The Shadow University: The Betrayal of Liberty on America's Campusesby Alan Charles Kors, Harvey Silverglate, Harvey Silvergate
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Universities once believed themselves to be sacred enclaves, where students and professors could debate the issues of the day and arrive at a better understanding of the human condition. Today, sadly, this ideal of the university is being quietly betrayed from within. Universities still set themselves apart from American society, but now they do so by enforcing their own politically correct worldview through censorship, double standards, and a judicial system without due process. Faculty and students who threaten the prevailing norms may be forced to undergo 'thought reform.' In a surreptitious aboutface, universities have become the enemy of a free society, and the time has come to hold these institutions to account. The Shadow University is a stinging indictment of the covert system of justice on college campuses, exposing the widespread reliance on kangaroo courts and arbitrary punishment to coerce students and faculty into conformity. Alan Charles Kors and Harvey A. Silverglate, staunch civil libertarians and active defenders of free inquiry on campus, lay bare the totalitarian mindset that undergirds speech codes, conduct codes, and 'campus life' bureaucracies, through which a cadre of deans and counselors indoctrinate students and faculty in an ideology that favors group rights over individual rights, sacrificing free speech and academic freedom to spare the sensitivities of currently favored groups. From Maine to California, at public and private universities alike, liberty and fairness are the first casualties as teachers and students find themselves in the dock, presumed guilty until proven innocent and often forbidden to cross-examine their accusers. Kors and Silverglate introduce us to many of those who have firsthand experience of the shadow university, including:
- The student at the center of the 1993 'Water Buffalo' case at the University of Pennsylvania, who was brought up on charges of racial harassment after calling a group of rowdy students 'water buffalo' -- even though the term has no racial connotations.
- The Catholic residence adviser who was fired for refusing, on grounds of religious conscience, to wear a symbol of gay and lesbian causes.
- The professor who was investigated for sexual harassment when he disagreed with campus feminists about curriculum issues.
- The student who was punished for laughing at a statement deemed offensive to others and who was ordered to undergo 'sensitivity training' as a result.
The Shadow University unmasks a chilling reality for parents who entrust their sons and daughters to the authority of such institutions, for thinking people who recognize that vigorous debate is the only sure path to truth, and for all Americans who realize that when even one citizen is deprived of liberty, we are all diminished.
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THE WATER BUFFALO AFFAIR
0n the night of January 13, 1993, Eden Jacobowitz, a freshman at the University of Pennsylvania, had been writing a paper for an English class when a sorority began celebrating its Founders' Day beneath the windows of his highrise dormitory apartment. The women were singing very loudly, chanting, and stomping. It had prevented him from writing, and it had awakened his roommate. He shouted out the window, "Please keep quiet," and went back to work. Twenty minutes later, the noise yet louder, he shouted out the window, "Shut up, you water buffalo!" The women were singing about going to a party. "If you want a party," he shouted, "there's a zoo a mile from here." The women were black. Within weeks, the administrative judicial inquiry officer (JIO) in charge of Eden's case, Robin Read, decided to prosecute him for violation of Penn's policy on racial harassment. He could accept a "settlement" -- an academic plea bargain -- or he could face a judicial hearing whose possible sanctions included suspension and expulsion.
The JIO's finding that there was "reasonable cause" to believe that Eden had violated Penn's racial harassment policy for having shouted "Shut up, you water buffalo!" to late-night noisemakers under his window was outrageous in terms of normal human interactions at a university. Loud and raucous festivities had occurred beneath the windows of students since the Middle Ages. For centuries, would-be scholars, disturbed or awakened in the still hours, had shouted their various and picturesque disapprovals at the celebrants. "Water buffalo" would have been one of the mildest such epithets ever uttered.
The JIO's decision also was unconscionable given the history of the debates over speech codes at Penn. In 1987, over the strenuous objections of a handful of professors, Sheldon Hackney, president of the University of Pennsylvania, promulgated the university's first modern-era restrictions on speech, in the form of prohibitions on "any behavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic or national origin...and that has the purpose or effect of interfering with an individual's academic or work performance; and/or creates an intimidating or offensive academic, living, or work environment." In September 1989, to explain the policy to incoming students, the administration gave specific examples of what would constitute the serious crime of "harassment": students who drew a poster to advertise a "South of the Border" party, showing a "lazy" Mexican taking a siesta against a wall; a faculty member who referred to blacks as "ex-slaves"; and students who, in protest of "Gay Jeans Day" (when undergraduates were asked to dress in jeans to show solidarity with gay and lesbian students), held a satiric sign proclaiming "Heterosexual Footwear Day."
There were ironies in this presentation of "incidents of harassment." When Louis Farrakhan spoke at Penn in 1988 over the protests of several Jewish organizations, Hackney issued a statement in which he conceded that Farrakhan's statements were "racist, and anti-Semitic, and amount to scapegoating," but concluded: "In an academic community, open expression is the most important value. We can't have free speech only some of the time, for only some people. Either we have it, or we don't. At Penn, we have it."
Indeed, in the very month that his administration was prohibiting social criticism of Gay jeans Day and posters of sleeping Mexicans, Hackney was campaigning, to great national applause, against Senator Jesse Helms's efforts to deny federal funding, by the National Endowment for the Arts, of works such as Andres Serrano's "Piss Christ," a crucifix immersed in the artist's urine. According to Hackney, it was impossible "to cleanse public discourse of offensive material" without producing "an Orwellian nightmare" or the horror of "self-censorship." We were not, in Hackney's words, "Beijing" (an argument put to him earlier against his own speech code), but the "Land of Liberty," where efforts "to limit expression" deemed "offensive" violated the essence and spirit of "democracy" and made social "satire" impossible.
The debate over the harassment policy had heated up at Penn in 1989-90, however, because of a federal court decision. Despite the university's private status, which placed it outside the sway of the Bill of Rights, the administration always had insisted that its speech code could pass constitutional muster. In 1989, however, a federal district court declared the University of Michigan's code, which was less restrictive than Penn's, to be unconstitutional. It embarrassed Hackney when his critics now pointed out that students at Pennsylvania State University or at local community colleges had more rights of free expression than students at the University of Pennsylvania. Accepting the advice of a professor of law to change Penn's overbroad, vague, and imprecise restrictions, and declaring that they were interested in prohibiting merely "words used as weapons," Penn's admimistration promulgated a "narrower" prohibition of "offensive" speech. The new code specified three conditions which, if met simultaneously, would constitute verbal harassment. This was the definition governing Eden Jacobowitz's case:
Any verbal or symbolic behavior that:
- is directed at an identifiable person or persons; and
- insults or demeans the person or persons to whom the behavior is directed, or abuses a power relationship with that person, on the basis of his or her race, color, ethnicity, or national origin, such as (but not limited to) by the use of slurs, epithets, hate words, demeaning jokes, or derogatory stereotypes; and
- is intended by the speaker or actor only to inflict direct injury on the person or persons to whom the behavior is directed, or is sufficiently abusive or demeaning that a reasonable, disinterested observer would conclude that the behavior is so intended; or occurs in a context such that an intent only to inflict direct injury may reasonably be inferred.
