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488 pp., 61/8 x 91/4, 38 illus., notes, index

$49.95 cloth
ISBN 0-8078-2966-8

Published: Fall 2005

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Yale Law School and the Sixties
Revolt and Reverberations

by Laura Kalman

Copyright (c) 2005 by the University of North Carolina Press. All rights reserved.

Prologue

New Haven, Saturday, April 26, 1969. Alumni Weekend. As Yale law students and graduates crowded into the law school auditorium to hear about "Concerns of the Yale Law Student Today," the faculty surely fretted. The previous year, law students had walked out of a session entitled "Law and the Urban Crisis" on Alumni Weekend, designed to underscore the faculty's liberal good intentions. They complained the event featured white law school deans and staged their own counterpanel entitled "Law Is the Urban Crisis." This year, the school was turning the podium over to student speakers. What would they say and do?

Plenty. Student Negotiating Committee members made the first presentation. Their proposal for "joint student-faculty rule" had caused consternation among professors all semester: they wanted to replace the faculty as governing body with a council comprising elected student representatives and professors. Now, committee members inveighed against their teachers' "inertia and self-satisfaction." Yale, they complained, was far from the "very progressive institution on the very frontiers of legal education" they expected, and their professors refused to make it "a real community."[1]

Then Judith Areen, later to become the first woman dean of Georgetown Law Center, took her turn. The popular professor Friedrich Kessler had called on her during virtually every class her first term—because she was a woman and focusing on her "was a way of capturing the class's attention." She focused on "the serious underrepresentation of women in the Law School and in the profession."[2]

Black Law Students Union chair J. Otis Cochran and seven BLSU members followed. The previous December, they had forced the faculty to increase minority enrollments in a tense stand-off that some had feared would turn violent. Nevertheless, Cochran lamented that "the great liberal faculty of this great liberal institution could find no way to make black enrollment at Yale Law School more than a token." On the same day that African American militants stood in front of Cornell's student union brandishing guns and wearing ammunition belts, another BLSU member told alumni that "you can go on for only so long and there's going to be a fire."[3]

Meanwhile, other law students celebrated Alumni Weekend by showcasing a photograph of one of their number, complete with gun and cartridge belt, lounging under a poster advising "Hands Off the Vietnamese Revolution!" in a school newspaper article entitled "Students Provide Welcome for Alumni Weekend." Student Negotiating Committee supporters had pretended to organize S.H.I.T.F.A.C.E., "Students to Help Increase the Faculty's Authority and Control over Everything," and the halls were decked with posters declaring S.H.I.T.F.A.C.E. support for the most controversial faculty policies. Activists topped everything off by building a gallows in the law school courtyard, where, Robert Bork recalled, they hung Alexander Bickel in effigy. Staring at the noose, one drunken alumnus repeatedly asked what the students "really" sought. "We want a Law School that graduates nobody like you ever again," came the reply.[4]

