Life on Campus Really Ain't So Bad:
Judge Avern Cohn
Michigan Law Review (2000)
Copyright (c) 2000 Michigan Law Review
Michigan Law Review
98 Mich. L. Rev. 1549
LENGTH: 7250 words
LIFE ON CAMPUS REALLY AIN'T SO BAD:
The Shadow University: The Betrayal of Liberty on America's Campuses. By Alan
Charles Kors and Harvey A. Silverglate. New York: The Free Press. 1998. Pp. xi,
415. $ 27.50.
* Senior United States District Court Judge, Eastern District of Michigan. J.D.
1949, University of Michigan. - Ed. I should like to thank my law clerks, Susan
K. DeClercq and Kimberly Gale Musolf, for their helpful assistance in preparing
this book review.
... The Shadow University is a highly tendentious account of Alan Charles Kors
and Harvey A. Silverglate's
view of academic and student life in America's colleges and universities over
the last twenty years. ... Apparently, little has changed between the time of
the 1988 Assembly, where Kors reportedly said that the policies at the
University of Pennsylvania dealing with racial and sexual harassment made
"afraid to speak freely for fear of being accused of offensive behavior,"
and today, except that Kors has been promoted from associate to full
In Kors's and Silverglate's view,
"Marcuse's prescriptions are the model for the assaults on free speech in
today's academic world" (p. 71). ...
Taking a considerably broader and more analytical view than Kors and
Silverglate, Gould says in his conclusion: ... One last example of the
looseness with which Kors and Silverglate treat speech code incidents is
reflected in Kors and Silverglate's criticism of the University of Michigan's
guide, What Students Should Know about Discrimination and Discriminatory
Harassment by Students in the University Environment (pp. 103-04). ...
The acquiescence of top academic leaders to the regime of speech codes, secret
kangaroo courts, and mandatory attitude and sensitivity training, all under the
close eyes of lawyers seeking to avoid legal or economic risks and of public
relations offices seeking to avoid adverse publicity, has led to the creation
of vast middle-level bureaucracies. These bureaucracies are charged with
implementation of the new world of Student Life - a world in which selected
students, if among the political elect, are to live with neither stress, nor
insult, nor unpleasantness. That world, however, can only be achieved by
police-state control, injustice, and double standards. That is what actually is
happening on the watch of most of our current academic leaders. [p. 330]
The Shadow University is a highly tendentious account of Alan Charles Kors
n1 and Harvey A. Silverglate's
n2 view of academic and student life in America's colleges and universities over
the last twenty years. Kors and Silverglate see these colleges and universities
turning from promoting personal and academic freedom to suppressing open
expression and denying basic liberties to students and faculty alike. To make
their point, they have scoured college and university campuses from coast to
coast to find incidents involving student speech code violations, as well as
student and faculty discipline and misbehavior proceedings. They also examine
multicultural and diversity programs and other efforts to enlarge the gender
and race mix of student bodies and academic staff.
Basically, Kors and Silverglate argue against any restrictions on student or
faculty speech, call for the same panoply of rights afforded defendants in
criminal cases for students and faculty members accused of misconduct, and
would prohibit any programs for new students
[*1550] tending to orient them to the more complex cultural life they are likely to
encounter on campus or the more diverse community in which they will live. They
assert that academic freedom for students and faculty alike can be assured only
by the elimination of the particular evils they personally find to exist on
college and university campuses across the United States.
Inexplicably, Kors and Silverglate cite neither a time in which the standards
they advocate were the norm, nor do they name a college or university that
passes muster today as far as they are concerned. To support their assertions,
they describe in meticulous detail anecdotal incidents from approximately 150
colleges and universities during the 1980s and early 1990s.
n4 The institutions referenced range from some as well known as Harvard
University to some as little known as Quinsigamond Community College in
Worcester, Massachusetts. Given the breadth of Kors and Silverglate's charges,
the variety of the incidents they offer, and the clearly one-sided descriptions
they give, the reader must inevitably be somewhat skeptical of Kors and
Silverglate's descriptions and the validity of their conclusions.
While most of the reviews of The Shadow University have been favorable,
n6 a careful read of the book, combined with thoughtful consideration of its
arguments, leads to the conclusion that if one is confined to a single word to
describe the text, the choice would fall somewhere among diatribe, jeremiad,
philippic, and polemic. If one takes a good look at The Shadow University's
n7 the word would be self-aggrandizement.
