President Wright, Chairman Perkins, Distinguished Guests, Dear Friends and Colleagues:
It is an honor, a great honor, to have been invited to address you this evening as we celebrate the 75th anniversary of the founding of The American Law Institute. While I have been a member of the Institute since 1977 and a member of its Council since 1980, my responsibilities as a university president have, for the time being, sharply curtailed my involvement in the affairs of the Institute. My dilemma has not been made any easier by the fact that California is on another continent (as measured by distance is, of course, all I mean to suggest). Thus this invitation came as a surprise, unless President Wright meant it as punishment. Also, having been so successful two years ago in introducing Judge Posner's mealy-mouthed talk about the future of the American Law Institute, I wasn't so sure that I had any future at the American Law Institute.
There is another reason I was surprised by the invitation. You know that members of the Institute, in participating in its proceedings, are supposed to leave their clients at the door. But how do I comply with this admonition? These days, and for the first time in my life, I myself am mostly a client (and a victim) of lawyers. A sobering experience! My daughter who is a lawyer, when asked what her father does, answers: "My father? Oh, he is a defendant."
I take solace from an experience I had some time after I became president when awaiting a green light standing at an intersection in Seattle.
A man who smelled heavily of liquor and whom an earlier age would have described as a bum asked me: "Are you a lawyer?"
"Why?"
"You look like a lawyer."
"Well, I guess I am a recovering lawyer."
"Ah, that's like a recovering alcoholic: it doesn't work. . . ."
And when the light changed, he cheerfully said: "Well, have a nice afternoon, brother!"
An after-dinner talk is generally a challenge. I suspect that, even before Homer's time, speakers were well aware that "wine can of their wits the wise beguile." This particular event presents the additional hazard of catapulting the speaker into the heady company of his or her predecessors: Supreme Court Justices, Ambassadors, Attorneys General, Chief Judges, and Members of Parliament (in unranked order).
Any speaker at The American Law Institute, however, can take comfort in the endless list of stimulating after-dinner topics. Now, Charlie, knowing that I have little time for historical research these days, has expressly relieved me of the task to address the history of the Institute (he said it would be alright to talk about universities). Had I not been so relieved, an obvious possible choice, at this anniversary celebration, lies in the opening words of the 1923 report to establish the Institute: "There is today general dissatisfaction with the administration of Justice." While in these 75 years the Institute has no doubt brought order and rescue to the common law , as Benjamin Cardozo hoped it would, it has not prevented - to quote the title of a 1994 book - "the death of common sense" in the American legal system. The subtitle of Philip Howard's very successful tract (it sold 500,000 copies) was "How law is suffocating America."
More anniversary ideas are to be found in the 45th annual meeting, when our much-missed Council member and friend, Dean Griswold, then Solicitor General of the United States, tackled the open-ended subject of "Our Problems." At the 55th meeting, the former president of Yale but then Ambassador to the Court of St. James, Kingman Brewster, went further afield with "British Legal Problems." These two titles reminded me of a comment attributed to Lord Diplock at the conclusion of a conference on administrative law attended by prominent American and English jurists in 1971. Some of you may have been there. Lord Diplock noted that "the main value from the English standpoint was to observe the horrible American examples . . . and to learn not to do likewise."
But among the most ambitious topics was the speaker's choice at the ALI's 50th annual meeting. On that occasion in 1973, the Institute's and my personal friend Carl McGowan, then Judge of the United States Court of Appeals for the District of Columbia, declared that he thought it would be instructive "to look around for other entities with life spans coinciding with that of the Institute." He found two such: "One is the Union of Soviet Socialist Republics, which began its formal existence at almost the same time in 1923 as did the Institute. The other is the Walt Disney Organization." And where did Judge McGowan go from there in this ingenious attempt to compare and contrast? He confessed that all he could muster was to note that when Premier Khruschev visited the United Nations in 1960, the place he was said to have wanted most to see in the United States was not the ALI but - you guessed it - Disneyland. With the benefit of hindsight we can easily see what great mistake that was. For all I know, and Lord Diplock notwithstanding, had Khruschev visited the ALI and learned all the lessons we have to teach, there might still be, perish the thought, a Soviet Union.
