wrote, "We look forward to the
addition of several more women of color to the Harvard Law School in
the near future." ^n346 Over ten years since this statement was made,
and in its 193-year history, HLS has only had three tenured or
tenure-track women of color professors. ^n347 Reflecting on this rate
of progress, Ronald S. Sullivan, former CCR member, who is currently
an HLS Clinical Professor of Law and Director of the Harvard Criminal
Justice Institute, said:
The history of the Civil Rights Movement itself teaches us that rarely
does progress come without demands being made--rarely does the sort of
huge shift in attitude come without significant pressure being put on
the status quo... . I shudder to think had we not been so vocally
antagonistic to the absence of hiring [a diverse faculty], that ... we
may have been sitting here now in 2010 talking about "can we find a
woman of color?" ^n348
For a new generation of students, the struggle continues.
Epilogue: The Griswold 9 Eighteen Years Later
Charisse Carney-Nunes is a Senior Staff Associate at the National
Science Foundation in Arlington, Virginia. ^n349 She is also the
founder of a media company called Brand Nu Words, an award winning
author of three children's books, Nappy, I Dream For You a World and I
am Barack Obama, and a senior officer of the Jamestown Project, a
think tank focusing on democracy housed at HLS. ^n350 William Anspach
is a partner at a union-side labor and employee benefits law firm in
New York City. ^n351 Jodi Grant is Executive Director of the
Afterschool Alliance, a non-profit organization in Washington, D.C.,
working to raise awareness about the urgent need to provide all
children and youth with access to affordable, quality afterschool
programs. ^n352 Derek Honore, who specializes in criminal law, [*96]
was a public defender in New Orleans, Louisiana. ^n353 Lucy Koh is a
United States District Court Judge for the Northern District of
California. ^n354 She is the first Korean American federal district
court judge and the first Asian American federal judge in the Northern
District. ^n355 Jill Newman is currently an artist and the proud
mother of two boys. ^n356 Elizabeth Moreno practiced law in Los
Angeles, California before passing away on February 1, 1997. ^n357
Marie-Louise Ramsdale has a family law practice in Charleston, South
Carolina. ^n358 She was the founding director of S.C. First Steps to
School Readiness (1999-2003) and the founding executive director of
City Year Columbia (1993-1996). ^n359 Julie Su is the Litigation
Director at the non-profit Asian Pacific American Legal Center of
Southern California (APALC), an affiliate of the Washington D.C.-based
Asian American Justice Center. ^n360 She was a recipient of the
MacArthur "Genius" Fellowship in 2001. ^n361
Legal Topics:
For related research and practice materials, see the following legal
topics:
Education LawDiscriminationRacial DiscriminationDesegregationFaculty &
StaffEducation LawFaculty & StaffCompensationLeaves of
AbsenceEducation LawFaculty & StaffTenure in Postsecondary SchoolsLoss
of Tenure
FOOTNOTES:
n1. Derrick Bell, Op-Ed., At Last, Harvard Sees the Light, N.Y. Times,
Jan. 29, 1998, at A27.
n2. See Lisa Boykin et al., HLS Diversity: A Celebration of the
Movement (1998), at unpaged section titled Protest Yields Results: A
History (noting that Derrick Bell was hired in 1969 and granted tenure
in 1971 following a two-year appointment as a lecturer on law and that
in 1972, Elisabeth Ann Owens was appointed to a tenured position and
Diane Lund was hired as a tenure-track faculty member); see also
Daniel Taubman, Owens to be Named First Tenured Woman Professor, Harv.
L. Rec., Jan. 28, 1972, at 1 (discussing the tenure appointment of
Elisabeth Ann Owens, who had been given consecutive one-year
appointments as a lecturer on law since 1956); Faculty Appoints Eight
New Profs; Two are Women, Harv. L. Rec., Jan. 28, 1972, at 1
(discussing the appointments of Elisabeth Ann Owens and Diane Lund);
Laura Taylor, Prof. Bell Named U. of Oregon Law Dean, Harv. L. Rec.,
Mar. 14, 1980, at 1 (discussing Derrick Bell's hiring and tenure
appointment at HLS).
n3. Louis J. Hoffman, Profs "Ashamed" of HLS, Decry Minority Hiring
Results, Harv. L. Rec., May 12, 1983, at 1.
n4. Pat Gulbis, CCR Invites Clark to Mock Trial on Faculty Diversity,
Harv. L. Rec., Oct. 26, 1990, at 1.
n5. Johathan S. Cohan & Tara A Nayak, Clark Appointment Made Official;
Bok Says Dean will be Conciliatory, Harv. Crimson, Feb. 18, 1989,
available at
http://www.thecrimson.com/article/1989/2/18/clark-appointment-made-off
icial-bok-says/; see also Jonas Blank, Looking Back: 14 Years of
Robert Clark, Harv. L. Rec., Apr. 23, 2003, available at
http://www.hlrecord.org/2.4463/looking-back-14-years-of-robert-clark-1
.580320#4 (discussing Clark's background). I attempted to interview
Dean Clark for this article. I was unable to connect with him.
n6. See Chris Crain & Greg Herbert, Bok Taps Clark as New Dean:
Faculty Split Along Ideological Lines, Harv. L. Rec., Feb. 24, 1989,
at 1. Critical Legal Studies is "a school of thought advancing the
idea that the legal system perpetuates the status quo in terms of
economics, race, and gender by using manipulable concepts and by
creating an imaginary world of social harmony regulated by law."
Black's Law Dictionary 404 (9th ed. 2004). For an overview of Critical
Legal Studies, see generally, Andrew Altman, Critical Legal Studies
(1993); Mark Kelman, A Guide to Critical Legal Studies (1987); Duncan
Kennedy, A Critique of Adjudication [fin de siecle] (1997); Roberto
Mangaberia Unger, The Critical Legal Studies Movement (1983). See
Eleanor Kerlow, Poisoned Ivy: How Egos, Ideology, and Power Politics
Almost Ruined Harvard Law School (1994), for an account of the
struggles between the Traditionalists and the Critical Legal Studies
adherents at HLS during the early 1990s. Kerlow writes about the
activism during this time in the context of faculty struggling over
the proper place of Critical Legal Studies in the academy.
n7. See, e.g., Cohan & Nayak, supra note 5 (noting that when Professor
Derrick Bell held a sit-in in 1987 to protest the faculty's vote to
deny tenure to a proponent of Critical Legal Studies, Clark said "This
is a university--it's not a lunch counter in the deep South."); Crain
& Herbert, supra note 6, at 1 (noting that Professor Lewis Sargentich
said that Clark was the "point man and primary voice" for the
controversial tenure denial of Clair Dalton in 1987); Dan Kroll, Bok
Taps Clark as New Dean: Students Wary of Choice, Harv. L. Rec., Feb.
24, 1989, at 1 (noting one student who said that Clark did not seem
sold on the idea of wanting more women and people of color on the
faculty).
n8. See Patrick Miles, Clark Cuts Public Interest Position, Harv. L.