[*1551] A view of campus life in a more tumultuous time can be found in Professor
Sidney Hook's book, Academic Freedom and Academic Anarchy.
n8 In his discussion of the polemicists who embroiled the American campuses in
the 1960s, Professor Hook says:
[A] university is fundamentally a community of scholars dedicated to the
discovery and teaching of the truth. No one is compelled to seek entry to
it.... It can therefore require both of its students and faculty conformity
with a code of manners, speech, and conduct, provided it is not unreasonable or
unjust, higher than what obtains in the marketplace.
In addition, to better understand the campus of today with its significantly
more diverse faculties as well as student bodies, one should read Professor
Lawrence Levine's book, The Opening of the American Mind.
n10 In it, Levine, a professor of history at George Mason University, explains:
Just when a significant number of historians have begun to study the
intricacies of race, ethnicity, class, and gender, just when they are beginning
to penetrate the intriguing and difficult questions that the various pluralist
hypotheses have posed, just when they are entering into constructive debates on
these issues with their colleagues and students, others are crying that the sky
is falling and that any deviation from the strict assimilationist melting-pot
orthodoxy spells the end of the Republic as we have known it. The results of
the new historiography have dismayed critics who don't like the message and all
too humanly have wanted to kill the messenger, or more accurately to denounce
the messenger as
"politically correct." They don't mount a scholarly campaign against this work; they don't attempt to
disprove it with their own scholarship; they simply denounce it as
"politically correct" and
"injurious" to the national tradition, as
"trivial" distractions from the essential political and diplomatic work of historians.
Simply put, Kors and Silverglate are but two more authors joining in the
chorus of voices
"who don't like the message."
The authors, Alan Charles Kors and Harvey A. Silverglate, met as
undergraduates at Princeton University in the 1960s and have continued as
friends and collaborators. Kors is now a Professor of History at the University
of Pennsylvania, where he has taught since 1965. An
[*1552] expert in seventeenth and eighteenth century European intellectual history,
Kors is clearly a notable scholar. He was one of the early members of, and
remains active in, the National Academy of Scholars,
n12 an organization whose first major assembly was headlined in The Chronicle of
Higher Education November 23, 1988, issue as:
"Conservative Scholars Call for a Movement to
Apparently, little has changed between the time of the 1988 Assembly, where
Kors reportedly said that the policies at the University of Pennsylvania
dealing with racial and sexual harassment made scholars
"afraid to speak freely for fear of being accused of offensive behavior,"
n14 and today, except that Kors has been promoted from associate to full
professor. The current literature distributed by the National Association of
Scholars suggests that if it is asked to participate as an amicus in the
current litigation involving the University of Michigan's race-sensitive
admissions policies to achieve diversity in its student body, it would weigh in
on the plaintiffs' side with Kors's enthusiastic endorsement.
n15 In sum, Kors is a highly regarded scholar and a well-known conservative.
Silverglate is a practicing lawyer in Boston, specializing in civil liberties
and criminal defense matters. He is also a columnist for the Boston Phoenix and
the National Law Journal, and is active in the American Civil Liberties Union.
Silverglate has cooperated over the years with Kors defending students charged
with misconduct and, according to the biographical sketch in the end papers of
The Shadow University,
"threatened with the new tyrannies" (p. 415). Precisely how Kors and Silverglate divided responsibility for
writing The Shadow University and whether Silverglate actually shares Kors's
dismal view of campus legal life today is not clear.
Finally, if the itineraries published on The Shadow University website
n16 are any indication, Kors and Silverglate have enjoyed a good life from their
authorship. In 1998, together or separately, they made
[*1553] more than 100 appearances, personally or on radio or television broadcasts,
across the country. In 1999, they made a like number of appearances, and in
2000, for the first part of the year, made approximately 25 appearances.
The Shadow University is divided into five parts and some fourteen chapters.
"The Assault on Liberty," begins with a description of
"The Water Buffalo Affair" at the University of Pennsylvania, (pp. 9-33). In 1993, a student was charged
with harassment because he shouted at female students celebrating below his
window in a high-rise dormitory,
"Shut up, you water buffalo!... If you want a party there's a zoo a mile from
here" (p. 9). After several months, in more of a display of political ineptitude
than an effort at political correctness, the charges were dismissed to the
dismay of the complainants.
Kors and Silverglate put their own spin on the Water Buffalo Affair, using it
to vent their personal view that Sheldon Hackney, then president of the
University of Pennsylvania and now a professor of history, failed miserably in
his executive responsibility by not putting an end to the prosecution of the
student under the University's judicial procedures. Kors and Silverglate also
find fault with the report of the Board of Inquiry, created to examine how the
University's judicial procedures functioned during the case, finding the report
"reminiscent of those Southern sheriffs in the early '60s talking about
"outside agitators' stirring up trouble in their counties, where justice was
fine...." (p. 33). Presumably, Kors, as a faculty member, was offended by the report's
conclusion that the complainants were justified in their assertions that the
judicial system had treated them unfairly, that the accused was also treated
unfairly but was not injured
"as seriously as were the complainants,"
n18 and that the judicial adviser in charge of the case had allowed herself to be
manipulated by the accused and Kors, who was the faculty adviser of the accused.
