In the spring of 1981, events in my academic-freedom suit against the University of Maryland were rapidly moving to a head, leaving me little time to worry about Jay's tardiness in responding to my critique of the movie script. And on May 18, more than three years after I had been offered the position of chairman of the Department of Government and Politics at Maryland, the case finally arrived in U.S. District Court in Baltimore, Judge Alexander Harvey III presiding.
What we set out to show, in brief, was that the reasons University of Maryland president John Toll gave for rejecting my appointment were not the real ones, thatdespite their denialsthe defendants were disturbed by that fact that I am a Marxist, that considerable political pressure was exerted on former President Wilson Elkins, President Toll, and the Board to Regents to reject me, that Toll and Elkins consistently tried to minimize and even deny this pressure, and that neither Toll nor Elkins was indifferent to it.
The case began on a sour note with Judge Harvey declining to examine all evidence relating to Toll's appointment of chairmen and full professors after July 20, 1978, the date he rejected my appointment, on the grounds that whatever Toll did after the case began was irrelevant. David Bonderman, my lawyer, had argued that we needed to examine Toll's later decisions to see if he really raised his standards on the qualifications of candidates and on the procedures followed (as he maintained), or whether his extraordinarily high academic standards and ideal procedures were meant to apply only to Professor Ollman.
Dr. Robert Gluckstern, chancellor of the College Park Campus of the University of Maryland, who together with Provost Murray Polakoff had recommended my appointment to President Elkins, was the first witness. He reiterated his opinion, first expressed in the spring of 1978, that I would make a "very good, an excellent chairman."
Immediately after news of the appointment of a Marxist chairman hit the press, Gluckstern testified, he got a call from Governor Blair Lee, who had said he had received many complaints and wanted to know what was going on: "Doctors, lawyers, merchants reacting unfavorably... Senator Bishop irate" read Gluckstern's notes on the call, the first call he had ever received from the governor. In the period from late April to May 1978, Gluckstern also received "expressions of concern" on this subject from several state legislators.
Gluckstern sent the Ollman docket with his recommendation to President Elkins for his final approval on April 20. On May 1, Gluckstern met with Elkins to discuss the matter. Gluckstern testified he had never seen Elkins so angry. Elkins said that Gluckstern "should have anticipated the public reaction" (from notes of Gluckstern). There were long silences during which the two men stared at the ceiling and at the floor. Elkins said that the Ollman appointment had stirred up more opposition than any other event in his 24 years as president and that he might have to take the whole matter to the Board of Regents.
Gluckstern also testified that Dr. Herbert Brown, then chairman of the Board of Regents, and Dr. Louis Kaplan, former chairman of the Board of Regents, both sought him out and urged that he withdraw his recommendation of my appointment. Dr. Kaplan stated that persisting in this matter was not in the best interests of the university norhe made clearin Gluckstern's best interests.
Delegate John Hargraves, who had been chairman of the Appropriations Committee of the Maryland House of Representatives in 1978, was one of several state politicians who testified at the trial. He admitted telling both President Toll and University of Maryland Vice-President for Legislative Affairs Frank Benz of his "deep concern" over the Ollman appointment, a concern that he was loath to define until pressed to do so by my attorney: "No, it had nothing to do with Ollman's administrative experience... I just don't think Marxism has a place in this country."
On May 25, claiming the case was still too broad, Judge Harvey disallowed all evidence relating to Toll's decisions on chairmen appointments during his 13 years as president of SUNY-Stony Brook, before coming to Maryland. My lawyers objected, asking if we could not point to the standards Toll used after he rejected me or to the standards he used before he rejected me, by what standards could one judge his claims that he treated Ollman no differently than any other candidate for a chairmanship? The objection was overruled.
On June 2, after three years of waiting, I finally learned what President John Toll found wanting in my qualifications. Though he was somewhat concerned with my tolerance as a teacher, Toll said he was unable to come to any conclusion on this matter. Toll admitted that he had made no effort to check out my tolerance with anyone at NYU, where I had taught for 11 years, becauseas he put ithe did not know anyone there and had no confidence in their discretion.
On scholarship, Toll said he was also concerned with my "declining productivity" after publishing Alienation: Marx's Conception of Man in Capitalist Society in 1971. This was particularly evident, Toll said, when he compared my scholarly output with that of Professor Robert Holt, the other finalist for the Maryland job. When shown that Holt had published far less than I did in the 1970s, Toll expressed great surprise. In any case, Toll insisted scholarship was a minor factor in arriving at his decision.