Rec., Sept. 8, 1989, at 1 (noting that Clark started as HLS Dean on
July 1, 1989 and terminated the public interest advising positions
about a month later, on August 9).
n9. Id.
n10. See Patrick Miles, Law Schools Across Nation Respond to Fox
Departure, Harv. L. Rec., Sept. 15, 1989 at 1.
n11. See, e.g., Student Groups Meet with Clark, Rally Planned for
Tuesday, Harv. L. Rec., Sept. 15, 1989 at 1 (noting that a coalition
of student groups launched a petition drive and "a speak out" was
planned for September 19, 1989); George Paul, Students, Professors
Rally in Support of Public Interest, Harv. L. Rec., Sept. 29, 1989, at
1 (noting that around 300 students attended a protest rally on
September 19, 1989 advocating for a separate public interest advising
office and according to rally organizers, 900 out of 1,600 HLS
students signed a petition calling for the restoration of the two
public interest advising positions; also detailing the activities of
the Emergency Coalition for Public Interest Placement [ECPIP]); Tara
A. Nayak, Public Interest Squabble, Harv. Crimson, Sept. 30, 1989,
available at
http://www.thecrimson.com/article/1989/9/30/public-interest-squabble-p
vowing-to-escalate/ (noting heightened activism at HLS over
elimination of public interest advising positions); Paul Tarr, Clark
Announces $ 1 Million Endowment; Defends Public Interest
Reorganization, Harv. L. Rec., Oct. 20, 1989, at 1 (noting that Clark
announced a new endowment for HLS graduates taking jobs in the public
sector, while there was still no change in Clark's decision to
eliminate public interest advising; also noting the formation of a
public interest advisory committee, which was chaired by Professor
Christopher Edley and staffed by faculty and students); Greg Herbert,
Students Demand Immediate Action at Public Interest Forum, Harv. L.
Rec., Dec. 1, 1989, at 1 (noting about 100 students attended a forum
on increasing public interest resources at HLS); Patrick Miles, Jr.,
Public Interest Committee Prepares Position Paper, Harv. L. Rec., Mar.
2, 1990, at 1 (noting that the Law School Council and ECPIP prepared a
position paper proposing measures that would facilitate increased
support for public interest law); Jim Houpt, Clark: HLS Should Further
Public Interest, Harv. L. Rec., Mar. 16, 1990, at 1 (noting another
forum attended by 150 students where the student-prepared position
paper was presented to Dean Clark).
n12. Paul Tarr, Clark Moves to Bolster Public Interest Programs; EPIC
Pleased, But Vows to Keep on Fighting, Harv. L. Rec., Sept. 14, 1990,
at 1. Note that by this time, the Emergency Coalition for Public
Interest Placement (ECPIP) had changed its name to the Emergency
Public Interest Coalition (EPIC). See id. Upon opening the public
interest placement office, student demand for advising far exceeded
the available resources. See George Paul, Public Interest Advising
Office Swamped, Harv. L. Rec., Sept. 21, 1990, at 1.
n13. Morris Ratner, New Civil Rights Group Will Host Teach-In, Harv.
L. Rec., Mar. 16, 1990, at 1.
n14. See Luz E. Herrera, Challenging a Tradition of Exclusion: The
History of an Unheard Story at Harvard Law School, 5 Harv. Latino L.
Rev. 51, 59-110, for a history of La Alianza's efforts to diversify
the HLS faculty.
n15. Ratner, supra note 13, at 1.
n16. See Simon Mendelson, Students Stage "Study In" for Faculty
Diversity, Harv. L. Rec., Apr. 14, 1989, at 1.
n17. Id.
n18. Id.
n19. See Steve Crawford, Student Coalition Presses for Minority
Hiring, Harv. L. Rec., May 6, 1988, at 4.
n20. Id.
n21. Ratner, supra note 13, at 1.
n22. Rights Groups Plan to Rally for Diversity, Harv. L. Rec., Sept.
21, 1990, at 1.
n23. Id.; see also Linda Popejoy, Students Protest Dean on Diversity:
Students Stage Second Sit-In, Harv. L. Rec., Apr. 11, 1990, at 1;
Linda Killian, Protestors Camp Out at Law Dean's Office, Boston Globe,
Apr. 7, 1990, at 27.
n24. Popejoy, supra note 23, at 1; see also Linda Popejoy & John
Thornton, Clark and Students Talk at Forum, Harv. L. Rec., Apr. 20,
1990, at 1.
n25. Popejoy & Thornton, supra note 24, at 1.
n26. Phillip M. Rubin, Learning the Value of Appearances: Law School
Protests, Harv. Crimson, Apr. 14, 1990, available at
http://www.thecrimson.com/article/1990/4/14/learning-the-value-of-appe
arances-pdean/.
n27. Id.
n28. Popejoy & Thornton supra note 24, at 1.
n29. Linda Popejoy, Clark Offers Cool Response to Bell's Protest,
Harv. L. Rec., May 4, 1990, at 1; see also Fox Butterfield, Harvard
Law Professor Quits Until Black Woman is Named, N.Y. Times, Apr. 24,
1990, at A1, available at
http://www.nytimes.com/1990/04/24/us/harvard-law-professor-quits-until
-black-woman-is-named.html; Fox Butterfield, Harvard Law School Torn
by Race Issue, N.Y. Times, Apr. 26, 1990, at A20, available at
http://www.nytimes.com/1990/04/26/us/harvard-law-school-torn-by-race-i
ssue.html. See Derrick Bell, Confronting Authority: Reflections of an
Ardent Protester (1996), for an autobiographical account of Professor
Bell's protest.
n30. See Mark Muro, Derrick Bell: In Protest, Boston Globe, Mar. 25,
1992, at 69 (noting that Professor Bell was hired following the outcry
over the assassination of Martin Luther King, Jr.); Steven Donziger,
Minority Profs Hired when HLS Students Act, Harv. L. Rec., Apr. 14,
1989, at 6 (noting that Professor Bell was hired after several years
of systematic pressure by the Harvard Black Law Students Association);
Jack Tate, Black Awareness and Black Unity Surging Forward at Law
School, Harv. L. Rec., Sept. 26, 1968, at 1 (noting that the
assassination of Dr. Martin Luther King, Jr. had a galvanizing effect
on HLS students leading to the subsequent demand for black professors
at HLS).
n31. Taylor, supra note 2, at 1.
n32. George A. Golder, Bell Resigns Deanship of Oregon: Cites Minority
Hiring Failures, Harv. L. Rec., Mar. 1, 1985, at 1.
n33. Popejoy, supra note 29, at 1.
n34. Rights Groups Plan to Rally for Diversity, supra note 22, at 1.
n35. One proposal CCR considered was to create a student-faculty
committee to examine the diversity issue. See Malcolm E. Harrison,
After Rally, CCR Begins to Rethink Strategy on Diversity, Harv. L.
