The JIO's finding that there was "reasonable cause" to believe that Eden had
violated Penn's racial harassment policy for having shouted "Shut up, you water
buffalo!" to late-night noisemakers under his window was outrageous in terms of
normal human interactions at a university. Loud and raucous festivities had
occurred beneath the windows of students since the Middle Ages. For centuries,
would-be scholars, disturbed or awakened in the still hours, had shouted their
various and picturesque disapprovals at the celebrants. "Water buffalo" would
have been one of the mildest such epithets ever uttered.
The JIO's decision also was unconscionable given the history of the debates over
speech codes at Penn. In 1987, over the strenuous objections of a handful of
professors, Sheldon Hackney, President of the University of Pennsylvania,
promulgated the University's first modern-era restrictions on speech, in the
form of prohibitions on "any behavior, verbal or physical, that stigmatizes or
victimizes individuals on the basis of race, ethnic or national origin...and
that has the purpose or effect of interfering with an individual's academic or
work performance; and/or creates an
intimidating or offensive academic, living, or work
environment."2 In September 1989, to explain the policy
to incoming students, the administration gave specific examples of what would
constitute the serious crime of "harassment": students who drew a poster to
advertise a "South of the Border" party, showing a "lazy" Mexican taking a
siesta against a wall; a faculty member who referred to blacks as "ex-slaves";
and students who, in protest of "Gay Jeans Day" (when undergraduates were asked
to dress in jeans to show solidarity with gay and lesbian students), held a
satiric sign proclaiming "Heterosexual Footwear Day."3
There were ironies in this presentation of "incidents of harassment." When
Louis Farrakhan spoke at Penn 1988, over the protests of several Jewish organizations,
Hackney issued a statement in which he conceded that Farrakhan's statements were
"racist, and anti-Semitic, and amount to scapegoating," but concluded: "In an
academic community, open expression is the most important value. We can't have
free speech only some of the time, for only some people. Either we have it, or we
don't. At Penn, we have it."4
Indeed, in the very month that his administration was prohibiting social criticism
of Gay Jeans Day and posters of sleeping Mexicans, Hackney was campaigning, to
great national applause, against Senator Jesse Helms's efforts to deny federal
funding, by the National Endowment for the Arts, of works such as Andres Serrano's
"Piss Christ," a crucifix immersed in the artist's urine. According to Hackney,
it was impossible "to cleanse public discourse of offensive material" without
producing "an Orwellian nightmare" or the horror of "self-censorship."
"We are not," in Hackney's words, "Beijing" (an argument put to him earlier against his
own speech code), but the "Land of Liberty," where efforts "to limit
expression" deemed "offensive" violated the essence and spirit of "democracy"
and made social "satire" impossible.5
The debate over the harassment policy had heated up at Penn in 1989-90, however,
because of a federal court decision. Despite the University's private status,
which placed it outside the sway of the Bill of Rights, the administration always
had insisted that its speech code could pass constitutional muster. In 1989,
however, a federal district court declared the University of Michigan’s code,
which was less restrictive than Penn’s, to be unconstitutional. It embarrassed
Hackney when his critics now pointed out that students at Pennsylvania State
University or at local community colleges had more rights of free expression than
students at the University of Pennsylvania. Accepting the advice of a professor
of law to change Penn’s overbroad, vague, and imprecise restrictions, and declaring
that they were interested in prohibiting merely "words used as weapons," Penn's
administration
promulgated a "narrower" prohibition of "offensive" speech. The new code specified
three conditions which, if met simultaneously, would constitute verbal harassment.
This was the definition governing Eden Jacobowitz’s case:
Any verbal or symbolic behavior that:
Eden, however, had not called anyone the officially protected "fucking fascist Uncle
Tom." His first
advisor, Director of Student Life Fran Walker -- whom he had
randomly selected from a list of judicial advisors presented to him by the Judicial
Office -- advised him to accept the settlement now offered by Robin Read:
Five of the fifteen women now believed themselves, as Penn encouraged through
its orientations and diversity programming on racism, to be the victims of "racial
harassment." Within short order, the five women, with the university police in
tow, were sweeping the dormitory looking for offenders. Only Eden Jacobowitz, it
turned out, of the many students who had expressed their late-night annoyance,
chose to come forward into the corridor, and he freely identified himself to the
university police as the student who had shouted "water buffalo"; other students
were identified by third parties. The next day, all students suspected of shouting
were summoned one by one to the university police headquarters and asked if they had
known the race of the celebrants. Street-smart Penn students, with one guileless
exception, all said the equivalent of "No, it was dark." Eden said, "Of course.
It was bright as day out there. But their race had nothing to do with what I
said."10 The University now had
its scapegoat.
Although the other students involved in the case initially claimed that Eden
had used racial epithets, they soon recanted. As a result, Robin Read stipulated,
in the presence of Eden's advisor, that the only "offensive" comments he had made
had been "water buffalo" and "zoo."
To be considered "racial harassment" under Penn's policy, Eden's words had to be
either clear racial epithets or clear derogatory stereotypes, and they had to be
uttered "only" with the intention to inflict direct injury. How could "water buffalo"
be a racial stereotype, and how could his motive have been other than to express his
anger at the noise? When Read first informed Eden that the women had taken the
phrase "water buffalo" as a specifically racial term of abuse, he was appalled,
and he offered to explain to the young women that he had meant nothing racial
whatsoever and to apologize for any rudeness. The JIO replied, "That is not good
enough." When Eden said that "water buffalo" had no relation to race, Read said
that water buffalo were "primitive, dark animals that lived in Africa." Eden
Jacobowitz is a deeply religious Orthodox Jew, the descendant of Holocaust survivors,
and a graduate of a leading yeshiva, a religious Jewish school. When he protested
vehemently that everything in his being, his upbringing, and his religious
commitments forbade racism, Read inquired,
"Weren’t you having racist thoughts when you said ‘water
buffalo’?"13
Eden refused to accept any settlement. He wrote a courageous letter to Read, given
that she would be his prosecutor at a hearing. He accused her of putting her
"political standing" above "the rights of students" and issues of "innocence,"
because "you simply... did not want to deal with the pressures of vindicating
someone of racial harassment charges." He reminded her that both he and his roommate
originally had been charged with shouting "non-racial comments at some members
of the Delta Sigma Theta sorority on January 13," but that only he had been charged
with harassment, because "my roommate claimed not to know the race of the people
involved while I was totally and categorically indifferent to the race of the people
involved." His words, he reiterated, "referred solely and only to the noise level
outside my dormitory window." He characterized her interpretation of "water buffalo"
as "the farthest meaning from my mind . . . your words not mine." He had simply
objected to "the noise level produced by sporadic stomping and shouting right outside
my window at midnight while I was trying to write a paper." If the noisemakers had
been "Orthodox Jews," he assured her, "I would have said the same thing."
He challenged Read's claim "that it was important to take the women's interpretation
of my words and the pain that they inflicted upon them into account," reminding her
that "As you know, I have asked from the very first day . . . to meet with the women
to apologize for shouting in response to their noise and to make it clear that my
words had no racial meaning." He accused her of ignoring all the evidence of
eyewitnesses, raising in his mind "the terrifying possibility that this has become
a show trial for a new policy." He understood the possible dangers of a hearing
in the current climate, but, he wrote, "Your conclusion of guilt leaves me no choice
but to pursue justice, the most precious of human conditions." He would risk anything
to clear his name, because "I would die before shouting racist comments at anybody."