A fair read of the articles in the university newspaper, The Daily
Pennsylvanian, which followed the progress of this case,
n19 suggests that there was fault enough for everyone involved, and Kors's and
Silverglate's position, which singles out Hackney as the principal culprit, is
more scapegoating than reasoned analysis. As stated by a
[*1554] colleague and friend of Kors, following an exchange between Hackney and Kors
shortly after The Shadow University was published:
Professor Kors' column responding to Professor Hackney was neither gracious nor
restrained. Nor was it, in its hyperbolic attacks on Professor Hackney's
integrity, in any way fair. Intellectual life and intellectual freedom
flourished at Penn during Sheldon Hackney's tenure as president, and Professor
Kors' one-sided interpretation of that period in Penn's history does an
injustice both to the University and to its former president.
Inexplicably, we do not learn until Chapter 14 of The Shadow University that
the student in the Water Buffalo Affair sued the University (p. 348). An
examination of the docket of the lawsuit,
n21 as well as a running account of the case in The Daily Pennsylvanian, suggests
that going to court (as any lawyer or judge knows) is really not a good way to
obtain satisfaction or find the truth of a dispute. The case was filed in 1994,
claiming a litany of wrongs pertaining to the way the University handled the
matter, and asked for
"in excess of $ 50,000" in damages. In 1996, a good portion of the case was dismissed on the
University of Pennsylvania's motion and in 1997, the case was discontinued with
no payment to the student and only a modest amount to his attorney. Ultimately,
the Water Buffalo Affair, like so many incidents of its kind, was, in reality,
part of a learning process of coming to grips with the
"intricacies of race, ethnicity, class and gender"
n22 newly present in the 1980s and 1990s on college and university campuses.
"Free Speech in a Free Society" (pp. 34-47), is a run-through of the free speech cases from Gitlow v. New York
n23 to R.A.V. v. City of St. Paul,
n24 concluding correctly that R.A.V.
"likely has fatal implications for attempts to adopt a double standard -
applying punishments to speech to
"protect' some groups but not others, restricting
"hate' speech but not other speech" (p. 49). Overall, the chapter does a good job of tracking through the cases.
"What Is Academic Freedom" (pp. 50-66), describes important academic freedom milestones (both good and
bad) from the 1915 American Association of University Professors' Statement,
through its 1940 update, to the 1967 Joint Statement on Rights and Freedom of
Students. The road described, is understandably a checkered one, particularly
the 1960s effort to ferret out
[*1555] This chapter ends with a detailed description of Princeton University's effort
to limit access to its campus, which fell afoul of the New Jersey Supreme Court
when the Court held that Princeton's campus was a public forum.
Chapter Three also describes Harvard University's efforts to prevent a film
crew from interviewing undergraduates on campus. This incident seems to be a
rather fatuous effort to link an ordinary trespass, at best (or worst), with a
violation of principles of academic freedom. Surely, applying principles of the
law of trespass to keep an intrusive television crew from access to the public
parts of a campus does little more than make a hero of the crew, which is
exactly what the TV station that sent them was looking for. Faculty and
students can always find their way to the front of a camera lens and are
unlikely to be deterred by an effort to make their travel a bit longer.
"Marcuse's Revenge" (pp. 67-96), reveals the crux of Kors's and Silverglate's view on the origins
of the conspiracy to suppress free speech: Herbert Marcuse's 1965 essay
entitled Repressive Tolerance.
n26 In Kors's and Silverglate's view,
"Marcuse's prescriptions are the model for the assaults on free speech in
today's academic world" (p. 71). This chapter attempts to reinforce its principal point by including
an extended discussion of the writings of Richard Delgado, Charles R. Lawrence
III, Mari Matsuda, Catharine MacKinnon, and Stanley Fish, as well as the
proliferation of college and university speech codes and some of the case
decisions that have invalidated them. Since these codes and their
constitutional infirmities, as well as the arguments in support, have been
extensively discussed elsewhere,
n27 there is no need to discuss them in this essay. What is missing from Kors's
and Silverglate's assessment of speech codes, however, is any effort to assess
the codes in a scholarly way as to their application and enforcement, and why
they continue to exist in the face of the constitutional barriers the courts
have erected against them, as others have made.