This book is about an institution in the grip of the sixties. What were the sixties? As Edward Purcell has said, during the 1940s and 1950s, the focus on "consensus, balance, and progress" created an "ideology of national success" that played down persistent racism and inequality, while playing up the American duty to win the Cold War. In contrast, the common thread through the events and documents we associate with the sixties was one of "communitarian subjectivism"—be it in King's "I Have A Dream," Friedan's "Problem That Has No Name," or Savio's "There is a Time"; Dylan's "Ballad of a Thin Man," Sly's "Everyday People," or The Who's "My Generation"; Marcuse's One-Dimensional Man, Neill's Summerhill, Roth's Portnoy's Complaint, Brautigan's Trout Fishing in America, or Vonnegut's Slaughterhouse Five; the Port Huron Statement, Freedom Summer, the Free Speech Movement, Stop the Draft Week, or Stonewall; yippies' nomination of a pig for president or feminists' "No More Miss Americas"; the cry for Black, Brown, or Yellow Power; and the reminder that "the whole world is watching," to "make love, not war," or that "the personal is political." Communitarian subjectivism fused disapproval of authority; distrust of the Establishment; alienation from the system; attack on the hegemony of the power elite; skepticism about neutrality and objectivity; enthusiasm for egalitarianism, individual creativity, and passion; a focus on the emancipatory power of both "doing one's own thing" and cooperation; and with a sense that "mind" could remake the "reality" believed to exist largely in the mind's eye. The Students for a Democratic Society's Port Huron Statement summed up the ethos, with its ideals of replacing "power rooted in possession, privilege, or circumstance by power and uniqueness rooted in love, reflectiveness, reason, and creativity" and attaining "the establishment of a democracy of individual participation." Communitarian subjectivism showcased the importance of the vertical pronoun, participation and democracy as signposts on the path to liberation of self and society. And the interplay between politics, society, and culture—the mingling of demands for political and social change with new lifestyles and ideas—transformed the sixties into an era in which the old language no longer worked and gave the period a spirit that could prove at once exhilarating and excruciating.[5]

Communitarian subjectivism hit older liberals, particularly those in the university, hard. They had long placed their own liberalism—"an understanding that the federal government had the responsibility, power, and ability to reduce inequality, protect historically oppressed minorities, champion American interests and values around the world, and balance the private sector's singular focus on making money with a broad concern for the nation's long-term good"—at the left edge of pragmatic social criticism. Now, as their students turned on them, they talked uneasily about the possibility of revolution and anarchy in the university, as well as the larger society. "You know the worst thing you can do with a New Left radical is to tell them how you sat at restaurants with Whitney Young and how you helped start the Peace Corps and how you were against the war in Vietnam—but you weren't for revolution," one dean reflected later. "You were a despised liberal." The tension between liberalism and communitarian subjectivism pervaded the sixties, and liberalism went on the defensive.[6]

But when were "the sixties"? The usual narrative of the period portrays students prodded awake by John F. Kennedy's inaugural challenge to "ask not what your country can do for you"; turning left when events abroad showed up the president as just another Cold Warrior, and when early attempts to organize the poor did not win the support of conventional liberals; returning home to go "part of the way with LBJ" in 1964, beckoned by Lyndon Johnson's vision of a liberal Great Society, linked to a liberal Supreme Court; turning left again as Democrats' fear of a backlash, the Great Society's limitations, the rise of Black Power, and the Vietnam War caused liberalism's unraveling; then sometimes clasping hands with older liberals for a brief moment of hope during Eugene McCarthy and Robert Kennedy's presidential campaigns, until the summer of 1968, when society seemed to come apart at the Democratic convention in Chicago. After that apocalyptic moment, the story goes, the left broke apart and declined, taking liberalism along with it. The sixties subsided, despite aftershocks such as feminism and the environmental movement, and at the national level, conservatism triumphed.[7]

Recently, as historians have belatedly turned their attention to that conservatism, they have begun to chip away at the conventional tale of a liberalism torn asunder by assaults from the left during the 1960s. Among other things, they have questioned whether a liberal consensus on race prevailed during this period. They have also demonstrated the existence and endurance of conservative activists in the university, at the grass roots, and at the national level. Still, so far as elite universities are concerned, the focus remains on the development of conflict between liberals and the left. We may now gesture to the new scholarship by mentioning in passing that some universities possessed Young Americans for Freedom chapters, or that some college students, such as George W. Bush, actually seemed apolitical. But the conventional narrative of a liberalism ascendant until the left queried it remains largely intact.[8]

