Cases & Controversies

The Administration's Hostile Takeover at Dartmouth

Dartmouth College was little more than a cash-strapped finishing school when it asked alumni for a financial lifeline in the late 19th century. Graduates, in exchange for donations, demanded an effective voice in the college’s management. The resulting compromise: Dartmouth’s governing board would consist of an equal number of alumni-elected and administration-appointed trustees.

Then and now, degree-holders have fulfilled their end, providing ample resources for the New Hampshire institution to maintain, for example, one of the nation’s best undergraduate programs, according to U.S. News & World Report.

Over the last half-decade, however, administrative actions have made this historic agreement a virtual dead-letter. After a series of so-called “outsider” petition trustees were elected to the board by alumni, plans were approved in September 2007 to increase the number of appointed “Charter Trustees” without adding elected “Alumni Trustees.”

Parity between these different trustee classes and, by extension, a powerful alumni board presence—arguable pillars of modern Dartmouth’s success—came to an unceremonious end. Litigation, a last-ditch effort by alumni to restore parity, has been before New Hampshire courts ever since.

Harvey represented Dartmouth alumnus and former Petition Trustee Todd Zywicki and  filed a friend-of-the-court brief in support of preservation of parity. He has also advised current Petition Trustee T.J. Rodgers. (In this litigation, Harvey acted in his capacity as a private lawyer, not as Chairman of the Foundation for Individual Rights in Education, FIRE.)

Dartmouth trustee elections, historically speaking, were non-competitive, non-newsworthy events. That changed in 2004 when T.J. Rodgers, a Silicon Valley entrepreneur and Dartmouth alumnus frustrated with the college’s direction, decided to take advantage of what was then a seldom-used “petition” route to trusteeship, in which trustee-hopefuls gather signatures to appear on the ballot.

With a nonpolitical emphasis on improving Dartmouth’s undergraduate education and repealing the school’s speech code (PDF), his message resonated with alumni. Not only was he able to gather the required signatures, but he defeated other official candidates nominated by those close to the administration.

Fellow graduates followed suit. In the next three Alumni Trustee elections, petition candidates—whom Rodgers referred to as “independent people willing to challenge the status quo”—were victorious.

These Dartmouth representatives’ support for free speech on campus caught FIRE’s attention in 2005. They were trustees interested in substantive change—not just nominal support for free expression. When negotiations inside the boardroom stalled, these independent trustees weren’t afraid to publicly air their views.

Sunlight, not always popular with those in power, was undoubtedly effective. In May 2005, a letter from Dartmouth’s general counsel confirmed that the college was repealing its speech code. As then-FIRE President David French wrote, it was a huge victory for free speech at Dartmouth; shortly thereafter, Dartmouth became a speech-friendly green-light institution.

To some board members and high-level administrators, these efforts—specifically, taking such issues outside the boardroom and into the public realm—violated a trustee’s role to serve the college; to the Petition Trustees, bringing public attention was a necessary antidote, at times, to what they viewed as board inaction on crucial issues. In other words, it was part of how Petition Trustees fulfilled their obligation to act in Dartmouth’s best interest.

Citing “divisive” campaigning and the negative effects of recent elections, a board-commissioned review recommended in August 2007 that the structures of Dartmouth’s governance be changed. A month later, amid stiff alumni resistance and pleas from Petition Trustees to preserve parity, the board approved the controversial plan. Thus, alumni input was significantly diluted.

With negotiations to restore board parity at an impasse, the college’s Association of Alumni was left with a difficult choice: accept its members’ diminished role in overseeing Dartmouth, or bring the case to court.

In October 2007, the alumni association chose legal action, claiming in the Grafton County Superior Court that the trustees were contractually bound by an agreement made in 1891 to honor board parity. For these graduates, settling the matter in court was a last-resort effort to restore their effective voice on the board.

The college, in response to the lawsuit, claimed that the 1891 Agreement was a board resolution, not a legally enforceable contract, so the board could modify its membership at its own discretion. In denying this request to dismiss the case, however, a New Hampshire judge wrote (PDF) that “sufficient evidence” supported the claim that the 1891 Agreement was a contract. He specifically noted that parity was maintained through two previous board expansions.

After clearing this initial legal hurdle, the alumni association and the college prepared for trial. In the meantime, though, the alumni association held its annual elections to determine leadership positions in the organization. A so-called “unity” slate, opposed to the lawsuit as a means to restore parity, squared off against a “parity” slate that saw the lawsuit as an unfortunate necessity. It became clear that the winner of this election would control the alumni’s position in the lawsuit.

With roughly 60% of the alumni vote, the “unity” slate was victorious, and it moved to withdraw the lawsuit—despite the alumni’s preliminary victory—in June 2008. (Though it ended the lawsuit, the alumni association leadership promised “constructive dialogue with the trustees” in order to restore parity. Two years later, the promise remains unfulfilled.)

But the legal struggle for parity has nonetheless continued. In September 2009, a group of seven individual Dartmouth alumni asked the court to re-open the case. These graduates are challenging the college’s contention that the lawsuit was conclusively ended with the alumni association’s voluntary dismissal.

In the December 2009 oral argument, the college’s counsel focused on whether the 1891 Agreement is a legally binding contract and whether individual alumni can enforce it, while lawyers for the alumni group also discussed the case’s implications in terms of beneficial public policy. Zywicki’s friend-of-the-court brief expands upon how the case is crucial to active alumni who exercise critical oversight at colleges and universities across the country.