He copied his letter to President Hackney, Provost Michael Aiken, Vice-Provost for
University Life Kim Morrisson, Assistant to the President Steve Steinberg, and the
general counsel.12 No one replied. Read eventually wrote back,
a month later, disagreeing with his characterization of their discussions and her
motives.13 The entire weight of the University was coming down
on a frightened freshman. Shortly after refusing the settlement, Eden called
history professor Alan Kors, who became his new advisor.
In preparing for a hearing, Eden secured a long list of black and white eyewitnesses
from the high-rise eager to testify that he was the very opposite of a racist, and
that on the night in question, he had merely said "water buffalo" (as the JIO already
had stipulated). Because it seemed obvious that Eden was responding to noise, not
seeking to inflict injury, Kors spoke to a former general counsel of the University,
Professor of Law Stephen Burbank. Burbank termed the case "ludicrous" and "open and
shut" (because the charges did not even touch the categories of the University's own
definition of harassment) and agreed to testify on Eden's behalf.
Encyclopedias and dictionaries revealed the obvious, that "water buffalo" had no
racial connotation. The animals were the "Indian Buffalo...domesticated in Asia"
(Britannica), "domesticated Asian buffalo" (Merriam Websters Collegiate Dictionary),
"the common Indian buffalo" (Webster's Unabridged New International Dictionary), and
limited "to southern Asia" (Grolier's Academic American Encyclopedia).
The issue now was not the speech code itself, but Eden's innocence even assuming
the speech code's legitimacy. Many offered discreet help. Dan Hoffman, a
Pulitzer Prize-winning literary critic and poet, spoke to the curator of mammals
at the Philadelphia Academy of Natural Science, who had consulted Walker's Mammals
of the World (the Bible, it turns out, of mammalian zoology). Authorities, Hoffman
wrote, gave "the range of the 75 million domesticated water buffaloes as from Nepal
to Vietnam." The African buffalo, it turned out, was not a water buffalo, but a
Cape buffalo, and "Confusing the African Cape Buffalo with the Asian water buffalo is
clearly an error."14 A brilliant black ethnographer at Penn, a
scholar who had walked the streets of racial tension, confirmed that he "never"
had heard the term "water buffalo" used as a racial epithet or derogatory stereotype
of blacks. He provided both a written and a taped deposition for Eden. He also
referred Kors to several eminent scholars who worked in black linguistics,
African-American studies, African-American folklore, and African folklore. None,
a phone call to each revealed, ever had heard of the term "water buffalo" used either
as a racial epithet or as a derogatory (or any other form of) stereotype of blacks.
A professor of linguistics at Penn sent an inquiry to an international linguistics
listserve: "Have you ever heard 'water buffalo' used as a racial epithet?"
The replies revealed that in one Asian country it indicated an overeater and in
another a fool. A senior professor in African History further confirmed that "water
buffalo" had no African or racial connotation whatsoever, and he agreed to testify
at any hearing. Acquaintances provided a bevy of innocuous "water buffalo"
references: the humorist Dave Barry, in Dave Barry Does Japan, referred to himself
several times as a "water buffalo" when he did something clumsy or out of place; the
white cavemen of "The Flintstones" used "water buffalo" as a friendly term; in the
classic film "His Girl Friday" (1939), Cary Grant called Rosalind Russell "a water
buffalo."
The whole case took on a new light, however, when the world-renowned Israeli scholar,
Dan Ben-Amos, whose field was African folklore, replied. "What would water buffalo
have to do with Africans or African-Americans?" he asked. Informed about the facts
of the case, Ben-Amos asked if the student were Israeli or spoke modern Hebrew.
Learning that Eden's parents were both Israeli and that he had attended a
Hebrew-language high school, Ben-Amos explained that "Behema was Hebrew slang
for a thoughtless or rowdy person, and, literally, could best be translated as
'water buffalo.' It has absolutely no racial connotation." When Kors asked
Jacobowitz, "what's the first thing that comes into your mind if I say 'behema,'"
Eden said, "Wow...that's amazing. In my yeshiva, we called each other behema all
the time, and the teachers and rabbi would call us that if we misbehaved." He
supplied a list of students and teachers from his school who would be glad to
testify about it.
Through Ben-Amos, Penn's speech code now occasioned a sustained scholarship on the
term behema. Jastrow's Dictionary of the Targumim, the Talmud Babli and Yerushalmi,
and the Midrashic Literature offered, as the first definition of the term, "water-ox."
Brown's Hebrew and English Lexicon of the Old Testament, translated behema as "ox
of the water." Dahn Ben-Amotz's (no relation) World Dictionary of Hebrew Slang defined
the term behemott in the plural of biblical Hebrew as "water-cows and cattle"
and, from modern Hebrew, as people of thoughtless behavior.
Michael Meyers, the visionary black leader of the New York Civil Rights Coalition and
a member of the National Board of the ACLU, had worked on race relations for
twenty-five years--in particular, black-Jewish tension. Asked about "water buffalo"
as a racial epithet, he said (and wrote), "I have never heard the term 'water buffalo'
used as a racial epithet." He also agreed to testify to this. Crucially, he suggested
that Kors call Deborah Leavy, the executive director of the Pennsylvania ACLU, who
agreed that she and Stefan Presser, the General Counsel of the Pennsylvania ACLU,
would join the case pro bono on Eden's behalf. Leavy added, "My father-in-law calls
people behema all the time." Eden now had two legal teams behind him. After hearing
the details of the case, Arnold and Sonya Silverstein, two attorneys of Kors's
acquaintance, had offered to represent Eden pro bono, providing the first ray of
hope that Penn might be forced by the rule of law to honor its own policies in this
case. A similar offer came from the lawyer in charge of the Civil Rights Committee
of the Eastern Pennsylvania Anti-Defamation League of B'nai B'rith after an exchange of letters with Penn.
At this point, no one in the mainstream media was familiar with the case, but a
growing number of professors were responding with outrage. Kenny Williams, a
renowned scholar of American Literature at Duke University, had replied to an
inquiry about "water buffalo" that if Eden had wanted to use a racial epithet,
there was, sadly, a vast lexicon from which to choose. "Water buffalo," she noted,
was not one of them. "How in the world," she asked, "can anyone find racism or racial
intent in that term?" She put it perfectly: "What is perhaps most disturbing about
this matter is the assumption...that a word...will mean whatever a particular
thought-control officer will deem language to mean....Language will cease to have
any communicative value.' Williams, who is black, saw another dimension to the
case:
By the first week of April, Eden and Kors were doing everything possible to settle the
case quietly within the University. The provost, Michael Aiken, though bemused by the
thought that "water buffalo" could be considered racial harassment, referred the case
to the vice-provost for university life, Kim Morrisson, who referred it to Larry
Moneta, the associate vice-provost for university life, to whom the judicial system
reported. President Hackney referred the case to his assistant, Stephen Steinberg,
who e-mailed Kors about "your wholly appropriate concerns" about Read's decision,
emphasizing that "If after talking with Larry [Moneta], you feel things are not
satisfactorily resolved, please let me know, and I'd be happy to talk further...
Thanks for your patience." On April 13, another assistant to Sheldon Hackney,
explaining that the news had broken of Hackney's impending nomination as Chairman
of the National Endowment for the Humanities (NEH), and apologizing for the delay
in communication that this had caused, wrote: "Sheldon had also been occupied with
the latest breaking news, although I have briefed him on our latest conversation
....He did ask me to convey his appreciation for your concern about the University's
potential to become embroiled in a controversy that appears to offer little gain for
anyone." She added, "I would also like to thank you most sincerely for the deep
concern and willingness to act upon it that you have demonstrated throughout Eden's
case....Eden and others will remember you with gratitude and respect." The next
day, however, Moneta telephoned Kors not about "the possibility of progress," but
in order to quote from the Second College Edition of The American Heritage Dictionary,
which listed "Asia and Africa" as places where water buffalo might be found. That
evening, Steinberg called and said that guilt or innocence was for a hearing to
decide. With racial anger on one side of the balance and, on the other, one
frightened freshman and one eccentric professor, the administration had now
decided to prosecute Eden for shouting "water buffalo."
