In a new memoir, the former Penn president recalls how the campus crisis known as the “water buffalo incident” became fodder in a conservative campaign to block his appointment as chairman of the National Endowment for the Humanities.
By Sheldon Hackney | Illustration by Daniel Chang
We rounded the corner of the broad corridor in the Dirksen Senate Office Building on June 25, 1993, approaching Room 430 where my confirmation hearing was to be held. Suddenly we were aware of a crowd and the loud buzz of conversation. People were standing two abreast in a long line stretching almost the length of that mammoth hallway. Martha Chowning, who had worked as an advance-person in the Clinton campaign and was now the liaison to the White House for the National Endowment for the Humanities, had met me as my taxi pulled up outside, and she was trying to prepare me for the scene I was about to encounter. The hearing room was jammed, she said, and the news media were there in force.
My anxiety level, already high, began to soar. Martha added that some of the crowd had just come from a hostile press conference staged by my opposition. Presiding at that counter-hearing were Ralph Reed of the Christian Coalition—who had dubbed me “The Pope of Political Correctness”—and Floyd Brown of the Family Research Council, the creator of the infamous Willie Horton advertisement for George Bush’s 1988 presidential campaign. Fresh from a successful “Borking” of my friend, Lani Guinier, the Penn law professor whose nomination to be assistant attorney general for civil rights they had forced President Clinton to withdraw, they were determined to make my confirmation another major battle in the “Culture War.” Though a reluctant combatant, I was by then the most visible gargoyle decorating the battlements of the Ivory Tower.
I had been mocked on national radio by Rush Limbaugh, denounced in hundreds of newspapers and Newsweek by syndicated columnist George Will, excoriated in The Washington Post by Charles Krauthammer, flayed alive for television by Pat Buchanan on Firing Line, and otherwise held up for scorn and derision. The Wall Street Journal editorial page, the house organ of movement conservatives, had written seven—count ’em, seven!—unflattering editorials about me and the University over the span of a few weeks in April, May, and June, while I stood blindfolded and lashed to the stake. John Leo of U.S. News and World Report created a “Sheldon Award,” which he annually bestows on the college president who most closely approximates my profile in cowardice. I know there are people who think it is worse to be ignored than to be criticized, but I am not among them.
Thinking back on that spring-from-hell, I recall it not only as the worst time of my life, but as an out-of-body experience. I followed the story in the press of some idiot named Hackney, who was either a left-wing tyrant or a namby-pamby liberal with a noodle for a spine. My critics couldn’t decide which. Not only did I not recognize him, I didn’t much like him either. I remember laughing at the headline of a story in the New York Postthat trumpeted “Loony Lani and Crackpot Prez.” I did not think that Lani was loony, of course, but it was even harder for me to realize that I was the crackpot prez.
How could a mild-mannered, unassuming Ivy League president get into such a mess? Even more interesting, how could he get out?
The story that follows answers those questions. It is an odyssey of sorts, an account of my journey, both geographical and intellectual, from Philadelphia to Washington.
On April 26, 1993, The Wall Street Journal carried an unsigned editorial under the headline, “Buffaloed at Penn.” This was the first mention in a mass-circulation journal of the obscure disciplinary case that had been fumbling its way through Penn’s student judicial process all spring. It had not even been mentioned in The Daily Pennsylvanian on campus. The WSJ not only brought the case to national attention, aided by its reliable chorus of true-believing conservatives (Rush Limbaugh, George Will, Charles Krauthammer, Cal Thomas, and John Leo), but also defined the terms in which the incident was to be understood. There was a major avalanche of media attention, but almost everyone followed the script written by the WSJ editorial page.
The incident in question happened on the night of January 13, 1993, at the very outset of the spring term. A group of black women students was celebrating their sorority’s Founders Day. They were singing and dancing loudly outside a high-rise residence hall on Penn’s campus. White students in the dormitory began shouting out the window at the celebrating women below. What began perhaps as a jocular exchange turned ugly. Insulting words were hurled back and forth, including sexual and racial slurs of the most crude sort. The black women became especially infuriated when they heard themselves taunted as “nigger bitches.” They went for the campus police. As the police inquired among students on the floors that had been engaged in the affair, the only student who admitted to participating was Eden Jacobowitz C’95, a freshman who had spent much of his childhood in Israel.
Jacobowitz told the police that he had yelled, “Shut up, you water buffalo. If you want to have a party, there is a zoo over there,” referring evidently to the Philadelphia Zoo, which is only about a mile north of the campus. The women thought they heard him refer to them as “black water buffalo.” The confrontation was an ugly event that the University could not ignore, but it should have been handled by Penn informally through mediation, bringing the involved parties together so they might learn from each other why tempers had flared up, and why the words that had been used had stung so much. That some sort of mediation was not used is the result of the atmosphere of racial tension at the time, the specific anger of the black women about being insulted, and the tempting availability of the racial harassment policy, with punitive sanctions attached.
That policy had been worked out over a long period of time, subjected to much public discussion, and formally debated and approved by the University Council. It was an extremely narrowly drawn policy that made racial harassment a disciplinary offense under the Student Judicial Code if three conditions were met: (1) a racial slur were made, (2) in a face-to-face encounter, with (3) the sole intent of inflicting pain.
