Martha Minow, Elena Kagan’s successor as dean of Harvard Law School, has been in the news. Unlike Kagan, Minow is a prolific writer and, indeed, one of the most prominent law school academics of her generation. Among her other accomplishments, Minow was a leader in the development of feminist legal theory.
Sonia Sotomayor cited Minow in her statements about the “wise Latina.” Sotomayor invoked that concept in response to former Justice Sandra Day O’Connor’s assertion that a “wise old man and wise old woman will reach the same conclusion,” in judging a case. Taking issue with O’Connor, Sotomayor said:
First, as professor Martha Minow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society.
I’m not sure there needs to be a universal definition of wise for O’Connor’s statement to be valid. Moreover, Minow’s expression of relativism strikes me as possessing roughly the same profundity as the ruminations of a stoned-on-drugs college student of the early 1970s. I suppose it nonetheless is what passes for deep thinking in academia these days.
Minow’s deep thinking does not leave a great deal of room for free thinking, at least among Harvard law school students. As Peter Berkowitz reports, Minow came down hard on a student who, in a private email, told two friends that she wanted to understand the science and research on whether intelligence may have a genetic component and whether African Americans may be “less intelligent on a genetic level.”
The student’s privately expressed desire to understand the science and research on this topic was unacceptable to Minow. She responded by issuing a statement condemning the email and reminding students and faculty that the right to free speech comes with responsibilities. In doing so, moreover, Minow failed accurately to state the view she was criticizing. According to Minow, the student’s email “suggested that black people are genetically inferior to white people.” This, as Berkowitz puts it, is “an incendiary revision.” As he shows, the student took no position on the question of genetic inferiority; she simply expressed the desire to understand the data.
Minow’s handling of the matter was deplorable. As Berkowitz explains:
The question of race and IQ is explosive. It has an ugly history, and it has been tied to cruel injustice. But the nefarious use of opinions about the biological basis of intelligence is no reason to denounce a student who advocates submitting competing claims to systematic inquiry.
In her statement to the Harvard Law School community, Dean Minow ought to have proclaimed that free speech on campus is very broad, that it is rooted in the freedom and equality of all human beings, and that its purpose is to protect the robust examination of ideas, including controversial ones, in order that the truth may emerge. She ought to have reminded students and faculty who cherish free inquiry that it is their responsibility to confront views that they deplore with better evidence and stronger arguments.
Minow’s disdain for free inquiry into sensitive issues hearkens back to the treatment of former Harvard president Lawrence Summers. He wanted to explore why women, who have made great strides throughout most of higher education, remain significantly underrepresented in sciences and engineering. One of the hypotheses he considered–but only after plenty of hedging and talk about the need for more research –was that fewer women than men were born with the extremely high levels of abstract theoretical intelligence that graduate study of science and engineering requires. Airing these bad thoughts was the beginning of the end for Summers at Harvard.
Elena Kagan is not Martha Minow, nor do I have any reason to believe that Kagan was involved in attacking Lawrence Summers. In fact, Kagan has received high marks for her welcoming approach to, and treatment of, right-of-center scholars at Harvard.
Still, I’m not sure I want important cases about freedom of speech and inquiry to be decided by anyone who rose to the level of a top administrator at a place as inhospitable to free speech and free inquiry as Harvard has become.