Two months later, testifying
before the U.S. Senate during his confirmation hearings for the Chairmanship of the
NEH, Sheldon Hackney proclaimed himself an enemy of speech codes: They were
"counterproductive," he told Senator Harris Wofford of Pennsylvania. One could
not get to civility by the wrong means, which he now described as "a speech code
backed up by penalties." Pressed about Penn's own code, Hackney said that,
although he now opposed such a code, it was nonetheless meant only to cover
face-to-face confrontations. Senator Edward Kennedy asked him directly if under
Penn's code, the water buffalo case, by then dismissed, should have occurred.
Hackney, discussing the case for the first time under oath, replied:
Senator Kennedy asked Hackney to give the committee the "facts" of the water buffalo
case. On the issue of why Jacobowitz had been singled out, the nominee was quite
eloquent:
With Penn determined to continue with the prosecution, Eden and Kors called Robin
Read and laid out to the JIO their entire defense. No date had been set for a
hearing, and Read still had the opportunity to drop the charges in the face of
this new evidence. She was asked, "Will you examine it, talk to the witnesses,
and see if it wouldn't be a mistake to continue the prosecution?" "Yes," she
promised. Two weeks later, Eden was informed that the Judicial Office wished
to schedule a hearing, and he discovered that Read had contacted not one of his
new witnesses.
The judicial administrator at Penn was John Brobeck, a retired professor of
medicine, whose position was described by the Judicial System Charter as wholly
"independent" and existing to secure the end of "substantive justice." He set
a hearing for Monday, April 26, a date that would force Kors to cancel a major
scholarly meeting. Brobeck, however, was explicit and emphatic: "The hearing
will be held on April 26, period. If you can make it, wonderful. If you can't,
then Eden will have to be there without his advisor. There is no possible change
of the April 26 date."18 When Hackney was advised that Eden now
would take his case to the deeper court of public opinion, he replied, "Do what
you have to do."19
What Eden "had to do," simply put, was to prevent Penn's administration from
continuing the travesty, and to secure some modicum of equal justice. At Penn,
however, there was no equality before the law. One incident caught the double
standard in all of its hypocrisy. In 1990, several black members of a racially
integrated campus fraternity had tried to teach a lesson to a white student in
another fraternity, a student named Sheffield, whom they believed to be a bigot.
By mistake, they kidnapped a student named O'Flanagan. In Municipal Court, that
Spring, the following charges and underlying facts were admitted, uncontested, in
connection with the accused kidnappers' plea bargains:
Now, if that was not racial harassment, it was hard to see what might be, yet
Penn simply suspended the integrated fraternity from having an active chapter
on the campus. No individual punishment. No sensitivity seminars. No stamped
transcripts.21 Reverse the races, and the date of the kidnapping
would have become an annual day of shame at Penn.
Eden, in fact, seemed a pawn in a larger game of campus racial politics. In that
spring of 1993, Penn was being sued over the number of "Mayor's Scholarships"
it awarded. These provided a significant number of Philadelphia high school
graduates -- disproportionately black -- with the means to attend the University --
and Hackney was accused of racism. It was the tenth year of his presidency,
and he obsessed throughout on racial relations. If some half-wit -- whether racist
or provocateur -- scribbled an epithet on a stairwell, the campus would gratify the
miscreant by acting as if a fascist night had descended. During freshmen
orientations, students were taught at "diversity education" seminars to perceive
the campus as a hotbed of racism.
Hackney was a captive of the very perception of endemic racism that Penn had
encouraged and of the expectation that he had created that all "disadvantaged"
groups had the right not to be "offended." Penn's policies invited students,
including the women who had disturbed Eden, to react to ordinary abrasions and,
indeed, to disagreeable opinions, as intolerable racism. Hackney's attempt to
guide his administration across the dangerous terrain created by those policies
severely limited his ability to respond soberly to such reactions. Nothing
illustrated this better than the case of Gregory Pavlik, which preceded, and,
in the end, energized the water buffalo affair.
The independent undergraduate campus newspaper, the Daily Pennsylvanian (DP),
had about fourteen opinion columnists, and it always was hard-pressed to find
even one conservative to mix among them. It was not easy being the token DP
conservative, who always elicited a flood of accusations of racism, sexism,
homophobia, ignorance, and malice, often from administrators as well as from
students. For the spring semester of 1993, the DP had found its lone conservative
columnist in a transfer student from Rensselaer Polytechnic Institute, Greg Pavlik,
soft-spoken and retiring in private, but a blunt and outspoken "paleoconservative"
in his columns.
Pavlik, in fact, was much more critical of "neoconservatives" than of the Left.
The real Right, for Pavlik, opposed centralized big government, non-defensive wars,
and foreign intervention. Pavlik indeed exposed most students to an unfamiliar
political point of view. In a February column, "The Price of Intervention," he
described neoconservatives as "traitors," and he warned against the New World Order,
"the globalists' desire for empire," the loss of sovereignty in foreign affairs to
the UN, and young Americans returning "in body bags" during our interventions from
Korea to the Balkans.22 Whatever neoconservatives there might
have been at Penn read his columns in peace. Others read some of his opinions with
great anger.
Two columns, in particular, elicited a firestorm. In "Rethinking the King Holiday,"
Pavlik described the civil rights movement as an assault against property and
individual liberty, and he attacked King's political and personal ethics, seeing
the latter, in particular, as a betrayal of the obligation of Christian clerics to
"set a moral standard as consecrated ministers of God."23
In "Not as Clear as Black and White," Pavlik attacked what he saw as Penn's
double-standard on matters of race. He claimed that the Onyx Society, an
exclusively black honors organization, had hazed its blindfolded initiates
in the residential Quadrangle at 2:30 A.M. and had thrown eggs at Quad windows.
In response, some residents of the Quad had thrown water at the egg-throwers.
Members of Onyx, Pavlik claimed, now hurled threats, more eggs, and anti-white
slogans at the awakened residents of the Quad. The University, Pavlik charged,
had treated the event as an outrageous act of bigotry against blacks, instead of
punishing the Onyx Society for hazing and for violations of the code of conduct
-- standards to which white fraternities were held. Indeed, the Judicial Office
had punished the water throwers of the Quad, sentencing them to a written apology,
fifteen hours of community service, and residential expulsion. He claimed that when
Quad residents asked the University's chief JIO, Catherine Schifter, whether they
could press charges against members of the Onyx Society for their behavior, she had
replied that "the Onyx Society would find out their identity and things could get
nasty." According to Pavlik, when he phoned Schifter to confirm the facts, she
denied nothing, but she said, "If that shows up in the DP, you're
dead."24
If the goal of having a controversial columnist was to set the campus into debate,
then the DP had succeeded. Pavlik's columns elicited an outpouring of both
substantive criticism and assaults upon his character. The most remarkable
letter, however, appeared in the DP on March 19, signed by "202 African-American
Students and Faculty," with the banner headline: AFRICAN-AMERICAN COMMUNITY
RESPONDS TO PAVLIK. The authors denounced Pavlik as "racist," and they
pronounced "his written attempts to discriminate" intolerable. "Hiding beyond
the delicate laws of freedom of speech" gave him no right "to slander, demean,
harass, and incite violence in those who don't share a Eurocentric upbringing."
