Alex Kozinski, Clarence Thomas, Email Scandals, Racism, Rudeness, Supreme Court Clerks

The Harvard Email Controversy: How It All Began

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We’re hoping the Harvard Law School email controversy has run its course — and we suspect that it has. (But we still invite you to take our reader poll on whether Crimson DNA’s email was racist or offensive.)

Before we close the door on this story, we’d like to give you the background on how it all got started. It’s disturbing — and a cautionary tale for all of us.

Our initial report on this story was missing some important pieces of information, which we did not acquire until later. This post will attempt to provide a more complete report of how one Harvard 3L’s personal email message, shared with just a handful of friends, became national news….

UPDATE: We’ve added a statement from one of the principal players, “Yelena,” after the jump.

Our story has three characters. We’ll call them “Steph” (previously referred to in these pages as “Crimson DNA”); “Yelena” (previously “Outrage” — but as it turns out, that moniker isn’t really accurate); and “Jen” (previously not a part of the story).

Steph, Yelena and Jen were very close friends. They would vacation together, spend many days and weekends in each other’s company, and dine together often, along with a few others in the same small social circle at Harvard Law School.

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On or about November 16, 2009, the three met up for dinner at the Hark (the student cafeteria at HLS). Contrary to earlier reports, the dinner was not affiliated with the Federalist Society — it was just a casual meal, among three friends.

(Nor was it even a case of three Fed Soc members getting together to spew their “hateful conservative views,” as it has been unfairly characterized in some quarters. Steph is not an active member of the HLS Federalist Society, and Yelena has been on the outs with them, ever since she lost an election for a leadership position. Jen has no connection to the Federalist Society — she’s more in line with the American Constitution Society, and may even be an ACS member.)

The conversation turned to affirmative action. Steph and Yelena oppose it; Jen is in favor. The three had the kind of argument that all of us have probably had, in college or law school — spirited, engaging, passionate. There was some adoption of perhaps extreme or exaggerated views, to get a rise out of the other participants, in the spirit of law school intellectual bravado.

During the dinnertime debate, Steph did not argue in favor of a genetic basis for racial disparities in intelligence. After the dinner, however, she sent an email — just to Yelena and Jen, not a wider group — clarifying her views. In that email, Steph wrote, “I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent.” (For the few of you who haven’t already seen it, you can read the complete email here (third blockquote).)

Note the wording of Steph’s email: “I absolutely do not rule out the possibility….” This suggests that, at dinner, Steph actually argued against racial disparities in intelligence. Upon further consideration, she decided to go agnostic on that question, sending out the clarifying email. For a layperson without expertise in the relevant scientific disciplines, agnosticism on this subject seems reasonable — and does not make someone a “racist” (not that Kash, in our initial post on this subject, called Steph a racist, even though Kash believes the email contains racist subtext).

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The conversation and the email took place in November 2009. In the months that followed, Stephs’ email did not go beyond the inboxes of Yelena and Jen, at least as far as we know. The three continued to be friends.

Fast forward to April 2010. On or about Friday, April 23, HLS held an event for third-year law students, sponsored by an alumni organization, with the goal of welcoming the soon-to-be-graduating 3Ls into the world of HLS alumni. After the event, Steph, Yelena, and other friends continued to hang out.

Near the end of that evening, there was a heated argument between Steph and Yelena. It appears that Yelena was deeply angered by some things that Steph said to her (we don’t know what). As Steph parted from the group at the end of the evening, Yelena yelled various insults in her direction.

UPDATE: Gawker reports that a boy might be the source of the feud.

Apparently this wasn’t enough for Yelena. Shortly thereafter, Yelena posted a comment or two on some tagged photos of Steph on Facebook (something roughly along the lines of calling her demon spawn).

And apparently that wasn’t enough either. Yelena then came up with the idea — evil genius (and maybe more the former than the latter) — of fishing out the six-month-old email from her inbox and disseminating it.

It appears that Yelena did this out of a personal vendetta, not because she was upset by its content (so it was erroneous on our part to nickname her “Outrage” and say she was distressed by Steph’s email). We understand that Yelena was actually pleased by the attacks heaped upon Steph for the email, at least initially. (Query whether at some point Yelena started to regret her actions.)