It still was a vague speech code, but it now prohibited epithets, jokes, and derogatory stereotypes uttered solely with the intention "to inflict direct injury." At a meeting of the Faculty Senate, a critic of both speech codes and selective enforcement asked Hackney if it would be racial harassment "if someone called a black with white friends an 'Uncle Tom' or an 'Oreo,'" or "if someone called a white person a 'fucking fascist white male pig'"? Hackney answered, "No."
Eden, however, had not called anyone the officially protected "fucking fascist Uncle Tom." According to Eden, his first adviser, Director of Student Life Fran Walker -- whom he had randomly selected from a list of judicial advisors presented to him by the judicial Office -- advised him to accept the settlement now offered by Robin Read:
- Write a letter of apology to the complainants, in which you acknowledge your inappropriate behavior....
- Plan, develop and present a program for residents of High Rise East regarding some aspect of living in a diverse community environment by the end of the Spring 1993 term...under the supervision of...[the] Program Director, High Rise East;
- Be on residential probation for as long as you live in a University residence. Should you be found guilty of violating any Residential Living policy, rule, etc., you will be immediately evicted from all University housing
- Receive a notation on your transcript, stating "Violation of the Code of Conduct and Racial Harassment Policy," to be removed at the beginning of your junior year.
The reason that Eden had been singled out for persecution was particularly distressing. There had been fifteen sorority members celebrating under the high-rise's windows, and in the twenty minutes that passed between Eden's "Keep quiet!" and his "Shut up, you water buffalo!" a large number of students had shouted down to the women to leave them in peace. From all accounts, some few students had shouted apparently racial epithets, from "black asses" to "black bitches." Nonetheless, Eden had uttered nothing but "water buffalo."
Five of the fifteen women now believed themselves, as Penn encouraged through its orientations and diversity programining on racism, to be the victims, of "racial harassment." Within short order, the five women, with the university police in tow, were sweeping the dormitory looking for offenders. Only Eden Jacobowitz, it turned out, of the many students who had expressed their late-might annoyance, chose to come forward into the corridor, and he freely identified himself to the university police as the student who had shouted "water buffalo"; other students were identified by third parties. The next day, all students suspected of shouting were summoned one by one to the university police headquarters and asked if they had known the race of the celebrants. Street-smart Penn students, with one guileless exception, all said the equivalent of, "No, it was dark." Eden said, "Of course. It was bright as day out there. But their race had nothing to do with what I said." The university now had its scapegoat.
Although the other students involved in the case initially claimed that Eden had used racial epithets, they soon recanted. As a result, Robin Read stipulated, in the presence of Eden's advisor, that the only "offensive" comments he had made had been 11 water buffalo" and "zoo."
To be considered "racial harassment" under Penn's policy, Eden's words had to be either clear racial epithets or clear derogatory stereotypes, and they had to be uttered "only" with the intention to inflict direct injury. How could "water buffalo" be a racial stereotype, and how could his motive have been other than to express his anger at the noise? When Read first informed Eden that the women had taken the phrase "water buffalo" as a specifically racial term of abuse, he was appalled, and he offered to explain to the young women that he had meant nothing racial whatsoever and to apologize for any rudeness. The JIO replied, "That is not good enough." When Eden said that "water buffalo" had no relation to race, Read said that water buffalo were "primitive, dark animals that lived in Africa." Eden Jacobowitz is a deeply religious Orthodox Jew, the descendant of Holocaust survivors, and a graduate of a leading yeshiva, a religious Jewish school. When he protested vehemently that everything in his being, his upbringing, and his religious commitments forbade racism, Read inquired, "Weren't you having racist thoughts when you said 'water buffalo'?"
Eden refused to accept any settlement. He wrote a courageous letter to Read, given that she would be his prosecutor at a hearing. He accused her of putting her "political standing" above "the rights of students" and issues of "innocence," because "you simply...did not want to deal with the pressures of vindicating someone of racial harassment charges." He reminded her that both he and his roommate originally had been charged with shouting "non-racial comments at some members of the Delta Sigma Theta sorority on January 13," but that only he had been charged with harassment, because "my roommate claimed not to know the race of the people involved while I was totally and categorically indifferent to the race of the people involved." His words, he reiterated, "referred solely and only to the noise level outside my dormitory window." He characterized her interpretation of "water buffalo" as "the farthest meaning from my mind...your words not mine." He had simply objected to "the noise level produced by sporadic stomping and shouting right outside my window at midnight while I was trying to write a paper." If the noisemakers had been "Orthodox Jews," he assured her, "I would have said the same thing." He challenged Read's claim "that it was important to take the women's interpretation of my words and the pain that they inflicted upon them into account," reminding her that "As you know, I have asked from the very first day...to meet with the women to apologize for shouting in response to their noise and to make it clear that my words had no racial meaning." He accused her of ignoring all the evidence of eyewitnesses, raising in his mind "the terrifying possibility that this has become a show trial for a new policy." He understood the possible dangers of a hearing in the current climate, but, he wrote, "Your conclusion of guilt leaves me no choice but to pursue justice, the most precious of human conditions." He would risk anything to clear his name, because "I would die before shouting racist comments at anybody." He copied his letter to President Hackney, Provost Michael Aiken, Vice Provost for University Life Kim Morrisson, Assistant to the President Steve Steinberg, and the general counsel. No one replied. Read eventually wrote back, a month later, disagreeing with his characterization of their discussions and her motives. The entire weight of the university was coming down on a frightened freshman. Shortly after refusing the settlement, Eden called history professor Alan Charles Kors, who became his new advisor.
In preparing for a hearing, Eden secured a long list of black and white eyewitnesses from the high-rise eager to testify that he was the very opposite of a racist, and that on the night in question, he had merely said "water buffalo" (as the JIO already had stipulated). Because it seemed obvious that Eden was responding to noise, not seeking to inflict injury, Kors spoke to a former general counsel of the university, Professor of Law Stephen Burbank. Burbank termed the case "ludicrous" and "open and shut" (because the charges did not even touch the categories of the university's own definition of harassment) and agreed to testify on Eden's behalf.