The words were carefully chosen, because "harassment" and "demeaning"
individuals on grounds of race constituted violations of Penn's judicial code.
The DP, the 202 signers of the letter declared, was also culpable, because to
publish Pavlik was to accept his design "to demean and discredit": "If the
DP prints it, then we must infer that they agree with, and condone
it."25
Scores of the authors and signatories of the letter knew something that the
campus did not know. On March 2, the JIO, the target of his critical editorial
of February 25, had awakened Greg at 9:00 A.M., by telephone, to inform him that
he was under investigation for thirty-four student-initiated charges of "racial harassment"
by means of his editorial columns. After a week of seeking help, Pavlik found
Kors, who immediately left an urgent message for Sheldon Hackney. Hackney knew
about the charges, and assured Kors that they "aren't going anywhere." Hackney's
name already was in the media as a likely Clinton nominee to head the NEH, and
Kors suggested to him that "if someone is threatened officially at your University
for the expression of views that some find offensive, you will have no credibility
whatsoever. The phone call from the JIO was threatening and chilling." Hackney
agreed, and the next day Pavlik was informed that the case was over. On April 1,
Schifter finally wrote to Pavlik, "to inform you officially that, in light of my
investigation of thirty-four complaints of possible racial harassment against you,
the circumstances do not indicate that there was violation of any policy of the
University. Accordingly, the investigation of the complaints against you is concluded
and subsequently dismissed."26
It was in the midst of such tensions and official hesitations that the water
buffalo case developed. In March 1993, just after the charges against Pavlik
had to be dropped, Hackney wrote a lengthy piece for the University's official
Almanac, explaining that Penn was paying a fearsome price for the fact that "the
Civil Rights movement of the 1960s never completed its task." He described a meeting
in January 1993 with "a group of Penn faculty and staff of color." He was shocked,
he wrote, because he had learned that "students, faculty, and staff members of the
University community still feel frustrated and oppressed by what they experience as
a hostile environment, where demeaning incidents continue to occur--in our classrooms
by faculty, on our campus by public safety officers, and in our residences by fellow
students." He did not specify the incidents--despite requests--but by "in our
residences," they certainly appeared to include the Onyx Society episode discussed
by Pavlik and the Jacobowitz case. Hackney explained what he had ordered his
administration to do:
Hackney's letter appeared on March 18. Four days later, Read charged Eden Jacobowitz
with racial harassment. With Pavlik off the hook, Eden was now the only trophy
fish.
Neither Eden nor Kors knew how to bring the water buffalo case to public attention,
but on April 15, Hackney did that himself. On that day, when Pavlik's final column
was going to appear (his topic was the lack of substantive debate at Penn), a group
of black students "confiscated" the DP's full press run, fourteen thousand copies,
from campus distribution points. When DP distributors and staff who tried to prevent
the confiscation were threatened and reviled with racial epithets, they complained to
Robin Read, who did not pursue any case of violence, threat, or abuse, let alone of
racial harassment, by blacks against the DP staff.28 The national
media, however, always notice the unpunished silencing of the press, and they asked
the University if and when charges might be brought against the individuals
responsible for suppressing the DP. Penn responded that these would come in due
time. In fact, however, not one of the students charged with the theft was
punished. Indeed, the only person penalized was a University Museum officer who
had attempted to stop individuals from running, a trash bag in hand, from a
security-conscious museum. He was suspended from his job for overreaction and
for a failure to intuit a larger, "political" protest.29
The Penn administration's equivocal response to the DP theft caught the national
eye. Associate Vice-Provost Moneta, on April 16, explained that "both the behavior
and the grounds for the behavior are among the most serious issues the University
can face."30 [emphasis added] Hackney issued a statement on the
confiscation, reaffirming the right of the DP to express its views, but noting that
the theft had been "precipitated by the pain and anger that many members of the
minority community have felt in response to the DP's exercise of its First Amendment
rights to freedom of the press." In Hackney's assessment: "This is an instance in
which two groups important to the University community, valued members of Penn's
minority community and students exercising their rights to freedom of expression,
and two important University values, diversity and open expression, seem to be in
conflict." By the conclusion of his statement, Hackney had dropped the word "seem":
"As I indicated above, two important University values now stand in conflict...the
First Amendment right of an independent publication...[and] a comfortable and
permanent minority presence in a diverse and civil University
community."31 By
comparison, Hackney's sense of "conflict" had been quite different on the day
after the attempted assassination of President Reagan in 1981, when a left-wing DP
editorial columnist, Dominic Manno, wrote: "Too bad he missed...I hope [ Reagan]
dies." As the Secret Service descended upon Penn and the media focused on the
editorial column, Hackney issued a statement to the press on Thursday, April 2.
He noted, unambiguously, that freedom of expression at Penn was categorical: "He
has a right in our society, and especially on a university campus, to speak his
mind, no matter how abhorrent his ideas."32
On Sunday, April 18 The Philadelphia Inquirer's editorial on the DP incident
noted Hackney's implication that there was "no room for the 'peaceful coexistence
at Penn between the imperatives of diversity and free expression," and advised him
to solve that problem "before heading off to his new job" at the NEH.33 In the
Village Voice, the progressive civil-libertarian Nat Hentoff castigated Hackney's
"patronizing paternalism," terming the belief that blacks could not live with the
First Amendment "yet another prejudicial stereotype."34
The president of the
DP Alumni Association, Howard Gensler, then working at The Philadelphia Daily News,
wrote to all DP alumni (many of whom worked in the media) expressing outrage over
Hackney's failure to understand that "diversity must also include the opinions of
white male conservatives."35
The story was picked up widely. Eden did not know it,
but the theft of the DP and Hackney's feeble response had created a new moment.
Now, there was genuine curiosity about Hackney as a presidential nominee and about
issues of liberty at Penn. When the water buffalo story went public, it was
received with interest. Once received, it fascinated the nation more than anyone
would have imagined.
When Eden took his case public, he was exercising his clear right under Penn's
Judicial Charter, which guaranteed that a respondent could disclose otherwise
confidential information about his experience, in which case, "any person whose
character or integrity might reasonably be questioned as a result of such
disclosure shall have a right to respond in an appropriate
forum."36 If Eden
Jacobowitz had chosen Read's deal, then his parents, the campus, and the world
would have known nothing of the charges against him. In similar circumstances,
almost every student accepts settlement offers. Admitting guilt and undergoing
"thought-reform," protected by the confidentiality of records, is an easy way to
end an ordeal. Eden would not do it. He knew that he never had directed a word
of racial hatred at anyone, and he refused to say that he had, whatever the
consequences. He was candid, thoughtful, and kind, and these qualities were
obvious to virtually every journalist who interviewed him during the next few months.
From The Village Voice and Rolling Stone, to the major television networks, to
Newsday and The Washington Post, to The Wall Street Journal, those who investigated
the truth of this absurd case caught Eden's spirit and innocence.
