by HLPR Online editorial staff
This post was written by Danny Rosenthal and Rachel Lauter and signed by nine members of the HLPR masthead, incoming masthead, and blog staff. Their names are listed at the end of the post. The full response of Alexa Shabecoff, head of the Harvard Law School Office of Public Interest Advising, is reprinted following the post.
Three weeks ago, Harvard Law School advised students to reconsider posting commentary about Wikileaks on “your blog, Facebook page, or twitter account.” The message came on the blog of the Harvard Law School Office of Public Interest Advising. The reason for the warning? Students who comment on the leaks might struggle to obtain government employment in the future. As Harvard students interested in public service, we were troubled both by Harvard’s statement and by the government policy that the statement describes, though we doubt that the policy actually exists.
Like Boston University Law School, Harvard extrapolated from news that the federal government warned employees and contractors not to access Wikileaks material. But this extrapolation seems like a huge leap because that policy is limited to current employees who are using government computers, as well as personal computers in very limited circumstances. Indeed, the Constitution may bar the government from going any further, an issue we will explore in a future post. (See this related post at ACSblog.)
Harvard’s statement did not present any evidence that government agencies are actually screening job applicants for activity related to Wikileaks. In fact, the government has distanced itself from warnings like Harvard’s. In December, Columbia sent a similar admonition, evidently based on the advice of an alum who now works in the State Department. But Assistant Secretary of State Philip Crowley responded that the alum appeared to be an “overzealous employee.” Ultimately, Columbia retracted its message. Oddly, while Harvard’s statement mentioned Columbia, it neglected to tell students that Columbia’s warning was later rejected both by a prominent State Department official and by the university that issued it. The Office of Public Interest Advising says it is considering a follow-up with this update.
We greatly respect and appreciate the Office of Public Interest Advising, which disseminated the message. Generally, the Office provides excellent career advice. Yet, its Wikileaks warning seems hasty and poorly researched. The warning contains no indication that Harvard tried to determine whether federal government employers were screening for Wikileaks activity. Instead, the post is entirely equivocal, asking students to “reconsider their first amendment right for the sake of employment.” And there are many other signs that the university just wasn’t taking this the very seriously, including its choice of forum—an informal blog that has been updated exactly three times in the last five months.
That all would have been fine if this were a less important matter. But the interests involved here—curtailment of free expression and threats to job opportunities—deserve greater diligence. Harvard chose the worst course by hemming to an indecisive middle ground. If there was a real threat to future employment, then Harvard neglected to send a sufficiently strong and public warning. But if, as we suspect, there was no real threat, then Harvard chilled expression for no reason. Ultimately, students were likely confused by the mixed message, leading them to overreact or underreact to the warning.
In a very thoughtful email to HLPR (reprinted below), Alexa Shabecoff, the director of the Office of Public Interest Advising, emphasized that the post was the work of a sole staffer, not an official position of the Office, and that the blog is a forum to provide “food for thought” and “foster discussion.” She said the post was not meant to discourage free expression. Rather, the post was part of the Office’s responsibility to “call attention to questions that are being raised across the academic community, especially when those questions are relevant to the job search process.” Ms. Shabecoff also indicated that the Office aims to encourage risk-taking and that our message spurred a discussion within the Office about the post and possible follow-ups.
Still, while the Office’s blog may be an unofficial forum, this is not clear to readers. The blog is hosted on Harvard’s website, titled with the name of the Harvard Law School Office of Public Interest Advising, and linked on the official page of the Office. Nothing on the blog or this post told readers that this was not an “advisory from OPIA,” in Ms. Shabecoff’s words. Furthermore, the casual nature of the post actually deepens our concerns. We think that, given the chilling potential, Harvard should have addressed the issue more openly and worded the warning more carefully, making clear that there was no real evidence that screening was taking place.
While the warning would have been troubling as an isolated incident, the problem is not primarily about this particular message or the office that issued it. Rather, the situation demonstrates a broader phenomenon of law schools overtly or indirectly pushing students towards moderation and risk-aversion, while failing to help them develop strong personal beliefs. Actually, this phenomenon seems much more pronounced in private sector career advising than in public sector advising. Perhaps the push towards risk-aversion is a rational response to market forces, including schools’ fear of unemployment among graduates. But we came to law school in part to develop advocacy skills to fight for the issues we believe in, and sometimes we feel pressured by our school to shelve this ambition in favor of marketability to potential employers.