Encyclopedias and dictionaries revealed the obvious: that "water buffalo" had no racial connotation. The animals were the "Indian Buffalo...domesticated in Asia" (Britannica), "domesticated Asian buffalo" (Merriam Webster's Collegiate Dictionary), "the common Indian buffalo" (Webster's Unabridged New International Dictionary), and limited "to southern Asia" (Grolier's Academic American Encyclopedia).
The issue now was not the speech code itself, but Eden's innocence even assuming the speech code's legitimacy. Many offered discreet help. Dan Hoffman, a Pulitzer Prize-winning literary critic and poet, spoke to the curator of mammals at the Philadelphia Academy of Natural Sciences, who had consulted Walker's Mammals of the World (the Bible, it turns out, of mammalian zoology). Authorities, Hoffman wrote, gave "the range of the 75 million domesticated water buffaloes as from Nepal to Vietnam." The African buffalo, it turned out, was not a water buffalo, but a Cape buffalo, and "confusing the African Cape Buffalo with the Asian water buffalo is clearly an error." A brilliant black ethnographer at Penn, a scholar who had walked the streets of racial tension, confirmed that he "never" had heard the term "water buffalo" used as a racial epithet or derogatory stereotype of blacks. He provided both a written and a taped deposition for Eden. He also referred Kors to several eminent scholars who worked in black linguistics, African-American studies, African-American folklore, and African folklore. None, a phone call to each revealed, ever had heard of the term "water buffalo" used either as a racial epithet or as a derogatory (or any other form of) stereotype of blacks.
A professor of linguistics at Penn sent an inquiry to an international linguistics listserve: "Have you ever heard 'water buffalo' used as a racial epithet?" The replies revealed that in one Asian country it indicated an overeater and in another a fool. A senior professor in African history further confirmed that "water buffalo" had no African or racial connotation whatsoever, and he agreed to testify at any hearing. Acquaintances provided a bevy of innocuous "water buffalo" references: the humorist Dave Barry, in Dave Barry Does Japan, referred to himself several times as a "water buffalo" when he did something clumsy or out of place; the white cavemen of The Flintstones used "water buffalo" as a friendly term; in the classic film His Girl Friday (1939), Cary Grant called Rosalind Russell "a water buffalo."
The whole case took on a new light, however, when the world-renowned Israeli scholar, Dan Ben-Amos, whose field is African folklore, replied. "What would water buffalo have to do with Africans or African-Americans?" he asked. Informed about the facts of the case, Ben-Amos asked if the student were Israeli or spoke modern Hebrew. Learning that Eden's parents were both Israeli and that he had attended a Hebrew-language high school, Ben-Amos explained that "Behema is Hebrew slang for a thoughtless or rowdy person, and, literally, can best be translated as 'water buffalo.' It has absolutely no racial connotation." When Kors asked Jacobowitz, "What's the first thing that comes into your mind if I say 'behema,'" Eden said, "Wow...that's amazing. In my yeshiva, we called each other behema all the time, and the teachers and rabbi would call us that if we misbehaved." He supplied a list of students and teachers from his school who would be glad to testify about it.
Through Ben-Amos, Penn's speech code now occasioned a sustained scholarship on the term behema. Jastrow's Dictionary of the Targumim, The Talmud Babli and Yerushalmi, and the Midrashic Literature offered, as the first definition of the term, "water-ox." Brown's Hebrew and English Lexicon of the Old Testament translated behema as "ox of water." Dahn Ben-Amotzs (no relation) World Dictionary of Hebrew Slang defined the term behemott in the plural of biblical Hebrew as "water-cows and cattle" and, from modern Hebrew, as people of thoughtless behavior.
Michael Meyers, the visionary black leader of the New York Civil Rights Coalition and a member of the National Board of the ACLU, had worked on race relations for twenty-five years -- in particular, black-Jewish tension. Asked about "water buffalo" as a racial epithet, he said (and wrote), "I have never heard the term 'water buffalo' used as a racial epithet." He also agreed to testify to this. Crucially, he suggested that Kors call Deborah Leavy, the executive director of the Pennsylvania ACLU, who agreed that she and Stefan Presser, the general counsel of the Pennsylvania ACLU, would join the case pro bono on Eden's behalf. Leavy added, "My father-in-law calls people behema all the time." Eden now had two legal teams behind him. After hearing the details of the case, Arnold and Sonya Silverstein, two attorneys of Kors's acquaintance, had offered to represent Eden pro bono, providing the first ray of hope that Penn might be forced by the rule of law to honor its own policies in this case. A similar offer came from the lawyer in charge of the Civil Rights Committee of the Eastern Pennsylvania Anti-Defamation League of B'nai B'rith after an exchange of letters with Penn.
At this point, no one in the mainstream media was familiar with the case, but a growing number of professors were responding with outrage. Kenny Williams, a renowned scholar of American literature at Duke University, had replied to an inquiry about "water buffalo" that if Eden had wanted to use a racial epithet, there was, sadly, a vast lexicon from which to choose. "Water buffalo," she noted, was not one of them. "How in the world," she asked, "can anyone find racism or racial intent in that term?" She put it perfectly: "What is perhaps most disturbing about this matter is the assumption...that a word...will mean whatever a particular thought-control officer will deem language to mean....Language will cease to have any communicative value." Williams, who is black, saw another dimension to the case:
On a personal level, what is more disturbing...is the ability of some administrator...to define (in effect) an entire race and to introduce another racial term into language....This is the real racism....The student did nothing wrong, and if the students who were called "water buffalo" didn't like it, they should have merely stated that fact and in the process taken their noise making activities elsewhere! Young people have a marvelous ability to solve their own problems. Issues of racism are too serious to be treated frivolously by administrators.