It’s clear, however, that Yelena didn’t dredge up and disseminate the email due to outrage at its contents. As far as we know, Yelena sat on Steph’s email for over five months before spreading it around — behavior not consistent with a sense of anger. In addition, Yelena has written online opinion pieces condemning “oversensitivity” on matters related to race, and attacking affirmative action in college admissions as a form of “racism.” So Yelena hardly seems like a crusader for either racial justice or political correctness (depending on your point of view).

We don’t know the exact path of dissemination from Yelena’s inbox to the world. What is clear, however, is that it didn’t take very long for this email — a personal email, shared with just two other people — to go viral.

On her Facebook wall, Yelena denies sending the email to ATL or to the Harvard Black Law Students Association (BLSA). Although we generally do not comment on the identities of our sources, in this case we can confirm that we did not receive the email directly from Yelena.

(Disclosure: I’ve actually met Yelena — she attended a farewell brunch I hosted at my apartment, when I moved from D.C. back to New York — and she and I then exchanged a few emails, largely about the possibility of my doing an event with the HLS Federalist Society. Thankfully, nothing in our correspondence is as remotely juicy as Steph’s email to Yelena and Jen.)

So we don’t know exactly who sent what to whom. Somehow Steph’s email made its way into the hands of an executive board member of BLSA, who then forwarded the email — over an unofficial BLSA list-serv, as BLSA has taken great pains to point out — to other interested individuals. Some of these individuals then forwarded the email to friends of theirs, some of them at BLSA chapters at other top law schools. (Again, as Harvard BLSA has emphasized, it played no official role in getting the word out about Steph’s email.)

The BLSA member forwarded Steph’s email with the following lead-in paragraph:

Today I was forwarded an email written by a 3L HLS student (fellow classmate, though I do not know her personally) in which she apologizes to one of her friends for backing off her racist stance at dinner. A recipient of this email has asked that it be shared. The author of the email will be clerking on the 9th Circuit next year, is a member of the Harvard Law Review, FedSoc, and is a graduate of Princeton [name redacted]. I am saddened that a current HLS student holds such antagonistic and archaic views about our people and that the potential impact of her ignorance is only strengthened by her prestigious affiliations and credentials.

Please email if you have questions or ideas about a collective response from BLSA members or alumni. I can provide more details if interested.

The BLSA member’s email states that “[a] recipient of this email has asked that it be shared.” This raises the possibility that even if Yelena did not send Steph’s email to BLSA in any official sense, she did send it to a board member, with a request “that it be shared” — which the board member proceeded to (although acting in her individual capacity, not as an official BLSA representative).

Two quibbles with the BLSA member’s email. First, Steph was not “apologiz[ing] to one of her friends for backing off her racist stance,” as explained above. Second, as noted repeatedly (here and here), Steph is not a member — or at least not an active one — of the Federalist Society.

Upon information and belief, the BLSA member’s email was sent out sometime in the afternoon or evening of Tuesday, April 27. We received the first forwarded copy of the BLSA member’s message shortly after 7 p.m. on the 27th. In the hours that followed, we received many more copies of the message (sometimes with additional commentary appended to the BLSA member’s message). We’re also informed that the email made it on to various online fora and message boards, such as Something Awful and Auto Admit. (So it’s not fair to blame ATL for how widely disseminated this story became; we merely wrote up something that had already gone viral.)

The rest, as they say, is history. In addition to our extensive coverage, Steph’s email has been written up on many other major blogs, including Gawker, the Huffington Post, National Review Online, and the Volokh Conspiracy (which I personally think has provided the best analysis). It also made its way into the newspapers, including the Boston Globe and the Harvard Crimson.

But, for all the internet Sturm und Drang over the episode, there hasn’t been a huge amount of real-world fallout. The powers-that-be have shown a sense of perspective about the situation. They have largely declined — wisely, in my view (and in Orin Kerr’s) — not to judge a person based on a single forwarded personal e-mail.

Although Dean Martha Minow criticized the email, no disciplinary actions have been taken against Steph (nor should any such actions be taken, in my view). Charles Ogletree, the eminent African-American law professor and director of the Charles Hamilton Houston Institute for Race and Justice, met with Steph after the email went public — and accepted her apology (which apparently did not make it into this Crimson article reporting the meeting).