Judge Timothy Vaughan, in January 2010, decided to dismiss the lawsuit, stressing that the prior litigation precluded a rehearing and leaving aside the important public policy considerations.

Finding fault in Vaughan’s opinion, the alumni plaintiffs filed a motion for the judge to reconsider the case. The alumni dispute what Judge Vaughan viewed as their apparent “admission” that alumni, in effect, could not enforce the 1891 Agreement after the association dismissed the first lawsuit.

The motion for reconsideration also contends that the case deserves to be decided on its merits. Though more than 27 months have passed since litigation began, there has yet to be a definitive judicial ruling on whether the 1891 Agreement is an enforceable contract, and the continuing debate has arguably distracted the college from other pressing concerns.

Perhaps, at the end of the day, all this legal wrangling misses the point. As Zywicki wrote in The Dartmouth:

The Board should honor the spirit and wisdom of this partnership and appreciate the benefits it has produced, rather than treating alumni as adversarial parties to an arms-length contractual negotiation governed by only the minimum of what may be legally mandated.

Yet such was the result for the steadfast graduates who refused to stand idly by as Dartmouth charted what they deemed an unworthy course—even if it required taking their alma mater to court. It’s a partly cautionary, partly motivational story for any alumnus willing to speak up and hold his or her university accountable.


Are You a Real Doctor?

We’ve become a society obsessed with credentials – a trend long in the making. My maternal grandmother, who emigrated from Russia just prior to the Communist Revolution, quickly latched on to the meritocratic impulse of her adopted homeland. When I decided to go to law school, in 1964, my grandmother asked why I wasn’t going to medical school; she, a prototypical Jewish grandmother, wanted “a doctor in the family.” My forthcoming law degree, I explained, was basically the equivalent of a doctoral degree. “But what degree will it be?” she asked. “A bachelor-of-laws,” I replied. “Heh – so you won’t be a doctor of anything,” she noted with disappointment – and maybe a bit of sarcasm.

My grandmother’s admonition came to mind some years later, when the distinction between a “bachelor” and a “doctor” arose yet again.

I graduated Harvard Law School in 1967 and was awarded the degree of Bachelor of Laws, or LL.B – as was the case then at every other law school in the country.  Within a decade, however, law schools began to change the name of the degree to J.D. (Juris Doctor). The old LL.B. – which had, at least to that point, served me well -- was perfectly acceptable; I didn’t quite understand the need for the switch. An unexpected letter from the then-dean of the Harvard Law School, Derek C. Bok (later president of Harvard University) provided the rationale. Federal agencies that hired lawyers and other professionals paid higher salaries to those “with doctorates” than to professionals with mere “bachelor” or “masters” degrees. As a result, explained Dean Bok, HLS graduates who entered public service in the federal government were at a disadvantage: alumni from one of the country’s top law schools were being paid less than their peers because they held an LL.B. instead of a J.D., even though they are in substance the same degree. Henceforth HLS would award the J.D., just like its competitors. Parity would be achieved.

But what about lawyers who had already graduated HLS with the lowly bachelor’s degree? Figuring that alumni might feel left out if only new graduates benefited financially from the new degree name, HLS invited all of its alumni to send a check to get their J.D. degrees in the traditional faux parchment – $25 for the English version and $35 for the Latinate. Four to eight weeks later, a genuine J.D. degree, awarded retroactively, would show up in the mail. Problem of unfair competitive disadvantage solved!

I wrote to Dean Bok, protesting a private university’s allowing itself to be held hostage by the federal bureaucrats (particularly on such an inane matter) and urging Harvard to instead pressure the feds to wake up and see that it’s the same degree. In any event, I really didn’t need a “doctorate,” I explained, because I worked for my own law firm and would never likely work for the government. But I’d always wanted a degree in nuclear physics, so I enclosed a check for $35 and expected to receive a Harvard Ph.D. in that field – the Latinate version, of course, hence the $10 premium over the more plebian English.

Dean Bok wrote back, explaining, in a letter marked by the grace with which he always carried himself, that he could not send me a doctorate in physics – which he suspected I realized when I placed my order. He nonetheless thanked me for my $35 contribution to the Harvard Law School Fund, to which he had forwarded my check. By the time I received Dean Bok’s letter, it was too late for me to instruct my bank to stop payment.

I sometimes think about what would have become of that $35 had I invested it in Microsoft. Alas. But my real regret was, and is, that American institutions of higher learning continue to allow themselves to be controlled by the vast number of often senseless and destructive regulations that pollute the federal statutory and regulatory codes. It wasn’t supposed to be this way. But when Harvard Law changed the name of its degree because of a bureaucratic glitch that should have been fought rather than followed, one didn’t have to be a weatherman to know which way the wind was blowing. Federal regulations would soon come to plague all institutions of higher learning in a bewildering number of areas. And credentials would become even more of a national mania.

The Lying Witness, the Dank Cellar, and the Dingy Coffee Shop

William Weld famously won 109 out of the 111 cases his office prosecuted when he was US Attorney for Massachusetts. I am quite proud to be one of the two blemishes on his career. All it took was overzealous prosecutors, unscrupulous federal agents, a lying witness (hardly unusual in federal criminal trials), and the basement of a dingy coffee shop.