What, then, were his main reasons for rejecting me? What were the chief qualifications that I lacked? Toll said one main reason for denying me the appointment was that I lacked "administrative experience and good administrative judgment," particularly the latter. Two instances were referred to in support of this conclusion: 1) my efforts in the spring of 1970 to secure the removal of Dr. Ivan Bennett, then dean of the Medical School and vice-president for medical affairs at NYU, for his continuing involvement in chemical-biological warfare research for the Department of Defense; and 2) my supposed participation, also in 1970, in a student occupation of the Courant Institute of Mathematics at NYU.
Toll admitted that his entire knowledge of the Bennett affair came from two documents: a letter from Dr. David Robinson, then vice-president at NYU, who defended my role as not exceeding normal academic bounds for disagreements of this kind, and my own account of what happened. These were the same two documents that had convinced Provost Polakoff and Chancellor Gluckstern that there was nothing disreputable about my conduct. Here, too, Toll made no effort to contact anyone at NYU, not even Dr. Bennett, who, he said, was an old friend of his.
On the Courant Institute matter, Toll admitted that he relied wholly on a letter sent to a professor at Maryland by NYU mathematician Peter Lax, in which I am referred to as "a ringleader of the takeover." Again, Toll made no effort to verify this charge. If he had, he would have learnedas did Provost Polakoffthat all the NYU administrators from that period believe it to be false.
Toll insisted that he was not concerned with the political aspects of the Bennett and Courant affairs, but for what they showed about my "poor administrative judgment." How one got from anti-Vietnam War activities, real and alleged, to "administrative judgment" was never clarified.
Besides my lack of "administrative experience and poor administrative judgment," the other major reason Toll gave for rejecting me was that I had no experience procuring large grants of money, with the implication (false) that the department of chairmen are responsible for the grants obtained by members of their department.
Did Toll know about all the state legislators who called or wrote in with their veiled threats on the Ollman appointment? Only vaguely, he said. In fact, he was so uninterested that he wasn't sure who among them opposed me and who supported me! When confronted with his own vice-president's testimony that he discussed these communications with a very interested President Toll as they came in, Toll professed not to remember; nor could he recall that he asked his secretary to keep a special file on letters and phone messages from politicians.
On June 8, former University of Maryland President Wilson Elkins took the stand. He testified that he talked with the governor at least once and to four or five state legislators on the Ollman appointment, and that he received letters and phone messages on this subject from about a dozen other politicians. In this group were all the key figures involved in determining the university's budget.
In April and May, Elkins noted, the governor dealt with the Ollman appointment in three different press conferences, the first two times to warn against possible financial repercussions to the university, and the third timewhich occurred just after the two men had metto assure Elkins that the decision was his and that the politicians would not interfere.
Elkins denied a comment attributed to him in the April 24, 1978, issue of Diamondback, the University of Maryland student paper, that the possibility that some legislators disapproved of my appointment would have to be a factor in his decision. (It was three days later, on April 27, that Elkins began receiving legal counsel from the State Attorney General's Office.)
Despite the barrage of opposition to the appointmentfrom politicians, from half of the Regents, from a dozen conservative columnists, and from the general public (340 hostile letters were received)Elkins testified that he did not know of anyone who criticized me on political grounds, "with one possible exception."
In his closing summation, Bonderman stated that from 1970 to 1978, seventy-one people were recommended to President Elkins for chairman or director of a department at the University of Maryland and all were approved (two with minor qualifications). Ollman's was the first recommendation to be rejected. If all 71 people whose appointments were approved were white, Bonderman said, and the first recommended candidate to be rejectedthough he possessed the same general qualifications as the otherswere black, no one would have any difficulty understanding the reason for his rejection. Given the public uproar about Ollman's Marxism and the extraordinary political pressure brought to bear on presidents Elkins and Toll, Bonderman said, there should be even less difficulty in understanding why Ollman was the first recommended candidate for a chairmanship at the University of Maryland to be rejected.
In his summation for the defense, Assistant Attorney General Paul Strain restated Toll's reasons for rejecting me, and then said that the case really rested on the credibility of the three main witnessesOllman, Elkins, and Toll. Whom could we believe? To help Judge Harvey answer this question, Strain concluded with a moving eulogy of Presidents Elkin and Toll as dedicated educators, visionaries, and builders of a great university.
