Sheldon Hackney’s “Spring-From-Hell,” continued

I first learned of the water buffalo episode from Kors when he called me, probably soon after March 22. I told him in that first call that I knew nothing about the case but that I would find out and call him back. I asked Steve Steinberg, my assistant, to get the facts. Later, Steinberg reminded me that when I had spoken at Hillel on the first Friday evening of the term, Jacobowitz had been there, as had Steinberg. A group of students had gathered around me chatting and, according to Steinberg, Jacobowitz had described his predicament, insisting that he was not guilty of racial harassment. I apparently was sympathetic and told him that he should go through the process, tell the truth, and he would be OK. I still do not remember this, but I have no reason to doubt it.

When Steinberg reported back, he gave me the facts of the incident very much as I have related them above, and he also brought the news that the formal charges had been served and the judicial process had been set in motion. I called Kors, told him what I knew, and said that I could not intervene. It is crucial to understand that the Penn system was set up specifically to exclude the President and Provost. With regard to disciplinary cases, I was similar to a mayor, who can not tell the district attorney what to do, and I was not at all like the chief executive officer of a corporation, who can tell anyone in the organization what to do. That a college president does not have the power of an army general is a bit of “context” that my journalistic stalkers somehow neglected to pass along to their readers.

Kors called me several times in the next few weeks, always demanding that I simply order the JIO to drop the case. I always declined. It struck me as ironic that one so punctilious as Kors was about the principle of due process was pressuring me to throw due process out the window. Kors was also calling other people in my office and in the vice provost for University life’s office. On April 7, I got a long memorandum from Steve Steinberg describing an hour of conversation on the phone with Kors arguing for intervention. He ended by saying that if we were set on not intervening he would stop the phone calls and pursue the defense of his client in other ways.

Shortly thereafter, Eden Jacobowitz hand-delivered to my office a copy of his long, eloquent, contrite letter to the JIO that argued again that the term “water buffalo” had no racial meaning and that he, Eden, had had no intention of hurting the women complainants. Furthermore, the letter charged that the JIO was sending his case to a hearing panel simply because the JIO did not want to take personal responsibility for ruling that the charges of the women did not amount to a violation of the racial harassment policy. Jacobowitz was probably right about this. Even though the JIO—actually, the assistant JIO, who was handling the case—had the authority to decide whether or not there was enough merit to the allegations to warrant sending them to a faculty-student panel, given the fact that the JIO was herself black and was a relatively junior administrator, the pressures would have been enormous.

I sent a copy of the Jacobowitz letter to Steve Steinberg on April 12 with a handwritten note: “If this guy gets convicted it will be a horrible miscarriage of justice, but I suppose there is nothing to do but let the process play out and hope for the best from the Panel. You ought to alert Carol Farnsworth [our press officer] that we may be getting some negative attention from the NAS [National Association of Scholars, a group in which Kors was active that had been organized to resist the radicalization of universities].”

In his follow-up memorandum to all the people within the administration who dealt with the press, the public, the trustees and the alumni, Steve also mentioned that we could expect to hear from Accuracy in Academe, the Anti-Defamation League, and the American Jewish Committee. Steve also pointed out that Jacobowitz’s letter had indicated that copies of it had been sent to powerful presumed allies outside the University: Harvey Silverglate, prominent ACLU attorney and later the coauthor with Alan Kors of a book that prominently included a discussion of the Water Buffalo case, The Shadow University [“Notes from the Undergrad,” January/February 1999]; Alan Dershowitz, professor of law at Harvard; Nat Hentoff, columnist for the Village Voice; Dorothy Rabinowitz, member of the editorial board of The Wall Street Journal; and George F. Will, nationally syndicated columnist. The posse was being formed, and their telephone reconnaissance calls began almost immediately.

Linda Hyatt, my chief-of-staff, sent me a quick note also on April 12 describing an agitated telephone conversation she had just had with Alan Kors. He was “revved up pretty high,” she reported. “Alan brought Jesse Helms, national spotlight, the whole nine yards into it.” She asked me to call Alan and try to convince him again that letting the disciplinary process be completed was the best course of action. I tried. At the end of that long and tortured conversation, Alan said that if I didn’t end the Jacobowitz case, “I will have to go public.” I knew exactly what he meant.

By the time of that letter from Jacobowitz, and the last round of telephone conversations, President Clinton’s intention to nominate me was public knowledge, making me an attractive target, and the demonization of Lani Guinier was visibly under way, demonstrating what I could expect from a politicized process. All of my personal political interests lay on the side of resolution—as fast as possible. As the threatened political campaign against me exploded in the news media, and the strobe light of negative publicity flickered incessantly, trustees began urging me to find some way to end the agony, and even my colleagues among the senior officers were pressing me to get the University out of the headlines. My staff and I spent agonized hours worrying the question of whether or not I could intervene.

Nevertheless, I could not see a rationale that was either “constitutional” under the University’s rules of governance, or fair to the five black women who had a right under University policy to have their complaint adjudicated by a faculty/student panel. In addition, to have intervened simply because Penn was suffering from bad press would open the University to extortion by publicity. To have intervened also would have thrown the University into a crisis that would have been both racial and constitutional. By the time those crises made themselves felt, I would have been safely installed in Washington, but I could not bring myself to use Penn in that way.

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