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Harvard Bungled The Harvey Weinstein Lawyer Case. But Liberal Bias Wasn’t The Culprit

Attorney Ronald Sullivan, formerly for Harvey Weinstein, enters State Supreme Court in New York, Friday, April 26, 2019. (Richard Drew/AP)
Attorney Ronald Sullivan, formerly for Harvey Weinstein, enters State Supreme Court in New York, Friday, April 26, 2019. (Richard Drew/AP)

Collisions between academia and the legal system are in the news lately. Ronald Sullivan, a professor at Harvard Law School and a practicing attorney, had the nerve to join the legal team of a deeply unpopular defendant, Harvey Weinstein. This caused some Harvard students residing in Winthrop House, an undergraduate residence that Sullivan supervised, to declare that they “feel unsafe.” Sullivan is no longer advising Weinstein, ostensibly due to scheduling conflicts, and is no longer a faculty dean at Winthrop House.

Meanwhile, some 650 miles to the west, Oberlin College outside of Cleveland found itself on the wrong end of a $44 million jury verdict, since reduced to $25 million. An Ohio court determined that the college had supported students who leveled defamatory accusations of racism against a local store, Gibson’s Bakery, after the arrest of three black Oberlin students who pled guilty to charges of attempted theft and aggravated trespass.

Conservatives have complained for many years about liberal bias at colleges and universities, and are enjoying a moment of grim satisfaction. George Will, normally restrained, described Oberlin’s plight as punishment for “helping to incite a mob mentality and collective bullying.”

At the same time, some liberal commentators have displayed what charitably can be termed confusion about a criminal defendant’s right to counsel. The New Republic defended Harvard’s dismissal of Sullivan with an article by Lucy Caldwell, asserting unequivocally that his retention as “Harvey Weinstein’s lawyer means there can be no role for him as a trusted leader in undergraduate life.”

Despite the reactions from the left and the right, ideological bias is not the culprit here.

Nicholas Kristoff, writing in the New York Times, rightly championed Sullivan’s entitlement while a Dean at Harvard to defend Weinstein, but also views the fiascos at Oberlin and Harvard through the lens of partisanship: “… kneejerk liberalism that backfires and damages its own cause.”

Despite the reactions from the left and the right, ideological bias is not the culprit here. Both colleges squandered a teaching opportunity; the common explanation is better described as institutional cowardice.

Facing backlash, Harvard now claims that Sullivan’s performance was substandard long before any complaints surfaced about his representation of Weinstein, and that his dismissal was overdue. This may or may not be true, but Harvard’s excuse leads only to the conclusion that administrators were afraid to dismiss a professor from the Winthrop House position for poor performance, until they found a politically correct excuse.

More troubling, Harvard was afraid to speak truth to its undergraduates. Sullivan, to the contrary -- whether fit or unfit for his former position -- was not afraid to trust that students would understand the principle at stake: “To the degree we deny unpopular defendants basic due process rights, we cease to be the country we imagine ourselves to be.” Unable to contain herself in the face of this evident and simple truth, Ms. Caldwell doubled down in The New Republic and characterized Sullivan’s statement as “intellectually dishonest, if not downright nefarious, condescending to [the students].” This type of aggressive nonsense may explain Harvard’s fear, but doesn’t excuse it.

At Oberlin, the current president, Carmen Ambar, has described the trial court verdict as a “profound, chilling" attack on free speech. This seems to be based on the misconception that the First Amendment protects libel. Ambar also quarreled with the jury findings that college officials helped students distribute defamatory materials, despite testimony from witnesses who observed the dean of students and other Oberlin College employees handing out flyers at the protest.

The assertion that the harm Weinstein caused his victims is a contagion ... is not only ludicrous but also a direct attack on the right to counsel.

Oberlin was one of the first colleges in America to accept students of different races, and was also a stop on the Underground Railroad. To this day it attracts students based on its continuing dedication to social activism. Consequently, the administration succumbed to the temptation to duck the issue of theft after the mixed-race confrontation at Gibson’s.

Oberlin, like Harvard, now has an alternative explanation for the behavior that got it into trouble, claiming that Gibson’s Bakery engaged in racial profiling on its premises for many years. But that doesn’t excuse the college’s failure to tell its students that it is wrong to steal and worse to kick and punch someone lying on the ground, as the three Oberlin students were apparently doing to the clerk who had confronted them (reports differ how the fight began) when the police arrived.

Sullivan’s former client, Weinstein, was a rich and powerful man, now in apparently well-deserved disrepute. Neither his past prominence nor accusations of his atrocious behavior justify denying him the Sixth Amendment right to engage a willing attorney of his choice. The assertion that the harm Weinstein caused his victims is a contagion that somehow can be transmitted through his attorney to third parties, and requires a quarantine, is not only ludicrous but also a direct attack on the right to counsel.

Shouldn’t Oberlin be willing, regardless of race, to admonish and perhaps discipline students who shoplifted and then fought with the protesting shopkeeper? Even if Harvard students were to consider themselves “unsafe” because, to take an extreme example, a dean represented an accused serial murderer, shouldn’t the college still support the right to counsel? Leading educational institutions should be able to answer “yes” to such questions without hesitation.

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Andrew Grainger Cognoscenti contributor
Andrew Grainger is a retired associate justice of the Massachusetts Appeals Court. He has been designated a senior Fulbright scholar by the U.S. Department of State. He has taught legal courses in numerous foreign universities, and also teaches locally.

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