This book reinforces that narrative. Perhaps future scholars will portray Yale Law School as a fount of contemporary conservatism. After all, Robert Bork was a Yale law professor. The first national chairman Young Americans for Freedom elected in 1960, Robert Schuchman, was a Yale Law School student. Michael Horowitz, a 1964 graduate, proved a key player at the Hudson Institute. Stephen Hadley, national security adviser in the second George W. Bush administration, was a member of the class of 1970. Ben Stein and Michael Medved, later to become celebrated conservative critics, graduated from the school in the 1970s. Clarence Thomas became an alumnus in 1974. The first student division of the Federalist Society was organized at Yale. But few, if any, law students at Yale during the 1960s identified with conservatism or would have said so if they had. Those on the left possessed the voice, and the left-liberal conflict took center stage. Thus I have focused on how Yale fashioned a liberal image for itself, the repercussions that had for professors' relationship with students who challenged liberalism from the left, and how the faculty subsequently reaffirmed its liberalism.

While my story applies aspects of the conventional narrative to Yale Law School, it begins the sixties late in the decade. I argue that the first part of Yale's sixties took place between 1967 and 1970. What marked this period in the university at large, one historian has recently pointed out, was "the fracturing of the relationship between conventional liberals and left-liberal to radical protest movements," a pattern evident when students to his left challenged Dean Louis Pollak, a liberal stalwart.[9]

In retrospect, we can indeed see the breadth of the student movement and realize how many of its members were not radical or left, but what we would call today "left-liberal." And yet, although generally Yale law students were, at most, moving from liberalism to left-liberalism, liberalism and the left were so at odds during the late 1960s that characterizing young activists as left-liberal seems anachronistic. From liberals' perspective, a chasm separated them from radicals on the left, relating to the issue of incremental reform. If one believed the system salvageable, as liberals did, reform would render it more just. Consequently, reform would ultimately strengthen the status quo, the very reason to shun incremental change if one were radical and to press instead for changes liberals dismissed as utopian. Though Yale law students during the sixties often spoke the language of communitarian subjectivism, most of them were reformers, rather than revolutionaries—radical only in the eyes of their professors. Like true sixties radicals, however, many Yale law students became fed up with their teachers' liberalism, particularly when it showed up as support for the institutional status quo. Raised to place their faith in the United States, the young came to blame racism, poverty, and imperialism on the very liberals who had pledged to eradicate them. While Yale law professors shared some of the disillusionment, they also took students' articulation of it personally and understood that the young thought them part of the problem. Consequently, some faculty members considered law students' challenge of their own liberalism a threatening move toward the left and radicalism, although, in absolute terms, most students did not move all that far.[10]

The period of 1967-70, the first phase of Yale Law's sixties, thus brought tension as students who would later become professors, lawyers, and public servants, including Hillary Rodham Clinton, faced the faculty. During the years following that acrimonious time, when the conflict shifted into a new phase, the student body included Bill Clinton, future law professors such as Lani Guinier, and Clarence Thomas. The students' presence and experience at Yale helps to explain contemporary legal education and scholarship, the affirmative action debate, and their school's current celebrity.

Inspired by the social unrest around them, a vision of democracy and citizenship, and a sense of their school's historic importance as innovator in legal education, Yale students of the late sixties branded law professors hierarchical, accused them of racism and sexism, and disrupted law school life. The young worked feverishly to win a voice in the school, with an eye toward making their legal education more humane, egalitarian, and relevant, and toward supplanting the corporate attorney with the public interest lawyer. They were a part of a social movement calling for student power. The issues on which law students focused reflected their dissatisfaction with society and with their competitive and hierarchical education. They forced the faculty to make the grading system more egalitarian, to tolerate some student participation in the school's governance, and to increase admissions of underrepresented groups.[11]

Yale students were at once unique and typical. They worked to unlock a democratic vision of law and social change that they associated with legal realism, a progressive jurisprudence and approach to legal education long associated with Yale. Realism stressed the interrelationship of law and society, the inevitability of idiosyncrasy in the judicial process, and the importance of interdisciplinarity. Students appealed frequently to the sense of the school's special history that they shared with the faculty and charged their professors with trading on the school's glory days.