By the first week of April, Eden and Kors were doing everything possible to settle the case quietly within the university. The provost, Michael Aiken, though bemused by the thought that "water buffalo" could be considered racial harassment, referred the case to the vice-provost for university life, Kim Morrisson, who referred it to Larry Moneta, the associate vice-provost for university life, to whom the judicial system reported. President Hackney referred the case to his assistant, Stephen Steinberg, who e-mailed Kors about "your wholly appropriate concerns" about Read's decision, emphasizing that "If after talking with Larry [Moneta], you feel things are not satisfactorily resolved, please let me know, and I'd be happy to talk further...thanks for your patience." On April 13, another assistant to Sheldon Hackney, explaining that the news had broken of Hackney's impending nomination as chairman of the National Endowment for the Humanities (NEH), and apologizing for the delay in communication that this had caused, wrote: "Sheldon had also been occupied with the latest breaking news, although I have briefed him on our latest conversation....He did ask me to convey his appreciation for your concern about the University's potential to become embroiled in a controversy that appears to offer little gain for anyone." She added, "I would also like to thank you most sincerely for the deep concern and willingness to act upon it that you have demonstrated throughout Eden's case....Eden and others will remember you with gratitude and respect." The next day, however, Moneta telephoned Kors not about "the possibility of progress," but in order to quote from the second college edition of the American Heritage Dictionary, which listed "Asia and Africa" as places where water buffalo rmight be found. That evening, Steinberg called and said that guilt or innocence was for a hearing to decide. With racial anger on one side of the balance and, on the other, one frightened freshman and one eccentric professor, the administration had now decided to prosecute Eden for shouting "water buffalo."
Two months later, testifying before the U.S. Senate during his confirmation hearings for the chairmanship of the NEH, Sheldon Hackney proclaimed himself an enemy of speech codes: They were "counterproductive," he told Senator Harris Wofford of Pennsylvania. One could not get to civility by the wrong means, which he now described as "a speech code backed up by penalties." Pressed about Penn's own code, Hackney said that, although he now opposed such a code, it was nonetheless meant only to cover face-to-face confrontations. Senator Edward Kennedy asked him directly if under Penn's code the water buffalo case, by then dismissed, should have occurred. Hackney, discussing the case for the first time under oath, replied:
No. I think that this was a misapplication of that policy in the circumstances, and, I think, a great mistake to try to pursue it, for several reasons. One, it was not really a face-to-face encounter. The other is a matter of equity, if you will. Eden Jacobowitz was only one of a group of people engaged in this activity, and maybe the least culpable one.
Senator Kennedy asked Hackney to give the committee the "facts" of the water buffalo case. On the issue of why Jacobowitz had been singled out, the nominee was quite eloquent:
The only student who would admit to saying anything was Eden Jacobowitz, who said that he had used the term "water buffalo," and had yelled at the sorority sisters, who were singing, "If you want to have a party there is a zoo nearby." There in fact is a zoo within about a mile of the university...Eden Jacobowitz is an Israeli...and there is a Hebrew term, beheyma, which is frequently used among people; it is a mild reproach, but used quite commonly. It sort of means, Oh, you rude person....There is no other explanation that one can think of.
With Penn determined to continue with the prosecution, Eden and Kors called Robin Read and laid out to the JIO their entire defense. No date had been set for a hearing, and Read still had the opportunity to drop the charges in the face of this new evidence. She was asked, "Will you examine it, talk to the witnesses, and see if it wouldn't be a mistake to continue the prosecution?" "Yes," she promised. Two weeks later, Eden was informed that the judicial Office wished to schedule a hearing, and he discovered that Read had contacted not one of his new witnesses.
The judicial administrator at Penn was John Brobeck, a retired professor of medicine, whose position was described by the Judicial System Charter as wholly "independent" and existing to secure the end of "substantive justice." He set a hearing for Monday, April 26, a date that would force Kors, to cancel a major scholarly meeting. Brobeck, however, was explicit and emphatic: "The hearing will be held on April 26, period. If you can make it, wonderful. If you can't, then Eden will have to be there without his advisor. There is no possible change of the April 26 date." When Hackney was advised that Eden now would take his case to the deeper court of public opinion, he replied, "Do what you have to do."
What Eden "had to do," simply put, was to prevent Penn's administration from continuing the travesty, and to secure some modicum of equal justice. At Penn, however, there was no equality before the law. One incident caught the double standard in all of its hypocrisy. In 1990, several black members of a racially integrated campus fraternity had tried to teach a lesson to a white student in another fraternity, a student named Sheffield, whom they believed to be a bigot. By mistake, they kidnapped a student named O'Flanagan. In Municipal Court that spring the following charges and underlying facts were admitted, uncontested, in connection with the accused kidnappers' plea bargains:
[The kidnappers] played a tape of a Malcolm X speech containing references to violence directed at whites....O'Flanagan believed that no one would be able to hear any possible cries for help....[They] drove [him] to a secluded playground/park area....They encircled [him], whispering to him again the phrase "Sheffield Deathfield!"...They also taunted him by referring to lynchings in the South, in Alabama. [He] remained handcuffed to the metal structure [in an inner-city playground] for a period of time...barefoot and only minimally clothed, and the night was cold and rainy...They then conducted a mock "trial" which consisted in part of [his] being subjected to physical discomfort, emotional distress, and repeated and intense verbal abuse....[They] talked about lynchings...and they shouted obscenities and abusive language at him. Among the phrases used were statements such as (a) "Fuck you!"; (b) "racist"; (c) "You're a neo-Nazi racist fuck!"...[They] then shoved [him] back in the car, recuffed him and drove him to the intersection of 34th and Chestnut Streets. During this 10 to 15 minute ride, they again played the same Malcolm X tape. At the intersection, they pulled [him] from the car, blindfolded. [He] believed he was being left in the middle of a highway or a busy street.
Now, if that was not racial harassment, it was hard to see what might be, yet Penn simply suspended the integrated fraternity from having an active chapter on the campus. No individual punishment. No sensitivity seminars. No stamped transcripts. Reverse the races, and the date of the kidnapping would have become an annual day of shame at Penn.
Eden, in fact, seemed a pawn in a larger game of campus racial politics. In that spring of 1993, Penn was being sued over the number of "Mayor's Scholarships" it awarded. These provided a significant number of Philadelphia high school graduates -- disproportionately black -- with the means to attend the university -- and Hackney was accused of racism. It was the tenth year of his presidency, and he obsessed throughout on racial relations. If some half-wit -- whether racist or provocateur -- scribbled an epithet on a stairwell, the campus would gratify the miscreant by acting as if a fascist night had descended. During freshmen orientations, students were taught at "diversity education" seminars to perceive the campus as a hotbed of racism.
Hackney was a captive of the very perception of endemic racism that Penn had encouraged and of the expectation that had been created that all "disadvantaged" groups had the right not to be "offended." Penn's policies invited students, including the women who had disturbed Eden, to react to ordinary abrasions and, indeed, to disagreeable opinions, as intolerable racism. Hackney's attempt to guide his administration across the dangerous terrain created by those policies severely limited his ability to respond soberly to such reactions. Nothing illustrated this better than the case of Gregory Pavlik, which preceded, and, in the end, energized the water buffalo affair.