In 1981, Bill Weld, a blue-blooded, Harvard educated Mayflower descendant became US Attorney for Massachusetts. When Weld assumed his office, a number of high profile political corruption cases recently had splashed across the Boston Globe’s pages; Weld saw official corruption as his primary target, both because of its seeming ubiquity and, I suspect, due to the utility which prosecuting such cases might have on a nascent political career.

Weld wanted to fry a big fish, and it seemed that he had the perfect target: then-Mayor of Boston Kevin Hagan White. There was only one problem: White seemed cleaner than Caesar’s wife! So Weld did the next best thing—he would start at low level corruption, and eventually work his way up to the boss.

Weld started with a bureaucrat in the Boston Redevelopment Authority named George Collatos. In 1982, Collatos was caught in a tape-recorded sting attempting to extort $45,000 from a contractor. Fearing three years in federal prison, Collatos jumped at a deal; he would have his sentence reduced if he would testify to who higher up in city government was involved in the extortion. Collatos was to be the first domino in a line leading straight to the Mayor’s Office. 

Collatos was not close enough to Mayor White to claim that he knew first-hand of any of the mayor’s suspected wrongdoings; instead, Collatos focused his testimony on the man who would become my client: Theodore “Teddy” Anzalone, a confidant, fundraiser, and friend of the Mayor. Collatos claimed that Anzalone, acting for the mayor, solicited an $8,000 cash bribe from the C.E. Maguire Company of Providence, a company with contracts to provide engineering services to the massive rebuilding projects undertaken at the time by the Boston Redevelopment Authority. Weld’s strategy here was clear: if he could get Anzalone through Collatos, he could get White through Anzalone.

Having been turned onto Anzalone by Collatos, Weld searched hither and yon for something prosecutable. He settled on three charges. The first was the $8,000 extortion charge, the second was a money laundering charge involving a birthday party for the mayor’s wife, and the third was a money laundering charge involving the transfer of $100,000 cash. Taken together, Weld thought, the charges represented a clear conspiracy to hide money that was, itself, ill-gotten through extortionate activities on behalf of the mayor. Never mind that they did not have a clear linkage between the alleged extortion money and the laundering: Weld’s thought was that the jury would make that link on its own.

As Anzalone’s attorneys, Nancy Gertner and I recognized that the link between the money laundering and extortion charges was tenuous at best. After some initial hesitation, the trial judge, the late A. David Mazzone, agreed, and granted Anzalone’s motion to separate the trial of extortion from the money-laundering. In this way, the jurors would not create any unsubstantiated link between the sets of charges.

The money-laundering trial came first. Anzalone was acquitted on the charge attached to the Mayor’s wife’s birthday party—the evidence was, simply, thin—but convicted on the charge attached to the moving of $100,000. Anzalone had broken up the cash into increments of less than $10,000; in doing so, the bank did not have to report the transactions under then-applicable federal currency regulations, Gertner and I argued. While Anzalone had no obligation to report his bank transactions to the Department of the Treasury, and the bank had no obligation to report any transaction of less than $10,000, the judge reasoned, quite incorrectly it turned out, that Anzalone’s breaking up of the transactions represented an act that forced the bank to fail in its legal duty of reporting large cash transactions. Anzalone’s supposed obligation to facilitate the bank’s filing of a “CTR” report was woven by the judge out of wholecloth. 

Anzalone’s sentence was stayed while Gertner and I worked on his appeal. Meanwhile, the government thought it had its golden opportunity to turn him into a witness against Mayor White: it moved along quickly with the extortion trial. The extortion trial, remember, hinged on the testimony of the extortionist-turned-government-witness Collatos. If the jury believed Collatos, Anzalone could face more federal prison time. Lucky for the defense, though, extortion is an intoxicating drug, and Collatos was not about to quit. 

A few months before the trial was to commence, Anzalone reported a remarkable story to me. He said that Collatos had invited him out for coffee at La Bella’s Coffee House, a place whose outstanding feature was the easily noticeable grime on the floor, table, seats, and walls. It was a place where, as I once told a reporter, after you ate there, “you wanted to wash [not only] your hands after you left but also your feet.” In the hardly “Bella” surroundings, Collatos threatened Anzalone: Collatos would either testify to Anzalone’s guilt at the upcoming extortion trial, despite knowing that he was completely innocent, or, if paid $200,000 by the mayor through Anzalone, Collatos would testify truthfully. 

Anzalone, ever the intelligent client, said that he would think about it, and rushed over to my office, located nearby in the North End/Waterfront neighborhood, to report Collatos’s threat. 

I realized immediately and instinctively that Gertner and I suddenly had a golden opportunity to destroy the government’s case. If we could somehow prove that Collatos was trying to extort Anzalone—and that he was asking to be bribed only to tell the truth—we knew that the government’s case would completely implode. The only problem was how to prove Collatos’s actions. We couldn’t make Anzalone wear a wire: in Massachusetts, it is illegal to surreptitiously record somebody’s voice without his or her consent or a court order. And we couldn’t ask for Anzalone simply to testify to Collatos’s actions: it would be one alleged extortionist’s word against another’s. So I hatched a different kind of plan. 