But the young were also creatures of their time. Their disaffection with their schooling and with the profession was hardly unique to Yale. Their disdain for the corporate bar illuminated the role of education in shaping professional identity and, ironically, may have helped reduce elite lawyers' concern with the public interest. And even after the members of Yale's sixties generation had themselves become hired guns, opting for more traditional careers in the very law firms they had once condemned as the "worst piece of shit I ever saw,"[12] their youthful attitudes left an imprint on the school.

The very issues that led to the unraveling of the postwar American liberal consensus and the emergence of identity politics also loomed large at Yale. The young battled with their professors over the issues dividing liberals from the New Left as they called for participatory democracy, community, equality, black power, a women's movement, and a counterculture. There was irony here too, for students' and teachers' objectives overlapped. Most, for example, opposed the war in Vietnam and dreamed of dumping Lyndon Johnson. Even so, what separated them overwhelmed what might have brought them together. The rhetoric of generational warfare thus reflected the young's particular disillusionment with Yale, while pointing up a more general unhappiness with legal education, the profession, and society. It mirrored the tension between students and faculty at other elite law schools during the 1960s, as well as that between undergraduates and their teachers.

Of course, this book is as much about faculty as students. Activists challenged their professors during a charged moment in the history of the United States and the law school, and the resulting clash pitted young against older in a very human story. Caught in a web of their own aspirations for their craft and their sympathy and antipathy for the young, Yale professors struggled. In what was not that much of an overstatement, one recalled later that "[e]very issue from student disciplinary procedures to the grading system or the food served in the lunch room became a matter of principle and threatened to fracture the faculty and the students." As some professors perceived it, left-wing students were destroying the law school and meritocracy in a Kulturkampf that sought to bring the faculty to its knees. One future dean would refer to the period of 1967-70 as "the Dark Ages." In his view, Yale's student Visigoths had sacked legal Rome.[13]

In the fifteen years after 1970, the second phase of Yale's "sixties," some of its well-known professors embraced liberal scholarship and politics anew. While liberalism disintegrated in the standard narrative, it regained its strength in New Haven. During the early 1970s, professors insisted on scholarly and, perhaps, ideological standards once students turned their attention elsewhere. Junior faculty members who had recently witnessed their seniors wringing their hands over student demands were deemed inferior scholars and denied promotions. And as it rebuilt, the faculty proved unwelcoming toward two left-of-center jurisprudential movements rooted in both Yale's legal realism and the sixties: Law and Society and Critical Legal Studies. Those who attended Yale Law School during 1967-70 played a key role in the formation of the latter. But Yale, which had embraced forward-looking legal realism in the 1930s, rejected realism's descendant, Critical Legal Studies, at the same time that Harvard Law School, which had once turned its back on realism, made a home for realism's child and for scholarship that represented one logical extension of sixties activism. In part, that may have reflected local events: having suffered through one bruising battle with what they perceived as the left, Yale law professors may have been fearful of becoming embroiled in another. They were also responding to the broader political changes outside law school walls associated with the sixties, such as the end of the Warren Court, and the realignments that were taking place.

In addition to seeing the sixties as a period, then, I also view it as a complex of events that together suggest Yale professors' rejection of progressive legal thought to their left. During the second phase of its sixties, Yale embraced a culture of timidity, along with an interdisciplinary liberalism, forged out of a sanitized realism. I suggest that memories of the late 1960s at Yale and in the nation may help to explain professors' actions and that Yale's promotion decisions of the early 1970s, like its faculty scholarship of the late 1970s and early 1980s, may have represented, in part, a reaction against the earlier student agitation. The contours of the modern law school that began to appear in the late 1970s may have reflected a desire to avoid the kind of conflict that had earlier beset the institution; they certainly indicated a desire to rebuild sixties-style liberalism after its local and national vicissitudes. After the crisis of 1967-70 and the promotion controversies of the early 1970s, the developments between the mid-1970s and mid-1980s gave Yale Law School its contemporary shape.