Eden's story entered the world by chance. One of Kors's New York friends,
hearing of the case during a social phone call on April 20, mentioned the story
to an acquaintance at the Forward, the former Yiddish-language New York daily that
was now a widely respected English-language weekly with a special interest in
cultural, political, and Jewish affairs. The story broke in the Forward's April
23 issue, a few days before Eden's hearing. The Forward ran the story above the
masthead, under the ineffable headline, PENNSYLVANIA PREPARING TO BUFFALO A YESHIVA
BOY. The former Yiddish newspaper explained that "water buffalo" was a reasonable
translation of "a non-sectarian Hebrew put-down often heard at his Long Island
yeshiva--'behema,' a word that means 'livestock' or 'buffalo' but whose slang
meaning is idiot." The Forward linked the story to Hackney's nomination to the
NEH and to the theft of the DP, and included elements of Eden's story (later
confirmed by Hackney in his Senate testimony) that were essential to understanding
the injustice of the case: "'I just described the noise and not anything
that would do with their race....I decided to help the police, so I volunteered
myself. I told the police what I said and they wrote it down." The Forward
concluded its lengthy story by a reference to Monday's upcoming trial: "A Penn
spokeswoman, Carol Farnsworth, declined to comment on the case, citing
confidentiality. 'This is not like a regular court system,' she
says."37
That same morning, the editor of The Wall Street Journal brought The Forward into
an editorial board meeting, and columnist Dorothy Rabinowitz decided to pursue the
matter. An investigative journalist and editorialist with courage and a will of
steel, Rabinowitz has one overriding public passion: She hates abuse of power, by
governments, by businesses, by prosecutors, and by educators. She long had been
one of the few editorial voices in the country to understand the abuses of
"political correctness" at the universities, and she has written powerful pieces
against the new imposition of intolerant orthodoxies. When she called Hackney,
she pressed him for serious answers about what was going on at Penn. Apparently
thinking that she was some inconsequential staffer, he said, "I don't need to take
this from some reporter," and hung up the phone on her. Indeed, several other
reporters and editorialists had called the University, which now knew that the
story was fully in the open.38
On Friday, April 23, Brobeck called Kors to announce that the Monday hearing had
been postponed, citing "too much publicity," but then correcting himself: "The
real reason is that the women no longer have an advisor." The advisor had been
Zoila Airall of the Division of Residential Living. "She doesn't want to appear
in the case," Brobeck admitted, "and we can't have the hearing without their
advisor." When reminded if his insistence that the hearing would be held on April
26 even if Eden had to be completely on his own (while the women's case would be
presented by the JIO) and of the fact that Eden would lose his witnesses when the
semester ended, Brobeck replied, "It's my judgment call. The case is postponed
indefinitely...until, at earliest, in the fall." When Eden was informed, he asked,
"Are they going to have this hang over my head all summer?" Indeed, they were.
No one had thought to notify the media about the postponement of the hearing.
Consequently, on the morning of April 26, The Wall Street Journal ran Dorothy
Rabinowitz's lead editorial "Buffaloed at Penn." It described Eden as "the
latest victim of the ideological fever known as political correctness," and it
referred the case to the attention of "anyone concerned with the state of reason
and sanity on the campuses today." It labeled "Kafkaesque" the fact that someone
who had not shouted any racial slurs, and who had told the police what he had said,
"would pay a price for his forthrightness." It drew the deeper lesson: "He had
yet to learn what they don't teach at freshman orientation; namely he had now
entered a world where a charge of racism or sexism is as good as a conviction."
Pointing out the obvious facts that zoo, animals, or even, indeed, Animal House
were universal references to noise on college campuses, it described Robin Read's
discovery of racism in Eden's innocuous phrase as "theater of the absurd." It
also noted clearly the "settlement" that Eden had been offered, and the courage
it had taken to turn that down.39
The effect of the Forward's article and The
Wall Street Journal's editorial -- in the wake of Hackney's nomination and his
equivocation on the theft of the DP -- was electric. Eden was interviewed on
television by Tom Snyder and John McLaughlin. George Will devoted his syndicated
column in The Washington Post to Eden and to the theft of the
DPs.40 Within short
order, the international media settled in at Penn.
Although, in the final analysis, the University of Pennsylvania took a beating
in public opinion because it had, as its leading press officer said the next year,
"a stupid case to defend,"41 Penn repeatedly revealed an arrogance that the media
scarcely could believe. Hackney's slamming the phone on Dorothy Rabinowitz could
have been a metaphor for Penn's entire handling of the case. Reporters were
reconciled to hearing the University say that it did not want to discuss the
specifics of the Jacobowitz case, but Penn refused to discuss even its speech
code, its past practices, its history of enforcement, or its violations of
procedure. Reporters, editorialists, cartoonists, and broadcast journalists
understood freedom of speech. They understood double standards, due process,
and decency. Reporters live by the First Amendment, and many pretty much live
by it absolutely. On NBC Nightly News, Sara James asked Larry Moneta, "Have
you ever heard of 'water buffalo' being used as a racial slur?" He replied:
"The issue is not whether I have or not. The issue is also, you know, language
in my mind is neutral. It's a question of the context in which is language is
used."42 (Two years later, when
Penn abolished its speech code, the same Larry
Moneta would dutifully go before the media to declare that "At Penn, all speech
is free.") The reporters were doing their jobs remarkably--probing,
investigating, and developing sources. Within the administration, a growing
loathing of the cruelty and utter stupidity of this case led important officials
to channel information to the press. Thus, the Washington Times reported on
April 27 that the postponement of Eden's trial had "prompted speculation that
university President Sheldon Hackney ordered the delay to protect his pending
nomination to head the National Endowment for the Humanities," to which the
reporter added: "School officials, who asked not to be identified, echoed
[this] sentiment and speculation about the trial's
postponement."43 The
case had turned over a rock at Penn, and it was not just outsiders who did not
like what they saw underneath it. On that same day, the Philadelphia Daily News
lectured Penn that "It's hard to justify breathtaking tuition hikes when acting
like a herd of dik-diks."44
In the course of the next two months, Eden's plight was front page news not
only in the Philadelphia newspapers, but, on repeated occasions, in the Los
Angeles Times, the International Herald-Tribune, the Washington Post, the
Washington Times, the (New Jersey) Record, and even the Sacramento Bee, not to
mention hundreds of newspapers that were picking up syndicated reports.
Foreign publications such as the Financial Times (London), the Times (London),
the Toronto Star, and the Spectator (UK) independently treated the story as an
example of America gone insane. As the Financial Times noted on May 8, "In
Europe it is unlikely that one would be caught up in a semi-judicial enquiry
as a result of shouting the names of Asian oxen at one's
colleagues."45 It
praised American press coverage of the affair. Important journals -- the Village
Voice, Rolling Stone, The New Republic, Newsweek, Time,
and U.S. News and World
Report -- devoted much space to the case, all of them understanding full well the
gulf between liberal opinion and Penn's cultural radicalism. The story prompted
a major piece in the New York Times, even evincing an unexpected defense of
free speech from Duke's Stanley Fish, otherwise a star of political correctness,
and the author of a book called There's No Such Thing As Free Speech...And It's
a Good Thing Too.46
The water buffalo case had become a sensation. It was not merely news, but the
occasion for often multiple major substantive editorials in the nation's
leading newspapers. It also was covered on all major television news programs.
On NBC Nightly News, John Chancellor explained the broader implications of the
event, offering, on May 13, a commentary on Eden's prosecution:
Talk radio also was exploring the case, with equal scorn being displayed
by conservative hosts, such as Rush Limbaugh, particularly mordant on the
affair, and by a bemused but outraged array of National Public Radio outlets.
Eden had brought the networks, conservative radio, and NPR into agreement.
Editorial cartoonists had a particular field-day lampooning Penn's language
and thought police. Gary Trudeau devoted a full-color Sunday Doonesbury to
Penn, focusing on the inanity of speech-codes in general and on the particular
absurdity of taking "water buffalo" as a racial insult.48 The University of
Pennsylvania had become an international laughingstock. Eden, however, still
faced a potential catastrophe.