There are more promising examples of firsts from the ALI's founding year of 1923: transatlantic broadcasting between England and the United States was established; Texas dry agents started air patrols to catch bootleggers; Blues singer Bessie Smith made the first song recording ("Tain't Nobody's Bizzness if I Do"); Montana and Nevada passed the nation's first old-age pension grants, $25 per month; Oklahoma Governor Walton was ousted by the state senate for his anti-Klan measures; and beach censors banned one-piece bathing suits in Atlantic City. (Since I cannot believe that this measure was meant to promote bikinis, it's not clear what that leaves as options.) 1923 was also the birth year of writers Nadine Gordimer and Norman Mailer, astronaut Walter Schirra, statesman Henry Kissinger (whom I have always admired for his accent), and mime Marcel Marceau (whom I had the great privilege of welcoming to Stanford just a couple of months ago: he performed without an accent). Happy 75th year to the ALI and to them all.
The motto of Stanford University - "The wind of freedom blows" (Die Luft der Freiheit weht in German) was taken from the writings of the humanist Ulrich von Hutten. The first president of Stanford, David Starr Jordan, persuaded Senator Stanford to accept it as the new university's motto. In Jordan's words: "Mr. Stanford was impressed with the winds of freedom - which we hoped would continue to blow over Stanford University . . ." as indeed they generally have, over Stanford and other American universities, both private and public.
While the United States Constitution does not specifically protect academic freedom, on the whole the First Amendment guarantee of free speech and, even more importantly, the civic and political culture supporting it and higher education, have, for a long time, kept government out of "the four essential freedoms" of a university cited by Justice Frankfurter in his famous concurrence in Sweezy v. New Hampshire. They are a university's "freedom to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." To be sure, at times, such as the McCarthy period, the wind of freedom blew more weakly; in some places it may not even have amounted to a breeze. However, in a worldwide comparison, there can be little question that the United States may be proud of the freedom from government its universities have enjoyed as to Frankfurter's core freedoms.
Alas, increasingly government makes judgments about who shall teach (it does so in law suits, especially over tenure, involving claims based on anything from breach of contract to discrimination). It tells us what may be taught (a federal district court in Boston recently instructed Boston University that it had not sufficiently justified its century-old language requirement against plaintiffs who invoked learning disabilities). Stanford has been told how to teach - by not invoking its student discipline (I shall return to this subject later). And who should be the students is a matter of intensive regulation ranging from civil rights statutes to the Americans With Disabilities Act to prohibition of affirmative action for public universities in California and Texas.
The phrase "ivory tower" appeared in literary circles in the early 19th century when it was taken to indicate a life of "seclusion," "divorced from everyday life," "a place remote from worldly and practical affairs." I actually believe, for better or for worse, universities never had much of an ivory tower existence, and what walls the tower ever had are crumbling. Whatever protection universities and their members enjoy are those of every other citizen, no more no less. Justice Frankfurter's opinion in Sweezy was only a concurrence.
When I became president of Stanford University six years ago, one of my highest priorities was to engage my colleagues on the faculty, and the university's students and trustees, in a review of our institutional priorities - particularly our curriculum and policies related to research and teaching. I wanted our focus to be an internal one. What kind of institution are we? What should we be? What should we do? How should we do it? In short, I wanted to concern myself with the objects of the "four essential freedoms." And I have done so.
Yet, my greatest surprise during my six years at Stanford has been the vast amount of my time and that of other top administrators that is spent on legal matters. During the first three months of this year, a single law suit over tenure has taken 10 percent of my regular working hours in depositions, preparation for depositions, and review of deposition transcripts. Think of that in relation to everything else a university president is supposed to do, from worrying about the academic mission to fund-raising. In the case I just mentioned, all the underlying events took place in 1988, four years before I became president. My only involvement was that I denied the professor's grievance. The provost has also been deposed in this case. She had no role whatsoever. The case is in state court, and California allows depositions to be the contemporary equivalent of torture as a means for getting evidence. Of course, some people in this town probably have come to similar conclusions.
It has been sobering for me to realize that the contemporary research-intensive university is so heavily regulated by all layers of government and considered a "deep pocket" by so many private plaintiffs that the very character of the university is being transformed - and its contribution reduced. In contrast to a soldier in the Boer War named Winston Churchill who declared that "Nothing in life is so exhilarating as to be shot at without result," I worry even about the shots that miss since, given the legal system's inefficiencies, the costs are exorbitant regardless of outcome.
My recent encounters with lawyers, both government and private, have frequently reminded me of my close friend, former Chicago colleague, and member of this Institute, the late Phil Kurland. He was much disenchanted with what you might call an "anything goes" approach in law. A Kurland faculty club roundtable exchange with George Stigler, the Nobel economist, has become legendary. Stigler, at lunch, began a sentence by opining, "No lawyer would . . . ." Whereupon Phil Kurland interrupted him impatiently, saying: "Stop right there. There is no way you can finish that sentence!"