Anzalone had a longtime relationship with LaBella’s owner Emilio Cuchiella, better known as Bobby LaBella; we came up with a way to utilize the friendly turf to our advantage. We reasoned that while it was illegal to tape-record someone’s voice, it was not illegal in the least to take notes on what someone was saying. 

Beneath the table at which Anzalone and Collatos would be sitting was a trap door leading to the LaBella basement. The cellar made the dingy restaurant look like the Ritz Carleton after a day’s cleaning; the dust, noxious air, and close quarters
were enough to make anyone queasy. We secreted into that cramped space my research assistant, Tom Viles (now a successful litigation attorney at a nationally-known firm); John Wall, a former Justice Department prosecutor who was then in private practice (who has since died – a great loss to the Boston legal community); and a court stenographer, who had no idea what was ahead of her—she wore a cocktail dress in anticipation of a meeting in a cafe. 

We arrived at 7 o’clock, an hour before the meeting was to take place. The five of us set up the basement listening post, and after a quick test run, I left. The stenographer, on seeing the basement, became immediately nervous. After a few minutes in those cramped, dusty, hot quarters, she hit her head, saw a mouse, and stormed out so quickly she left behind her steno machine. It was up to Wall and Viles to take notes. 

At the appointed time, Collatos arrived at the coffee shop and met with Anzalone. Like the script to a bad movie, Collatos engaged in detailed exposition, once again reiterating the extortion plot, the 200,000 dollars, and his ultimate knowledge of Anzalone’s innocence. Collatos had even concocted a method for Mayor White to transfer the $200,000 to Collatos in a manner that would not cause undue suspicion – White could buy a worthless nag of a retired race horse from Collatos for the princely sum. Viles and Wall dutifully took notes, hearing every word from their dank and dusty quarters. Anzalone turned down the deal and left the coffee shop. Viles and Wall waited until the coast was clear, and left the shop for well-deserved showers. 

So what did Gertner and I do with our case shattering evidence? We sat on it. If we would have turned it over to the prosecution, it would have given them a chance to change the theory of the case; we wanted them to stay focused on Collatos, still believing him to be a star witness. 

And star witness he was – just not for the prosecution. When Collatos took the witness stand, he laid out a well-rehearsed story about Anzalone’s extortion plot. During cross examination, however, Gertner, a superb cross-examiner, caught him off guard : 

Gertner: Directing your attention now to a meeting — to April 27, 1984, between eight and nine p.m. — do you remember being in LaBella's Coffee Shop on that evening?

Collatos: No, I do not.
Gertner: Do you remember saying to Ted Anzalone, "I am in your corner, but I need some help"? Do you remember anything like that?
Collatos: No, I do not.

Gertner: Do you remember Ted Anzalone saying to you, "George, if you tell the truth, I'll be fine"?
Collatos: I don't recall that conversation at all.
Gertner: Do you remember telling Ted Anzalone on April 27th that you know that Anzalone did not threaten or promise Slocum anything? Do you remember that?
Collatos: I don't recall that conversation at all.
Gertner: Do you remember saying to Anzalone that "I am not going to hang for that, I'm not going to do it. On my daughters, I'd go to jail for them, but no one else. I want money." Do you remember saying that?
Collatos: That's not even my way of talking. No, I never said that.
Gertner: It's not your way of talking?
Collatos: I never said anything like that.
Gertner: Do you remember saying — I'll clean up the language a bit — "I'll lie. I don't give a f___ about him, the mayor"? Do you remember saying that?
Collatos: No, I don't.
Gertner: Do you remember saying, "I'm going to tell the truth, but if I have to answer a certain way I'm going to tell them what they want to hear"? Do you remember that?
Collatos: No, I don't.
Gertner: Do you recall saying, "You better make that man understand that if you have to punch him in the nose — tell him to go to jail one night — he'll understand"? Do you remember saying that?
Collatos: No, I don't ever remember saying anything like that.
Gertner: Do you remember saying, "____ the mayor. Let him burn"? Any words like that?
Collatos: Sorry, I don't recall anything like that.
Gertner: We are talking about an April 27th meeting at LaBella's Coffee Shop between 8 and 9 p.m.
The court: Do you have any memory at all of that specific meeting between 8 and 9 p.m. on the 27th of April?
Collatos: No, I don't.

Collatos was caught and, despite his attempts to play dumb, he must have known it. The prosecution and the judge were a little more confused; after the initial line of questioning, due to a technical trial rule, Gertner and I were required by the judge to indicate to him, at a hushed conference held at the side-bar of the judge’s bench outside the jurors’ earshot, the factual and legal basis for the cross-examination. We described to the judge and the prosecution the whole sordid affair at LaBella’s—the threats, the basement, everything.

The prosecutors erupted in outrage and anger. After all, here it was the defense that had engineered a sting, a tactic normally left for the prosecution team. They tried to argue that the judge should exclude this evidence from the jury’s knowledge. They argued surprise. In reality, they must have known it was a lost cause, as Gertner and I had no legal or ethical obligation to report to them Collatos’s attempted extortion of Anzalone as soon as it happened. We had merely given the feds a taste of their own medicine. 

Not to be outdone, the prosecution had one more chance at making their case: they could intimidate Viles and Wall—the two witnesses to Collatos’s testi-lying. To make their point, federal agents paid Viles a late-night visit at his girlfriend’s house, and implied that he was now under investigation for a number of crimes, including misprision of a felony, a statutory crime for failing to report a witnessed felony to the authorities. They made a similar visit to Wall. 