The independent undergraduate campus newspaper, the Daily Pennsylvanian (DP), had about fourteen opinion colummists, and it always was hard-pressed to find even one conservative to mix among them. It was not easy being the token DP conservative, who always elicited a flood of accusations of racism, sexism, homophobia, ignorance, and malice, often from administrators as well as from students. For the spring semester of 1993, the DP had found its lone conservative columnist in a transfer student from Rensselaer Polytechnic Institute, Greg Pavlik, softspoken and retiring in private, but a blunt and outspoken "paleoconservative" in his columns.
Pavlik, in fact, was much more critical of neoconservatives than of the Left. The real Right, for Pavlik, opposed centralized big government, nondefensive wars, and foreign intervention. Pavlik indeed exposed most students to an unfamiliar political point of view. In a February column, "The Price of Intervention," he described neoconservatives as "traitors," and he warned against the New World Order, "the globalists' desire for empire," the loss of sovereignty in foreign affairs to the UN, and young Americans returning "in body bags" during our interventions from Korea to the Balkans. Whatever neoconservatives there might have been at Penn read his columns in peace. Others read some of his opinions with great anger.
Two columns, in particular, elicited a firestorm. In "Rethinking the King Holiday," Pavlik described the civil rights movement as an assault against property and individual liberty, and he attacked King's political and personal ethics, seeing the latter, in particular, as a betrayal of the obligation of Christian clerics to "set a moral standard as consecrated ministers of God." In "Not as Clear as Black and White," Pavlik attacked what he saw as Penn's double standard on matters of race. He claimed that the Onyx Society, an exclusively black honors organization, had hazed its blindfolded initiates in the residential Quadrangle at 2:30 a.m. and had thrown eggs at Quad windows. In response, some residents of the Quad had thrown water at the egg throwers. Members of Onyx, Pavlik claimed, now hurled threats, more eggs, and antiwhite slogans at the awakened residents of the Quad. The university, Pavlik charged, had treated the event as an outrageous act of bigotry against blacks, instead of punishing the Onyx Society for hazing and for violations of the code of conduct -- standards to which white fraternities were held. Indeed, the Judicial Office had punished the water throwers of the Quad, sentencing them to a written apology, fifteen hours of community service, and residential expulsion. He claimed that when Quad residents asked the university's chief JIO, Catherine Schifter, whether they could press charges against members of the Onyx Society for their behavior, she had replied that "the Onyx Society would find out their identity and things could get nasty." According to Pavlik, when he phoned Schifter to confirm the facts, she denied nothing, but she said, "If that shows up in the DP, you're dead."
If the goal of having a controversial columnist was to set the campus into debate, then the DP had succeeded. Pavlik's columns elicited an outpouring of both substantive criticism and assaults upon his character. The most remarkable letter, however, appeared in the DP on March 19, signed by "202 African-American Students and Faculty," with the banner headline: AFRICAN-AMERICAN COMMUNITY RESPONDS TO PAVLIK. The authors denounced Pavlik as "racist," and they pronounced "his written attempts to discriminate" intolerable. "Hiding beyond the delicate laws of freedom of speech" gave him no right "to slander, demean, harass, and incite violence in those who don't share a Eurocentric upbringing." The words were carefully chosen, because "harassment" and "demeaning" individuals on grounds of race constituted violations of Penn's judicial code. The DP, the 202 signers of the letter declared, was also culpable, because to publish Pavlik was to accept his design "to demean and discredit": "If the DP prints it, then we must infer that they agree with, and condone it."
Scores of the authors and signatories of the letter knew something that the campus did not know. On March 2, the JIO, the target of his critical editorial of February 25, had awakened Greg at 9:00 A.M. by telephone, to inform him that he was under investigation for thirty-four student-initiated charges of "racial harassment" by means of his editorial columns. After a week of seeking help, Pavlik found Kors, who immediately left an urgent message for Sheldon Hackney. Hackney knew about the charges, and assured Kors that they "aren't going anywhere." Hackney's name already was in the media as a likely Clinton nominee to head the NEH, and Kors suggested to him that "if someone is threatened officially at your University for the expression of views that some find offensive, you will have no credibility whatsoever. The phone call from the JIO was threatening and chilling." Hackney agreed, and the next day Pavlik was informed that the case was over. On April 1, Schifter finally wrote to Pavlik, "to inform you officially that, in light of my investigation of thirty-four complaints of possible racial harassment against you, the circumstances do not indicate that there was violation of any policy of the University. Accordingly, the investigation of the complaints against you is concluded and subsequently dismissed."
It was in the midst of such tensions and official hesitations that the water buffalo case developed. In March 1993, just after the charges against Pavlik had to be dropped, Hackney wrote a lengthy piece for the university's official Almanac, explaining that Penn was paying a fearsome price for the fact that "the Civil Rights movement of the 1960s never completed its task." He described a meeting in January 1993 with "a group of Penn faculty and staff of color." He was shocked, he wrote, because he had learned that "students, faculty, and staff members of the University community still feel frustrated and oppressed by what they experience as a hostile environment, where demeaning incidents continue to occur -- in our classrooms by faculty, on our campus by public safety officers, and in our residences by fellow students." He did not specify the incidents -- despite requests -- but by "in our residences" they certainly appeared to include the Onyx Society episode discussed by Pavlik and the Jacobowitz case. Hackney explained what he had ordered his administration to do:
This is the time to tell all members of our community again, but this time in a way that must be heard, that we will not tolerate acts that demean students, faculty, and staff -- not in the classroom, not in support offices, not on the campus, and not in our residences. We will find means to ensure that such acts have important consequences....Those who believe they can, with impunity, damage important members of our community have no place.
Hackney's letter appeared on March 18. Four days later, Read charged Eden Jacobowitz with racial harassment. With Pavlik off the hook, Eden was now the only trophy fish.
Neither Eden nor Kors knew how to bring the water buffalo case to public attention, but on April 15, Hackney did that himself. On that day, when Pavlik's final column was going to appear (his topic was the lack of substantive debate at Penn), a group of black students "confiscated" the DP's full press run, fourteen thousand copies, from campus distribution points. When DP distributors and staff who tried to prevent the confiscation were threatened and reviled with racial epithets, they complained to Robin Read, who did not pursue any case of violence, threat, or abuse, let alone of racial harassment, by blacks against the DP staff. The national media, however, always notice the unpunished silencing of the press, and they asked the university if and when charges might be brought against the individuals responsible for suppressing the DP. Penn responded that these would come in due time. In fact, however, not one of the students charged with the theft was punished. Indeed, the only person penalized was a University Museum officer who had attempted to stop individuals from running, a trash bag in hand, from a security-conscious museum. He was suspended from his job for overreaction and for a failure to intuit a larger, "political" protest.