That I should have been surprised that a university president must spend more time on the law than does a law school dean may strike you as itself surprising. After all, even presidential candidates, both Republican and Democratic, run on platforms complaining about big government. Beginning with President Carter and continuing with Presidents Reagan, Bush, and Clinton, the winners in presidential elections have been - so far not very successfully, I may say - committed to deregulation. And, of course, as provost at the University of Chicago, or as Dean of its law school, I had occasional skirmishes on law-related matters. Yet my experiences earlier have paled beside the range of issues I have encountered in the last six years. As long as the buck stopped in somebody else's office, I probably retained a measure of detachment that is no longer available to me.
When Margaret Marshall, the former General Counsel of Harvard University, spoke to you at the ALI's annual meeting last year, she talked about the legal challenges facing universities. In particular, Justice Marshall mentioned cases involving: gender equity in athletics; accommodations for students with disabilities; liabilities of universities for sexual harassment claims; racially motivated harassment; and alleged age discrimination in college admissions. These few words cover an astounding array of complexities, and no university president in the country has escaped dealing with one or more of them.
When the National Commission on the Cost of Higher Education visited Stanford last fall, I raised the question of regulatory costs. Increasingly, the law is treating nonprofit organizations like the for profit world. For profit corporations have some flexibility in passing on regulatory costs, but universities have little room in that respect. What we pay almost invariably comes out of teaching and research - and, in some ways, out of your children's tuition.
By extremely conservative accounting, Stanford absorbs approximately $29 million per year in ongoing costs related to compliance and unreimbursed overhead. (And that figure does not include any capital costs.) This equals approximately 7.5 cents of every tuition dollar. It does not even count the value of the considerable amount of time spent by faculty and staff in compliance related meetings, on panels, doing paperwork, meeting with compliance officials, and performing other related tasks - probably another 5 cents of each tuition dollar.
In citing these costs at Stanford, I do not want to leave you with the impression that it is only the large research-intensive institutions that bear such costs and burdens. Last year, the Office of the President at Bates College, in Lewiston, Maine, constructed "a database of all regulations that impact the College from external sources." The professionals in each office who deal with the regulations on a daily basis were asked to contribute to the list: the Controller entered information on accounting and financial regulations; the Safety Director entered information on OSHA regulations; the Dean of the Faculty entered information on accreditation regulations. And so on through the offices of Financial Aid, Athletics, the Health Center, the Registrar, the Library, Admissions, Career Services, Personnel, Institutional Research, and the Dean of Students. In short, every major unit listed in the college directory found it had something to contribute to the database. The final database document (which does not include the statutory and regulatory texts) from Bates College weighs five pounds; a cover note warns that the project is not finished since regulations will continue to change and new additions will be made. This is certainly a book, as some wit once noted about such books, whose covers are too far apart. Or to apply an observation of the aforementioned Winston Churchill, "This is one of those cases in which the imagination is baffled by the facts."
The National Commission on the Cost of Higher Education that entitled its report "Straight Talk About College Costs and Prices" - and straight talk it was, indeed - stressed the need for new approaches to ensure public accountability of universities and colleges in ways that are less costly and more easily manageable. The Commission called for replacing the current command-and-control approach to academic relations with an approach that emphasizes performance.
From these general observations, I should like to turn one specific issue that raises broad and tall philosophical questions about university autonomy. It is embodied in a California Circuit Court case called Corry v. Stanford. The decision went against the university and I decided not to appeal. I am sometimes asked which decisions of the six years of my presidency I regret. Not appealing the Corry decision is a prime candidate. Since probably many of you will disagree with that assessment, I think the issue is a perfect one to take with you to bed tonight.
May 1994 brought a lawsuit against Stanford University by conservative students who challenged the so-called Grey Interpretation of the University's Fundamental Standard, the measure of conduct for Stanford students since 1896. The Grey Interpretation - named for Professor of Law Tom Grey - subjected the face-to-face use of racial epithets to university discipline under the Fundamental Standard.
First, the 1896 Fundamental Standard:
Students are expected to show both within and without the University such respect for order, morality, personal honor, and the rights of others as is demanded by good citizens. Failure to do this will be sufficient cause for removal from the University.