To Wall’s credit, the former DOJ prosecutor was not dissuaded from testifying: he took to the stand and described the LaBella incident. (We spared the paralegal this ugly task.) The prosecution’s case utterly destroyed, the jury acquitted. 

We were left only with the matter of the money laundering charge. Gertner and I reasoned in the Court of Appeals that a citizen does not have an obligation to conduct business in such a way as to maximize legal duties; he only has an obligation to do what the law, as it then stands, requires. In other words, Anzalone was under no obligation to report to the government how he was dividing up his deposits, so long as he was following the letter of the law when he did it. 
The appellate court agreedwith us. In a unanimous decision on July 1st, 1985, they reversed the conviction. 

In the end, though, when fighting against the federal government, nearly all victories become at least partially Pyrrhic. Kevin White was not indicted, but the fight to take him down convinced him to forego another run for mayor. He left office to take a job at Boston University. Anzalone, while vindicated in the eyes of the law, had to give up lawyering after FBI agents visited nearly every one of his clients in the course of the investigation; he took a job maintaining buildings owned or managed by his wife. And as for William Weld, despite his failure to get White, the media still portrayed him as a “crusading prosecutor.” He won the Massachusetts governorship in 1990, and was reelected four years later.

But Weld’s quixotic attempt to gain the Republican presidential nomination failed, and he retreated to a lucrative practice in law and investments in New York. One of the prosecutors – Mark Wolf – went on to become a judge (later the Chief Judge) on the federal district court in Boston, while another – Robert Cordy – sits on the Supreme Judicial Court of Massachusetts. Gertner served for 14 years on the federal district court bench during which she enjoyed a comfortable relationship with Judge Wolf. (She left the federal bench in 2011 and took a position on the Harvard Law School faculty.) Gertner and I get together occasionally at a café (LaBella’s has long since disappeared from the landscape) to discuss this and that, but it’s hard each time not to remember how the Anzalone prosecution was wrecked by a dose of truth about the quality (or lack thereof) of the government’s chief witness.

Take-Your-Son-To-Work Day, '70s Style

In 1979 it was actually news that I helped raise my child.

As I was going through my files, I came across an old newspaper story written not about me, but about my son, Isaac. He was a precocious 2 ½-year-old who accompanied me to my office about half the time while he was growing up, and the “Boston Herald American”—the Boston Herald’s predecessor—undertook a full page profile of my and Isaac’s workplace routine. 

The Law offices of Silverglate, Shapiro, and Gertner provided Isaac with a chair, a desk, a sleeping couch, an Elmo telephone, and all of the crayons a two and a half year old could want. He would work at his desk while I worked at mine; we ate croissants in the morning and pancakes at the café downstairs in the afternoon. Isaac played, napped, and otherwise acted his age, and I worked. For both father and son, the routine worked, and it made sense.

Upon re-reading the article, though, I am struck by just how seemingly radical our routine was. Julie Hatfield meant well with her piece, but her tone of bemusement is unmistakable:

The chair at Silverglate, Shapiro, and Gertner is such a departure from the old leather lounger that it makes you wonder what kind of law gets practiced in these Broad Street offices. It’s blond, and stepped to two levels, so that someone very small can sit on the upper level and rest his feet on what will someday be the seat.

On the wall is a framed print of an exceedingly pregnant man, with the words, “If men could get pregnant, abortion would be a sacrament” scratched underneath. And under a small oak desk is a toy box, filled with stuffed animals, blocks and the other usual paraphernalia that you would find in a …law office?

The chair belongs to Mr. Silverglate: Isaac Dorfman Silverglate, 2 ½ years old who comes to work every Friday with his father from their Cambridge home. 

…Silverglate took four months off when Isaac was born and soon afterward began carrying the infant, in his little sleeping “pouch,” to the office…[T]his summer [Elsa Dorfman] has spent more time in her darkroom and Isaac has been coming to work with Dad for as much as a whole week at a time. The couple has hired a male babysitter (“he drives a cab, takes courses and is writing a novel too” Silverglate said,) to care for Isaac for three hours every morning. And sometimes their teen-age babysitter from Cambridge, Kelly Williams, will come to the office with Isaac. But most of the time, the father-son partners go it alone, and that includes changing diapers.

The details Julie Hatfield decided to include in her piece are rather striking to a modern audience. She wonders what “kind of law gets practiced” in the office. She implies the utter strangeness of Isaac’s presence by emphasizing the print of the “pregnant man.” She makes sure to mention that we had a “male babysitter”—even going so far as to include my description of him—while calling our female babysitter, simply, a “babysitter,” the job implying the gender. She emphasizes that I took paternity leave. Finally, she highlights that I changed Isaac’s diapers, as if such behavior were shocking for a man in my position to undertake.

Times have certainly changed, and I doubt that, today, it would be news that a father takes his son to work, or that he splits the child-rearing duties 50/50. At least, I hope it would no longer be news. 

A Boston Neighborhood Saved by a Dog and a Golfing Judge

If Moritz Otto Bergmeyer—an architect and building renovator living in a refurbished former warehouse at 107 Fulton Street on the boundary between Boston’s Waterfront and North End neighborhoods—did not have to take his English sheep dog Sacha out to relieve herself early one Saturday morning in the spring of 1972, one of the premier historic neighborhoods of the City of Boston would no longer exist.