Overall, the trial went pretty much as we expected, though I began increasingly troubled by the numerous rulings, over 30 in all, that went against our side. Izzy tried to console me by pointing out that judges often lean one way to give themselves more freedom to make a decision that goes the other way. It makes them look less biased and reduces the likelihood of a successful appeal, he said. On the other hand, if all these rulings simply revealed a bias... We didn't have long to wait to find out the answer. On July 27, Judge Harvey rendered his decision.
"For this Court to find in favor of the plaintiff, it would have to reject large portions of the testimony given under oath in open court by President Toll, by President Elkins, and by Vice-President Horbake [their closest adviser in the Ollman matter]. This the Court will not do." I lost!!! They won. But why?
Harvey explains: "This Court in viewing and hearing these three witnesses and in considering their many years of experience in the field of higher education, found each of the witnesses to be impressive in a distinctly different way. Dr. Toll impressed the Court as a man of great integrity... Dr. Elkin had served this very large state university for 24 years before his retirement on June 30, 1978. He had been a Rhodes Scholar at Oxford, had presided over tremendous growth of the university since 1954, and was hardly the sort of man who would give sham reasons for acting as he did. Dr. Horbake had been academic vice-president for 18 years... his calm and judicious demeanor in answering question on both direct and cross examination was hardly that of a dissembling witness."
The judge was stating that he simply could not conceive that these men, really such men, men holding such position, could lie. Then why had I begun a suit in the first place? What was the sense of spending a month in court addressing a judge who now told us he was deaf? Obviously, Judge Harvey had never heard of Watergate, or Brutus for that matter. Nor had he seen the Italian movie Investigation of a Citizen Above Suspicion, where the chief of police turns out to be a murderer. Taking one's cue from the Social Directory is a much easier way to decide cases than weighing the evidence, but it has little to do with most people's idea of justice. None of the misstatements, contradictions, non sequiturs, lapses, and new incriminating evidence that we had brought out at the trial found their way into Judge Harvey's lengthy account of events, which was taken entirely from the testimony of defendants.
A more sinister interpretation of the decision is suggested by glancing at Judge Harvey's own social background. The Harveys are one of the two riches families in Baltimore. One brother is chairman of the Maryland National Bank and serves as chairman of the Board of Trustees at Johns Hopkins University. Another brother is head of the largest brokerage firm in Baltimore. Judge Harvey himself was a contemporary of Toll's at Yale in 1944, thoughas he jokingly remarked at the trialthe two did not know each other then.
What was I in allowing such a ruling-class type to sit in judgment over me anyway? Hadn't I read the square on the Class Struggle board that says "Capitalists control the courts"? Why didn't I opt for a jury trial, a choice one has in civil suits? One reasons is that my lawyers convinced me that Harvey was a "maverick," that the typical Maryland jury would be very hostile to a Marxist and too favorably disposed to presidents of the state university (a poll had shown President Elkins the most popular man in the state), and that a jury trial would take much longer. My lawyers were wrong.
On another level, however, I had gambled on the contradiction within the ruling class between their need for legitimation (getting people to believe the rules are fair and apply to everybody) and their need for effective repression (keeping critics away from the microphone) being resolved in this case in favor of the former. By denying me the chairmanship that had been awarded me by my academic peers, Judge Harvey has made it more difficult for the University of Maryland (and, through extension in the public mind, for other universities) to function as neutral instructors and scientific evaluators of the social values and ideas required by capitalist society. The product has been tainted. This is a high price to pay, and I considered Harvey too smart in the way of ruling-class politics to accept to pay it.
I, too, was wrong. In retrospect, it is clear that whatever boost the legitimation function of the university might have received from an Ollman victory had to be balanced against the delegitimating effects of declaring two university presidents and a Board of Regents guilty of conspiracy and lying. Hence, Harvey's insistence that people in such positions don't lie. If I had won, the university might have added a highly placed critic to its faculty without scoring any appreciable gains on the legitimation scale. A poor bargain.
But the court, whose reputation for delivering equal justice for all also helps legitimate our capitalist system, would have come out of the affair smelling of roses. With Harvey's decision, on the other hand, the court takes its place alongside the University of Maryland in the docket, as a declared opponent of academic freedom, tolerance, honesty, and elementary fairness. As Judge Harvey may yet learn, this is an even higher price to pay than learning how to live with Professor Ollman.