The Penn administration's equivocal response to the DP theft caught the national eye. Associate Vice-Provost Moneta, on April 16, explained that "both the behavior and the grounds for the behavior are among the most serious issues the University can face!" [emphasis added] Hackney issued a statement on the confiscation, reaffirming the right of the DP to express its views, but noting that the theft had been "precipitated by the pain and anger that many members of the minority community have felt in response to the DP's exercise of its First Amendment rights to freedom of the press." In Hackney's assessment: "This is an instance in which two groups important to the University community, valued members of Penn's minority community and students exercising their rights to freedom of expression, and two important University values, diversity and open expression, seem to be in conflict." By the conclusion of his statement, Hackney had dropped the word "seem": "As I indicated above, two important University values now stand in conflict...the First Amendment right of an independent publication...[and] a comfortable and permanent minority presence in a diverse and civil University community." By comparison, Hackney's sense of "conflict" had been quite different on the day after the attempted assassination of President Reagan in 1981, when a left-wing DP editorial columnist, Dominic Manno, wrote: "Too bad he missed...I hope [Reagan] dies." As the Secret Service descended upon Penn and the media focused on the editorial column, Hackney issued a statement to the press on Thursday, April 2. He noted, unambiguously, that freedom of expression at Penn was categorical: "He has a right in our society, and especially on a university campus, to speak his mind, no matter how abhorrent his ideas."
On Sunday, April 18, the Philadelphia Inquirer's editorial on the DP incident noted Hackney's implication that there was "no room for the 'peaceful coexistence' at Penn between the imperatives of diversity and free expression'" and advised him to solve that problem "before heading off to his new job" at the NEH. In the Village Voice, the progressive civil libertarian Nat Hentoff castigated Hackney's "patronizing paternalism," terming the belief that blacks could not live with the First Amendment "yet another prejudicial stereotype." The liberal president of the DP alummi association, Howard Gensler, then working at the Philadelphia Daily News, wrote to all DP alumni (many of whom worked in the media) expressing outrage over Hackney's failure to understand that "diversity must also include the opinions of white male conservatives." The story was picked up widely. Eden did not know it, but the theft of the DP and Hackney's feeble response had created a new moment. Now there was genuine curiosity about Hackney as a presidential nominee and about issues of liberty at Penn. When the water buffalo story went public, it was received with interest. Once received, it fascinated the nation more than anyone would have imagined.
When Eden took his case public, he was exercising his clear right under Penn's Judicial Charter, which guaranteed that a respondent could disclose otherwise confidential information about his experience, in which case, "any person whose character or integrity might reasonably be questioned as a result of such disclosure shall have a right to respond in an appropriate forum." If Eden Jacobowitz had chosen Read's deal, then his parents, the campus, and the world would have known nothing of the charges against him. In similar circumstances, almost every student accepts settlement offers. Admitting guilt and undergoing "thought reform," protected by the confidentiality of records, is an easy way to end an ordeal. Eden would not do it. He knew that he never had directed a word of racial hatred at anyone, and he refused to say that he had, whatever the consequences. He was candid, thoughtful, and kind, and these qualities were obvious to virtually every journalist who interviewed him during the next few months. From the Village Voice and Rolling Stone, to the major television networks, to Newsday and the Washington Post, to the Wall Street Journal, those who investigated the truth of this absurd case caught Eden's spirit and innocence.
Eden's story entered the world by chance. One of Kors's New York friends, hearing of the case during a social phone call on April 20, mentioned the story to an acquaintance at the Forward, the former Yiddish-language New York daily that was now a widely respected English-language weekly with a special interest in cultural, political, and Jewish affairs. The story broke in the Forward's April 23 issue, a few days before Eden's hearing. The Forward ran the story above the masthead, under the ineffable headline PENNSYLVANIA PREPARING TO BUFFALO A YESHIVA BOY. The former Yiddish newspaper explained that "water buffalo" was a reasonable translation of "a non-sectarian Hebrew put-down often heard at his Long Island yeshiva -- 'behema,' a word that means 'livestock' or 'buffalo' but whose slang meaning is idiot." The Forward linked the story to Hackney's nomination to the NEH and to the theft of the DP, and included elements of Eden's story (later confirmed by Hackney in his Senate testimony) that were essential to understanding the injustice of the case: "'I just described the noise and not anything that would do with their race....I decided to help the police, so I volunteered myself. I told the police what I said and they wrote it down." The Forward concluded its lengthy story by a reference to Monday's upcoming trial: "A Penn spokeswoman, Carol Farnsworth, declined to comment on the case, citing confidentiality. 'This is not like a regular court system,' she says."
That same morning, the editor of the Wall Street Journal brought the Forward into an editorial board meeting, and columnist Dorothy Rabinowitz decided to pursue the matter. An investigative journalist and editorialist with courage and a will of steel, Rabinowitz has one overriding public passion: She hates abuse of power, by governments, by businesses, by prosecutors, and by educators. She long had been one of the few editorial voices in the country to understand the abuses of "political correctness" at the universities, and she has written powerful pieces against the new imposition of intolerant orthodoxies. When she called Hackney, she pressed him or serious answers about what was going on at Penn. Apparently thinking that she was some inconsequential staffer, he said, "I don't need to take this from some reporter," and hung up the phone on her. Indeed, several other reporters and editorialists had called the university, which now knew that the story was fully in the open.
On Friday, April 23, Brobeck called Kors to announce that the Monday hearing had been postponed, citing "too much publicity," but then correcting himself "The real reason is that the women no longer have an advisor." The advisor had been Zoila Airall of the Division of Residential Living. "She doesn't want to appear in the case," Brobeck admitted, "and we can't have the hearing without their advisor." When reminded of his insistence that the hearing would be held on April 26 even if Eden had to be completely on his own (while the women's case would be presented by the JIO) and of the fact that Eden would lose his witnesses when the semester ended, Brobeck replied, "It's my judgment call. The case is postponed indefinitely...until, at earliest, in the fall." When Eden was informed, he asked, "Are they going to have this hang over my head all summer?" Indeed, they were.