Under the plan put together (or thrown together, as the case may be) by the Boston Redevelopment Authority (“BRA”) under then-Mayor Kevin H. White, the several square blocks that marked the link between the Waterfront and the North End were destined for demolition. The buildings at risk were for the most part old (largely 19th Century) brick warehouses, a few magnificent, massive, granite structures, that received the cargo from ships that came into port at the wharves lining Commercial Street and its extension Atlantic Avenue. The BRA long earlier had purchased the buildings by eminent domain and ordered them vacated, in order to make way for the Waterfront/North End urban renewal project that would entail wholesale demolition. Only a couple of buildings along Fulton Street, one of the streets designated for “renewal,” were still privately owned and occupied.

One of the still privately owned and occupied brick warehouses along Fulton Street was Bergmeyer’s, which he’d renovated into four magnificent brick-walled and wood-beam- ceilinged  apartments. I lived on the second floor, Bergmeyer and his then-girlfriend Diana G. Blum and dog Sacha lived on the first floor, with urban design guru Larry Rosenblum above me and, finishing out the top 2-floors, the renowned writer and lyricist Timothy Mayer, who would go on to win a Tony for the Broadway Show My One and Only in 1982. The only other occupied buildings on the block housed Menorah Products Kosher Poultry Company, and the McLaughlin Elevator Company. Menorah products provided a real service: The crowing rooster sounded off at sunrise every morning, waking me up in time to get to my office at 65A Atlantic Avenue, where my law partner Norman Zalkind and I conducted our litigation practice (and where, in fact, after years of separation, we practice law today). The McLaughlin Elevator building was, and is, one of the finest examples of iron-exterior construction I’ve ever seen.

It was very early on a bright Saturday morning in March 1972 when Bergmeyer came banging on my door. He had just gone out to walk Sacha, and he was shocked to find that the BRA had parlayed a small army of cranes swinging massive steel wrecking balls hanging on long chains, beginning to take down the buildings. It was evident that unless we could stop the wreckers, they would have virtually all of the buildings in the “urban renewal” district turned into rubble by Monday morning.

While the city owned the buildings, the neighborhood residents had been in talks with the government to find some sort of compromise; the residents wanted renovation, rather than wholesale destruction, of the structures, and the city seemed determined to reduce the buildings to rubble before (or, more precisely, as a means of) “renewing” the neighborhood.  The strategy of a week-end wrecking orgy was an obvious (to Bergmeyer and me, anyway) BRA response to the fact that negotiations between the neighborhoods and the City had broken down. And with almost no more old buildings left standing, there would be nothing further to discuss. The neighborhood residents (and their lawyer, me) had suspected that Mayor White was intent on simply demolishing the old buildings and replacing them with new construction. (Cynics that we were, we figured that the mayor must have had friends in the construction business, but not in the renovation arena.) But what none of us were expecting was a lightning strike – a demolition blitzkrieg of sorts – over a week-end that would moot the discussion and our ability to seek court relief.

I threw on some clothes and ran outside. I tried to talk the work crews into suspending their demolition derby until the following week, so that Bergmeyer and I might have an opportunity to try to do something to save our neighborhood. The crew foreman adamantly refused to cease his crew’s work. It was obvious that by Monday morning only Bergmeyer’s building, the chicken abattoir, and just a few other still-privately-owned buildings would be left standing. The federal court, where we had planned to seek relief as a last resort if all negotiations failed, was not, of course, in session over the week-end.

The extraordinary circumstances demanded an untraditional approach. I decided to try to contact a federal judge directly, on the weekend, and request an immediate emergency cease and desist order.  But in the days before cell phones, such contact was far from guaranteed. And even if a judge were found, obtaining a temporary restraining order in such an informal setting – over the phone, without the lawyer for the city even participating – was a very long shot. Still, I figured we had nothing to lose.

I made a phone call to the home of Robert J. Smith, courtroom clerk to U. S. District Judge Frank J. Murray. I chose Judge Murray to contact, because of all of the then-sitting judges on the federal district bench in Boston, he was the most impatient with the government’s cutting corners to evade law and process, and he, as much as or more than any of the other then-sitting judges on that bench, had the guts to do something about it. I explained the emergency to Smith, who sympathized but who also noted that Judge Murray had left very early in the morning for the golf course and was already on the links. I asked Smith if there was any way he could reach the judge, and he said he would try but that it was a long shot.

Minutes later my phone rang and it was Judge Murray, conducting an emergency “ex parte” (that is, with only the moving party present and represented) hearing over the phone – he at the clubhouse at the golf course, I at my apartment on Fulton Street. I explained the situation to him, noting that the BRA was taking it upon itself to tear down a big part of the fabric of a very old and cohesive neighborhood, all without considering what it would do to the historic and architectural environment of the area – the Waterfront and the North End. I told Judge Murray that, in my view, wreaking such irrevocable damage on an urban neighborhood of such historic and architectural splendor and importance was a violation of the National Environment Policy Act of 1969 {“NEPA,” 42 U.S.C. sec. 1450 et seq) because the BRA had not conducted, in advance of deciding to tear down the buildings, an investigation of the impact that the destruction would have on the urban landscape, and hence could not and did not write an “environment impact statement” as required by NEPA.

