Can Harvard deal with cops, even Harvard cops?

I came upon an article in Wednesday's Boston Globe about possible reform measures for the Harvard University Police Department (HUPD) following recent allegations of racist conduct. I felt a sense of indignation, not only because I had seen this in the HUPD many times before, but because the reform mentioned in the article was, in my opinion, a prescription for failure. I was compelled to write those involved a memorandum detailing why they need to get tougher with the HUPD if they really want to see things change.

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                                                Memorandum

To:       Committee to Review the Harvard University Police Department
                        Ralph Martin, Esq.
                        William Lee, Esq.
                        Professor Mark Moore
                        Professor Nancy Rosenblum
                        Matthew Sundquist, President of Harvard Undergraduate Council
                        Professor David Wilkins 

Cc:       Drew Gilpin Faust, President of Harvard University
            Francis D. Riley, Chief of Police, HUPD
            Professor Charles Ogletree
            Professor J. Lorand Matory
            Robert Iuliano, Esq., Harvard General Counsel
            Hon. Margaret Marshall, Chief Justice, Supreme Judicial Court of Massachusetts
            Tracy Jan, Reporter, The Boston Globe
            Renee Loth, Editorial Page Editor, The Boston Globe
            James R. Houghton, Harvard Corporation/President and Fellows
            Roger W. Ferguson, Jr., Chairman of Harvard Board of Overseers
            Mitchell L. Adams, Member of Harvard Board of Overseers
            Malcom A. Glenn. President, The Harvard Crimson
            Andrea Saenz, Editor-in-Chief, The Harvard Law Record
            John S. Rosenberg, Editor, Harvard Magazine
            John Reinstein, Legal Director, ACLU of Massachusetts
            Carol Rose, Executive Director, ACLU of Massachusetts 

Date:    August 28, 2008

Re:       Harvard University Police Department and abuse of students and faculty 

            This memo is addressed primarily to the members of the newly-appointed committee, chaired by Attorney Ralph Martin, designated to look into problems that have arisen (and been recognized) of late in connection with the Harvard University Police Department's (HUPD) treatment of students and faculty members in a racially offensive and problematic fashion. I am, however, copying certain other persons in and out of Harvard who have expressed, or are likely to have, an interest in this matter. Further, I am posting this memorandum on my weblog, The Free For All (www.TheFreeForAll.net), maintained on the website of The Boston Phoenix (www.ThePhoenix.com), for which I am long-time legal and civil liberties "Freedom Watch" columnist.

            According to Tracy Jan's front page story in the August 27, 2008 Boston Globe, the six of you have been selected by President Drew Gilpin Faust, in Jan's words, "to review the diversity training, community outreach, and recruitment efforts of Harvard police." (A follow-up piece appears in today's Globe) If, in fact, this is your Committee's designated approach to resolving the problem of how the HUPD treats black members of the Harvard community, then your work is destined to fail. The long-standing problems that beset the HUPD are not going to be solved with more of the politically-correct, tendentious, and ultimately unworthy thought-reform efforts connoted by the terms "diversity training" and "community outreach." Rather, what is needed is some tough-minded reform in HUPD governance. I have been a close observer of the HUPD for many decades - ever since I entered the Harvard Law School Class of 1967. As a criminal defense and civil liberties lawyer, I noticed an explosion in the mid-1980s of student complaints about mistreatment by HUPD, with a majority (but hardly all) of those complaints coming from black students and other racial minorities. I also took some complaints from black faculty members. 

            In my 1998 book The Shadow University: The Betrayal of Liberty on America's Campuses (The Free Press, 1998; paperback from HarperPerennial, 1999), co-authored with Professor Alan Charles Kors, I tell the story of Inati Ntshanga, a black South African undergraduate who, in 1993, was subjected to mistreatment by the HUPD. I am enclosing with this memo a copy of the relevant pages of my book (pp. 323-325), but I will proceed here to summarize the incident, including how I tried both to obtain justice for Ntshanga and effect some reform of, or at least supervision over, the HUPD.

            To summarize the case: Ntshanga was a proud student who had struggled against South African apartheid before coming to the U.S. to enroll in Harvard's Class of 1995. To support himself, he worked two campus jobs, and one was at the HUPD headquarters, dispatching vehicles operated by a campus shuttle service. One day in the fall of 1992, he claimed he was picked on, without cause, by Sgt. Kathleen Stanford. An argument ensued, and though no formal charges were brought, an air of acrimony remained. The following month, Ntshanga was once again the subject of police inquiry. Four HUPD officers approached him while he was performing his second job, collecting dirty laundry from dorms during the Christmas period. The officers demanded that he produce his student ID. Ntshanga did not have his card, he explained, at which point one officer asked for "a welfare card." As tensions rose, Sgt. Stanford arrived on the scene. Ntshanga was sure she would identify him as a student, even if she didn't particularly like him. But, to his surprise and dismay, she denied knowing him to be a student. The officers proceeded to arrest Ntshanga for trespassing, breaking and entering, and possession of burglary tools (the keys he used to enter the building - part of his job).