From the moment that the April 26 hearing was canceled, Eden appealed to Brobeck,
Hackney, and Aiken to drop the charges. Brobeck, a decent man caught up in an
absurd situation, conceded the error of postponing the "unalterable" hearing, but
he refused to rescue Eden from a continuation of the ordeal. Hackney and Aiken
proclaimed themselves incapable of intervening in any judicial matter. In early
May, however, as media attention (and ridicule) intensified, the "independent"
Brobeck knocked, uninvited, on the door of Kors's home to announce that "We have
to have a dispositive hearing on May 14; I've been told to put this behind us."
In response to protests that almost all of Eden's essential witnesses were gone
for the summer, Brobeck relented, and promised that the hearing would involve
only a request to drop the charges. He added that Eden himself need not even
come to Penn for the session. At 10:30 P.M. on the night of Wednesday, May 12,
however, just one full day before the scheduled hearing, Brobeck called Kors at
home: "I have terrible news for you and for me," he said; "I have been instructed
by my superiors that I cannot keep my agreement with you....I've been ordered to
hold a hearing on guilt or innocence on the 14th." Reminded that he had given his
word, that Eden's witnesses were gone, and that his only conceivable "superiors,"
Aiken and Hackney, had proclaimed him categorically independent, he replied:
"Until today, I would have said that I was independent too, but I have bosses,
and they've ordered me to do this.....I have no choice. I have superiors. Please
be gentle with me."
On Thursday morning, Sonya Silverstein, Arnie Silverstein, and the ACLU's Stefan
Presser cleared their calendars, Eden came to Philadelphia from New York, and,
with the media notified about the astonishing turn of events, the water buffalo
defense team worked to seek an injunction in federal court against the May 14
Penn hearing. The Silversteins' office was a beehive, fueled by controlled fury.
Surrounded by computers, typewriters, ACLU staff, the Silversteins and their
employees, Eden, Kors, and a growing body of Penn students, including the editor
of the DP, Stefan Presser was like the conductor of an unruly, barely-in-control
symphony orchestra. Never ruffled, Presser brought order out of chaos, assigning
everyone parts, sending his staff for forms and opinions, keeping his eye on the
clock, and occasionally letting the General Counsel's Office at Penn know what he
was doing. Stefan Presser was Justice in a suit, and he was in command. With
about a half-an-hour to go before the federal courts closed, and with runners
standing by, Presser faxed the ACLU/Silverstein brief to Shelley Green, general
counsel of the University of Pennsylvania. The suit was not directed at the
University as a corporation, but, rather, at Hackney, Aiken, Morrisson, Brobeck,
and Read, as individuals. Fifteen minutes later, the University, over Shelley
Green's signature, faxed Presser, with a copy to Brobeck, that the University would
honor its earlier agreement that the May 14 hearing would consider only dismissal
of the charges.49
Penn had told Eden not even to try to assemble his scattered witnesses, but
it had not told the JIO to cease preparing her case. The five plaintiffs, their
two advisors, the JIO, and the JIO's fifteen witnesses--brought to Penn at Penn's
expense -- arrived at a May 14 hearing that they fully believed would resolve the
issue of innocence or guilt. The JIO had brought two pieces of evidence: an
American Heritage Dictionary listing "Africa" as a home of water buffalo; and
-- the most shocking -- a two-page university police report from the night of the
incident that contradicted the very stipulation that Robin Read had made about Eden's
words after her own extensive investigation. According to this report, written on
the morning of January 14, 1993, when the police went to one room from which insults
supposedly issued, every resident had said that every overheard epithet was shouted
"by Eden."
What had happened? The truth would emerge after the summer, when a resident
of the dorm wrote an op-ed in the DP, explaining that on the night of January
13-14, 1993, the students who had shouted epithets panicked, and that because
Eden had stepped forward, they falsely attributed everything to him in their
dealings with the university police.50 On May 14, 1993, however, something
far more dramatic happened. The university knowingly suppressed the truth in
the hope of gaining a conviction against Eden Jacobowitz. In fact, the
university police, at the request of the JIO, had conducted a two-week
investigation starting on January 14, 1993, and had written a long, 12-14
page report, about what actually had occurred. This time, the residents of
Eden's dormitory told the truth to the university police, who filed their report,
wholly corroborating Eden's own true story. That report was presumably the basis of
Read's initial stipulation about "water buffalo" and "zoo." At the May 14
hearing, Eden knew nothing of that longer report, his witnesses were not
there, and he was apparently meant to be railroaded into a conviction that would transform
the case and salvage Penn's reputation. (One year later, a university officer
saw Kors walking across campus. He ran over and to thank him for having
"defended the water buffalo kid," and asked what Eden had thought of "the
long report" that proved his innocence. Shocked to learn that neither Eden
nor his defense even knew of the existence of such a report -- let alone saw
it -- he explained that "we did a very long report that showed that Eden
was telling the truth about everything." A few weeks later, a campus reporter
asked the then chief of university police, John Kuprevich, if he had a copy of
the fourteen-page police report on Jacobowitz. "Yeah, I have it," Kuprevich
replied, "but it's confidential." It was bad enough that the University was
scapegoating a wholly innocent student who happened to admit that he had said
"water buffalo." When the May 14 hearing actually came, Penn knowingly accused him of
saying still other things that it had been told he absolutely had not said.)
The May 14 hearing was surreal. Outside, there were sound trucks, an army of
reporters, and Eden's pro bono lawyers, Sonya, Arnie, and Stefan, who were excluded
from the proceedings. Inside, Eden and Kors faced an intensely hostile panel of
three professors, one graduate student, and one undergraduate, false evidence in hand,
who had come to decide Eden's guilt or innocence. When Robin Read began the
presentation of her evidence, Kors interrupted and read the letter from Green
to Presser. The panel, Read, and the plaintiffs were dumbfounded to learn that
this was not to be a dispositive hearing.
The panel heard Eden out on the procedural grounds for dismissal. It then asked
the plaintiffs to talk about their experience of that year. The plaintiffs
discussed how they had suffered; Robin Read cried as they spoke; and the panel
convened in private. When they returned, they announced that they had ten days
by which to present a procedural report to the vice- provost for university life,
and, they warned Eden and Kors, that if, in the interim, they "so much as read one
word" in the media about this hearing or this preliminary judgment, then, in the
words of a professor on the panel, "it will go very hard on Eden Jacobowitz. Do
you understand that, Professor Kors? If you speak one word of this to the media,
it will go very hard on Eden." They imposed, in their own phrase, "a gag order."
They refused to dismiss the charges, and ruled that the trial should be carried over
until next fall.
Eden left the building to face a crush of media. News of Brobeck's broken promise
and of the general counsel's retreat was in newspapers and on radio and television.
The media, having waited for hours on a narrow street, seemed annoyed by the gag
order. Arnie Silverstein got off the deepest line of the affair: "I can't wait
to get off Penn's campus," he told the reporters, "and get back to the United States
of America." At an ACLU press conference, Stefan and Sonya explained the events
of the past week, and the ACLU spoke about free speech and due process, but
whenever they were asked about the hearing, they said that they couldn't talk.
When Kors returned to his office, there were scores of calls from the media, but
he told everyone that he could not discuss the hearing. When Dorothy Rabinowitz
called, Kors said the same thing, received an awesome three-minute lecture on a
free country, a free press, and his own lack of testosterone, and broke his silence
and told her everything.
By mid-afternoon, in response to intense media inquiry, Penn simply lied to all
inquirers and said that no gag order ever had been issued by the panel. The
panel's report was due on May 24, and with each day, media coverage intensified.