[*1556] According to Professor Jonathan Gould, Professor of Law at George Mason
University, a review of the principle cases, Doe v. University of Michigan,
n29 UWM Post, Inc. v. Board of Regents of the University of Wisconsin System,
n30 and Corry v. Leland Stanford Junior University,
n31 leads to the conclusion that more is involved than simple stubbornness, or an
effort to put a square peg into a round hole.
Gould found that between 1987 and 1992, almost one-third of four-year colleges
and universities created such speech policies, but that only eighteen percent
"created the kind of speech codes that challenged First Amendment doctrine."
n33 Taking a considerably broader and more analytical view than Kors and
Silverglate, Gould says in his conclusion:
While student demands may have put the issue into play at some schools, the
codes owe more to the decisions of high-level administrators. Primed as they
were by their schools' liberal or activist traditions, these officials had more
instrumental or institutional motives in mind in advancing the speech codes.
Even if the hate speech codes do not represent social activism - whether
traditional social movement or extra-judicial legal mobilization - their
creation and persistence speaks to the social construction of law.... That the
speech codes persist even in the face of contrary precedent challenges the
depiction of courts that both initiate social change and command adherence to
their decisions. The codes' history also conflicts with an immutable view of
the First Amendment. Court decisions are undoubtedly important, but the range
of accepted expression is more regularly established by social convention.
It is important not to overreach from these conclusions, for we have been
unable (so far) to determine exactly why the speech codes persist and expand
even in the fact of contrary legal precedent.... But the fact that these
policies continue is remarkable in itself. Not only does their persistence defy
popular understandings of the speech code controversy, but it challenges
advocates of traditional jurisprudence to explain the codes' continued
[*1557] Also, still to come is a study done under the auspices of the American Bar
Foundation, entitled Hate Speech and Freedom of Expression on College Campuses,
by Jonathan D. Casper and Dennis Chong of Northwestern University.
n35 Casper and Chong are studying the frequency with which hate speech occurs on
selected campuses, the forms that it takes, the places where expression occurs,
the characteristics of perpetrators, and the responses by individuals and
It is all well and good to be critical of a solution to a problem if it exists,
but critics should take care if they have no constructive alternative. In The
Shadow University, Kors and Silverglate, as we shall see later, propose a
solution; however, its merits can be seriously questioned.
"The Moral Reality of Political Correctness" (pp. 97-110), continues with Kors's and Silverglate's views of the link
between speech codes and what they see as the efforts to maintain
"political correctness," and the abuse of power that such efforts represent. Anecdote after anecdote is
related, with little effort to link them to some common plan, or any attempt to
assess their frequency in the totality of campus life. Kors and Silverglate
again conclude on a wild swing saying:
"The struggle for liberty on American campuses is, in its essence, the struggle
between Herbert Marcuse and John Stuart Mill" (p. 110). Kors and Silverglate quote Mill:
"[It is] imperative that human beings should be free to form opinions, and to
express their opinions without reserve."
Likely few administrators today, and certainly the vast majority of judges
involved with speech codes, have ever heard of Herbert Marcuse,
n37 and all of them, administrators and judges alike, would endorse Mill. The few
untoward occurrences involving speech codes Kors and Silverglate describe are,
more likely than not, reflective of the ineptitude of administrators rather
than an effort at political correctness or suppression of speech.
[*1558] One last example of the looseness with which Kors and Silverglate treat speech
code incidents is reflected in Kors and Silverglate's criticism of the
University of Michigan's guide, What Students Should Know about Discrimination
and Discriminatory Harassment by Students in the University Environment (pp.
103-04). Kors and Silverglate fail to note that the University of Michigan
withdrew the guide
"because the information in it was not accurate."
n38 While there was little in the Doe experience that reflected wisdom on the part
of the administrators at the University of Michigan responsible for the Doe
debacle, they are at least entitled to credit for disavowing (albeit
implicitly) the interpretive guide.
"The Assault On Free Speech," divides itself into chapters on faculty speech disciplinary incidents, (ch. 6,
"The Assault on Faculty Speech," pp. 113-46) and, again, student disciplinary incidents, mostly involving
speech codes (ch. 7,
""Shut Up,' They Reasoned: Silencing Students," pp. 147-83). In neither case does the reader get any sense that he or she has
heard the other side, i.e., why the administration instituted the code in the
n39 The underappreciation of the breadth of the First Amendment's free speech
rights when it comes to activities by faculty or students on college and
university campuses cannot be doubted, and the fact that college and university
presidents can be high-handed in dealing with such matters is well known. We
have come a long way from the 1930s, however, when the president of the
University of Michigan could dismiss a student, with no right of appeal, simply
by a letter stating:
It has been decided by the authorities of the University of Michigan that you
should be asked not to re-enter the University. It has proved to be impossible
to persuade you to refrain from interfering with the work of the University and
with the work of other students.