Rec., Oct. 5, 1990, at 1.
n36. Even though Professor Bell refused to teach official HLS classes
as part of his protest, in the fall of 1990, Bell taught an
unofficial, uncompensated, not-for-credit civil rights seminar at HLS
attended by twenty-two Harvard students. See A Class Sends Message to
Harvard Law School, N.Y. Times, Nov. 21, 1990, at B11, available at
http://www.nytimes.com/1990/11/21/news/a-class-sends-message-to-harvar
d-law-school.html.
n37. Rights Groups Plan to Rally for Diversity, supra note 22, at 1.
n38. Dan Greeney, Students Sue HLS Over Faculty Hiring: School Seeks
More Time to File Reply, Harv. L. Rec., Nov. 30, 1990, at 1.
n39. Id.
n40. Id.
n41. Id.
n42. Portions of the CCR Lawsuit, Harv. L. Rec., Nov. 30, 1990, at 10.
n43. Id.
n44. Id.
n45. Id. Another group of HLS students subsequently brought a motion
to intervene arguing that CCR was not representative of the student
body--they sought to end the lawsuit and also counterclaimed against
CCR for $ 200,000. See George Paul, Students Intervene in CCR Suit,
Harv. L. Rec., Feb. 8, 1991, at 1. The motion to intervene was
eventually denied by the Superior Court. See Harvard Law Sch. Coal.
for Civil Rights, et al. v. President & Fellows of Harvard Coll., 1991
No. 907904B WL 489552, at 1 (Mass. Super. Feb. 22, 1991).
n46. Evette Harrison, CCR Lawsuit: First Round a Draw, Harv. L. Rec.,
Jan. 18, 1991, at 6.
n47. Id.
n48. Id.
n49. Id.
n50. Id.
n51. Sharon Stone, CCR v. Harvard Law: Court Weights Motion to Dismiss
Today, Harv. L. Rec., Feb. 15, 1991, at 1. Standing is "[a] party's
right to make a legal claim or seek judicial enforcement of a duty or
right." Black's Law Dictionary, supra note 6, at 1442.
n52. Id.
n53. E-mail from Linda Singer, named CCR plaintiff, to author (July
12, 2010, 22:10 EST) (on file with author).
n54. Id.
n55. See Harvard Law School Coal. for Civil Rights, et al. v.
President & Fellows of Harvard Coll., No. 90-7904- B, 1991 WL 489552,
at 1 (Mass. Supp. Feb. 22, 1991).
n56. Id.
n57. Id. at 1 n.1
n58. Judge Rejects Suit on Bias in Harvard's Hiring, N.Y. Times, Feb.
26, 1991 at A18.
n59. Sharon Stone, Students Strike for Diversity: Rally Roils Campus;
CCR Vows Further Action, Harv. L. Rec., Apr. 12, 1991, at 1.
n60. Id.
n61. Id.
n62. Boykin et al., supra note 2, at unpaged section titled Professor
Biographies.
n63. Stone, supra note 59, at 1.
n64. Id.
n65. Id.
n66. Id.; see also Toyia R. Battle, Law Students End Overnight Sit-In:
Students Cancel Protest in Wake of Fatal Stabbing of Law Professor's
Wife, Harv. Crimson, Apr. 6, 1991, available at
http://www.thecrimson.com/article/1991/4/6/law-students-end-overnight-
sit-in-pin/.
n67. Robert Arnold, Students Storm Dean Clark's Office, Harv. L. Rec.,
Apr. 12, 1991, at 2.
n68. Id.
n69. Diversity Protestors Picket Griswold Hall: Dean and CCR Exchange
Letters, Harv. L. Rec., May 3, 1991, at 3.
n70. See Letter from the Coal. for Civil Rights to HLS Dean Robert
Clark (Apr. 25, 1991) (on file with author).
n71. Id. See discussion infra Part II.F (discussing responsibilities,
composition, and procedures of the Administrative Board).
n72. See Diversity Protestors Picket Griswold Hall: Students Picket,
Respond to Dean's Letter, Harv. L. Rec., May 3, 1991, at 3. Professor
Bell had, by this time, announced his plan to spend next year at NYU
Law School. See Paul Tarr, Bell Stuns BLSA Conference: Announces Plan
to Spend Next Year at NYU, Har. L. Rec., Mar. 15, 1991, at 1.
n73. In this article, I refer to the law student as "Charisse Carney,"
while I refer to the almuna as "Charisse Carney-Nunes" (i.e., her
married name).
n74. Interview with Charisse Carney-Nunes & Jodi Grant, former
Griswold 9 members, in D.C. (June 23, 2010).
n75. Letter from Charisse Carney, Harvard Black Law Students
Association President, to HLS faculty (May 1, 1991) (on file with
author).
n76. Id.
n77. Coal. for Civil Rights, CCR Discrimination Lawsuit: Alive and
Still Kicking, Harv. L. Rec., Oct. 4, 1991, at 10.
n78. Id.
n79. See Robert Arnold, Discrimination Lawsuit Against HLS Gets
Docketed: Student Group Filing "Alive and Well," Harv. L. Rec., Nov.
22, 1991, at 1.
n80. See Mass' Supreme Judicial Court to Hear HLS Discrimination Suit:
SJC Grants Students' Motion for Direct Review of Lower Court Ruling,
Harv. L. Rec., Feb. 7, 1992, at 1.
n81. Mass. R. App. P. 11(a).
n82. Lisa Zornberg, CCR Holds Public Meeting: Stressing the Importance
and Difficulty of the Case, Student Litigators Explain Their Strategy,
Harv. L. Rec., Feb. 28, 1992, at 1.
n83. Id.
n84. Ashley Barr, CCR Argues Lawsuit Before SJC, Harv. L. Rec., Mar.
6, 1992, at 1.
n85. Id.
n86. Id.
n87. Kerlow, supra note 6, at 110-11.
n88. Barr, supra note 84, at 1.
n89. Id.
n90. Id.
n91. Id.
n92. Id.
n93. Id.
n94. Id.
n95. Id.
n96. Id.
n97. Kerlow, supra note 6, at 121.
n98. Robert C. Arnold, 4 White Men Offered Tenure: Students Say
Announcement Violates Policy, Harv. L. Rec., Mar. 6, 1992, at 1.
n99. Lisa Zornberg, Tenure Candidates Id'd: CCR Asks Them to Delay
Acceptance, Harv. L. Rec., Mar. 20, 1992, at 1.
n100. Ashley Barr, Clark, Students Discuss Diversity on "Zero Day,"
Harv. L. Rec., Mar. 20, 1992, at 1.
n101. See Arnold, supra note 98 at 1.
n102. Id. The three professors were identified in the article as
Regina Austin, Anita Allen, and Gerald Torres.
n103. Interview with William Anspach, former Griswold 9 Member, in
N.Y.C. (June 24, 2010).
n104. Natasha H. Leland, Law School Dean Meets with Students: Tries to
Ease Tensions by Addressing Charges of Discrimination in Hiring, Harv.
Crimson, Mar. 6, 1992, available at
http://www.thecrimson.com/article/1992/3/6/law-school-dean-meets-with-
students/.
n105. Id.
n106. Id.
n107. Fox Butterfield, Professor Steps Up Fight with Harvard, N.Y.
