March 31, 2006

Columbia Responds to Levey and Vise Versa

In an op-ed in the March 24 New York Sun (abbreviated version here; full version for $ here), I explored the scandal-plagued connection between Columbia University's president, Lee Bollinger, and Olati Johnson, who was recently awarded a coveted faculty position at the university's law school. Johnson played a central role in the Memogate Senate scandal, including recommending that the judicial confirmation process be rigged to influence the outcome of the University of Michigan affirmative action cases, in which Bollinger was the principal defendant. I urged Bollinger and his university to fully address the issues I raised about a conflict of interest and a possible payoff for services rendered. Thus, I thank Dean David Schizer and Professor Avery Katz of Columbia Law School for their timely responses. However, I beg to differ with a number of their points.

Professor Katz says that he and his colleagues on the law school faculty "did not consult [Bollinger] or consider his possible views regarding Olati's candidacy," despite reviewing and discussing the allegations against Ms. Johnson. Even if true, this is of limited relevance. The point of my op-ed was that Bollinger's position as university president and a member of the law school faculty produced an inherent conflict of interest and "the appearance of impropriety to anyone doing even a cursory Google search on Ms. Johnson's name." If the rest of the law school faculty chose, nonetheless, not to discuss these issues with Bollinger, and believed their judgments about Johnson would not be affected by Bollinger's position, then my allegation of "poor judgment" should be focused on the law school faculty. Moreover, as my op-ed notes, the faculty should have thought about the message it was sending to Columbia's law students concerning ethics and conflicts of interest.

I also note that Johnson's tenure as Kellis Parker Fellow at Columbia Law School for the last two years gave Mr. Bollinger plenty of time to anticipate a conflict of interest and appearance of impropriety, even if no one specifically brought it to his attention.

Both Katz and Schizer state that some of the facts asserted in my op-ed are in dispute and cast further doubt upon those facts by noting the "intensely partisan atmosphere" that surrounded Memogate. But the key facts are plainly detailed in the memo which Johnson herself wrote, which can be viewed here. Despite having bar complaints filed against them, neither Johnson nor Elaine Jones – co-collaborator in the Michigan cases scheme – have ever denied the authenticity of the memo or their connection to it. Thus, I am genuinely puzzled as to what facts Professors Katz and Schizer believe are in dispute.

Katz also states that "We did not feel we had any reliable basis to conclude that the [ethics] allegations were accurate." However, I remind him that, as my op-ed notes

"[Ms. Johnson] recognized the ethics problem, noting that she and another Kennedy staffer 'are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case.' Nonetheless, Ms. Johnson recommended a delay because 'the Michigan case is important.'"


Finally, Professor Katz misses another central point when he states that "Even if the allegations were assumed arguendo to be accurate, . . . they would at most constitute an error in judgment that ought not disqualify someone from pursuing a career in teaching." I agree that Johnson should not be disqualified from teaching. In fact, my op-ed specifically said "I don't believe that Olati Johnson should be punished for what she did," but added "I would hate to think that she is being rewarded for it." The key point is this:
"Had she gotten a position at virtually any other law school, the assumption would be that the school had impartially concluded that Ms. Johnson's talents outweighed the ethical implications of her involvement in Memogate. Unfortunately, because of the positions held by Lee Bollinger, Columbia could not make such a judgment impartially even if it tried."

Space does not permit me to comment on other responses to my op-ed, except to note that they have included both approval – for example, here – and criticism similar to that of Professors Katz and Schizer – for example, here – as well as additional thoughts about Memogate here and here. I appreciate the negative as well as positive comments and remain fully open to the possibility, noted in my op-ed, that Columbia "is guilty of poor judgment rather than anything more malfeasant."

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