And, as far as we know, Steph is still welcome in the chambers of Chief Judge Alex Kozinski of the Ninth Circuit, for whom she’s scheduled to be clerking. Considering how Chief Judge Kozinski was unfairly accused of running a porn website, based on a leak to the media by a disgruntled litigant, we suspect he’s sympathetic to a fellow victim of an online rush to judgment arising out of a personal vendetta.

Some defenders of Steph have worried about how this might damage her career. We tend to doubt it will have any lasting effect. She’s clearly a brilliant young woman, as reflected in her many accomplishments — Princeton (with highest honors), HLS, Harvard Law Review, Kozinski clerkship. She just had the misfortune of sending a poorly-worded email — an email that a majority of you don’t even believe to be “racist” — to two “friends,” one of whom betrayed her. (Not surprisingly, we understand that mutual friends of Steph and Yelena are taking Steph’s side and have stopped talking to Yelena.)

Heck, this episode probably won’t even stop Steph from landing a Supreme Court clerkship. If I were in her shoes, I’d focus my efforts on Justice Clarence Thomas. Of all the members of the Court, he’d probably be most open to hiring the victim of what some conservatives might call, to paraphrase CT himself, the “high-tech lynching [of conservative females] who in any way deign to think for themselves, to do for themselves, to have different ideas.”

(Justice Thomas has already had several controversial conservative women — pundit Laura Ingraham, former OLC lawyer Jennifer K. Hardy, and judicial confirmation warrior Wendy Long — as his law clerks.)

Let’s close this post with the lesson: to paraphrase Bill Urquhart of Quinn Emanuel, CHECK YOU EMAIL — before sending. And if there’s anything in it that you wouldn’t be comfortable having the whole world see, then don’t send. There’s a reason why drug dealers and Mob members transact their business in person or over (disposable) cell phones.

Remember this Quote of the Day:

You’d be happy to know they warned all us new New York lawyers to consider before sending an email whether we would want it to appear on AboveTheLaw.com.

Words to live by — especially in the legal profession, where “friends” can become enemies overnight.

UPDATE (3 PM): Gawker reports that a boy might be the source of the feud. Adrian Chen’s post, which also explores the backstory behind this episode, went up earlier this afternoon, but we didn’t see it until now.

It appears that Gawker’s sources might be the same as our sources. But here’s one tidbit from their coverage that is new to us:

Stephanie’s close friend Yelena Shagall forwarded the email out after Stephanie confronted her because Yelena had slept with a mutual friend’s ex-boyfriend. During this fight, Yelena told Stephanie she would “ruin her life.”

One other note. The original version of this post referred to Yelena as “Helena.” But since she has been identified by name by Gawker, a site much larger than ATL by traffic, we’ve changed all references to “Helena” to “Yelena.”

UPDATE (6 PM): Yelena Shagall has sent us the following statement:

Although I have avoided sending anything to you knowing that soundbites only give more fuel to this (non)story, your piece is rife with factual inaccuracies and saying nothing is impossible. I’m not sure who your tipster is, but I can only assume you were merely scrolling your anonymous comments. This wasn’t a catfight, or some sort of Machiavellian “mission” of sabotage. There was no fight over a guy (this isn’t Mean Girls). I certainly didn’t yell that I would ruin Stephanie’s life.

Moreover, I didn’t forward the e-mail to BLSA, anyone in BLSA, or ATL. I didn’t agree with the comments made in the e-mail, but didn’t imagine that any of this would get to BLSA or ATL. I have absolutely no idea who sent it to ATL (you do though), BLSA, or anyone in BLSA, and all I can say is that it wasn’t me.

I know that you would prefer anything related to two girls to be a catfight (as this no doubt increases traffic to your gossip site), but that just isn’t how it happened.

We asked Shagall to explain (1) what she and Steph fought over and (2) to whom she did send Steph’s email, but we haven’t heard back from her yet she declined to answer these questions.

Earlier: Harvard Law School 3L’s Racist Email Goes National
The Harvard Law School ‘Racist’ Email Controversy: Corrections and More Commentary
The Harvard Law School ‘Racist’ Email Controversy: Dean Martha Minow Weighs In
Harvard Law School BLSA and the Banality of Evil
Harvard BLSA Responds to Email Controversy
Was the Harvard Email Racist? Was it Offensive? Take Our Reader Polls

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