Times, Feb. 28, 1992, at A12, available at
http://www.nytimes.com/1992/02/28/us/professor-steps-up-fight-with-har
vard.html.
n108. Id.
n109. Id.
n110. Natasha H. Leland, Bell Vows to Fight On, Harv. L. Rec., Mar. 6,
1992, at 1.
n111. Id.
n112. Steve Yarian, 4 White Men Offered Tenure: Rudenstine Wants
Clarification of Hiring Process, Harv. L. Rec., Mar. 6, 1992, at 1.
n113. Id.
n114. Madeline Fain, Jesse Jackson Exhorts HLS to Diversity, Harv. L.
Rec., Mar. 20, 1992, at 3.
n115. Id.
n116. Id.
n117. Barr, supra note 100, at 1.
n118. Id.
n119. Id.
n120. Id.
n121. Id.
n122. Letter from David Smith, HLS Vice Dean, to HLS students (Mar.
12, 1992) (on file with the author). Smith, the former Assistant Dean
for International Studies and the HLS Graduate Program, became Vice
Dean in the fall of 1983. See generally Michael Malamut, Smith Named
to "Novel" Position, Harv. L. Rec., Sept. 23, 1983, at 5 ("The vice
deanship is a new position created to ease the overload of work and
responsibility of the dean.").
n123. Letter from David Smith, supra note 122.
n124. Id.
n125. Barr, supra note 100, at 1.
n126. Id.
n127. Id.
n128. Javier V. Garcia, Law Students Stage 15 Minute Sit-In at Prof's
Office, Harv. Crimson, Mar. 19, 1992, available at
http://www.thecrimson.com/article/1992/3/19/law-students-stage-15-minu
te-sit-in/.
n129. Id.
n130. Ashley Barr had been wrongly identified as a student
participating in the Fried sit-in and was later absolved of the
charge. See John Regis, Ad Board Moves Against Students, Harv. L.
Rec., Apr. 17, 1992, at 1; Andy Ward, Fried 4 Absolved, Griswold 9
Hearing Set for Monday, Harv. L. Rec., May 1, 1992, at 1.
n131. See Ward, supra note 130, at 1, for the resolution of the Fried
4. The Administrative Board never formally charged the identified
students--they received warnings instead. Id.
n132. Philip P. Pan, Law Students Stage Surprise Sit-In: Sixteen
Protestors Drive Kraakman From Office, Occupy Room for 15 Minutes,
Harv. Crimson, Mar. 20, 1992, available at
http://www.thecrimson.com/article/1992/3/20/law-students-stage-surpris
e-sit-in-psixteen/.
n133. Id.
n134. Id.
n135. Letter from Robert C. Clark, HLS Dean, to HLS community (Mar.
31, 1992) (on file with author).
n136. L. Gordon Crovitz, Rule of Law: Harvard Law School Finds its
Counterrevolutionary, Wall St. J., Mar. 25, 1992, at A13.
n137. Ashley Barr, Griswold 9 Take Over Dean's Office, Harv. L. Rec.,
Apr. 10, 1992, at 1; see also Flyer from CCR to HLS community (Mar.
1992) (on file with author).
n138. Luz Delgado, Boycott Marks 2d "Diversity Day" at Harvard, Boston
Globe, Apr. 3, 1992, at 20 (noting that 300 HLS students boycotted
classes as well as 650 of the Harvard Kennedy School's 800 students).
n139. Flyer from CCR to HLS community, National Strike Day for
Diversity Day Thursday (Apr. 1992) (on file with author).
n140. Letter from Jeff Lubell, Member on behalf of CCR, to HLS alumni
(Apr. 4, 1992) (on file with author).
n141. Lubell was a named plaintiff in the CCR lawsuit.
n142. Camille Holmes & Jeffrey Lubell, Letter to the Editor, CCR Asks
for a Public Apology from Dean Clark, Harv. L. Rec., Apr. 10, 1992, at
9.
n143. E-mail from Julie Su with memo attachment, former Griswold 9
Member, to author (July 20, 2010, 05:22 EST) (on file with author).
n144. Barr, supra note 137, at 1; see also Desda Moss, Professor,
Students Protest Over Hiring, USA Today, Apr. 7, 1992, at 2A.
n145. Telephone interview with Jill Newman, former Griswold 9 Member
(July 20, 2010).
n146. William Anspach, Account of Sit-In (Apr. 10, 1992) (on file with
author). Anspach created this document to aid in the Griswold 9's
defense in anticipation of disciplinary action by HLS.
n147. Id. at 1.
n148. See Interview with William Anspach, supra note 103; Interview
with Charisse Carney-Nunes & Jodi Grant, supra note 74.
n149. Anspach, supra note 146, at 2-3.
n150. Id. at 6.
n151. Id. Ronald S. Sullivan told me during an interview that he was
present during the first part of the sit-in. See Interview with Ronald
S. Sullivan, Clinical Professor, Harvard Law Sch., in Cambridge, Mass.
(May 20, 2010). He left the group to cancel an intramural basketball
game that was scheduled for later that day and to meet with incoming
admitted students in his leadership capacity with the Black Law
Students Association. Id. When he came back to Griswold Hall to
re-join the protestors, Harvard Police officers prohibited his entry.
Id. He spent the night in the building, but was unable to sit in the
corridor with the Griswold 9. Id.
n152. Interview with Charisse Carney-Nunes & Jodi Grant, supra note
74.
n153. Id.
n154. Anspach, supra note 146, at 3.
n155. Glennis Gill, The Griswold 9: From Start to Finish, Harv. L.
Rec., Sept. 18, 1992, at 6; see also Barr, supra note 137, at 1.
n156. Anspach, supra note 146, at 4.
n157. Id.; see also Interview with Ronald S. Sullivan, supra note 151
(noting that Sullivan helped negotiate bathroom privileges with the
Harvard Police from outside the Dean's office corridor).
n158. Barr, supra note 137, at 1. During this conversation, Steiner
told the protestors that some students outside Griswold Hall were
being arrested, but the Griswold 9 knew these claims were false
because of their communication with the students outside through
walkie-talkies. Id.; see also Anspach, supra note 146, at 8 (noting
that during the evening, Steiner or someone else told the group that
Ronald S. Sullivan was arrested for attacking a police officer--a
claim that the protestors determined to be false).
n159. Barr, supra note 137, at 1.
n160. Gill, supra note 155, at 6.
n161. Barr, supra note 137, at 1.
n162. Anspach, supra note 146, at 9.
n163. Id. at 5 ("We thought we would be arrested at 5:00 p.m. [on the
first day], but nothing happened... . At some point, a decision was
made to stay in the hallway overnight. We felt that we would surely be
arrested early the next morning.").
n164. Gill, supra note 155, at 6.
n165. Barr, supra note 137, at 1.
n166. Ward, supra note 130, at 1.
n167. Barr, supra note 137, at 1. The Administrative Board later
clarified the difference between "dismission" and "expulsion" in a
letter--a student who has been expelled may apply for readmission, but
a student who has been dismissed may not. Letter from David L.