A better model for Harvard might have been its own response to the Solomon Amendment, which required schools to admit military recruiters to receive federal funds. Harvard banned military recruiters from campus in protest of Don’t Ask, Don’t Tell and challenged the amendment in court. After the Supreme Court upheld the Solomon Amendment, Justice Kagan, then Dean Kagan, wrote the following to the Harvard Law School community:
“I am disappointed by this decision, which rejected the statutory claim presented by a group of Harvard Law School professors as amici, as well as the constitutional claim raised by FAIR. In the wake of this decision, Harvard Law School will continue to provide Career Services assistance to the military, as the School does to non-discriminating employers. At the same time, I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust — and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services.”
When Columbia retracted its Wikileaks warning, it made a similar statement: “Students have a right to discuss and debate any information in the public arena that they deem relevant to their studies or to their roles as global citizens, and to do so without fear of adverse consequences.”
But we have not yet heard this message from Harvard with respect to Wikileaks. We think that a statement from the law school administration supporting students’ First Amendment rights and encouraging vigorous debate and intellectual risk-taking would be a welcome change. At the very least, when the next situation of this kind arises, Harvard should avoid suggesting to students that these values are subordinate to marketability.
As for the government, we urge federal agencies to build on Assistant Secretary Crowley’s statement by making clear that they will not blacklist applicants who read or comment on Wikileaks, much as the Air Force clarified that families of Air Force personnel could not be punished for reading Wikileaks. Even assuming that corralling the leaks is a worthy goal, the government cannot realistically hope to contain information published by the New York Times and others through this approach. That would have been difficult 100 years ago, but it’s impossible today. Consequently, any benefit to the policy would be dramatically eclipsed by the burden on public discourse and academic freedom.
-Danny Rosenthal, Rachel Lauter, Dan Berkovits, Lee Brand, Anush Emelianova, Jason Harrow, Anthony Kammer, Jake Laperruque, Yevgeny Shrago, Seth Wiener, and Dave Zucker.
The following response was sent to HLPR by Alexa Shabecoff, director of the Office of Public Interest Advising:
Thanks for writing and giving me a chance to clarify the function of OPIA’s blog.
Like the HLPR blog, our own blog is not meant to be the place where we communicate official stances of OPIA or formal advice to students about their searches for public interest jobs. When we need to communicate an agreed-upon position, policy or advisory, we post it on our website or send it in an email to the students who need to know about it. An example of the former is athttp://www.law.harvard.edu/current/careers/opia/landing-your-job/negotiating.html or the latter at https://www.law.harvard.edu/current/careers/opia/secure/1ljan24summer.html.
Instead, the blog is meant to be a kind of forum – a place where, if our staffers see some timely news and have time to post it, they can raise issues of interest and potential relevance to students who are thinking about or pursuing public interest or public sector jobs. The blog is meant to be ‘food for thought’ and to foster discussion.
Having said that, I can see that parts of the blog post in question do sound a bit editorial, but it was written by a sole staffer (several staffers contribute items for the blog) and does not reflect an official position or advisory from OPIA. Beyond that, I hope it is apparent that the most salient part of the post was probably Jonathan Zittrain’s quote about what had been happening at some other schools, actions that he surmised were less about weighing in as a matter of policy than they were about simply raising an issue. I know the staffer meant to emphasize that point , even if it did not come across clearly as clearly as we might have liked.
I hope you know from your own experience with us that our staff here at OPIA does indeed try to encourage students to take risks that we believe will lead to careers in public service. We know that the public interest route inherently feels somewhat riskier to students than the private sector career path, so we try hard to encourage people to pursue the work they find the most exciting and try to get them to think outside the box about their options and how to get there.
However, we do feel that we have some responsibility to at least call attention to questions that are being raised across the academic community, especially when those questions are relevant to the job search process. For example, we advise students to be aware of their online presence in an age when more and more fragments of personal information and communication are accessible. We don’t tell them what they should or should not share or do online – after all, freedom of information and expression is a core value of our school. But they should be aware of the visibility of their online lives so they can make their own informed and calculated decisions about exposure and risk.
In any event, I appreciate your reaching out to me about this – it has helped foster further discussion in our own office about the original blog post, and it suggests that a follow-up post or continuing updates about the Wikileaks issue (for example, the turn of events that occurred at Columbia) would be appropriate and – I hope – beneficial.