Judge Murray told me that he thought that my argument probably was correct, but that he needed time to study the situation after allowing both sides to file briefs and make oral argument. I pointed out that the buildings were in the process of being torn down as we spoke, and hence emergency court intervention was required. In order to be able to hear the matter in an orderly fashion and preserve the status quo, Judge Murray said, he would immediately issue a Temporary Restraining Order (“TRO”) prohibiting the BRA and anyone acting under the BRA’s orders, from engaging in the destruction and demolition of the buildings. And so Judge Murray dictated his TRO over the phone.

I was elated. I excitedly asked Judge Murray who would inform the BRA’s demolition crew of the court’s emergency order, and Judge Murray said that I would have to do it immediately, although he would see if Bob Smith might rustle up some United States Marshalls to rush to the scene in order to present the oral order and thus help me out. I thanked the judge. Clerk Smith said he would immediately contact any Marshall on duty that week-end, but that I should rush right over to the scene and let the crew know of Judge Murray’s order.

With my heart racing, and aware of the difficulty of my forthcoming task, I raced back to the demolition scene and informed the crew supervisor of the judge’s emergency order. The supervisor asked to see “an official piece of paper.” I said that the order was oral, recited to me by the judge over the telephone. The supervisor laughed in my face and ordered his men to continue tearing down the buildings.

Just as I was about to despair, a single deputy United States Marshal, in a suit-and-tie, raced to the scene, carrying only his badge. He was, from all I or anyone could see, unarmed. I explained to him – a Latin American immigrant by the name of, I believe, Raphael Luna (I’m sure of his first name but not his last) – that Judge Murray had just issued an oral TRO over the telephone but that the wrecking crew would either not believe me or would not obey an oral order transmitted to them by me. The deputy marshal said that Judge Murray’s clerk had explained the order to him. He walked right in front of the lead wrecking crane. He took his badge off of his lapel and held it out and up so that the wreckers could see it. He then shouted something forever etched in memory (mine, and I suspect the wrecking crew’s as well): “Stop, in the name of the United States District Court.”

And the deputy just waited, staring up at the operator of the lead crane, focusing unrelentingly on the wrecker’s eyes, a lone man confronting a small army of machinery. A minute or two passed as the wrecker and the marshal weighed each other, although it seemed like an eternity. The deputy repeated his admonition. “Stop in the name of the United States District Court!” Suddenly, the wrecking balls started their journey to the ground. The confrontation was over; law and order in the best sense of that term had prevailed.

We went to court early the following week, where both sides had the opportunity to argue. Judge Murray then converted his Temporary Restraining Order into a Preliminary Injunction, writing a brief opinion dated April 18, 1972, in what became the case of BOSTON WATERFRONT RESIDENTS ASSOCIATION, INC., and others v. GEORGE ROMNEY, Secretary of Housing and Urban Development, and others, Civil Action No. 72-1157, reported at 343 F.Supp. 89 (U.S. Dist. Ct., D. Mass., 1972). (The George Romney, under whose technical supervision the urban renewal program was federally funded and would proceed, was the former governor of Michigan and the father of a later-to-be governor of Massachusetts, Mitt Romney.) Judge Murray pointed out that I had made a respectable and likely correct legal argument, and that, in any event, since “the act of demolition is irrevocable,” he would allow the lawsuit to proceed while the injunction continued to preserve the status quo.

Not too much later, the BRA and the mayor could see the handwriting on the wall – the texture and history of an important and unique urban neighborhood was to be considered part of the “environment” and hence subject to protection by federal environmental laws. The urban landscape was entitled to the same legal protection accorded to forests, streams, and various natural environments. The city decided to throw in the towel. (The citizen in me figured that maybe the city thought the better of its renewal plan and became convinced that the historic district was indeed worth preserving, while my cynical lawyer side suspected otherwise. I thought that, perhaps, the city administration wanted to avoid a legal battle, during which my legal team would inevitably put the construction executives who were licking their chops at the prospect of the hugely lucrative contracts envisioned under oath and ask probing and perhaps embarrassing questions about any shenanigans surrounding the demolition and construction contract discussions.)

As a consequence, the parcel was allowed to stand, and the buildings were let out for bids by neighborhood residents who could purchase a building from the city at the nominal price of some $4,000, provided the bidder were prepared to make a firm commitment to spend at least $100,000 to rehabilitate his or her building. All the buildings were eagerly scooped up by grateful area residents.

I was one of the relatively few area residents who did not make a bid, since a lawyer for the BRA got word to me that an angry Mayor White specified that under no circumstances would Silverglate be allowed to get a building to develop. So I was destined to be a renter until years later, when I moved to Cambridge, married a Cambridge native, had a child, and finally, when our son was a year old, bought and renovated an old wreck-of-a-building and turned it into a family home there. The Boston buildings that were saved and then renovated are worth many millions of dollars each today. But, most importantly, the neighborhood and the historically important and authentic streetscape – save for three buildings that had been torn down before the deputy marshal stopped the action – were preserved. (An elderly housing project – new construction – was built on the vacant land.) And a statement was made by the federal court that the urban landscape, and the excellent buildings that make up many such landscapes, are as important to a civilization as the trees in a forest or the clean air that citizens rightly expect to breathe.

