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Epstein at Harvard: We’re Not Finished Yet

By Lawrence Lessig, Contributing Opinion Writer
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School.

Harvard has apparently concluded its review of its relationship to the convicted child sex offender, Jeffrey E. Epstein. In September 2019, after expressing that he “profoundly regret[s]” Harvard’s association with Epstein, University President Lawrence S. Bacow promised “to review how we prevent these situations in the future.” In May 2020, the University released a report completing the first steps of that review. The report found Harvard had taken no money from Epstein after his conviction, though there were further questions that merited study. Two weeks ago, after completing that study, Harvard determined to shutter the research center Epstein’s money had founded, and “disciplin[e]” its academic director.

Yet in these steps, Harvard has still not given us a fair accounting of our past. And worse, in this latest step, it hides that account behind a scapegoat.

There are three chapters in the evolving relationship between academic institutions and Jeffrey Epstein. In the first, before his conviction in 2008, everyone loves Epstein. In the third, after the 2018 article in the Miami Herald detailing his depravity, everyone hates Epstein. But in the second, there is an ambiguous dance between this generous funder and universities that recognize complexity in taking his money.

In 2008, former University President Drew G. Faust resolved that complexity with clarity, but incompletely. Unlike others, such as MIT, Faust determined that Harvard would take no more money from Epstein, according to the May 2020 report. But very much like others, including MIT, she gave no directive about how the many other ways that Epstein was connected to the University should be affected by her determination. In particular, she gave no guidance about how the center that Epstein’s main contribution to Harvard had established, the Program on Evolutionary Dynamics, should negotiate its continued interactions with Epstein.

Because from the start, Epstein was constantly engaged with PED and with others, through PED. According to a letter that Martin A. Nowak, the PED’s academic director, sent to administrators when the center was founded, Harvard’s then-president Lawrence H. Summers got Epstein to pay the rent for PED’s office — not on Harvard’s campus, but in commercial space in Harvard Square. From the beginning, Epstein treated that space as a second office in Cambridge. Epstein traveled to Cambridge regularly to meet with Harvard’s most luminary, including Summers, regularly, but not exclusively, at PED. Those meetings are described as interesting and intellectual in Nowak’s letter. There is no suggestion they involved any inappropriate behavior — beyond, of course, the inappropriateness of including Epstein himself.

These soirees continued long after the 2008 ban on raising Epstein money. The question is why. Some thought the ban would be temporary. Some hoped Epstein’s reputation might be restored. Some believed it morally obligatory to give a criminal a chance at “redemption”; Nowak was told as much by his spiritual advisor, which he shared in his letter to the administration. Whatever the reason, the reality is that there was no real change in the practical relationship that Epstein had to Harvard, beyond his ability to write Harvard a check. The meetings continued; the relationships grew deeper; the conversations on and near campus were many.

What continued as well was PED’s need for money like Epstein’s. PED’s rent was substantial. Nowak reports that at first, after Faust’s ban, Harvard had agreed to assume it. But after the financial crisis, Nowak was informed that he would have to raise it himself. Foundations usually don’t give academic grantees money to cover rent. So everyone knew those additional funds would have to be, like Epstein’s, from private individuals. An FAS development office staff member encouraged Nowak — as late as 2017 — to ask Epstein to ask his friends to help, according to the May 2020 report. Nowak followed Harvard’s direction. Epstein obliged, securing substantial support from his friend Leon D. Black among others.

Throughout this period, apparently no one with any authority — certainly not the University, not its former president, Summers, not its development office, not the dozen or so of Harvard’s most elite — saw any inappropriateness in this ongoing “academic” relationship. Despite the obvious harm that a sex offender could trigger in the members of our community who themselves might have been victims of sex abuse, the elite of Harvard’s elite continued to nurture a relationship with a sex offender. Despite the clarity of all of our views now, they apparently saw no wrong in what all of them were doing then.

At least until chapter three — when all worked diligently to forget what had happened between 2008 and 2018. Harvard’s May 2020 report celebrated Faust’s moral clarity, but it identified some details that required further investigation. In March, Harvard completed that determination. It did not release any public accounting. Instead, its conclusions were shared internally by email to the affected departments. Predictably, that email was leaked.

The effect was completely foreseeable: Airbrushed from the history are the many Harvard luminaries who participated in and encouraged the ongoing relationship with Epstein after 2008. Left standing, alone, is Nowak, PED’s academic director, who is now to be “disciplined.”

And thus we, the community, are allowed the comfortable view that Drew Faust got it right in 2008, and the University followed her lead, even if a very few among us apparently didn’t get the memo.