No one had thought to notify the media about the postponement of the hearing. Consequently, on the morning of April 26, the Wall Street Journal ran Dorothy Rabinowitz's lead editorial "Buffaloed at Penn." It described Eden as "the latest victim of the ideological fever known as political correctness," and it referred the case to the attention of "anyone concerned with the state of reason and sanity on the campuses today." It labeled "Kafkaesque the fact that someone who had not shouted any racial slurs, and who had told the police what he had said, "would pay a price for his forthrightness." It drew the deeper lesson: "He had yet to learn what they don't teach at freshman orientation; namely he had now entered a world where a charge of racism or sexism is as good as a conviction." Pointing out the obvious facts that a zoo, animals, or even, indeed, Animal House were universal references to noise on college campuses, it described Robin Read's discovery of racism in Eden's innocuous phrase as "theater of the absurd." It also noted clearly the "settlement" that Eden had been offered, and the courage it had taken to turn that down. The effect of the Forward's article and the Wall Street Journal's editorial -- in the wake of Hackney's nomination and his equivocation on the theft of the DP -- was electric. Eden was interviewed on television by Tom Snyder and John McLaughlin. George Will devoted his syndicated column in the Washington Post to Eden and to the theft of the DPs. Within short order, the international media settled in at Penn.
Although, in the final analysis, the University of Pennsylvania took a beating in public opinion because it had, as its leading press officer said the next year "a stupid case to defend," Penn repeatedly revealed an arrogance that the media scarcely could believe. Hackney's slamming the phone on Dorothy Rabinowitz could have been a metaphor for Penn's entire handling of the case. Reporters were reconciled to hearing the university say that it did not want to discuss the specifics of the Jacobowitz case, but Penn refused to discuss even its speech code, its past practices, its history of enforcement, or its violations of procedure. Reporters, editorialists, cartoonists, and broadcast journalists understood freedom of speech. They understood double standards, due process, and decency. Reporters live by the First Amendment, and many pretty much live by it absolutely. On NBC Nightly News, Sara James asked Larry Moneta, "Have you ever heard of 'water buffalo' being used as a racial slur?" He replied: "The issue is not whether I have or not. The issue is also, you know, language in my mind is neutral. It's a question of the context in which language is used." (Two years later, when Penn abolished its speech code, the same Larry Moneta would dutifully go before the media to declare that "at Penn, all speech is free.") The reporters were doing their jobs remarkably -- probing, investigating, and developing sources. Within the administration, a growing loathing of the cruelty and utter stupidity of this case led important officials to channel information to the press. Thus, the Washington Times reported on April 27 that the postponement of Eden's trial had "prompted speculation that university President Sheldon Hackney ordered the delay to protect his pending nomination to head the National Endowment for the Humanities," to which the reporter added: "School officials, who asked not to be identified, echoed [this] sentiment and speculation about the trial's postponement." The case had turned over a rock at Penn, and it was not just outsiders who did not like what they saw underneath it. On that same day, the Philadelphia Daily News lectured Penn that "it's hard to justify breathtaking tuition hikes when acting like a herd of dik-diks."
In the course of the next month, Eden's plight was front page news not only in the Philadelphia newspapers, but, on repeated occasions, in the Los Angeles Times, the International Herald-Tribune, the Washington Post, the Washington Times, the (New Jersey) Record, and even the Sacramento Bee, not to mention hundreds of newspapers that were picking up syndicated reports. Foreign publications such as the Financial Times (London), the Times (London), the Toronto Star, and the Spectator (UK) independently treated the story as an example of America gone insane. As the Financial Times noted on May 8, "In Europe it is unlikely that one would be caught up in a semijudicial enquiry as a result of shouting the names of Asian oxen at one's colleagues." It praised American press coverage of the affair. Important journals -- the Village Voice, Rolling Stone, The New Republic, Newsweek, Time, and US. News and World Report -- devoted much space to the case, all of them understanding full well the gulf between liberal opinion and Penn's cultural radicalism. The story prompted a major piece in the New York Times, even evincing an unexpected defense of free speech from Duke's Stanley Fish, otherwise a star of political correctness and the author of a book called There's No Such Thing As Free Speech...And It's a Good Thing Too.
The water buffalo case had become a sensation. It was not merely news, but the occasion for often multiple major substantive editorials in the nation's leading newspapers. It also was covered on all major television news programs. On NBC Nightly News, John Chancellor explained the broader implications of the event, offering, on May 13, a commentary on Eden's Prosecution:
Eden Jacobowitz is a student at the University of Pennsylvania. His studies were interrupted by a noisy crowd of students, many black and female. He yelled out his window, "Shut up, you water buffalo." He is now charged with racial harassment under the university's Code of Conduct. The school offered to dismiss the charge if he would apologize, attend a racial sensitivity seminar, agree to dormitory probation, and accept a temporary mark on his record which would brand him as guilty. He was told the term "water buffalo" could be interpreted as racist because a water buffalo is a dark primitive animal that lives in Africa. That is questionable semantics, dubious zoology, and incorrect geography. Water buffalo live in Asia, not in Africa. This from the University of Pennsylvania. Mr. Jacobowitz is fighting back. The rest of us, however, are still in trouble. The language police are at work on the campuses of our better schools. The word cops are marching under the banner of political correctness. The culture of victimization is hunting for quarry. American English is in danger of losing its muscle and energy. That's what these bozos are doing to us.
Talk radio also was exploring the case, with equal scorn being displayed by conservative hosts, such as Rush Limbaugh, particularly mordant on the affair, and by a bemused but outraged array of National Public Radio outlets. Eden had brought the networks, conservative radio, and NPR into agreement. Editorial cartoonists had a particular field day lampooning Penn's language and thought police. Garry Trudeau devoted a full-color Sunday Doonesbury to Penn, focusing on the inanity of speech codes in general and on the particular absurdity of taking "water buffalo" as a racial insult. The University of Pennsylvania had become an international laughingstock. Eden, however, still faced a potential catastrophe.
From the moment that the April 26 hearing was canceled, Eden appealed to Brobeck, Hackney, and Aiken to drop the charges. Brobeck, a decent man caught up in an absurd situation, conceded the error of postponing the "unalterable" hearing, but he refused to rescue Eden from a continuation of the ordeal. Hackney and Aiken proclaimed themselves incapable of intervening in any judicial matter. In early May, however, as media attention (and ridicule) intensified, the "independent" Brobeck knocked, uninvited, on the door of Kors's home to announce that "we have to have a dispositive hearing on May 14; I've been told to put this behind us." In response to protests that almost all of Eden's essential witnesses were gone for the summer, Brobeck relented, and promised that the hearing would involve only a request to drop the charges. He added that Eden himself need not even come to Penn for the session. At 10:30 P.M. on the night of Wednesday, May 12, however, just one full day before the scheduled hearing, Brobeck called Kors at home: "I have terrible news for you and for me," he said. "I have been instructed by my superiors that I cannot keep my agreement with you....I've been ordered to hold a hearing on guilt or innocence on the 14th." Reminded that he had given his word, that Eden's witnesses were gone, and that his only conceivable "superiors," Aiken and Hackney, had proclaimed him categorically independent, he replied: "Until today, I would have said that I was independent too, but I have bosses, and they've ordered me to do this....I have no choice. I have superiors. Please be gentle with me."