Shapiro, Chair of the Admin. Bd., to Professor William W. Fisher, III,
defense counsel to Griswold 9 (Apr. 21, 1992) (on file with author).
n168. Barr, supra note 137, at 1.
n169. Id.
n170. Anspach, supra note 146, at 10.
n171. Id. at 10-11.
n172. Coal. for Civil Rights, Why We Must Sit-In Today, (not dated)
(on file with author); see also Gill, supra note 155, at 6.
n173. Gill, supra note 155, at 6.
n174. Barr, supra note 137, at 1.
n175. Boykin et al., supra note 2, at unpaged section titled Spring
1992: The Struggle Escalates.
n176. Barr, supra note 137, at 1.
n177. William Anspach, Our Protest Confronts Injustice, Harv. L. Rec.,
Apr. 10, 1992, at 10.
n178. Rodolfo J. Fernandez, Students End 25-Hour Law School Sit-In:
"Griswold Nine" of Coalition for Civil Rights Protest Outside Dean
Clark's Office, Harv. Crimson, Apr. 8, 1992, available at
http://www.thecrimson.com/article/1992/4/8/students-end-25-hour-law-sc
hool-sit-in/.
n179. Barr, supra note 137, at 1.
n180. Regis, supra note 130, at 1.
n181. The backgrounds of the Griswold 9 members in this part were
taken from "Griswold 9" Voluntarily Come Forward, Harv. L. Rec., Apr.
17, 1992, at 6. Note that William Anspach and Lucy Koh were also named
plaintiffs in the CCR lawsuit. See supra text accompanying note 45.
n182. Letter from Camille Holmes, CCR member on behalf of CCR, to HLS
faculty (Apr. 10, 1992) (on file with author). Holmes wrote:
Students on April 6 and 7 staged a sit-in in the corridor in front of
Dean Clark's office just as university students staged a sit-in at a
Woolworth lunch counter in Greensboro, North Carolina to protest an
unjust violation of the law more than thirty-two years ago. These
students represented those who wished to talk but saw no one who would
hear and consider seriously student concerns. Diversity is part of a
quest to make Harvard Law School a truly great institution, one which
is responsive to the concerns of all students and equipped for the
legal issues of the twenty-first century. Please urge the Dean to
apologize for his representation of Harvard Law School in the Wall
Street Journal. Please urge the Dean to take concrete steps to rectify
HLS' poor record on minority hiring. Please require and help to effect
positive change at HLS.
Id.
n183. Letter from Bethany Spalding, HLS student, to HLS Section 2
classmates (not dated) (on file with author) (urging them to sign
petitions by April 15, 1992).
n184. Letter from Jesse L. Jackson, President and Founder of the
National Rainbow Coalition, Inc., to Robert Clark, HLS Dean, and
members of the HLS Admin. Bd. (Apr. 15, 1992) (on file with author).
n185. Coal. for Civil Rights and a number of student affinity groups,
Student Groups Call for Dean Clark's Resignation, Harv. L. Rec., Apr.,
17, 1992, at 15; see also Natasha H. Leland, Law Student Groups Demand
Clark Resign, Harv. Crimson, Apr. 17, 1992, available at
http://www.thecrimson.com/article/1992/4/17/law-student-groups-demand-
clark-resign/.
n186. See Gill, supra note 155, at 6; see, e.g., Letter from Suzanne
L. Richardson, Sec'y of the Admin. Bd., to William Anspach, Griswold 9
member (Apr.17, 1992) (on file with author). Around the same time, the
Harvard Law Review sparked a controversy through its annual parody
edition, the Harvard Law Revue, in which the authors of the parody
mocked the work of murdered feminist law professor Mary Joe Frug, see
supra note 66 and accompanying text, and made demeaning comments
directed at minority and female HLS students and faculty. See Kerlow,
supra note 6, at 169-275, for an account of this event. See also
Thomas C. Palmer, Jr., The Not-So-Civil War at Harvard Law School:
Revue Parody Lays Bare Deeper Divisions, Boston Globe, Apr. 26, 1992,
at 74; Steve Yarian, Faculty Clash over Revue, 1st Amendment, Harv. L.
Rec., May 1, 1992, at 1. Responding to the outrage caused by the
Revue, fifteen HLS faculty members distributed an open letter to the
HLS community condemning the parody and the "institutional sexism and
misogyny that made it imaginable" and urging the administration to
eliminate its faculty committee and create a new committee devoted to
diversifying the faculty. Letter from Elizabeth Bartholet, Gary
Bellow, David Charny, Abram Chayes, Christopher F. Edley, Jr., Martha
A. Field, William W. Fisher, III, Charles M. Haar, Morton J. Horowitz,
David Kennedy, Duncan M. Kennedy, Frank I. Michelman, Richard D.
Parker, Lewis D. Sargentich & Laurence H. Tribe, HLS faculty members,
to HLS community (Apr. 20, 1992) (on file with author). At the end of
the letter, Professors William Alford, Richard Fallon, Charles Nesson,
Harry Steiner, and Alan Stone expressed agreement with many of the
letter's characterizations but explained that they did not sign the
letter because they did not agree with the all of the recommendations
in it. See also Natasha H. Leland, Law Profs Urge New Faculty Hiring
Process: Ask Dean to Dissolve Present Committee, Harv. Crimson (Apr.
21, 1992), available at
http://www.thecrimson.com/article/1992/4/21/law-profs-urge-new-faculty
-hiring/.
n187. Ward, supra note 130, at 1.
n188. Id.
n189. See Gill, supra note 155, at 6.
n190. Peter Cicchino, An Activist at Harvard Law School, 50 Am. U. L.
Rev. 551, 558 (2001).
n191. Id.
n192. Julie Su later recalled, "The Ad Board offered several 'plea
agreements' prior to trial that included our making apologies and
promising never to repeat our actions in exchange for expunged
records." Julie A. Su, Taking Risks to Uplift Humanity: A Tribute to
Peter Cicchino, 9 Am. U. J. Gender Soc. Pol'y & L. 35, 41 (2001).
n193. E-mail from Julie Su, supra note 143.
n194. Ward, supra note 130, at 1.
n195. Id.
n196. Id.
n197. Id.
n198. Regis, supra note 130, at 1.
n199. Harv. L. Sch. Catalog, 1991-1992, at 185.
n200. Id.
n201. Gill, supra note 155, at 6.
n202. Id.
n203. Regis, supra note 130, at 1; see also Admin. Bd. Procedures for
Disciplinary Cases (1992) (on file with author).
n204. Admin. Bd. Procedures for Disciplinary Cases (1992), supra note
203.
n205. Id.
n206. Id.
n207. Id.
n208. Id.
n209. Ward, supra note 130, at 1.
n210. Letter from David L. Shapiro, Chair of the Admin. Bd., to
Professor William W. Fisher, III, counsel for Griswold 9 (Apr. 30,
1992) (on file with author). I attempted to access the hearing
audiotapes from the Historical & Special Collections Department at the
HLS Library and was informed that I would not be able to obtain the
officially archived materials that relate to the Griswold 9 incident
because Harvard seals information that relates to students until
eighty years after the records were made.
