More About the Law

THE OPEN MIND
Host: Richard D. Heffner
Guest: Michael Sovern
Title: “More About the Law”
VTR: 2/27/81

I’m Richard Heffner, your host on THE OPEN MIND. And today my guest is Michael Sovern, the President of Columbia University.

Mr. Sovern, it’s good to have you here as a guest, although as I said just before we went on the air, the fact that you were graduated from Columbia College so many years after me makes me feel so uneasy and old. But you know, when your predecessor, William McGill was here on THE OPEN MIND, either the last time or the time before, we were talking about confrontation on the campus. And I wonder whether confrontation politics, confrontation academics, confrontation life really looms so large today as it did then?

SOVERN: No, I think is the answer to that. The limits of the possibilities of confrontation, I think, were discerned by people who were disposed to use it. It doesn’t work very well anymore. When it began it began as a form of social protest, and it was frequently used against people who didn’t quite know how to respond. You recall in the early days the dogma had it that it if you provoked authority there was a high probability the authority would respond in some way that advanced the interests of the provokers, at the very least helping them to mobilize support. You can’t play that game anymore, at least not very often. And people have recognized it, and so the tactic is not used very often anymore.

HEFFNER: When you say “You can’t play that game”, you mean those who would confront authority can’t play it because authority won’t play in turn?

SOVERN: Exactly, exactly.

HEFFNER: How do you restrain yourself?

SOVERN: Well, the provocation used to have to portray the provocateur in a sympathetic position vis-à-vis authority. That means it could not be so extreme as to call down disapproval on the provocateur. Now the typical response of authority is to ignore it.

HEFFNER: I remember the riots at Columbia. Were you dean of law school at the time?

SOVERN: No, I was on the law faculty.

HEFFNER: Do you think there was any other way, given the time, for the administration at that time to deal? I mean, it came out of the blue in a sense. We didn’t have any experience in dealing with confrontation at that time.

SOVERN: In retrospect, yes, there were other things that might have been done. But I agree with you that it was a new set of tactics confronting an administration, that it had no relevant experience and had almost no analogous experience elsewhere to learn from. So that under the circumstances that they stumbled is entirely forgivable, it seems to me.

HEFFNER: Well, your attitude of, “We don’t provoke” certainly has been a wise one. But could it be a function of there not being anything to be provoked about, that there is a kind of deadness about the university – Forgive me for putting it that way – that may characterize higher academic life today?

SOVERN: As you would expect, I resist the implication of that question. But it has real a point, it seems to me, and I should have made it myself. And that is, of course, that the earlier era was characterized by Vietnam and very turbulent race relations. We tend to forget the Columbia outbreak was not alone, and it came within months of the assassination of Martin Luther King. So that it isn’t that the universities were any livelier then, it’s that there were external issues that exercised young people and a lot of others as well. And that’s gone. The universities you remember in that period were not seen as themselves doing evil, but as the handmaidens of an authoritarian society that was doing harm and weren’t really surrogates. The students quite rightly recognized that there were things they could do on campuses that they couldn’t do elsewhere. And indeed, when they tried to do them elsewhere as in the days of rage in Chicago, the movement quickly fell apart.

HEFFNER: Are you suggesting they don’t try to do any of those things today on campus or off?

SOVERN: Well, it is the case that disruptive protest on campus now is quite rare. Indeed, we haven’t had any of that at Columbia in several years. And very few campuses have in that period.

HEFFNER: Mr. Sovern, what’s the downside of that pleasant statement to make, “We haven’t had that kind of disturbance in some years?” What’s the downside of that?

SOVERN: Well, I don’t know that there is a downside. It seems to me that one of the things that’s happened is that students have become much more effective.

HEFFNER: Effective?

SOVERN: Yeah, in the political arena and in the social arena. We forget that they are major troops in electoral politics now. My favorite example is Columbia students’ expression of social concern in a resourceful and effective way which came several years ago. It still goes on. Several of our law students noticed that law students were paid very high salaries in the summer between the second and third years, and yet there were others who wanted to work for public interest organizations who can be paid little or nothing. And our students decided to tithe themselves so that the students earning the big money kicked into a pot to provide fellowships for the students who went to work for civil rights and other public interest organizations. That’s not a unique phenomenon. And it is part of the maturation process that I think our students have undergone in the last 10 or 15 years.

HEFFNER: Yet I’ve been given to understand, particularly in law school – and you come to the presidency of Columbia from the deanship of the School of Law at Columbia – I’ve been given to understand that increasingly law students were looking for the long buck, the big buck. Not so?