Eden's picture was on every newsstand, and the ACLU of Pennsylvania was giving
lessons to the country about why freedom and due process matter. There was ever
louder discussion of the likely effect on Hackney's NEH nomination. Indeed, a
member of Clinton's transition team politely and affably requested copies of
coverage of the affair by "the Jewish press." Shortly after, Hackney telephoned
Kors from Washington, D.C., and proposed a deal: if Eden apologized for rudeness,
he believed that the women would drop the case, and the University would dismiss
all charges. He laid out a scenario: "At noon on the 24th, [Vice Provost] Kim
[Morrisson] will hold a press conference, saying that the panel has met and has
decided that the case should be heard on its merits if not right away, then at
the beginning of the fall term. The women will hold a press conference on the
campus and drop the charges. Would Eden be willing to apologize after that?"
When he heard the proposal, Eden, who repeatedly had offered to apologize for
saying "water buffalo," instantly agreed, glad that this whole nightmare would
end. On May 24, 1993, the final act of the farce was played out. The hearing
panel delivered its verdict, and Kim Morrisson held a press conference announcing
that the hearing would occur in the fall. Almost immediately, the women, flanked
by a trustee and eminent professors, held a press conference, and claiming that
media attention had denied them the possibility of a fair hearing at Penn, they
dropped their charges. They said they now would take their case to public opinion
(which they never did). On the heels of that, the University announced that there
were no charges pending against Eden Jacobowitz. The ACLU and the Silversteins
held a press conference immediately after, and Eden once again expressed his
regrets. The ACLU again explained that no humane good could be accomplished
by such speech codes or such malicious prosecutions.
At that press conference, Eden and his attorneys discussed whether or not to play
a particular answering machine tape to the reporters. They decided, in the spirit
of the moment, not to do so. The message was from Eden's first judicial advisor,
Fran Walker, director of student life, whom he had chosen in January 1993 from
the list of "good and well-trained advisors" presented to him by the Judicial
Office. On the Tuesday after the May 14 hearing, alarmed by the aberrant
university police report that the JIO had been planning to introduce as the
compelling document of the case, Kors had called Walker to confirm, once again,
that she had been present when Robin Read had stipulated that her investigation
showed that Eden had said merely "water buffalo" and "zoo," and not any epithets.
She confirmed that. Asked if she would put that it writing or testify to it at a
hearing, she said that she would have to get the permission of the general counsel
to do so. Reminded that she was a critical witness in a judicial system that
promised "substantive justice" to "the University community," she replied,
candidly, "I am not just a member of the university community. I am an
administrator, and my attorney in this instance is the general counsel.
I must get the permission of the university's general counsel."51 The next
day, she left a message on Kors' answering machine: "The general counsel's
office has instructed me that I am not permitted to testify about that meeting."
The aftermath? The administration appointed a university commission to
investigate what went wrong in the water buffalo case. In April 1994, it
concluded that there had been two main sets of villains: first, Jacobowitz
and Kors, for talking to the press and taking the case outside the university;
and second, the Pennsylvania ACLU, for "interfering" in a purely internal
university matter, and even threatening to take the University to the nation's
courts. Penn's judicial system, it reported formally, "could not withstand
the stress of intense publicity and international attention."52 That is indeed
true at most universities. It is why we are writing this book. Penn's report
was reminiscent of those Southern sheriffs in the early 60s talking about
"outside agitators" stirring up trouble in their counties, where justice was
fine, thank you. Well, academic justice is not fine, as we shall discover.
2. University of Pennsylvania, "Policies and Procedures,
1987-1988." [Back to main text]
3. University of Pennsylvania, 1989 New Student Orientation
Program, "Incidents of Harassment." [Back to main text]
4. Almanac [Official Publication of the University of
Pennsylvania], April 12, 1998.
[Back to main text]
5. Sheldon Hackney, "The Helms Amendment Imperils the Basis
of Intellectual Freedom," CHE, September 6, 1989; Sheldon Hackney, "Freedom
of Ideas and the NEA/Funding Controversy," Almanac, September 5, 1989.
[Back to main text]
6. University of Pennsylvania, "Policies and Procedures,"
1990-1991. [Back to main text]
7. Exchange between Kors and Hackney, Spring 1989.
[Back to main text]
8. Letter from JIO Robin Read to Eden Jacobowitz,
March 22, 1993. [Back to main text]
9. Conversations on the Judicial Office's verbal stipulation
of charges held between Kors and Fran Walker, Director of Student Life
(and Eden's first adviser), during April 1993 and on May 13, 1993; confidential
University of Pennsylvania Police report on its follow-up investigation,
January-February 1993; testimony of eyewitnesses and interviews by Kors
of witnesses; testimony of Sheldon Hackney during his nomination hearing
for the Chairmanship of the National Endowment for the Humanities, US Senate,
Committee on Labor and Human Resources, June 25, 1993.
[Back to main text]
10. Ibid. [Back to main text]
11. Uncontested letter and public statements of Eden Jacobowitz
from January 13, 1993 on. Also, see note 9 above.
[Back to main text]
12. Letter from Eden Jacobowitz to Robin Read, April 5, 1993.
[Back to main text]
13. Letter from Robin Read to Eden Jacobowitz, May 8, 1993.
[Back to main text]
14. Letter from Professor of English Daniel Hoffman (University
of Pennsylvania Poet in Residence and Director, the Writing Program), to Kors,
April 22, 1993. [Back to main text]
15. Written affidavit from Duke University Professor of English
Kenny Jackson Williams to Kors, May 10, 1993.
[Back to main text]
16. Testimony of Sheldon Hackney, US Senate, Committee on
Labor and Human Resources, Nomination Hearing, June 25, 1993.
[Back to main text]
17. Ibid.
[Back to main text]
18. Telephone conversation, John Brobeck and Kors,
April 12, 1993.
[Back to main text]
19. Message relayed "from Sheldon" to Kors by Assistant to the
President Stephen Steinberg in phone call placed by Steinberg, April 14, 1993.
[Back to main text]
20. Court testimony reported in Daily Pennsylvanian, May
11, 1990. [Back to main text]
21. Daily Pennsylvanian, April 20, 1990 and May 3,
1990. [Back to main text]
22. Daily Pennsylvanian, January and February
1993. [Back to main text]
23. Daily Pennsylvanian, January 14, 1993.
[Back to main text]
24. Daily Pennsylvanian, February 25, 1993.
[Back to main text]
25. Daily Pennsylvanian, March 19, 1993.
[Back to main text]
26. Interviews with Greg Pavlik; copies of correspondence in
possession of authors; telephone call between Kors and President Sheldon Hackney,
March 9, 1993; telephone call between Kors and Provost Michael Aiken, March 9, 1993.
[Back to main text]
27. Reprinted for the whole University community as a letter
from Hackney to the editor of the Daily Pennsylvanian, March 18, 1993.
[Back to main text]
28. Interviews with members of Daily Pennsylvanian staff;
discussion between Kors and the special faculty JIO appointed by Hackney in this
case, who explained that he wanted an "educational" settlement of this matter, not
"punishment." [Back to main text]
29. See the Daily Pennsylvanian's frequent coverage from April
to September 1993; Almanac, April 20, 1993; The Philadelphia Inquirer, April 18,
1993; Editor and Publisher, May 22, 1993; Almanac, July 13, 1993; Daily
Pennsylvanian, July 15, 1993; Daily Pennsylvanian, July 22, 1993; official
documents exonerating students but condemning guard published by The Wall
Street Journal, July 26, 1993; The Philadelphia Inquirer, July 30, 1993; The
Chronicle of Higher Education, August 2, 1993; on the dropping of the charges
against all students, see University of Pennsylvania press release, September
14, 1993, Almanac, September 14, 1993, and Daily Pennsylvanian, September 15,
1993. [Back to main text]
30. Daily Pennsylvanian, April 16, 1993.
[Back to main text]
31. Sheldon Hackney, press release, April 17, 1993, printed in
Almanac, April 20, 1993.
