After Dalton, Battles Remain

Though Political Divide More Narrow

The settlement of Clare Dalton's sex discrimination suit against Harvard Law School this week was meant to maintain a hard-won peace, but professors at the school say the ideological battle lines at the root of her case remain.

And the disagreements that tore the school apart over the 1987 vote to deny Dalton tenure still exist, as professors heave a sigh of relief at not having to defend their old decisions in front of the Massachusetts Commission Against Discrimination.

The settlement was a smooth alternative to a messy trail, one which kept old arguments in the background and allowed the school to get on with the study of law, professors say.

Clark says the Law School admitted no fault while turning over $260,000 to fund an institute for the study of domestic violence. But Dalton, who will receive $80,000 to head the institute, called the settlement a "vindication" of her claims.

When then-Assistant Professor Dalton filed suit six years ago, the Harvard Law School was divided into warring camps. But the major skirmishes did not center around plots of land or fortresses.

Instead, the faculty squared off over how to study the law and who would be allowed to do it at Harvard.

Dalton was an adherent of Critical Legal Studies, a school of legal thought which is concerned with the effects of culture and society on the law and with its effects on the distribution of wealth and income. Traditional scholars maintain that "crit" does not constitute a legitimate filed of study.

Today, the split between adherents of Critical Legal Studies and more traditional modes of thought have narrowed somewhat.

"I think [Critical Legal Studies] has peaked, as it were," says Bemis Professor of International Law Detlev F. Vagts, who voted against Dalton's tenure in 1987. "Some [of Critical Legal Studies] has been accepted by the mainstream and some is now being ignored."

But even if the once white-hot debate over Critical Legal Studies has clamed, all is not necessarily quiet on the Law School front. Such approaches as feminism and "Law and Economics" as an approach to the law now divide law school professors and overshadow the appointments process.

"I think it's safe to say there are many, many different little fault lines," says Professor of Law Reinier H. Kraakman.

Feminist legal scholar Catharine A. Mackinnon was denied tenure last spring, and some of her supporters felt that her controversial approach mattered as much as the quality of her scholarship in the decision.

"She raises hackles among men," says Vagts. "Men by and large don't like the idea that any time they make love to a woman it's rape."

And such dislikes can "bleed over" into professional judgements, he says.

At the same time, however, many professors agree with Dean of the Law School Robert C. Clark's assertion that divides over methodology have narrowed. This week's settlement, these professors say, prevents a painful reopening of the wounds.

"I think that there has been an incredibly valuable healing process," says Law School Professor Charles J. Ogletree Jr. "There are a lot of people breathing a sigh of relief that there was no occasion for law professors to have to testify about what they meant by what they said and what they wrote at the time."

The denial of Dalton's tenure bid came at the peak of the conflict over Critical Legal Studies. And if Harvard's legal ideology battle had casualties, she classified herself as one.

She said in her complaint, obtained under the Massachusetts Public Records Law, that she "met all of the requirements for tenture at the Harvard Law School."

"Twelve of 14 outside reviewers of my work indicated that it was of tenurable quality," her suit said.

Her sex and her background in CLS kept her out of the Law School faculty when five male assistant professors were tenured and two male outside scholars were accepted to the Harvard faculty, she has said in interviews since the suit was filed.

After a 29-20 faculty vote in the spring of 1987--four votes short of the necessary two-thirds approval for tenure--Dalton's failed bid drew emotionalreactions from both defenders and opponents.

Critics of Dalton wrote voluminous internalfaculty briefs on her work, including one 89-pagememo on why the assistant professor did notdeserve tenure.

Supporters took the unusual step of askingthen-President Derek C. Bok, who did nottraditionally interfere in Law School tenurecases, to review Dalton's.

In the spring of 1988, Bok convened a specialad hoc committee of five prominent legal expertsto review the case.

The committee recommended against tenure, butDalton's lawyer protested the finding because noone on the committee was a Critical Legal Studiesexpert. And on October 29, 1987, according to thecomplaint, Dalton filed a suit with theMassachusetts Commission Against Discrimination.

But the suit hung in limbo for six years, asthe Law School moved on and Dalton accepted atenured postion at Northeastern Law School.

It was not until this year, when professorsreceived depositions to testify in thesix-year-old case, that it resurfaced, and with itthe possibility for a new dispute.

The sex issue, as well as questions ofmethodology, has not gone away in the interim.Students and professors have objected to a lack ofdiversity in the faculty, which has the samenumber of tenured women--four--as it did in 1987.

One professor interviewed earlier this weeksaid that "it has not improved at all" for femalelegal scholars at Harvard, despite what Clarkcalls "continuing efforts" at recruitment.

The question of whom might have won the suitwill never be answered, though law schoolprofessors say the case and its resolution is apopular topic of conversation among legalcolleagues.

"I think it's unfair to characterize theUniversity as saying `wow, she was right allalong,"" says Vagts. "The [MassachusettsCommission Against Discrimination] is quitefavorable to complainants...I think it's likelyHarvard would have lost the first round."

While Scott Professor of Law David R. Herwitzapplauds the settlement's results, he "does notbelieve the Harvard Law School faculty was guiltyof...gender discrimination."

"I know what the just outcome would have been,"Herwitz says.

But the settlement leaves Dalton, who says shehas no desire to return to Harvard, as well asmany of her colleagues at the Law School, relievedand pleased.

"It would eventually have been divisive andtroublesome," says Herwitz. "I'm all for it, Ithink it's a marvelous outcome."

Rajath Shourie contributed to the reportingof this article.