SOVERN: No, I really don’t think so, in fact. The difficult point there is that there really are very few jobs of a sort that enable a young lawyer to do what he or she wants to do. The fact is that the society is not organized in ways that provide for exciting professional opportunities for young lawyers. The way I sometimes put it is: In medicine, the poor tend to have the same diseases as the rich. And so if you work in a clinic you get the same intellectual excitement that you get, indeed sometimes you get more intellectual excitement than you would in a high priced Park Avenue doctor’s office. It isn’t true in the law. The problems of the poor unfortunately are pretty much the same: marital difficulties, minor crime, landlord/tenant. And though one can derive social satisfaction from pursuing those problems, after you’ve done a few hundred of them it’s very deadening. Moreover, the caseloads in offices of that sort are depressing in the volume, in the nature of the problems with which you’re dealing. And in the sense that by solving those problems you’re not solving very much. And so the legal aid office is not the equivalent of a health maintenance organization for example, either in professional growth or in the sense of having accomplished something substantial in the course of the day. And even then there are very few jobs, you see. So that many of our students look actually to government, and will take government posts. But it is true that the students with the choice, which is graduates of the elite law schools, do tend to take the high-paying jobs.

HEFFNER: Suppose we move then from law school to other graduate faculties at Columbia and other universities, and even undergraduate work. What happens? Is there life after the university?

SOVERN: That’s one of the sad aspects of intellectual and academic life today is the contraction of job opportunities in this period for young academics. And so what happens is – well, the humanities student for example, who will choose the life of the mind over the worship of mammon, is forced to go make a buck. There is no assistant professorship in English literature, and so he or she goes and works in an advertising agency. And we are now experiencing one of those now almost routine boom and bust phenomena in our career life in America. The fact is that the awful drought in job opportunities for young academics is drawing to a close. The awareness of it, however, is quite recent. So that the people who made their choices to take the Ph.D. programs in the mid-seventies are being victimized. Therefore, the graduates today are afraid to go there. When in fact, the student who enrolls in a Ph.D. program today is likely to come up for a professorship at a time when there’s a crying demand.

HEFFNER: How so? How do you figure that?

SOVERN: It is an enormous lag. The mean lapse time to the Ph.D. is about eight years; much longer than it should be, but that’s what it is. So you take the class of ’81 at American universities would get the Ph.D. in ’89. That cohort would then come up for tenure sometime in the middle to late 90s. That is the period in which, after which really, shortly after which all the post-Sputnik professors, the ones that were promoted in that great effusion of enthusiasm for science and education, will have retired. And when the declining population base in the 18-year-olds which begins this year will have bottomed out and be starting back up again. So there will be a great shortage of professors, there will have been a serious interruption of the flow because of the oversupply now, and there’ll be a new demand on the part of students. And we’ll be short. I promise you. When you and I are sitting here in 15 years we’ll be talking about the shortage of first-class professors.

HEFFNER: That’s an interesting observation. And I wonder if I could get your – obviously not off the cuff – but frank observations on one of the problems that we face today in this area, and that is the problem of continuing tenure which makes for very little opportunity for those young people today to move from instructor to assistant, from assistant to associate professor.

SOVERN: The tenure concept seems to me to be fundamentally valid. It is, however, it has very high costs. The notion is that you assure a scholar that wherever the inquiry leads you follow it without fear of punishment for saying what you believe to be true. And as you know, there have been moments in American history where that’s a vitally important protection. It is also the case, though it‘s not usually thought of this way, that the decision to grant or not grant tenure in fact leads to a considerable pruning of the underbrush. If we did not have a tenure system that created a moment of truth where a department had to decide whether to promote a young person. As you know, in many occupations you just rock along with that person. You get kind of defacto tenure. So tenure has a bright side as well as a job security side that leads to decisions about quality and for at least some time thereafter I think leads to very high productivity. The trouble with the system is it is an extraordinary commitment in the life of a productive scholar. As you mentioned, I come out of the law. The tradition there is to make these decisions early. I was first awarded tenure at the age of 23. Now you and I know that I had 50 good years left, but that is an extraordinary bet, the notion that for the next half-century I would be a lively, productive person is a commitment to a human being that you really can’t make rationally. And now of course where we are, as you know, is there is a very heavy, very large group of tenured faculty in the middle years that really does make it impossible to promote younger people.

HEFFNER: If you were king, not president of the university, but king, emperor, whatever. What would you do about tenure? Would you start it? Would you not start it if you had the choice of beginning all over again?

SOVERN: Well, I guess…May I sneak up on that with a story?

HEFFNER: As long as you get up to it.