Not to mention the experiences in the 1950s, when summary dismissals and black
lists were a common response to charges of disloyalty by faculty members.
Professor Hook's observations, previously quoted,
n42 are certainly still relevant. The struggle to find the correct balance between
the right of faculty and students to speak freely in and out of the classroom
[*1559] at public and private institutions of higher learning, and the need to
maintain an environment conducive to their mission, will likely continue for
some time. Taking the
"Chicken Little" approach, reflected in The Shadow University, does little to assist finding a
[*1560] Part III,
"The Assault On Individuals," is composed of three chapters, the first two of which (ch. 8,
"Individual Identity: The Heart of Liberty" pp. 187-209 and ch. 9,
"American Thought Reform" pp. 210-32) are devoted to a description of a variety of programs promoting
diversity and multiculturalism, which, in Kors and Silverglate's view, fail to
"the primacy of individual conscience over the social benefits of conformity" (p. 190). In Kors and Silverglate's view, such programs perpetrate fraud:
All that the social engineers of diversity mean, in fact, is the appreciation,
celebration, and study of those people who think exactly as they do about the
nature and causes of oppression, wherever they are found and however
nonrepresentative those thinkers might be of the broader groups that they
purportedly represent. Academic diversity and multiculturalism have remarkably
narrow limits - race, gender,
"oppressed" ethnicity, and sexual preference - as articulated by self-proclaimed
"progressives." The academic use of the terms
"multicultural" has become a politicized perversion of language. [pp. 192-93]
What Kors and Silverglate ignore, of course, are the mammoth changes that
occurred on college and university campuses following World War II,
particularly with regard to the racial, gender, and ethnic composition of
faculty and student bodies. As demonstrated by the work of Professor Lawrence
n43 what is at work is not the heirs of Marcuse plotting evil, but a reflection of
the social changes that have taken, and continue to take place in our society
generally, and on campuses particularly.
Two publications from the University of Michigan explain the merits of
diversity and multicultural initiatives as administrators see them. The
publications should allay any fears that there is something wrong with programs
dealing with the realities of bringing together diverse groups of students and
introducing them to life in a campus community. Both recognize that dealing
with the cultural mix resulting from such diversity is a better way to go than
any effort at homogenization. The first publication, The Compelling Need for
Diversity in Higher Education, is a collection of the expert witness reports
collected for the defense of the pending cases challenging the University's
admission policies described above.
n44 The second publication, The Climate and Character, Perspectives on Diversity,
is an assessment of the University's diversity initiatives as of 1987.
Part III concludes with Chapter Ten,
"Double Standards: Some Are More Equal Than Others" (pp. 233-61), which again, is a collection of anecdotal accounts displaying a
picture of disparities in the treatment of offenders of speech and conduct
codes depending on their race or ethnicity. White students and conservative
publications and their editors, in Kors and Silverglate's view, are
discriminated against and punished more severely than their counterparts in the
minority community. Given the lack of any effort at a systematic collection of
data or scholarliness in analysis, it is difficult to give any credibility to
Kors and Silverglate's conclusions. Again demonstrating their swinging style,
The worst catastrophe would be if other Americans actually came to believe
what universities believe: that they do not have to tolerate what offends their
private and commonly shared values, and that they rightfully and proudly may
dispense freedom and justice unequally - the Constitution be damned - according
to their sense of decent and indecent beliefs and groups. Where will all our
self-proclaimed progressives find shelter when those winds blow, after they
themselves have attempted to convince everyone who passes through their portals
that the protections of liberty and legal equality are wholly dispensable? [pp.
There is really no way, descriptively or analytically, to respond to a
conclusion as broad as this, other than to observe that, once again, Kors and
Silverglate have utilized their rhetorical skills in substitution for a
constructive contribution to find a solution to what they see as an evil.
"The Assault on Due Process," is no more than a reformulation of previous parts of the book. The three
chapters of this Part,
"The Rules of Civilization" (pp. 265-88; ch. 11),
"The Courts of Star Chamber" (pp. 289-311; ch. 12), and
"Not On My Watch" (pp. 312-35; ch. 13), are a collection of anecdotal accounts of disciplinary
proceedings that were conducted without the same panoply of rights usually
afforded defendants in criminal trials. To Kors and Silverglate, college and
university disciplinary proceedings are invariably one-sided, unfair,
irrational, and lack adequate mechanisms for factfinding (p. 279). Such
proceedings are, in their view, designed to appease the militant leaders of
potentially disruptive groups (p. 314), and are motivated by the fear of
disruption or of causing offense, as well as being linked to careerism (p.