n211. Ward, supra note 130, at 1.
n212. Gill, supra note 155, at 6.
n213. Id.
n214. Id. Moreno later explained, "I couldn't go on with it. The
stress was horrible. The L.A. riots happened at about the same time,
and my mother's firm [where she works as a secretary] got hit with a
Molotov cocktail... . That made me realize there are other issues, and
I could do more good getting a Harvard law degree than by getting
thrown out." John Sedgwick, Beirut on the Charles, GQ, Feb. 1993, at
200.
n215. Gill, supra note 155, at 6.
n216. Id.
n217. Cicchino, supra note 190, at 563.
n218. Harv. L. Sch. Catalog, 1991-1992, supra note 199, at 185.
n219. Natasha L. Leland, Law School Protesters Deny Charges at
Hearing, Harv. Crimson, May 6, 1992, available at
http://www.thecrimson.com/article/1992/5/6/law-school-protesters-deny-
charges-at/.
n220. Gill, supra note 155, at 6.
n221. Id.
n222. Id. According to Professor Fisher's closing argument notes, Dean
Coleman estimated that the sit-in cost HLS $ 9,653.04. William (Terry)
Fisher's notes for Admin. Bd.: Final Argument (May 5, 1992) (on file
with author).
n223. Leland, supra note 219.
n224. Gill, supra note 155, at 6.
n225. Sedgwick, supra note 214, at 156.
n226. Id. In an interview with Professor Vagts, he told me that while
he remembers Professor Charny throwing the notes at him, he insists
that Charny missed him. Interview with Detlev Vagts, Professor, Harv.
L. Sch., in Cambridge, Mass (Mar. 4, 2010).
n227. Sedgwick, supra note 214, at 156.
n228. Id.
n229. Gill, supra note 155, at 6. Both Perez and Gordon were members
of the Fried 4. See Ward, supra note 130, at 1.
n230. Interview with John Bonifaz, CCR co-founder, Amherst, Mass.
(July 6, 2010).
n231. Leland, supra note 219.
n232. Gill, supra note 155, at 6.
n233. Id.; see also William (Terry) Fisher's notes for Admin. Bd.:
Final Argument (May 5, 1992), supra note 222.
n234. William (Terry) Fisher's notes for Admin. Bd.: Final Argument
(May 5, 1992), supra note 222.
n235. Id.
n236. Id.
n237. Id. (emphasis in original).
n238. Gill, supra note 155, at 6.
n239. Id.
n240. Id.
n241. Id.
n242. Su, supra note 192, at 41.
n243. Gill, supra note 155, at 6.
n244. Id.
n245. Statement of the Admin. Bd. (May 8, 1992) (on file with author).
n246. Id. at 4-6; see also Rajath Shourie, Ad Board Votes to Warn Law
School Protestors, Harv. Crimson, May 11, 1992, available at
http://www.thecrimson.com/article/1992/5/11/ad-board-votes-to-warn-law
/ (noting that five members of the Administrative Board voted for
giving the student protestors warnings and three voted for
reprimands).
n247. Statement of the Admin. Bd. (May 8, 1992), supra note 245, at 8.
n248. Id. at 8.
n249. Professor Minow became HLS Dean on July 1, 2009. See Martha
Minow Named Dean of Harvard Law School, Harv. Gazette, June 11, 2009,
available at http://news.
harvard.edu/gazette/story/2009/06/martha-minow-named-dean-of-harvard-l
aw-school/. Minow succeeded Elena Kagan, who in 2003, became the first
woman to be appointed HLS Dean. See Sam Dillon, First Woman is
Appointed Dean of Harvard Law, N.Y. Times, Apr. 4, 2003, at A18,
available at
http://www.nytimes.com/2003/04/04/us/first-woman-is-appointed-as-dean-
of-harvard-law.html. Kagan left HLS in 2009 to become U.S. Solicitor
General; she was later confirmed as a U.S. Supreme Court Justice in
August 2010. See Obama Names Elena Kagan Solicitor General: If
Confirmed by Senate, HLS Dean Would be First Woman in the Position,
Jan. 5, 2009, Harv. Gazette, available at
http://news.harvard.edu/gazette/story/2009/01/obama-names-elena-kagan-
solicitor-general/; Carl Hulse, Senate Confirms Kagan as Justice in
Partisan Vote, N.Y. Times, Aug. 5, 2010, at A1, available at
http://www.nytimes.com/2010/08/06/us/politics/06kagan.html.
n250. Martha Minow, The Third Annual Peter M. Cicchino Awards Program:
Lawyering at the Margins: Lawyering for Human Dignity, 11 Am. U. J.
Gender Soc. Pol'y & L. 143, at 144-145 (2003).
n251. Gill, supra note 155, at 6.
n252. Todd Hartman, CCR Suit Dismissed, Harv. L. Rec., Sept.18, 1992,
at 1; see also Harvard Law Sch. Coal. for Civil Rights & others v.
President & Fellows of Harvard Coll., 413 Mass. 66, 67-72 (Mass.
1992).
n253. Hartman, supra note 252, at 1.
n254. Id.
n255. Id.
n256. June Shih, Board Denies Bell's Appeal: Corporation Rejects
Former Law Prof's Leave Request, Harv. Crimson, Aug. 21, 1992,
available at
http://www.thecrimson.com/article/1992/8/21/board-denies-bells-appeal-
pformer-weld/.
n257. Interview with Frank Michelman, Professor, Harvard Law Sch., in
Cambridge, Mass. (July 1, 2010).
n258. Shih, supra note 256.
n259. Id.
n260. Harvard Law Notifies Bell of Dismissal for Absense [sic], N.Y.
Times, July 1, 1992, at A19, available at
http://www.nytimes.com/1992/07/01/news/harvard-law-notifies-bell-of-di
smissal-for-absense.html.
n261. Betsy McGrath, Bell Urges Continued Pressure, Harv. L. Rec.,
Oct. 9, 1992, at 1. Professor Bell also filed a civil rights complaint
with the Department of Education's Office for Civil Rights over
minority faculty hiring at HLS. Laura M. Murray, HLS Hiring to Come
Under Federal Scrutiny, Harv. L. Rec., Oct. 30, 1992, at 2.
n262. Letter from Robert C. Clark, HLS Dean, to HLS community (Sept.