[Back to main text]
32. Sheldon Hackney, press release, April 2, 1981.
[Back to main text]
33. The Philadelphia Inquirer, April 18, 1993.
[Back to main text]
34. The Village Voice, May 4, 1993.
[Back to main text]
35. Letter in possession of authors.
[Back to main text]
36. "Judicial Charter," in University of Pennsylvania "Policies
and Procedures, 1992-1993."
[Back to main text]
37. The Forward, April 23 [April 22], 1993.
[Back to main text]
38. Interview of Dorothy Rabinowitz.
[Back to main text]
39. The Wall Street Journal, April 26, 1993.
[Back to main text]
40. Washington Post, April 29, 1993.
[Back to main text]
41. Interview by Kors.
[Back to main text]
42. NBC Nightly News, May 14, 1993.
[Back to main text]
43. Washington Times, April 27, 1993.
[Back to main text]
44. The Philadelphia Daily News, April 27, 1993.
[Back to main text]
45. The Financial Times, May 8, 1993.
[Back to main text]
46. The New York Times, May 30, 1993. [Back to main text]
47. NBC Nightly News, May 13, 1993. [Back to main text]
48. Gary Trudeau, "Doonesbury," July 11, 1993. [Back to main text]
49. Copy of letter in possession of authors. [Back to main text]
50. Daily Pennsylvanian, September 9, 1993. [Back to main text]
51. Telephone conversation between Kors and Fran Walker, May
18, 1993. [Back to main text]
52. Almanac, April 5, 1994. [Back to main text]
Back To The Shadow University Home Page
shadowu@world.std.com
On the night of January 13, 1993, Eden Jacobowitz, a freshman at the University of
Pennsylvania, had been writing a paper for an English class when a sorority began
celebrating its Founders' Day beneath the windows of his high-rise dormitory apartment.
The women were singing very loudly, chanting, and stomping. It had prevented
him from writing, and it had awakened his roommate. He shouted out the window,
"Please keep quiet," and went back to work. Twenty minutes later, the noise yet
louder, he shouted out the window, "Shut up, you water buffalo!" The women were
singing about going to a party. "If you want a party," he shouted, "there's a
zoo a mile from here." The women were black. Within weeks, the administrative
judicial inquiry officer (JIO) in charge of Eden's case, Robin Read, decided to
prosecute him for violation of Penn's policy on racial harassment. He could
accept a "settlement" -- an academic plea bargain -- or he could face a judicial
hearing whose possible sanctions included suspension and
expulsion.1
It still was a vague speech code, but it now prohibited epithets, jokes, and derogatory
stereotypes uttered solely with the intention "to inflict direct injury." At a meeting
of the Faculty Senate, a critic of both speech codes and selective enforcement asked
Hackney if it would be racial harassment "if someone called a black with white friends
an 'Uncle Tom' or an 'Oreo,'" or "if someone called a white person a 'fucking fascist
white male pig'"? Hackney answered "No."7
The reason that Eden had been singled out for persecution was particularly
distressing. There had been fifteen sorority members celebrating under the
high-rise's windows, and in the twenty minutes that passed between Eden's "Keep
quiet!" and his "Shut up, you water buffalo!" a large number of students had shouted
down to the women to leave them in peace. From all accounts, some few students had
shouted apparently racial epithets, from "black asses" to "black bitches."
Nonetheless, Eden had uttered nothing but "water buffalo."9 On a personal level, what is more disturbing...is the ability of some administrator
... to define (in effect) an entire race and to introduce another racial term into
language .... This is the real racism .... The student did nothing wrong, and if
the students who were called "water buffalo" didn't like it, they should have merely
stated that fact and in the process taken their noise making activities elsewhere!
Young people have a marvelous ability to solve their own problems. Issues of racism
are too serious to be treated frivolously by
administrators.15
No. I think that this was a misapplication of that policy in the circumstances,
and, I think, a great mistake to try to pursue it, for several reasons. One, it was
not really a face-to-face encounter. The other is a matter of equity, if you will.
Eden Jacobowitz was only one of a group of people engaged in this activity, and
maybe the least culpable
one.16
The only student who would admit to saying anything was Eden Jacobowitz, who said
that he had used the term "water buffalo," and had yelled at the sorority sisters,
who were singing, "If you want to have a party there is a zoo nearby." There in
fact is a zoo within about a mile of the university....Eden Jacobowitz is an
Israeli...and there is a Hebrew term, beheyma, which is frequently used among
people; it is a mild reproach, but used quite commonly. It sort of means, Oh,
you rude person....There is no other explanation that one can think
of.17
[The kidnappers] played a tape of a Malcolm X speech containing references to
violence directed at whites....O'Flanagan believed that no one would be able to
hear any possible cries for help...[They] drove [him] to a secluded playground/park
area....They encircled [him] whispering to him again the phrase "Sheffield
Deathfield!"....They also taunted him by referring to lynchings in the South,
in Alabama. [He] remained handcuffed to the metal structure [in an inner-city
playground] for a period of time...barefoot and only minimally clothed, and the
night was cold and rainy....They then conducted a mock "trial" which consisted in
part of [his] being subjected to physical discomfort, emotional distress, and
repeated and intense verbal abuse....[They] talked about lynchings....and they
shouted obscenities and abusive language at him. Among the phrases used were
statements such as (a) "Fuck you!"; (b) "racist"; (c) "You're a neo-Nazi racist
fuck!"....[They] then shoved [him] back in the car, recuffed him and drove him to
the intersection of 34th and Chestnut Streets. During this 10 to 15 minute ride,
they again played the same Malcolm X tape. At the intersection, they pulled [him]
from the car, blindfolded. [He] believed he was being left in the middle of a
highway or a busy street.20
This is the time to tell all members of our community again, but this time in a
way that must be heard, that we will not tolerate acts that demean students,
faculty, and staff--not in the classroom, not in support offices, not on the campus,
and not in our residences. We will find means to ensure that such acts have
important consequences....Those who believe they can, with impunity, damage important
members of our community have no
place.27
Eden Jacobowitz is a student at the University of Pennsylvania. His studies
were interrupted by a noisy crowd of students, many black and female. He yelled
out his window, "Shut up, you water buffalo." He is now charged with racial
harassment under the university's Code of Conduct. The school offered to dismiss
the charge if he would apologize, attend a racial sensitivity seminar, agree to
dormitory probation, and accept a temporary mark on his record which would brand
him as guilty. He was told the term "water buffalo" could be interpreted as
racist because a water buffalo is a dark primitive animal that lives in Africa.
That is questionable semantics, dubious zoology, and incorrect geography.
Water buffalo live in Asia, not in Africa. This from the University of
Pennsylvania. Mr. Jacobowitz is fighting back. The rest of us, however, are
still in trouble. The language police are at work on the campuses of our better
schools. The word cops are marching under the banner of political correctness.
The culture of victimization is hunting for quarry. American English is in
danger of losing its muscle and energy. That's what these bozos are doing to
us.47
Endnotes
1. From late March of 1993, Kors was Eden Jacobowitz's
judicial advisor at Penn. He possesses all of the official documents,
correspondence, and e-mail referred to in this chapter. He interviewed scores of
witnesses, administrators, and University of Pennsylvania police officers. He
retains all relevant messages left on his telephone answering machine.
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9/19/98