329). To Kors and Silverglate,
"the extent to which lawyers now serve as policy officers in higher education is
an untold scandal of the modern academic age" (p. 329). The short answer to all of this is that such disciplinary
proceedings are not that frequent, and on the occasions when they end up in
court, there does not seem to be a series of overwhelming successes on the side
In Part V,
"Restoring Liberty," Kors and Silverglate offer a solution to the problems and dire circumstances
they find to exist in
[*1561] America's colleges and universities - litigation. In Chapter 14,
"Sue the Bastards?" (pp. 339-354), they recommend a vigorous effort to achieve justice through the
courts. They say:
"The university may be an enclave, but it is not a sovereign nation. Ultimately
it will have to answer for its betrayal of the nationals and its own traditions" (p. 354).
And that answer, Kors and Silverglate believe, will come through successes in
lawsuits. They are too sanguine. As noted previously, this is the chapter in
which the reader first learns of the University of Pennsylvania student
offender in the Water Buffalo Affair going to court. If the result of his
lawsuit reflected any success, or gave him any satisfaction, a read of the
papers in the court file certainly does not disclose it.
n45 Likewise, an examination of the court file in the case of Professor Leroy
Young of Plymouth State University
n46 suggests that litigation has its limitations.
Professor Young filed his case in February 1996. As of February 8, 2000, it was
set for trial on April 18, 2000. On September 21, 1999 the court informed the
professor that his substantive due process claim had no merit:
"Nothing in Wharton's (the college president) decision making is sufficiently
outrageous or egregious that a reasonable jury could find it conscience
shocking. The decision to dismiss Young based on [the] charges of sexual
harassment, perhaps influenced by the other charges of sexual harassment, even
if wrong, was not outrageous."
Both experienced lawyers and long-serving judges can attest to the fact that a
case in court should never be looked upon as a profit center, and is a poor,
very expensive, and seldom successful way, to achieve worthwhile social change.
Although at times there is no alternative to litigation, we certainly do not
need to duplicate the road from Plessy v. Ferguson
n49 to Brown v. Board of Education
n50 to achieve a balance of evils in college and university policies and practices
today regarding speech codes, discipline, and efforts to achieve diversity and
assure appropriate multicultural programming.
The concluding chapter,
"Sunlight Is the Best Disinfectant" (pp. 355-74), principally describes what Kors and Silverglate believe are
salutary changes at the University of Pennsylvania taking place
[*1562] through the appointment of a new high-level administrator to the position of
vice-provost for university life and a new president. If a change in
personalities can effectuate such remarkable changes in so short a period of
time, one has to question the fundamental premises of The Shadow University,
that the evils they describe are systemic rather than a reflection of personal
Kors and Silverglate end with this advice:
Let us keep our wits about us, for Marcuse's heirs almost all and always think
tactically. The theory of
"repressive tolerance," or, more precisely, its practice of
"progressive intolerance," still governs the extracurricular lives of nearly all of our students. It is
easy, however, to identify the vulnerabilities of the bearers of this worst
and, at the time, most marginal legacy of the '60s: They loathe the society
that they believe should support them generously in their authority over its
offspring; they are detached from the values of individual liberty, legal
equality, privacy, and the sanctity of conscience toward which Americans
essentially are drawn; and, for both those reasons, they cannot bear the light
of public scrutiny. Let the sunlight in. [pp. 372-73]
This has not been a particularly kind review because The Shadow University is
not a particularly good book. Professor Kors obviously has an ax to grind and
apparently persuaded his longtime friend, Silverglate, who is not at the
University of Pennsylvania, to join with him in his efforts to sharpen it. Of
course, all is not always well on college and university campuses. But then,
all is not always well in most institutions of society, as the frequency of
civil rights cases involving incidents of police brutality and the abuse of
incarcerated persons tell us.
