Email Scandals, Harvard, Harvard Law Review, listserv, Racism

The Harvard Law School ‘Racist’ Email Controversy:
Corrections and More Commentary

Earlier today, we wrote about an email controversy emanating from the halls of Harvard Law School. A 3L at HLS — referred to in these pages simply as “CRIMSON DNA,” and please help us keep it that way — sent out an email message that some construed as “racist.” In the email, “CRIMSON DNA,” following up on remarks made during an apparently spirited dinner conversation, wrote as follows:

I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. I could also obviously be convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances. The fact is, some things are genetic.

That was just the opening. Read the rest of DNA’s email over here.

We now bring you some corrections and clarifications, as well as additional discussion — in case the 100+ tweets, 800+ comments, and 1,000+ Facebook shares weren’t enough for you….

First, as noted in updates previously added to the original post, the dinner in question was not a Federalist Society event (contrary to some early reports). Furthermore, according to Will Scharf, president of the Harvard Federalist Society, “the 3L responsible for the comments and e-mail at issue is not currently nor has ever been an active member of the Harvard Federalist Society.”

(Interestingly enough, though, DNA is a member of the Harvard Law Review — impressive.)

Second, the Harvard Black Law Students Association (HBLSA) has some corrections of their own. The outgoing and incoming presidents of HBLSA sent us a statement, reprinted in full at the end of this post, which begins:

The Harvard Black Law Students Association (BLSA) is writing to clarify a number of factual inaccuracies that appear in your April 28, 2010 column entitled, “Harvard Law School 3L’s Racist Email Goes National.” To date, Harvard BLSA has not taken an official stance on the controversy surrounding the release of “DNA’s” racially inflammatory email.

Well, why not? This seems like a good teaching moment, no?

Harvard BLSA did not forward the email correspondence to any person, legal institution, organization, media outlet or other BLSA chapters. What Harvard BLSA did do was send a tempered, thoughtful email to its members yesterday at 8:31PM, reminding them (1) of their inability to speak on behalf of the organization and (2) cautioning them of the potential ramifications of any action taken in an individual capacity.

For the record, the portion of our earlier post that actually suggested any official HBLSA involvement was quite minor — a short quote from a tipster about the resulting firestorm (fourth blockquote), stating that “Harvard’s BLSA sent the email, along with CRIMSON DNA’s name and information, to the BLSAs at other Top 14 schools.” We’ve already corrected this statement to say that a member or members of HBLSA reached out to BLSA chapters at other top law schools (which we do believe to be the case, based on emails we’ve been forwarded).

Farther down, the Harvard BLSA presidents state:

Pursuant to our Constitution, only the President of the organization is authorized to make official statements on behalf of the organization in a public forum. Moreover, only the President and Secretary have access to BLSA’s official listserv as a means of communication with our general body membership. The organization has taken a cautious, measured approach in deciding what response, if any, was appropriate.

This confused us, since the email we received sure looked like it had been sent out over a Harvard BLSA list-serv. It had “[hblsa]” in the subject line, it was sent by an HBLSA board member, and it was addressed to “BLSA family.”

The HBLSA presidents explain:

It is our understanding that the email was sent out over an unofficial listserv. This listserv serves as an internal discussion forum where subscribers can post sublets, share campus news, forward insightful articles of interest, etc. The unofficial listserv is not limited to members of Harvard BLSA. Harvard BLSA does have an official listserv that is used to communicate official stances by the organization, programming news, and other direct information from the organization’s leadership. We do not control the content of the unofficial listserv where this was sent; other organizations, both Harvard affiliated and non-Harvard affiliated, have access to this listserv. Historically, Harvard BLSA members has not had internal control over the content or who is added to the listserv. Again, the use of the unofficial listserv further clarifies our point that this was not a product of Harvard BLSA acting in any official capacity.

Understood. But this raises another question: Why is Harvard BLSA so eager to distance itself from this controversy and disclaim any “official” position? Why not embrace the situation, and use it as an opportunity to start a National Discussion About Race — just like what we had after Gatesgate, another racially-charged controversy coming from Cambridge?

(Digression: Why is Harvard, and Harvard Law School specifically, such fertile soil for racial discord? See also Kiwi Camara, who created controversy years ago by using a racial epithet in a study group outline.)

Here at ATL, we’re actually very pleased by the fantastic traffic frank and robust discussion that this email controversy has sparked. But we — okay, I’m shifting to “I,” since your three ATL editors have rather divergent views on this episode — actually wish that DNA’s email wasn’t so controversial.

In an academic setting, it should be possible to put any proposition on the table for debate. No position should lie beyond the pale. Some — in fact, many — such positions will be stupid or wrong. But we should be able to debate all issues rationally, vigorously and openly, without having to worry about offending anyone.