The events of that spring have convinced me that it is a mistake to try to deal with matters of racial incivility through behavioral rules backed by disciplinary mechanisms. It doesn’t work, and I regret having supported and promulgated that policy despite the widespread support it had within the Penn community. While this particular policy was unsuccessful, I continue to believe that it is crucial for universities to have explicit standards of behavior, or rules of decorum, that might make mediation or some other sort of moral suasion easier when the peace of the community has been violated. At Penn, it wasn’t the rule that failed but the quasi-judicial, adversarial disciplinary process that failed; it was brought to an ineffective halt by the glare of a national spotlight and the determined procedural sabotage of one of the participants.
The Judicial Inquiry Officer (JIO), the “prosecutor” in Penn’s then existing disciplinary system, investigated the case, talking to everyone involved, though no additional students were ever identified. She attempted to reach some settlement with Jacobowitz, who was willing to apologize, but not to have any notation made on his record. The aggrieved women were not willing to let the matter drop. After a bafflingly long period, the JIO brought formal charges against Jacobowitz on behalf of five complainants. This happened on March 22, three weeks before the White House announced the President’s intention to nominate me for the NEH chairmanship.
At some point during the spring term, Jacobowitz secured History Professor Alan Kors as his advisor. The Judicial Charter permitted accused students to be represented by another member of the Penn community, but not by outside lawyers.
I first learned of the water buffalo episode from Kors when he called me, probably soon after March 22. I told him in that first call that I knew nothing about the case but that I would find out and call him back. I asked Steve Steinberg, my assistant, to get the facts. Later, Steinberg reminded me that when I had spoken at Hillel on the first Friday evening of the term, Jacobowitz had been there, as had Steinberg. A group of students had gathered around me chatting and, according to Steinberg, Jacobowitz had described his predicament, insisting that he was not guilty of racial harassment. I apparently was sympathetic and told him that he should go through the process, tell the truth, and he would be OK. I still do not remember this, but I have no reason to doubt it.
When Steinberg reported back, he gave me the facts of the incident very much as I have related them above, and he also brought the news that the formal charges had been served and the judicial process had been set in motion. I called Kors, told him what I knew, and said that I could not intervene. It is crucial to understand that the Penn system was set up specifically to exclude the President and Provost. With regard to disciplinary cases, I was similar to a mayor, who can not tell the district attorney what to do, and I was not at all like the chief executive officer of a corporation, who can tell anyone in the organization what to do. That a college president does not have the power of an army general is a bit of “context” that my journalistic stalkers somehow neglected to pass along to their readers.
Kors called me several times in the next few weeks, always demanding that I simply order the JIO to drop the case. I always declined. It struck me as ironic that one so punctilious as Kors was about the principle of due process was pressuring me to throw due process out the window. Kors was also calling other people in my office and in the vice provost for University life’s office. On April 7, I got a long memorandum from Steve Steinberg describing an hour of conversation on the phone with Kors arguing for intervention. He ended by saying that if we were set on not intervening he would stop the phone calls and pursue the defense of his client in other ways.
Shortly thereafter, Eden Jacobowitz hand-delivered to my office a copy of his long, eloquent, contrite letter to the JIO that argued again that the term “water buffalo” had no racial meaning and that he, Eden, had had no intention of hurting the women complainants. Furthermore, the letter charged that the JIO was sending his case to a hearing panel simply because the JIO did not want to take personal responsibility for ruling that the charges of the women did not amount to a violation of the racial harassment policy. Jacobowitz was probably right about this. Even though the JIO—actually, the assistant JIO, who was handling the case—had the authority to decide whether or not there was enough merit to the allegations to warrant sending them to a faculty-student panel, given the fact that the JIO was herself black and was a relatively junior administrator, the pressures would have been enormous.
I sent a copy of the Jacobowitz letter to Steve Steinberg on April 12 with a handwritten note: “If this guy gets convicted it will be a horrible miscarriage of justice, but I suppose there is nothing to do but let the process play out and hope for the best from the Panel. You ought to alert Carol Farnsworth [our press officer] that we may be getting some negative attention from the NAS [National Association of Scholars, a group in which Kors was active that had been organized to resist the radicalization of universities].”
In his follow-up memorandum to all the people within the administration who dealt with the press, the public, the trustees and the alumni, Steve also mentioned that we could expect to hear from Accuracy in Academe, the Anti-Defamation League, and the American Jewish Committee. Steve also pointed out that Jacobowitz’s letter had indicated that copies of it had been sent to powerful presumed allies outside the University: Harvey Silverglate, prominent ACLU attorney and later the coauthor with Alan Kors of a book that prominently included a discussion of the Water Buffalo case, The Shadow University [“Notes from the Undergrad,” January/February 1999]; Alan Dershowitz, professor of law at Harvard; Nat Hentoff, columnist for the Village Voice; Dorothy Rabinowitz, member of the editorial board of The Wall Street Journal; and George F. Will, nationally syndicated columnist. The posse was being formed, and their telephone reconnaissance calls began almost immediately.