Ironically, just a decade later, in 1983, my then partner Nancy Gertner and I were hired by one of Mayor White’s chief aides, one Theodore Anzalone, to defend Anzalone against a multi-pronged indictment that was obviously aimed at pressuring him to testify against the mayor in a massive political corruption probe launched by then-United States Attorney (later Governor) William F. Weld. Gertner and I won both trials, relieving the pressure on Anzalone to sing the prosecutor’s song. Mayor White, relieved, sent Gertner and me a bouquet of flowers. I guess he could not send a building, as they had all been scooped up and renovated by then. I’m sure I had a twinkle in my eye as I put the flowers in a vase of water to prolong their life for the next couple of days.

Thought Reform, Exposed LIVE

During my extended book tour between 1998 and 2000 in support of The Shadow University: The Betrayal of Liberty on America’s Campuses, I occasionally encountered skepticism from readers who were convinced that the book overstated the problem of individual rights violations on campus. Despite the fact that none of the key figures in the controversies featured in the book once disputed our facts, the skeptics seemed nonetheless convinced that my co-author Alan Charles Kors and I must have exaggerated and distorted in order to validate our argument that free speech, academic freedom, and due process are in increasing danger in higher education. Thankfully, at almost any given public forum, there were students on hand with one or more examples from their own college campuses that corroborated The Shadow University’s thesis. One such moment – which I have never forgotten – unfolded in the studio of 99.1 FM (KNOW), the Minnesota Public Radio affiliate in Minneapolis-St. Paul.

The host of the radio call-in show I was appearing on played the role of the skeptic. Like much of the staff at this radio station in solidly Democratic Minneapolis the host was clearly liberal in her politics; she had wrongly pegged me as a political conservative because of my libertarian criticisms of campus policies. She apparently felt obliged to discredit me at least a little. Rather than tackle my thesis head-on, however, she insisted that, because she had never before heard any of these criticisms before, and because these university policies I described seemed so outlandish, surely I must have exaggerated and distorted the examples to fit my preconceived ideas about college campuses.

The program hostess expressed particular disbelief over my descriptions of bizarre freshmen orientation exercises that seemed ripped from the pages of Nineteen Eighty Four or A Clockwork Orange. In one such workshop at Wake Forest University, called “Blue Eyes,” white students were abused, ridiculed, made to fail, and taught helpless passivity so that they can identify with "a person of color for a day." The underlying purpose of the exercise was to demonstrate to students that race in America is destiny, and the lighter your skin, the more advantages you enjoy. The sub-text of this approach is that those in racial minority groups require that society bend its rules in their favor in order to redress the disadvantages bred by centuries of racism.

My complaint about this outlandish Wake Forest program (used on many other campuses as well) was not that it adopted this simplistic and rather mechanical view of race relations in America, even though, in my opinion, it did. Nor did I minimize the problems of racism. Rather, I objected that school officials saw fit to insist that students who disagreed with the school’s “official” views on race relations were simply wrong and needed re-training in order to “correct” their “erroneous” views. That, I concluded, is a form of thought-reform that is inimical to any free society, and to a campus of higher education in particular. I felt that racism and other social problems could and should be redressed by free citizens without dictation from thought-reform bureaucrats.

I feared this radio interview was devolving into a charade in which the interviewer kept insisting my facts must have been wrong, while I kept insisting that my facts were right. But then, to my relief, a caller rescued the discussion and turned what I thought would be a terrible interview into one of my all-time favorites.

The caller happened to be an incoming freshman at Hamline University, a medium-sized private school in Minneapolis. She explained (this broadcast having taken place in late September or early October, near the start of first semester) how she had just completed the freshman orientation program at Hamline. “Blue Eyes” reminded her of an exercise she participated in at Hamline – except her example was even more bizarre and intrusive. She described how students were told to divide into three groups: heterosexuals, homosexuals, and bisexuals or those who were not sure. Members of each group were then told to explain how their sexual orientation proved to be either an advantage or disadvantage thus far in life. As in all thought reform activities, it was clear what the correct answer was: straight students were expected to explain how their sexual orientation had allowed them to lead a life of privilege, while the others were expected to describe the discrimination they endured.

I’ll never forget the flabbergasted look on the face of this radio host when   presented with listener-supplied evidence of an even more egregious violation of the dignity and privacy of the students than the ones presented in The Shadow University – and this was happening right in her backyard. It was these sorts of small victories that encouraged me to co-found the Foundation of Individual Rights in Education (FIRE) (, a nonprofit organization that advocates free speech, academic freedom, freedom of conscience, religious liberty, and due process on campus. In this Hamline student, and all of the other students who vouched for my thesis during my book tour, I saw a voice of reason and a future ally in the fight for liberty and decency.

Today, these individual campus watchdogs make up FIRE’s Campus Freedom Network. They alert FIRE to censorship cases at their institutions and raise awareness of FIRE’s work among their peers. As a result, FIRE’s national profile has never been larger, and it is becoming increasingly rare for members of the media, like that radio host in Minneapolis, to ignore the rights violations taking place at campuses around the country and in their backyards. It is not a matter of left versus right, or white versus black, or gay versus straight, or male versus female. Rather, the central fact is that each individual is endowed with certain inalienable rights, and that among these rights are free speech, free thought, freedom of conscience, and a certain modicum of personal privacy so that he or she may live life free of the heavy-hand not only of government, but of campus bureaucrats as well.