            A county prosecutor, shocked that the HUPD had gone to such lengths, dismissed the charges. As Ntshanga's lawyer, I wrote a complaint to Margaret Marhsall, the then-Vice President and General Counsel of the University, now the Chief Justice of the Supreme Judicial Court of Massachusetts. She assigned the investigation to University Attorney Allan Ryan. Ten months later, he issued a report clearing all officers, saying that none of them - including Sgt. Stanford - knew Ntshanga was a student. He also deemed the "welfare card" statement to be "standard procedure when a person says he has no identification." There were obvious holes in the investigation, such as Ryan's failure to interview witnesses to the first argument who could attest to Stanford's knowledge of Ntshanga's status as a student. But, appeals to both the Harvard president and the secretary to the faculty of arts and sciences produced no response. Ntshanga returned to his native South Africa with a bitter taste. 

            The Ntshanga case bears a remarkable resemblance to one of the stories recounted in the aforementioned Globe article. Working at his summer job on campus, a Boston high school student was confronted by HUPD officers as he tried to free his bicycle from a broken lock. It is likewise similar to the experience told by Professor S. Allen Counter in 2004, when he was mistaken for a black robbery suspect while walking across Harvard Yard to his office. It is similar as well to the 2007 incident when an HUPD officer inquired whether those attending a black student group-sponsored Field Day were Harvard students or had permission to be on the Radcliffe Quad, despite their having had a permit to do so.

            My point, of course, is that history has repeated itself many, many times. The first time, as it is said, might be tragedy, but by the second time it begins to resemble farce. For every case reported, there were obviously many that went un-reported. Too many have had to simply swallow the insult and proceed with life. 

            Indeed, I have received so many complaints over the years from affected and offended Harvard students, that I took the extraordinary step of placing a paid advertisement in the Harvard Crimson of October 29, 1993. I specifically appealed to "Harvard students who have tangled with the Harvard University Police Department." (A photocopy of the actual advertisement is appended hereto). In the advertisement, I noted that my law firm had "in recent years been involved representing students in unfortunate incidents with the Harvard University Police Department" where the students had been abused. I asked for other victims to communicate with my firm, and I then collected their incidents. The results confirmed my suspicion - that abuse was more widespread than one would have thought. I think that repeating such an outreach effort today would yield helpful information.

            In my view, I've never been able to get adequate remedial action by the university in any of my cases because the HUPD, simply put, is more police than Harvard. The HUPD is unionized, and the university is very hesitant to deal forcefully with the members of the Department. Many of the same reasons that municipal and state police departments, in Massachusetts and elsewhere, are hard to reform with regard to mistreatment of civilians certainly apply to the HUPD. (Indeed, at the very time the Ntshanga case was pending, then-General Counsel Marshall, who had jurisdiction over the HUPD, was negotiating a new contract with HUPD. It proved not to be a propitious time to get strong action from the university against misfeasance by HUPD officers.) 

            What the HUPD needs is, assuredly, not some form of diversity or sensitivity training. Such programs, for one thing, intrude upon the right of private conscience -  they are more appropriately the tool of totalitarian governments and are unworthy of a liberal arts university. Besides, such programs clearly do not work; all they do is make administrators feel morally superior and give universities public relations opportunities to claim that they are working to bring about equal rights. They are a public relations fig leaf - a façade. The goal of the university administration should be to guarantee citizens of the university the right to fair and equal treatment, not to make anyone "feel good" and not to seek to force anyone to believe, or to disbelieve, any particular proposition. The HUPD need not have their minds and attitudes reformed (that's impossible, of course); they need simply to understand that failure to abide by the rules will result in dismissal from the department.

            Nor will "community outreach" or enhanced or reformed "recruitment efforts" make a difference. There is a certain ill culture at HUPD that is more likely to transform new recruits than the recruits are likely to reform the organization. What we have learned in the study of municipal police forces is that black and Hispanic police officers, once recruited, often have the same tendency to abuse citizens, including black and Hispanic citizens, as do the white members of those forces. An organization's culture is very powerful and does not readily change just because different skin colors and tones are added to the mix. Nor have I seen any convincing evidence that "diversity training" makes much of a difference. Dismissal of offenders works - not only to rid the department of offenders, but also, in the long run, to change the culture. 

            My suggestion is that you drop the whole idea of doing an in-depth study of HUPD. In particular, I urge you to refrain, at all costs, from recommending that the university implement "diversity training" or any similar "feel-good" program. Instead, your committee should remain a standing committee of university governance, and it should examine, with the aid of a small staff, each complaint of mistreatment of anyone in the Harvard community by a HUPD officer. When an officer, after receiving due process, is found guilty, he or she should be fired. I can assure you that in a very short time, the abusive culture of HUPD will change.

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Enclosures/attachments: (2)