When Guido Calabresi became dean in 1985, the school's fortunes improved dramatically. As I suggest in Chapter 10, Yale flourished for some reasons that had little to do with its past, such as the winning of financial independence from the central university administration. Yet the school also succeeded because the new dean tamed sixties-style protesters as he confronted multiculturalism and other forces to which the sixties had given rise. My two themes—the problems of legal academia during the sixties, as told through the history of Yale, and the birth of the contemporary Yale Law School—are thus interrelated and interdependent.

So are Yale's intellectual and institutional histories. Of professors' publications, my account makes mention. But it pays more attention to them during some periods than others because scholarship ebbed and flowed in its importance to life at the school. If, as one faculty member said, no students "seemed to give a damn about what we were teaching" during the late sixties, then certainly no students gave a damn about what professors were writing. American politics and student demands proved more pressing.[14]

I do not maintain that ideas are ever irrelevant to understanding Yale. The school's intellectual history accounted for its faculty's political liberalism, sense of uniqueness, and reactions to student movements during the 1960s. It enabled Yale to present itself as breeding ground for those who would use law to transform society, spawning high expectations that students then deemed unfulfilled. Along with political concerns and dissatisfaction with legal education, a remembrance of Yale Law School in times past animated its students. Yet ideas per se proved less important in explaining what happened than did the gulf between students and teachers, reflected in their different status, attitudes, values, goals, and institutional roles.

By the late 1970s, on the other hand, the school bred law professors, and scholarship had become more important to institutional life. Students of the sixties had linked the whiteness and maleness of the faculty to a lack of intellectual diversity, but students of the eighties did so even more pointedly. Some professors during the 1970s and 1980s also grappled with, and tried to reshape, the meaning of the sixties in their work. Consequently, intellectual currents receive more attention.

As intellectual product seems more important during some periods than others, so sources are richer for some than others. For 1967-70, I found a cache of materials in manuscript collections, full faculty minutes, and a vibrant newspaper, which I occasionally supplemented with oral history. I have told the story chronologically, so the reader may see how the tension between faculty and students intensified each year. I have focused on the nitty-gritty of relationships negotiated in close quarters, personalities and interests, and general intellectual and political perspectives, while making dips outside Yale to contextualize events within. The multifaceted story thus becomes complex. I have made the narrative messier still by trying to present enough evidence so that a reader could "write the same book differently" from it, while understanding why I have come to my conclusions. That has entailed telling my story, insofar as possible, in the words of the actors, while recognizing that another individual, confronted with the same evidence, might have shaped every quotation and placed every ellipsis differently. And it has meant that this book is incomplete. Like most archival collections, Yale's is not ideal. No historian can be sure why some materials make their way into the record and others do not. Perhaps those that have survived represent the significant, and/or the significant materials have been destroyed. I have largely assumed the former for 1967-70, which may be problematic. In focusing on the voices of the professors, student officials, and dissidents I have found in the archives, I may exaggerate their representativeness. I have still less confidence in the fullness of the record for the later period. The minutes of faculty meetings, for example, rich in detail for 1967-70, become frustratingly discreet in the years that follow and, indeed, not all have survived, making speculation about motivation more difficult.[15]

Focus on the institutional shines a spotlight on hierarchy and grandiosity—the very reasons I submit that yet another book about Yale is not one too many. During the late sixties, Yale was both typical and special. Many students at other elite schools shared the politics of their Yale counterparts, if not the rhetoric about Yale's celebrated history. During the thirty years after 1965, Yale became ever more dominant in legal education. It became more atypical as it assumed a position of unusual importance in training the nation's leading political figures and professors. In addition to providing a case study of institutional development, examination of the school's past illuminates the historical importance of hierarchy within the legal academy. Exploration of Yale's history thus provides a prism on both the past and prospect of all legal education.[16]


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