As a preliminary observation, I think it would stretch credulity to assume that this one-hundred-year-old language was meant to give students the right to defame or employ racial epithets against other students or a faculty member. The Fundamental Standard's ultimate criterion is, after all, "good citizenship."
In 1990, the university adopted an interpretation of the Fundamental Standard titled "Free Expression and Discriminatory Harassment." The interpretation spelled out when the face-to-face use of racial epithets or their equivalent would be viewed as harassment by personal vilification, and, therefore, as a violation of the Fundamental Standard. The interpretation made use of the "fighting words" exception to the First Amendment. All other forms of speech at Stanford were protected. Indeed, one could argue that the Grey Interpretation helped to eliminate vagueness and was thus protective of speech. Nobody was ever disciplined under it.
In 1992, the California legislature made California the only state in the union to eliminate the freedom of private universities to deal with speech according to their own values. It prohibited private institutions, other than religious ones, from disciplining students on the basis of speech "that, when engaged in outside the campus . . . is protected from governmental restriction by the First Amendment." The Corry case challenged the Grey Interpretation under this so-called Leonard Law. By a sleight of hand, this statute had transformed the First Amendment from a protection of private citizens and institutions against government into a vehicle for forcing private institutions to do what government wanted them to do.
On February 27, 1995, the Santa Clara County Superior Court held that the Grey explication of the Fundamental Standard was unconstitutionally overbroad; that it did not proscribe all fighting words and was thus an unconstitutional viewpoint-based rule; and that the Leonard Law was constitutional.
I was not yet at Stanford when the university adopted the "Free Expression and Discriminatory Harassment" interpretation of the Fundamental Standard. Its passage by the Student Legislative Council after eighteen months of discussion and debate left many on campus feeling ambivalent about it. I share that ambivalence and would have preferred the harsh wind of freedom. However, voluntary agreement to principles is not the same as being ordered by the state legislature to follow every twist of case law that is aimed at government.
It is ironic that, while opposing the university's rule on First Amendment grounds, the court endorsed the Leonard Law. I thought the First Amendment freedom of speech and freedom of association was about the pursuit of ideas. Stanford, a private university, for better or worse, had the idea that its academic goals would be better served if students did not use racial epithets to vilify fellow students. The California legislature apparently did not like such ideas, for it prohibited private secular universities and colleges from establishing their own standards of civil discourse. Under California law, religious institutions alone can claim First Amendment protection in this regard. However, they may not be safe for long.
Unhappily, I report that the spirit of the Leonard Law is flourishing in the United States Congress. Less than two weeks ago, the House, by voice vote, passed a sense of the House Resolution that no institution of higher education may sanction any protected speech. Protected speech is defined as "speech that is protected under the 1st and 14th amendments to the United States Constitution, or would be so protected if the institution of higher education were subjected to those amendments."
I was taken aback by the fact that most people did not seem to care about what troubled me then and continues to trouble me. Certainly few "conservatives" rallied around the university's freedom of association. Quite to the contrary, the conservative plaintiffs and their supporters mindlessly invoked the power of the state to impose their ideological preferences on their alma mater. Many true liberals unthinkingly concluded that what is the law for Berkeley must be the law for Stanford.
Among the notable exceptions has been the former president of two important public institutions, the universities of Virginia and Wisconsin, Robert M. O'Neil. In his 1997 book Free Speech and the College Community, he deals extensively with the Stanford situation and supports the position I had tried to articulate. The San Francisco Examiner, on the other hand, called it a "laughable convolution."
In spite of my strong views, I decided not to appeal. It did not seem appropriate to spend Stanford's limited resources of money, time, and attention to fight a case that, given the superficiality of the debate in the media and public, was portrayed as involving only the legitimacy of what hyperbolically were referred to as "speech codes."
And while the pragmatic part of my mind continues to believe that was the right decision, the part where principle resides continues to grieve about the loss of university autonomy.
An after-dinner talk is neither the time nor place to attempt a comprehensive statement on all the considerations of the government-university relationship; I hope I have given you some sense of the enormously complex issues involved. My greatest worry is that we may take universities for granted. Universities are fragile - they can be damaged quite easily, as all of us who experienced the late sixties and early seventies can remember. It might be assumed that they can absorb increasing regulation and the concomitant increase in operating costs and remain unaffected in their quality, their vitality, and their ability to contribute to society, as they have so magnificently done. If I had only one message to leave with you, it would be that you not permit that profound error to gain currency. In order to perform their tasks in teaching, learning, and research, universities need the wind of freedom to blow strongly.