Let’s look back on Kash’s original post, which was entitled Harvard Law School 3L’s Racist Email Goes National. I wanted to put the word “racist” in the headline in quotation marks — but since it was Kash’s post, I deferred to her. (In the post you’re now reading, which has my byline, you’ll notice that I’ve placed “racist” in quotes.)

Why did I want to put “racist” in scare-quotes? First, I wasn’t sure the email was actually “racist.” As I stated in the comments:

Let me play devil’s advocate for a second…. If we accept “race” as a biological concept — which I realize is questionable, becoming diluted through intermarriage, etc. — is it really so insane to suggest that some races might, ON AVERAGE, possess certain qualities to a greater or lesser degree than other races?

For example, would it be racist to say that, ON AVERAGE, African-Americans are taller than Asian-Americans? Or that Caucasians are more likely to have blond hair than Asian-Americans? Or is the issue that we don’t think intelligence is at all tied to genetics?

I am just asking questions here. I’m not taking a position. I’m just, as Elie likes to say, “exploring the studio space.”

Second, in an academic environment, it’s not helpful to respond to ideas — even bad ones — by throwing around “-ist” labels: e.g., racist, sexist, Fascist. Instead of calling your opponents names, like “racist” or “sexist” or “homophobe,” you should respond to arguments you don’t like with better arguments, accompanied by evidence.

Rational debate. Isn’t that what free speech and academic discourse — and, incidentally, the practice of law — are all about?

P.S. Our commitment to free speech explains why we generally don’t moderate ATL comments, despite frequent complaints that they are “offensive.” Being “offended” is part of what it means to live in a free society. If you find that you’re often offended by our comments, then DON’T READ THEM.

P.P.S. Of course, our “no moderation” policy is subject to exceptions, including but not limited to defamatory material (which is not protected by the First Amendment); racist, sexist, or other epithets (which don’t contribute to reasoned discourse); or comments that do things we expressly tell you not to do (like use CRIMSON DNA’s real name).

Thank you for commenting responsibly.

Earlier: Harvard Law School 3L’s Racist Email Goes National


HARVARD BLACK LAW STUDENTS ASSOCIATION — STATEMENT

To Whom It May Concern:

The Harvard Black Law Students Association (BLSA) is writing to clarify a number of
factual inaccuracies that appear in your April 28, 2010 column entitled, “Harvard Law
School 3L’s Racist Email Goes National.” To date, Harvard BLSA has not taken an
official stance on the controversy surrounding the release of “DNA’s” racially
inflammatory email. Harvard BLSA did not forward the email correspondence to any
person, legal institution, organization, media outlet or other BLSA chapters.
What Harvard BLSA did do was send a tempered, thoughtful email to its members
yesterday at 8:31PM, reminding them (1) of their inability to speak on behalf of the
organization and (2) cautioning them of the potential ramifications of any action taken in
an individual capacity. That email read:

<-----Original Message----->

Sent: 4/27/2010 8:31:37 PM EST
To: HBLSA President; HBLSA President

Hey BLSA,

I think by now we have all read the email from XXXXXXX about her views on race and
intelligence levels. Although Shaylyn and I share many of the sentiments that have been
expressed so far by BLSA members, it is very important and wise that whatever response
comes from BLSA should be one that is well-thought out and strategic. Shaylyn and I are
in the process of brainstorming the best approach, if any, to take on behalf of the
organization in response to such a disturbing and archaic viewpoint. However, we
wanted to send a personal reminder out to all of our members asking you kindly not
to send out any response on behalf of the organization, purporting to be on behalf of
the organization, or in a manner that could lead others to believe that you are acting
in your capacity as a BLSA member. While we realize that we cannot prevent members
from responding or acting in your individual capacities, we do want to caution you not to
make the same mistake that XXXXX made when she found it appropriate to put these
disappointing comments in writing. It is important that we all refrain from acting
irrationally or off emotion in a way that can haunt you in the future, damage your
professional reputation, or reflect poorly on our beloved organization. If you have any
ideas, suggestions, comments, or concerns, feel free to email me or Shaylyn. We aim
to work in consultation with our advisors to address the situation. However, strategic,
tempered, and calculated responses tend to be better responses and ones that we likely
will not have to live to regret.

Love you all,
Dominique and Shaylyn
______________________________________________________________

Pursuant to our Constitution, only the President of the organization is authorized to make
official statements on behalf of the organization in a public forum. Moreover, only the
President and Secretary have access to BLSA’s official listserv as a means of
communication with our general body membership. The organization has taken a
cautious, measured approach in deciding what response, if any, was appropriate.
To that end, the leadership of Harvard BLSA has not posted anything on Above the Law,
sent emails to anyone, or devised a strategy to impugn “DNA’s” character.

Sincerely,
Outgoing and Incoming Harvard BLSA Presidents

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