Yet this framing is absurd, and its lie is revealed in the thinness of the charges against Martin Nowak. Because Nowak has not been punished for associating with Epstein. How could he be, when so many others from Harvard, much more famous and prominent, had associated with Epstein as well? Neither has he been punished because he asked Epstein to help him address PED’s funding needs by securing donations from Epstein’s friend, Leon Black. How could he be, when Harvard’s development office itself asked Nowak to ask Epstein for help?

Rather, Nowak is being disciplined because of offenses that are plainly not offenses at all, or that when committed, were not viewed as anything more than simple mistakes.

The most extraordinary of these is the charge in Faculty of Arts and Sciences Dean Claudine Gay’s notification to Nowak which states that he “exhibited profound negligence in misrepresenting” the source of PED’s matching funds to one of his funding sources, the Templeton Foundation. This is a gross misrepresentation in itself. The May report had speculated this might have happened, but Nowak's emails with the Templeton Foundation reveal that the precise words used to report his funding were actually requested by the foundation. The Templeton Foundation was neither confused nor misled, meaning there could be no “misrepresentation.”

The balance is just as weak. From the very start, Harvard knew Epstein treated PED as a second office; according to the May 2020 report, Harvard knew as early as 2006 that Epstein even had his own phone! According to Nowak, Summers walked with Epstein as he secured access to PEDs offices with his own keycard. Not once did he or the University say that this access was wrong, or must end. But now Nowak is to be “disciplined” in part because PED gave Epstein a different keycard after the Harvard access system had changed. Sure, I guess one could say that a university-wide change in security protocols was meant to signal to PED that it should stop granting Epstein access to the PED offices. But wouldn’t a memo from the administration have been a clearer (and cheaper) way to send that message?

Finally, Nowak is to be “disciplined” because the center allowed Epstein’s biography to appear on PED’s webpage after Epstein’s publicist requested it. Of course, the story of center benefactors commonly appear on center webpages. But during a period in which Harvard was inviting Jeffrey Epstein to the launch of its capital campaign, and the most elite of the elite at Harvard were regularly meeting with Epstein at PED and around Cambridge, FAS blames Nowak for failing to recognize that it was a misuse of the harvard.edu domain to reveal Epstein as a “friend” of PED.

None of these “offenses” would even have been noticed, but for Harvard’s need to appear vigilant — if only against one of the very many who continued to engage Epstein at Harvard after 2008. That one, its scapegoat.

It was wrong for Harvard to continue any association with Epstein after 2008. No one should be forced to live or work in an environment that celebrates in any way a man who crossed this critical line. Sex abuse is permanent; its victims carry its costs forever; all of them are entitled, at the very least, to an environment that does not trigger retraumatization. To have suffered from the likes of an Epstein and then see Harvard’s most elite feting an Epstein is to add injury to insult.

And this wrong is about much more than funding. It is about the continuing relationship with so many at Harvard. Our accounting for that is wildly incomplete. And it betrays the truth, and a commitment to institutional integrity, to allow Harvard to stand as innocent while one faculty member went rogue.

The story of chapter two at Harvard is not the story of one bad apple. It is of an institution blinded  —  by what? money? brilliance? celebrity? — from what seems to us now as an obvious moral truth. Of course, we were right not to take Epstein’s money after 2008; but we were deeply wrong to continue to celebrate him at Harvard, in all the ways that so many of the most prominent among us did.

That wrong is not excused, or hidden, with a scapegoat. We need an honest accounting of that past and a plan for how Harvard will avoid this failure in the future. Should all criminals be banished, always? Should particular criminals  —  those whose crimes particularly affect members of the Harvard community  —  be banished, always? And by “always,” I don’t mean for any purpose: An event at which a criminal was asked to reflect on at least some crimes or even offer his justifications could be different, at least if properly framed, from a workshop in which the criminal is just one more participant, celebrated only, or especially, because he happens to be rich.

These are hard questions, no doubt, especially in an age of Tweet-length attention spans. But it betrays our tradition to hide from these more complicated questions, simply because some might misunderstand. We are a university that openly and eagerly engaged with a child sex predator, not just before he was convicted, but long after. How did our culture allow this to happen? And how can we now allow this failure to be obscured by scapegoating just one?

Yes, Harvard’s virtue has been signaled  —  to anyone blind to what actually happened right here among us. But the vice of what happened — the open and regular engagement with a sex offender — has not been reckoned here. It is that which Harvard must finally account for, openly, fairly, and honestly.

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School.

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