If one wants to work the Internet hard and long enough, one can put together a
succession of incidents that would appear to create the impression of a pattern
and practice of wrongdoing and little positive response in almost any area of
public life. However, if one is willing to take the time to personally inquire
and cull the websites of, for example, The Chronicle of Higher Education,
n51 Justice On Campus,
n52 National Association of State Universities and Land-Grant Colleges,
n53 National Association of College and University Attorneys,
n54 and American Association of University Professors,
n55 one will come away
[*1563] with two impressions. First, most, if not all, have never heard of The Shadow
University. Second, by-and-large, college and university administrations are
doing rather well at their tasks, and college and university students, for the
most part, are trying to equip themselves to make a good living when they get
out in the world.
n1. Professor of History, University of Pennsylvania.
n2. Partner, Silverglate
n3. Examples of such
"evils" include: the zealous pursuit of political correctness, the promotion of
diversity/multiculturalism, and the denial of due process to students and
faculty accused of misconduct.
n4. Kors and Silverglate do not explain, however, how they went about collecting
the incidents described. There is no evidence of random sampling or a feel that
the 150 incidents represent any sort of universe.
n5. While the text is copiously footnoted, tracking back on the footnotes gives
the reader who has taken the time, little comfort. Many times the footnotes
reference, as authority, material in Kors and Silverglate's file or are so
general as not to be traceable. For example, the account of Professor Leroy
Young's dispute with Plymouth State University, p. 215, relies in part on a
decision of the Appeal Tribunal of the State of New Hampshire Department of
Employment. See p. 394 n.2. However, inquiry to the chair of the Appeal
Tribunal brought the response that the decision was not available for public
distribution under R.S.A. 282-A:118, and that the award of compensation was not
a contested matter.
n6. See, e.g., Charles Platt, When Worlds Collide, Wash. Post, July 26, 1998
(Educ. Rev.), at 14 (reviewing The Shadow University) (calling The Shadow
"a wake-up call."); Sam Tanenhaus, P.C. 101, N.Y. Times, Nov. 8, 1998, 7 (Book Rev.), at 35
(reviewing The Shadow University) (saying Kors and Silverglate
"have performed a useful service"). But see Carlin Romano, Double Barreled Outrage Over Betrayal of Campus
Liberty, Philadelphia Inquirer, Oct. 25, 1998, at Q1 (reviewing The Shadow
University) ("A space alien reading it would think American campuses operate as political
states when, most of the time, academics and students say what they think
n7. The Shadow University Web Site (last modified Apr. 21, 2000)
<http://www. shadowuniv.com> [hereinafter
<www.shadowuniv.com>]. Especially self-aggrandizing is the display of Kors and Silverglate's
lecture schedules. See id. at
n8. Sidney Hook, Academic Freedom and Academic Anarchy (1970).
n9. Id. at 195.
n10. Lawrence W. Levine, The Opening of the American Mind: Canons, Culture, and
n11. Id. at 165.
n12. See Denise K. Magner, 10 years of Defending the Classics and Fighting
Political Correctness, Chron. Higher Educ., Dec. 12, 1997, at A12.
n13. Carolyn J. Mooney, Conservative Scholars Call for a Movement to
"Reclaim' Academy, Chron. Higher Educ., Nov. 23, 1988.
n14. Id. at A11.
Gratz v. Bollinger, 183 F.R.D. 209 (E.D. Mich. 1998) (denying intervention in a case challenging the University of Michigan's
college of Literature, Science, and the Arts admission standards), rev'd,
188 F.3d 394 (6th Cir. 1999);
Grutter v. Bollinger, 16 F. Supp. 2d 797 (E.D. Mich. 1997) (rejecting reassignment of a case challenging the University of Michigan Law
School's admission standards).
With these two cases, the viability of
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (holding that a state university law school's admissions program that
discriminated in favor of minority applicants by giving substantial racial
preferences in its admission program violated equal protection), beyond the
Fifth Circuit will be examined.
<www.shadowuniversity.com>, supra note 7.
n17. See id. at
n18. Univ. of Pa., Inquiry into the Procedural Aspects of a Case of Alleged Racial
Harassment in the Spring of 1993, Almanac, Apr. 5, 1994, at 3.
n19. Archived articles can be found at The Daily Pennsylvanian (last modified June
<http://www.dailypennsylvanian.com>, using the search term:
"board of inquiry water buffalo" (displays 3561 matches overall).
n20. Richard Beeman, Letter to the Editor, The Daily Pennsylvanian, Dec. 10, 1998,
at 6 (identifying himself as a friend of Kors).
n21. Jacobowitz v. Trustees of the Univ. of Pa., No. 2457 (Phila. Ct. C.P., 1994)
n22. Levine, supra note 10, at 165.
