Why I Signed the Harvard Law Professors Letter

Mark Tushnet

The letter to our students from a large number of professors at Harvard Law School has attracted some attention, both positive and (on the whole rather mildly) negative. Those who know of the letter might find the following account of why I signed the letter helpful/instructive/whatever. (I’m emeritus but still think of Harvard students as “my” students.)

For me the key point about the letter is that the signatories expressly and prominently said that we were speaking (a) in our individual and personal capacities (b) to our students. I spent twenty-five years as a teacher (and several years as an administrator) at Georgetown University Law Center, which in these settings I’m careful to call an institution affiliated with the Society of Jesus. One part of the university’s mission, and therefore that of the Law Center, was “cura personalis,” care for the whole person. To me that meant that as a faculty member I had some responsibility for assisting students in their efforts at moral formation. (It had other implications for the institution but here I deal only with what I took to be its implications for faculty members.) And an important component of my performance of that responsibility was personal interaction with students—how I spoke with them both in and outside of class, for example. (The standing-on-one-leg version is something like, “Don’t be a jerk,” either in class our outside of it.)

A more general statement, albeit imperfect, is that we assist in moral formation by modeling what we believe to be how a morally responsible lawyer should behave. The statement is imperfect because not everything we do involves that kind of modeling—most aspects of our private lives, for example, though for me at least some aspects of our private lives are appropriately taken to be relevant to the moral-formation task—even though observers might think that we are engaged in such modeling when we aren’t (or shouldn’t be taken to be so doing). It’s imperfect as well because sometimes even when we are “modeling,” we’re not doing it well—or even are doing it badly (that is, we are in effect saying to our students, “Here’s how a morally responsible lawyer should behave,” when in fact it’s not at all how such lawyer should behave).

I carried that sense of responsibility for moral formation (another imperfect shorthand) with me when I moved to Harvard. As an institution Harvard Law School didn’t have the “cura personalis” mission that Georgetown did. But, it seemed (and seems) to me that as individual teachers faculty members could permissibly choose to take as part of their/our mission as teachers assisting in moral formation. (Though they/we didn’t have to, and I have no quarrels with faculty members who didn’t/don’t—certainly at institutions whose missions don’t include moral formation and even, to some extent, at institutions that do include such a mission.)

Rattling around in my head was something from my experience during the Vietnam War era. I won’t go into all the details, but participating in antiwar protests I learned of a poem by James Russell Lowell, written in 1847 to protest the Mexican-American War and then converted into a hymn, whose opening lines are, “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.” You live long enough, and it happens more than once, unfortunately.

The letter—again, to our students in our individual capacities—said that this was such a moment, and signing it was my way of attempting to do something about our students’ moral formation.