8, 1992) (on file with author).
n263. Steve Yarian, Dean Clark Offers Peace Initiative in Letter,
Harv. L. Rec., Sept. 18, 1992, at 7.
n264. David S. Clancy, Project on Community at HLS Gets Underway,
Harv. L. Rec., Oct. 2, 1992, at 4.
n265. Id.
n266. April Rockstead, Ad Board Changes Policy in Response to Sit-In,
Harv. L. Rec., Oct. 2, 1992, at 2.
n267. Harv. L. Sch. Catalog, 1992-1993, at 180.
n268. Rob Weissman, Students Hold Silent Vigil: Protestors Later Meet
with President Rudenstine, Harv. L. Rec., Oct. 23, 1992, at 1.
n269. Id.
n270. Steve Yarian, CCR Holds Meeting with HLS Alumni, Harv. L. Rec.,
Oct. 30, 1992, at 1.
n271. Michael Chmura, Letter to the Editor, Integrating Harvard Law
School, N.Y Times, Feb. 1, 1998, at 416 (Chmura wrote this letter in
his official capacity as News Director of HLS).
n272. Id.
n273. Welcome Guinier, Harv. Crimson, Feb. 4, 1998, available at
http://www.thecrimson.
com/article/1998/2/4/welcome-guinier-pwe-welcome-the-announcement/;
see also Sarah G. Vincent, Guinier Says Yes to Tenure at HLS, Harv. L.
Rec., Feb. 6, 1998, at 1.
n274. Richard Chacon, Guinier Named to Law Faculty at Harvard: Move
Addresses Criticism on Diversity at School, Boston Globe, Jan. 24,
1998, at A1.
n275. Harvard Univ. Office of the Senior Vice Provost, Faculty Dev. &
Diversity Annual Report 15 (2009),
http://www.faculty.harvard.edu/sites/default/files/down
loads/Annual%20Report%202009%20For%20Internet%20Final 0.pdf. The data
in the Senior Vice Provost's report are based on November 1, 2008
snapshots and are limited to paid, primary appointments. Id. at 51.
n276. Ladder faculty at HLS consist of tenured and tenure-track
professors. See e-mail from Liza Cariaga-Lo, Harvard Univ. Assistant
Provost for Faculty Development & Diversity, to author (July 20, 2010,
11:37 EST) (on file with author).
n277. Harvard Univ. Office of the Senior Vice Provost, supra note 275
at 15.
n278. Id.
n279. Id. Although 20% of the ladder faculty members are women, HLS
J.D. Admissions Office data reports that the incoming class of HLS
students in 2009 is comprised of 48% women. See Harvard Law Sch.
Admissions Fact Sheet (2009) (on file with author).
n280. Harvard Univ. Office of the Senior Vice Provost, supra note 275
at 15.
n281. Id. Although 11% of the ladder faculty members are professors of
color, HLS J.D. Admissions Office data report that the incoming class
of HLS students in 2009 is comprised of 34% students of color. See
Harvard Law Sch. Admissions Fact Sheet (2009), supra note 279.
n282. See Annette Gordon-Reed '84 to join the Harvard faculty, Harvard
Law Sch., (Apr. 30, 2010), http://www.law.harvard.edu/news/2010/04/30
annette.html; Triple Appointment for Historian: Pulitzer Winner
Gordon-Reed to join HLS, FAS, and Radcliffe, Harv. Gazette, May 3,
2010, available at
http://news.harvard.edu/gazette/story/2010/04/triple-appointment-for-h
istorian/.
n283. See generally Doug McAdam, Political Process and the Development
of Black Insurgency 1930-70 (1982); Sidney Tarrow, Power in Movement:
social movements and contentious politics (2d ed. 1984); David S.
Meyer, Protest and Political Opportunities,30 Ann. Rev. of Soc. 125
(2004); David S. Meyer & Debra C. Minkoff, Conceptualizing Political
Opportunity, 82 Soc. Forces 1457 (2004).
n284. See, e.g., Susan Olzak & Emily Ryo, Organizational Diversity,
Vitality and Outcomes in the Civil Rights Movement, 84 Soc. Forces
1561, 1563 (2007) ("Additions to the organizational population produce
a type of 'demonstration effect' in which an increasing density of
organizations and concomitant rise in protest activity signal to
insiders and outsiders that support for the movement is rising.")
(citation omitted); Meyer & Minkoff, supra note 283, at 1470 ("The
logic of [the signals model] is that activists and officials monitor
changes in the political environment, looking for encouragement for
mobilization and for advocating policy reforms."); Tarrow, supra note
283, at 88 ("Protesting groups put issues on the agenda with which
other people identify and demonstrate the utility of collective action
that others can copy or innovate upon.").
n285. Debra C. Minkoff, The Sequencing of Social Movements, 62
American Soc. Rev. 779, 780 (1997).
n286. Doug McAdam, "Initiator" and "Spin-Off' Movements, Diffusion
Processes in Protest Cycles, in Repertoires and Cycles of Collective
Action 217, 219 (Mark Traugott ed., 1995).
n287. Id. at 219. Doug McAdam argues that "initiator movements may
help to spawn later struggles, but the impetus for this process would
appear to be cognitive or cultural rather than narrowly political."
Id. at 226. This is apparent in the HLS protests in the early 1990s.
While the public interest advising protests did inspire and enable the
faculty diversity protests, the initiator movement did not expand the
political opportunities for the subsequent diversity protests. McAdam
further suggests that spin-off movements may be "disadvantaged by the
necessity of having to confront a state that is already preoccupied
with the substantive demands and political pressures generated by the
early risers." Id. at 225.
n288. See sources cited supra note 11 and accompanying text.
n289. Telephone interview with Lisa Otero, former CCR member (July 14,
2010).
n290. Telephone interview with Laura E. Hankins, named CCR plaintiff
(July 12, 2010).
n291. Interview with Charisse Carney-Nunes & Jodi Grant, supra note
74.
n292. McAdam, supra note 286, at 227.
n293. See sources cited supra notes 11 and 12.
n294. See Stone, supra note 59, at 1.
n295. See Barr, supra note 137, at 1.
n296. See Gill, supra note 155, at 6.
n297. Letter from Elizabeth Bartholet, Gary Bellow, David Charny,
Abram Chayes, Christopher F. Edley, Jr., Martha A. Field, William W.
Fisher, III, Charles M. Haar, Morton J. Horowitz, David Kennedy,
Duncan M. Kennedy, Frank I. Michelman, Richard D. Parker, Lewis D.
Sargentich, & Laurence H. Tribe, HLS faculty members, to HLS
community, supra note 186.
n298. Interview with Charisse Carney-Nunes & Jodi Grant, supra note
74.
n299. Telephone Interview with Marie-Louise Ramsdale, former Griswold
9 member (June 28, 2010).
n300. See sources cited supra note 23 and accompanying text.
n301. John Thornton, Law School Rally Inspires Other Harvard Groups,
Harv. L. Rec., Apr.20, 1990, at 1.
n302. Id.
n303. Id.
n304. Id. at 1, 12.
n305. Interview with John Bonifaz, supra note 230.
n306. Delgado, supra note 138, at 20.
n307. Id.
n308. See generally Robert D. Benford & David A. Snow, Framing
Processes and Social Movements: An Overview and Assessment, Ann. Rev.
of Soc. 611 (2000).
n309. Id. at 613 (citations omitted).
n310. See supra notes 2, 4, 78 and accompanying text.
n311. See Delgado, supra note 138, at 20.
n312. Id.
n313. Interview with John Bonifaz, supra note 230 (emphasis added).
n314. Rights Groups Plan to Rally for Diversity, supra note 22, at 1.
n315. Letter from Vania Montero et al., Board Members of La Alianza,
to David Smith, HLS Vice Dean, with a copy to Neil Rudenstine, Harvard
Univ. President (Apr. 9, 1992) (on file with author).
n316. Cicchino, supra note 190, at 563.
n317. See generally John D. McCarthy & Mayer Zald, Resource
Mobilization and Social Movements: A Partial Theory, 82 Am.J. of Soc.
