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Because of sex

There was a striking coincidence between the legal reasoning in the Supreme Court's opinion outlawing employment discrimination against gay and transgendered people, and the reasoning of Judge Gorton when he denied Harvard's motion to dismiss the federal suit against the University filed by certain single-gender organizations. I wrote up that decision in a post called But For, because the key point in the opinion was that Harvard was discriminating on the basis of sex because it would not have been against Harvard policy for a woman to join an all-male Final Club or fraternity. The fact that the club would not have welcomed her was irrelevant.

In the opinion written by Justice Gorsuch in the momentous Supreme Court decision earlier this week, an almost identical fact pattern was at stake."Clayton County, Georgia, fired Gerald Bostock for conduct `unbecoming' a county employee shortly after he began participating in a gay recreational softball league." Had he been a woman joining that league, she would not have been fired. But for his sex, he could have kept his job and joined the league. So he was fired because of his sex. 

That is sex discrimination and unlawful under federal law, we now know. Of course Harvard's clubs do not present an employment situation. Still, if the case goes to trial it seems ever clearer that Harvard is going to have a hard time explaining why its policy against students joining single gender organizations is not sex discrimination. I have no idea what the state of play in that case is, and actually hadn't thought about the Harvard clubs for quite awhile; but Gorsuch and Gorton certainly sound a great deal alike!

A question unanswered in the Epstein report

It was inevitable that the Harvard report (released, in classic style, on a Friday afternoon) would raise as many questions as it answered. It is lawyerly (not surprising, it was written by lawyers) and focused on Harvard rules and policies. I find it very damaging to the reputation of Harvard's faculty, and rather reassuring about the integrity of Harvard's leadership.  At one crucial juncture in 2013 (page 11), a development office staffer writes a bloodless memo to Harvard leadership describing the interest shown by the chair of the Math department and the dean for Science in raising more money from Epstein, even though he was by now a sex criminal. The dean of the Faculty of Arts and Sciences and the President said no, and they deserve credit for their good judgment. The system worked, to that extent. The question would be how those advocating for accepting the money came to the conclusion that "the good his support can do for Professor Nowak’s research outweighs the reputational risk of accepting further funds from him. In addition, they emphasize both that Epstein has served his time for his crime, and that his wealth has been obtained legally, having nothing to do with the crime for which he was convicted." I have some opinions on all that, as others do as well. But I would like to point to a different question.

On page 18, footnote 13 reads as follows:
A number of the Harvard faculty members we interviewed also acknowledged that they visited Epstein at his homes in New York, Florida, New Mexico or the Virgin Islands, visited him in jail or on work release, or traveled on one of his planes. Faculty members told us that they undertook these off-campus activities primarily in their personal capacities rather than as representatives of Harvard. These actions did not implicate Harvard rules or policies
Now first of all, what "number"? That is a lot of travel if the number of involved faculty is small, and a lot of travel if the number of involved faculty is large. Who are these people who kept buzzing around Epstein? We probably know some of the names, but perhaps not all.

The big question is "why?" Why did these distinguished Harvard faculty continue to consort with Epstein? We know that some of them wanted more money for their Harvard programs, but there seems to be something more going on. Some of them apparently thought Epstein was brilliant, or were at least willing to tell the Harvard administration they thought so. (Dan Dennett and Steve Pinker, to their credit, seem to have figured out early on that Epstein was intellectually a phony.)

So what I really would like to know in this context is how to parse the phrase "primarily in their personal capacities rather than as representatives of Harvard." Plainly, under even the most generous interpretation, Harvard's reputation stood to be damaged by an aggregation of academic suitors being solicitous of a sex offender. We all have private lives that are not Harvard's business, but if three Harvard professors go out to dinner with a rich criminal, Harvard is automatically implicated.

I am most interested in a specific question raised by the quoted phrase. 

Joi Ito, sometime head of the Media Lab at MIT, had to resign when it was disclosed that he, like Nowak, had allowed Epstein to get uncomfortably close to the institution he headed. In some ways, the Harvard situation seems worse to me than the MIT situation, because Ito was responsible for raising enormous amounts of money just to keep the Media Lab running. It is a crazy financial model that creates terrible incentives, which is not to excuse Ito's conduct. But the Harvard Math department was in no danger of going out of business if the chair of the department failed to raise a single dollar. What happened at Harvard looks to me more like ethically obtuse expansionist greed than what happened at the Media Lab. 

But Ito committed another affont to commonly accepted values. At the same time as he was raising money from Epstein for the Media Lab, he was raising money from Epstein for his own venture fund. There may have been no rule against that--do we really need such rules?--but anyone with the feeblest ethical sense would recognize it as a conflict of interest that, at a minimum, would require disclosure, and almost certainly would have been stopped had MIT known what was going on, as it did not. As it was, it seemed that Ito was using his ability to get MIT to accept Epstein's gift to the Media Lab, thereby repairing Epstein's damaged reputation, as leverage on Epstein to get him to support Ito's personal investment fund.

So my question about the "number of Harvard faculty members" mentioned in footnote 13: Was any of them personally profiting from their association with Epstein? If their business with Epstein was conducted "primarily in their personal capacities," did those personal capacities in any way involve building their personal wealth?

Just asking.

Added May 3.

1) On my bottom line question, the report is silent as far as I can see, but it does mention in footnote 6 (page 10) an Epstein gift to a nonprofit foundation headed by a Harvard professor (one whose husband, also a Harvard professor, appears in a photograph with Epstein).

2) A colleague has suggested that the situation of those trying to raise a second round of Epstein money for the PED parallels Ito's situation with the Media Lab more closely than I suggest above: in both cases they would go under and there would be layoffs if more money could not be raised. It is true (page 16 of the report) that Epstein's $6.5 million dollar gift had been spent down by 2013, and while he was not the only donor, PED apparently did need to keep raising money to stay afloat. It's much smaller than the Media Lab -- 8 graduate students, 5 postdocs, 2 research associates, a couple of administrative staff, and a single professor, according to the program's web site right now. A fair parsing of this would get us into a different ball of wax: how we professors learn to use terms like "essential" and "urgent" to describe favored programs when we want to start or to keep them going or to use them to recruit desirable faculty, even though they are a drain on the institution's unrestricted money and, most of the time, Harvard (or MIT) would function just fine without them. A story for another day.

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