SOVERN: I will. I promise. A friend once told me about a radio show that he claimed has as its theme, the positing of some major historical event and what would have happened if that event had occurred in some contrary way. And his event was the Battle of Hastings. And the hypothesis was that Harold had thrown the Normans into the sea, what would have happened? And what was looked for, of course, was the notion that there’d be no English language and no parliament and no juries. His answer was the Normans would have been back in 1067. If there were not tenure, there’d be tenure. Think about the different occupational callings in our society. Who gets thrown out in his middle years? It typically is a function…I know there are some, I know, but most.

HEFFNER: Increasingly one reads of middle-aged men in management, in high positions, not protected by our academic tenure, who are out.

SOVERN: I was going to say that the examples you find are typically those in discernibly high-risk, high-pay enterprises. But professors aren’t high-pay enterprises. If you didn’t tenure, you really would have to pay them more. Whereas if you’re now, when we recruit for the Columbia law faculty, we’re recruiting against law firms that pay those same obscene salaries to our students.

HEFFNER: Now, but you’re taking law faculty, and that’s a little unfair.

SOVERN: True in all the professional schools now. Anybody you want for a professional school faculty, journalism, business, medicine, law, can earn substantially more elsewhere.

HEFFNER: And those of us who taught history or philosophy or government?

SOVERN: Well, if you believed at the point at which you entered the career ladder in the academic world that there was really no assurance of job security, you might well have made the same choice. Indeed many people would have the confidence to go forward, but some would not. And some good ones would not. And so at the very least I think we’d be paying higher salaries. And I do believe that the protective impulse to look after one’s colleagues would operate just as it does in so many enterprises.

HEFFNER: When I was a young teacher, a young college teacher, I remember reading Mary McCarthy’s “Groves of Academe” during a summer. And I said to my wife as we drove across the country, “This woman couldn’t really mean all that she writes. This couldn’t be what academic life is like”. And then, in the fall, I started to teach at the institution she had most recently taught at. And I’d come home day after day and say, “Well, guess who I met today?” And it would be another character out of the novel. The nature of academic life, the divisions, the intellectual and not-so-intellectual divisions, exacerbated by today’s problems on the outside world or diminished? What’s it like to be inside the groves of academe today?

SOVERN: Oh, it’s highly variable. I mean, not only from institution to institution, but from discipline to discipline. So that you have in the pure sciences, for example, very high morale now.

HEFFNER: Still?

SOVERN: Yes. I was going to say, with the new administration and all the uncertainty about the levels of federal funding, that could change. But, you know, the biologists have the key to heaven and they are loving it. The chemists are doing very well. The physics, because of the high cost of high-energy physics are less exuberant, but they still like their work and are not running scared. When you move into the social sciences, you find a considerable intellectual disarray. The great creative bursts of the 20s, 30, and 40s were more exciting than the consolidation phases and the refinement of those insights. And what’s happened is there is considerable disagreement about the direction of the disciplines. So the quantifiers are fighting the theorists, and these are earnestly fought battles about life’s commitments to particular approaches to intellectual problems. So in the social sciences I think you find much less of the excitement and positive feeling, although as in all fields the best people are having the times of their lives. They’re getting exciting students, funding, and all the rest.

HEFFNER: What about the concern that I’ve heard expressed about government’s increasingly intrusive role?

SOVERN: That’s a complicated question. Senator Moynihan gave a terrific speech at Columbia in early October which was later published in which he ticked off, step by step, the intrusions. And I remember saying to him on that occasion that I agreed with much that he’d said, but the fact was that we hadn’t quite sold out yet. What has happened in academic life is that we spend increasing amounts of energy and lots of money dealing with government. But the fact is that the intellectual inquiry is still free, and the choice of topics is still made by and large by scholars who believe that particular questions deserve exploration. Some distortion by the sources and directions that grant-givers want followed, but that at least leaves you free to choose to do it or not to do it, and the alternative choice is not sleeping under bridges; it’s pursuing other questions. So that I see government, as far as universities are concerned, as very burdensome, very burdensome. Not in any malevolent way. They are treating us like factories and farms. And we aren’t. The best example in current life is what is known as effort reporting. If the university is a government contractor, every member of the faculty and virtually every member of the staff must account for 100 percent of his or her time. The forms required to implement that are like swinging two bats when you come to do your taxes. And they require decisions that are not possible. The classical example is, when a member of a faculty of medicine operates on a patient, on a frontier of the discipline in an amphitheater full of students, he must account for his time. Was that research? Was it health care? Was it teaching? Well, you can’t do that. That’s just one illustration of the silly questions that are being asked because of the lack of sensitivity to the special nature of university education.