On Thursday morning, Sonya Silverstein, Arnie Silverstein, and the ACLU's Stefan Presser cleared their calendars, Eden came to Philadelphia from New York, and, with the media notified about the astonishing turn of events, the water buffalo defense team worked to seek an injunction in federal court against the May 14 Penn hearing. The Silversteins' office was a beehive, fueled by controlled fury. Surrounded by computers, typewriters, ACLU staff, the Silversteins and their employees, Eden, Kors, and a growing body of Penn students, including the editor of the DP, Stefan Presser was like the conductor of an unruly, barely-in-control symphony orchestra. Never ruffled, Presser brought order out of chaos, assigning everyone parts, sending his staff for forms and opinions, keeping his eye on the clock, and occasionally letting the General Counsel's Office at Penn know what he was doing. Stefan Presser was justice in a suit, and he was in command. With about a half an hour to go before the federal courts closed, and with runners standing by, Presser faxed the ACLU/Silverstein brief to Shelley Green, general counsel of the University of Pennsylvania. The suit was not directed at the university as a corporation, but, rather, at Hackney, Aiken, Morrisson, Brobeck, and Read, as individuals. Fifteen minutes later, the university, over Shelley Green's signature, faxed Presser, with a copy to Brobeck, that the university would honor its earlier agreement that the May 14 hearing would consider only dismissal of the charges.
Penn had told Eden not even to try to assemble his scattered witnesses, but it had not told the JIO to cease preparing her case. The five plaintiffs, their two advisors, the JIO, and the JIO's fifteen witnesses -- brought to Penn at Penn's expense -- arrived at a May 14 hearing that they fully believed would resolve the issue of innocence or guilt. The JIO had brought two pieces of evidence: an American Heritage Dictionary listing "Africa" as a home of water buffalo and -- the most shocking -- a two-page university police report from the night of the incident that contradicted the very stipulation that Robin Read had made about Eden's words after her own extensive investigation. According to this report, written on the morning of January 14, 1993, when the police went to one room from which insults supposedly issued, every resident had said that every overheard epithet was shouted "by Eden."
What had happened? The truth would emerge after the summer, when a resident of the dorm wrote an op-ed in the DP, explaining that on the night of January 13-14, 1993, the students who had shouted epithets panicked, and that because Eden had stepped forward, they falsely attributed everything to him in their dealings with the university police. On May 14, 1993, however, something far more dramatic happened. The university knowingly suppressed the second police report in the apparent hope of gaining a conviction against Eden Jacobowitz. In fact, the university police, at the request of the JIO, had conducted a two-week investigation starting on January 14, 1993, and had written a long, 12-14 page, report about what actually had occurred. This time, the residents of Eden's dormitory told the truth to the university police, who filed their report wholly corroborating Eden's own true story. That report was presumably the basis of Read's initial stipulation about "water buffalo" and "zoo." At the May 14 hearing, Eden knew nothing of that longer report, his witnesses were not there, and he was apparently meant to be railroaded into a conviction that would transform the case and salvage Penn's reputation. (One year later, a university officer saw Kors walking across campus. He ran over to thank him for having "defended the water buffalo kid," and asked what Eden had thought of "the long report" that proved his innocence. Shocked to learn that neither Eden nor his defense even knew of the existence of such a report -- let alone had seen it -- he explained that "we did a very long report that showed that Eden was telling the truth about everything." A few weeks later, a campus reporter asked the then chief of university police, John Kuprevich, if he had a copy of the fourteen-page police report on Jacobowitz. "Yeah, I have it," Kuprevich replied, "but it's confidential." It was bad enough that the university was scapegoating a wholly innocent student who happened to admit that he had said "water buffalo." When the May 14 hearing actually came, Penn stood ready to accuse him of saying still other things that it had been told he absolutely had not said.)
The May 14 hearing was surreal. Outside, there were sound trucks, an army of reporters, and Eden's pro bono lawyers, Sonya, Arnie, and Stefan, who were excluded from the proceedings. Inside, Eden and Kors faced an intensely hostile panel of three professors, one graduate student, and one undergraduate, false evidence in hand, who had come to decide Eden's guilt or innocence. When Robin Read began the presentation of her evidence, Kors interrupted and read the letter from Green to Presser. The panel, Read, and the plaintiffs were dumbfounded to learn that this was not to be a dispositive hearing.
The panel heard Eden out on the procedural grounds for dismissal. It then asked the plaintiffs to talk about their experience of that year. The plaintiffs discussed how they had suffered; Robin Read cried as they spoke; and the panel convened in private. When they returned, they announced that they had ten days by which to present a procedural report to the vice-provost for university life, and, they warned Eden and Kors, that if, in the interim, they "so much as read one word" in the media about this hearing or this preliminary judgment, then, in the words of a professor on the panel, "It will go very hard on Eden Jacobowitz. Do you understand that, Professor Kors? If you speak one word of this to the media, it will go very hard on Eden." They imposed, in their own phrase, "a gag order." They refused to dismiss the charges, and ruled that the trial should be carried over until next fall.
Eden left the building to face a crush of media. News of Brobeck's broken promise and of the general counsel's retreat was in newspapers and on radio and television. The media, having waited for hours on a narrow street, seemed annoyed by the gag order. Arnie Silverstein got off the deepest line of the affair: "I can't wait to get off Penn's campus," he told the reporters, "and get back to the United States of America." At an ACLU press conference, Stefan and Sonya explained the events of the past week, and the ACLU spoke about free speech and due process, but whenever they were asked about the hearing, they said that they couldn't talk. When Kors returned to his office, there were scores of calls from the media, but he told everyone that he coul
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Meet the Author
Alan Charles Kors is professor of history at the University of Pennsylvania and editor in chief of The Oxford Encyclopedia of the Enlightenment.
Harvey A. Silverglate is a criminal defense attorney and civil liberties litigator who writes regular columns for the Boston Phoenix and the National Law Journal and has taught at Harvard Law School.
Alan Charles Kors is professor of history at the University of Pennsylvania and editor in chief of The Oxford Encyclopedia of the Enlightenment.
Harvey A. Silverglate is a criminal defense attorney and civil liberties litigator who writes regular columns for the Boston Phoenix and the National Law Journal and has taught at Harvard Law School.
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