1212 (1977); Olzak & Rio, supra note 284, at 1565.
n318. Cf. Olzak & Rio, supra note 284, at 1566 (arguing that
"diversity of goals and tactics... ought to increase the size of the
mobilized population, which in turn should increase the movement's
capacity for collective action"); Scott E. Page, The Difference: How
the Power of Diversity Creates Better Groups, Firms, Schools and
Societies 173 (2007) (arguing that diverse groups can lead to better
outcomes because multiple perspectives facilitate problem solving).
n319. E-mail from Linda Singer, supra note 53.
n320. Interview with John Bonifaz, supra note 230. See Jim Houpt,
Disabled Student Seeks to Organize to Pressure Administration for
Improvements, Harv. L. Rec., Dec. 1, 1989, at 1, for an account of
Mark McGoldrick's initial organizing efforts.
n321. Portions of the CCR Lawsuit, supra note 42, at 10.
n322. See supra Part II.D.
n323. E-mail from Julie Su, supra note 143.
n324. See supra notes 158, 161 and accompanying text.
n325. See E-mail from Jodi Grant, former Griswold 9 member, to author
(June 25, 2010, 14:21 EST) (on file with author); Telephone interview
with Jill Newman, former Griswold 9 member, supra note 145.
n326. See E-mail from Jodi Grant, supra note 325.
n327. E-mail from Julie Su, supra note 143.
n328. E-mail from Jodi Grant, former Griswold 9 member, to author
(July 8, 2010, 11:30 EST) (on file with author).
n329. E-mail from John Bonifaz to author (July 14, 2010, 12:50 EST)
(on file with author).
n330. Id.
n331. Id.
n332. E-mail from William Anspach, former Griswold 9 member, to author
(July 22, 2010, 15:55 EST) (on file with author).
n333. Id.
n334. Id.
n335. See Interview with John Bonifaz, supra note 230; Interview with
William Anspach, supra note 103.
n336. This is consistent with Sidney Tarrow's view that there exist
cycles of protest that "resemble politics in general in their uneven
and irregular diffusion across time and space." Sidney Tarrow,
Struggle Politics, and Reform: Collective Action, Social Movements,
and Cycles of Protest 46 (1991).
n337. Jeff Bucholtz, La Alianza Drops Out of Coalition: Cites CCR
Communication Problems, Harv. L. Rec., Apr. 23, 1993, at 4.
n338. See Matthew Huggins & Jonathan Davis, CCR Changes, Faculty
Diversity Issues Remain, Harv. L. Rec., Oct. 15, 1993, at 1; Rajath
Shourie, CCR Organizes "Diversity Day": Law School Celebration
Features Rally, Student-Faculty Happy Hour, Harv. Crimson, Oct. 27,
1993, available at
http://www.thecrimson.com/article/1993/10/27/ccr-organizes-diversity-d
ay-ppoetry-authored/.
n339. See Ishaan Seth, Law School Silent After Activist Past, Harv.
Crimson, Feb. 25, 1994, available at
http://www.thecrimson.com/article/1994/2/25/law-school-silent-after-ac
tivist-past/ (noting the absence of rallies, sit-ins, fliers, and
demonstrations in 1994 at the law school).
n340. See, e.g., Victoria Kuohung, CCR Lobbies Profs for More
Diversity, Harv. L. Rec., Mar. 4, 1994, at 1 (discussing "lobby
days"); Victoria Kuohung, "Strike Day" Questions Diversity of HLS
Faculty, Harv. L. Rec., Apr. 29, 1994, at 1 (discussing diversity
celebrations and silent vigils); Greg Stohr, CCR Lobbies, But Many
Students Remain Quiet, Harv. L. Rec., Mar. 3, 1995, at 1 (discussing
more "lobby days").
n341. Interview with John Bonifaz, supra note 230.
n342. Interview with Charisse Carney-Nunes & Jodi Grant, supra note
74.
n343. See Boykin et al., supra note 2 (a circulation copy and
non-circulation copy in the Historical & Special Collections
department are available for review).
n344. Id., at unpaged section titled A Reason to Celebrate.
n345. Id.
n346. Id.
n347. See Interview with Ronald S. Sullivan, supra note 151.
n348. Id. But see Barry Langman, Letter to the Editor, Integrating
Harvard Law School, N.Y. Times, Feb. 1, 1998, at 416, available at
http://www.nytimes.com/1998/02/01/opinion/l-integrating-harvard-law-36
3626.html (arguing that protests at HLS in the 1990s were
counterproductive to minority and female hiring because the
administration delayed these appointments in order to prevent the
appearance of capitulating to student demands and many qualified
minority and female professors were reluctant to join such a
contentious environment). Note that Langman was a student member of
the Administrative Board that tried the Griswold 9. See supra note 201
and accompanying text.
n349. E-mail from Charisse Carney-Nunes, former Griswold 9 member, to
author (Jul. 7, 2010, 18:13 EST) (on file with author).
n350. Id.
n351. E-mail from William Anspach, former Griswold 9 member, to author
(Jul. 8, 2010, 08:54 EST) (on file with author).
n352. E-mail from Jodi Grant, former Griswold 9 member, to author
(Jul. 8, 2010, 11:30 EST) (on file with author).
n353. See Black Law Students Association Conference Looks at
Post-Katrina Criminal Justice, Harv. L. School, Apr. 10, 2009,
available at
http://www.law.harvard.edu/news/spotlight/criminal-law/blsa.html.
n354. See Santa Clara Judge Wins Senate Confirmation, SFGate.com (June
8, 2010), http://articles.sfgate.com/2010-06-08/news/21781394 1
superior-court-federal-bench-federal-judge.
n355. Id.
n356. E-mail from Jill Newman, former Griswold 9 member, to author
(Jul. 22, 2010, 20:11 EST).
n357. See Elizabeth Moreno '93, Record Columnist, Activist, Member of
"Griswold Nine" (1966-1997), Harv. L. Rec., Feb. 14, 1997, at 5.
n358. E-mail from Marie-Louise Ramsdale, former Griswold 9 member, to
author (Jul. 9, 2010, 16:02 EST) (on file with author)
n359. Id.
n360. E-mail from Julie Su, supra note 143.
n361. Id. Former CCR co-founder John Bonifaz, who is an election
lawyer and voting rights leader, was also a recipient of the MacArthur
Fellowship in 1999. E-mail from John Bonifaz to author (Jul. 14, 2010,
13:01 EST) (on file with author).
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27 Harv. J. Racial & Ethnic Just. 49, *
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