HEFFNER: All right, let me get back to that question of special nature, because you said a moment ago that we’re treated as factories or farms, and we’re not. Not that much of the general American community, not shouldering that much of the responsibility to the rest of the nation?

SOVERN: You mean in the paper shuffling, or…

HEFFNER: No, no, no, no. Not in paper shuffling, but in responding to whatever it is that government sees as a necessity.

SOVERN: Well what happens, you see, and this is not unique to universities, but I think we are more fragile than lots of enterprises. There are about 3,000 institutions of higher education. If a professor at institution “X”, which may be virtually a mail order operation, cheats on his grant, the fact that the other 2,999 are being impeccable in the administration of their grants gets lost sight of, and immediately all 3,000 universities have to file forms. Now this happens to other enterprises too, but they are better able to pass their costs along.

HEFFNER: But now wait a minute. It happens to other enterprises, too. Why should the university be less susceptible, less liable than any other part of our society?

SOVERN: Well I don’t think we should be less liable. I think, for example, on this question of effort reporting, it is an implementation of the view that universities like other enterprises, ought to be accountable for the federal monies they get. And I agree with that. We ought to be accountable. But there are other ways to do it. And we have suggested other ways that are less intrusive and less costly. As I say, in that respect, you’ve heard similar plaints, we all have, from other parts of our society, and I happen to know the universities best. I would not be surprised if some of the complaints from other sectors of the society were not also well founded, that there is an overreach, an overreaction, that is imposing excessive costs on other sectors too.

HEFFNER: Well, when the university became the multiversity and the uses of the university came to be defined in terms of the university participating in so many different ways in our national life, you had not bitten the bullet, you’d bitten the apple.

SOVERN: No question about it. We cannot claim that we are some privileged sanctuary and that when the federal government gives Columbia a hundred million dollars, as it does, that we can say, “You’re not allowed to ask what we did with it”. I think we can say that in asking us to account for what we did with it you allow us to respond in ways that meet your needs, you, the federal government, without imposing excessive costs on us.

HEFFNER: A friend of mine, Marcus Cohn, an attorney in Washington, did an interesting study some years ago and discovered a huge number of college graduates, college professors, Rhodes scholars, PhDs, etcetera who were going into Congress. Indeed, if you looked at the beginning of a two-year term you found increasing numbers of such people. There’s a reversal now. Do you think the university and its products, if I may, the educated person, is withdrawing these days from involvement with this same overriding government?

SOVERN: No, I really don’t. I haven’t looked at the numbers on people electing to go into electoral politics. But if there is a diminution I would guess it’s short-term and that you’ll see continued interest.

HEFFNER: Do you think there is a consistency, one can be easily enough, not one can be, but one can be easily enough, a person who deals with the life of the mind and the person deals with the life of politics?

SOVERN: Yes, although it does require extra discipline. The fact is that our stereotype of the life of the mind which we sometimes approximate as a kind of unvarnished quest for the truth. Now nobody manages that a hundred percent. But the difference in emphasis is clear. Professors are supposed to follow the trail and say what they find. Politicians have a different ethic.

HEFFNER: Okay, do professors do that these days as much as when I was going to Columbia College, even when you were going so many years later?

SOVERN: Well, it’s a much larger group now, and that’s both good and bad. It is less the socially elite enterprise that it once was. It still is intellectually elite in the best institutions. But the numbers, I’m a science fetishist. Three thousand institutions of higher education means there are a lot of professors. That means there are bound to be some who are faithless to the ethic, there are bound to be some even who are crooks. And so the fact that some do not live up to the highest ideals doesn’t seem to me to impugn what I still think is the great majority.

HEFFNER: I really wasn’t talking about things that were corrupt or immoral. I was talking about those who were so totally involved in the life of the mind, seem to me that the percentages were so much greater back when.

SOVERN: You mean as distinguished from time spent on consulting or engaging … ? I think that is true. I think you’re right about that. There is more of a participation in commercial activity, community activity than there used to be, without any question.

HEFFNER: Good or bad?

SOVERN: Hard to say. In some way, again I think it varies with the discipline. The scientist in some fields learns from participating in other ventures. The same can be true of almost any discipline. But there isn’t any question it takes time. And one has to suspect that in some cases it affects the questions that are being asked, and maybe even the answers. But it’s happened, and I don’t think we’re going to be able to undo that.

HEFFNER: I just got the signal that we’re about to go off the air. But, boy, I would love to follow up on that question on that matter of sometimes if affects the questions that are being asked and sometimes even the answers that are given. Come back and we’ll talk about it.

SOVERN: I’d love to.

HEFFNER: Thanks, Mr. Sovern, President of Columbia University. And thanks, too, to you in the audience. I hope that you too will join us again on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.