268 U.S. 652 (1925).
505 U.S. 377 (1992).
New Jersey v. Schmid, 423 A.2d 615 (N.J. 1980), appeal dismissed,
455 U.S. 100 (1982).
n26. Herbert Marcuse, Repressive Tolerance, in Robert Paul Wolff et al., A Critique
of Pure Tolerance 81 (1965).
n27. See, e.g., Milton Heumann
& Thomas Church, Hate Speech on Campus: Cases, Case Studies, and Commentary
(1997); Robert M. O'Neil, Free Speech in the College Community (1997); Timothy
C. Shiell, Campus Hate Speech on Trial (1998).
n28. See Jonathan B. Gould, Symbolic Speech: Legal Mobilization and the Rise of
Collegiate Hate Speech Codes (1999) (doctoral thesis, Univ. of Chicago; UMI
Dissertation Services); see also Nat
Hentoff, Free Speech for Me - But Not for Thee: How the American Left and Right
Relentlessly Censor Each Other (1992); Martha T. Zingo, Sex/Gender Outsiders,
Hate Speech, and Freedom of Expression: Can They Say That About Me? (1998)
(discussing free speech rights outside of the college and university campus
721 F. Supp. 852 (E.D. Mich. 1989) (Cohn, J.).
774 F. Supp. 1163 (E.D. Wis. 1991).
n31. No. 740309 (Super. Ct. County of Santa Clara, Cal., Feb. 27, 1995)
n32. In his doctoral dissertation, Gould says:
The codes owe less to identity politics and collective action than they do to
university administrators who sought symbolic measures to improve the racial
climate on campus. However, despite five court cases in the early 1990s that
ostensibly found many speech codes unconstitutional, several policies remain in
force and a surprising number have been adopted subsequently. Thus, while the
speech codes do not represent legal or political mobilization, they do raise
questions about the power of courts to control constitutional meaning.
Gould, supra note 28, at xi.
n33. Id. at 386.
n34. Id. at 386-87.
n35. For a description of the study's parameters, see the 1999 Report of the
American Bar Foundation. See also, Jonathan D. Casper and Dennis Chong, Hate
Speech and Freedom of Expression on College Campuses, A Proposal to the Board
of the American Bar Foundation, October 1996.
n36. P. 110 (quoting John Stuart Mill, On Liberty (1859), reprinted in John Stuart
Mill, Utilitarianism, Liberty, Representative Government (H.B. Actin ed.,
1972)) (internal quotation marks omitted).
n37. Herbert Marcuse was an influential philosopher and political activist in the
United States during the 1960s and 1970s. A university professor, author, and
theorist of revolutionary change, Marcuse was dubbed the
"father of the New Left" by the media for his
"critical perspectives on contemporary capitalism and state communist societies." Douglas Kellner, Illuminations: Herbert Marcuse,
<http://www.uta.edu/huma/illuminations/kell12. htm>. For more information on Herbert Marcuse, see Herbert Marcuse's Home Page at
<http://web.missouri.edu/<diff>tapscifk/dolcevita1.html>, or the documentary film, Herbert's Hippopotamus - Marcuse in Paradise, by
Paul Alexander Juutilainen.
Doe v. University of Mich., 721 F. Supp. 852, 858 (E.D. Mich. 1989) (Cohn, J.) (internal quotation marks omitted).
n39. Cf. Thomas Grey,
How to Write a Speech Code Without Really Trying: Reflections on The Stanford Experience,
29 U.C. Davis L. Rev. 891 (1996). Professor Grey is the author of the Stanford University speech code.
n40. Petition for Writ of Mandamus, Cohen v. Regents of the University of Michigan,
No. 14089, at 4 (E.D. Mich. filed Nov. 7, 1939).
n41. See Ellen W. Schwecker, No Ivory Tower: McCarthyism and The Universities
n42. See supra text accompanying notes 8-9.
n43. See Levine, supra note 10.
n44. See cases cited supra note 15.
n45. See Jacobowitz v. Trustees of Univ. of Pa., No. 2457 (Phila. C.P. 1994).
n46. Young v. Plymouth State College, No. 96-75-
JD, 1999 WL 813887 (D.N.H. Sept. 21, 1999) (granting defendant university's summary judgment
motion on a suit brought by a professor to obtain recompense for what he
asserted was a wrongful discharge, when he was terminated based on a sexual
n47. The authors of The Shadow University agree:
"Young, however, faced three potential difficulties in the gender pathologies of
academic life." P. 291.
Young, 1999 WL 813887, at 9.
163 U.S. 567 (1896).
347 U.S. 483 (1954).
n51. The Chronicle of Higher Education (last modified June 2, 2000)
n52. Justice on Campus (visited June 2, 2000)
n53. NASULGC (visited June 2, 2000)
n54. NACUA (visited June 2, 2000)
n55. AAUP (last modified June 2, 2000)
Prepared: March 26, 2003 - 5:02:29 PM
Edited and Updated, March 27, 2003
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