Linda Hyatt, my chief-of-staff, sent me a quick note also on April 12 describing an agitated telephone conversation she had just had with Alan Kors. He was “revved up pretty high,” she reported. “Alan brought Jesse Helms, national spotlight, the whole nine yards into it.” She asked me to call Alan and try to convince him again that letting the disciplinary process be completed was the best course of action. I tried. At the end of that long and tortured conversation, Alan said that if I didn’t end the Jacobowitz case, “I will have to go public.” I knew exactly what he meant.
By the time of that letter from Jacobowitz, and the last round of telephone conversations, President Clinton’s intention to nominate me was public knowledge, making me an attractive target, and the demonization of Lani Guinier was visibly under way, demonstrating what I could expect from a politicized process. All of my personal political interests lay on the side of resolution—as fast as possible. As the threatened political campaign against me exploded in the news media, and the strobe light of negative publicity flickered incessantly, trustees began urging me to find some way to end the agony, and even my colleagues among the senior officers were pressing me to get the University out of the headlines. My staff and I spent agonized hours worrying the question of whether or not I could intervene.
Nevertheless, I could not see a rationale that was either “constitutional” under the University’s rules of governance, or fair to the five black women who had a right under University policy to have their complaint adjudicated by a faculty/student panel. In addition, to have intervened simply because Penn was suffering from bad press would open the University to extortion by publicity. To have intervened also would have thrown the University into a crisis that would have been both racial and constitutional. By the time those crises made themselves felt, I would have been safely installed in Washington, but I could not bring myself to use Penn in that way.
Penn was subjected to such a drubbing in the press that anyone doing a retrospective evaluation is tempted to conclude that any alternative course of action would have been better. That is because the pain of what happened is clear, but the consequences of alternative courses of action are difficult to imagine. Those consequences of my intervention would not have been as public, perhaps, but they would have been more serious and longer lasting. Members of minority communities at Penn would have been outraged by additional evidence that the University put a lower value on their interests than on the interests of other constituencies, even to the extent of being willing to violate the University’s own policies and procedures. The University would have been extremely vulnerable to legal suit. Faculty, staff, and students who care about “constitutional” due process and “shared governance” would have been offended. Just because we have not heard from the people who would have been angered by my intervention does not mean that they were not there.
Because Kors had been straightforward with me, I was not surprised by the WSJ editorial when it appeared on April 26, the day that had been scheduled for the Jacobowitz hearing. The first two sentences of the editorial make its purpose clear: “A freshman, the latest victim of the ideological fever known as political correctness, goes on trial at the University of Pennsylvania today. It’s not irrelevant to note that the head of this institution, Sheldon Hackney, is President Clinton’s nominee to head the National Endowment for the Humanities and a man, university spokesmen insist, committed to free speech.” Thus, the story is positioned as evidence in the running conservative critique of liberalism and liberalism’s habitat on college campuses, and conservatism’s determination to delegitimize President Clinton at the outset of his term in office.
The incident itself is described by the WSJ as “Kafkaesque” and an example of the “theater of the absurd.” Jacobowitz appears as guileless, willing to cooperate with the police, truthful, and innocent of any harmful intent. He is dutifully studying when he is rudely disturbed. The reader pictures him passively looking out the window and gently requesting that the noise makers be more quiet so he can work. In contrast, University authorities are presented as aggressive, determined, out of control, intimidating toward white students, and illogical.
More important, in the mental picture that became the template for almost all subsequent accounts, the women do not exist as individuals. The reader never sees them as real people. In fact, they scarcely exist at all. Similarly, the other white students drop out of the account. The reader envisions Jacobowitz as being alone and not as part of a group, and certainly not as part of an ugly, intimidating, and raucous mob. This literary treatment does not falsify any fact, but it shapes and colors the story by what it leaves out, what it de-emphasizes, what adjectives and adverbs it chooses, and what context or lack of context it provides. Try to imagine this story being “successful” if Jacobowitz had been firmly positioned as part of an unruly mob hurling racial slurs at vulnerable black women, women who had names and whose individual stories were known to the reader in the same way that Jacobowitz’s was.
It is interesting also that this first WSJ editorial argues the case for Jacobowitz being innocent of racial harassment, rather than arguing against racial harassment policies in general. Penn’s problem in the eyes of the WSJ editorial page, at least at the outset, was not that it had a rule against racial harassment but that Jacobowitz had not broken it. Professor Dan Ben-David of Penn is cited as suggesting that water buffalo had popped into Jacobowitz’s mind because it is a literal translation of the Hebrew word, behameh, which is used as a mild pejorative, akin to the English slang term dumb ox. Two black Penn professors are quoted as denying that water buffalohad any history as a racial slur in America.
All of this is fair enough, but it simply ignores the long history of animalistic representations of African Americans as part of white supremacy’s mind game. It also ignores the question of what the women thought they heard and why they got so angry. This is an example perhaps of a cultural disconnect, of the same words carrying different significance in different cultures. It was a “teachable moment” that was squandered by Penn and also by the mainstream press. It was also a moment that was hijacked for ideological purposes.
The hearing that was to have been held on April 26 was postponed by the Judicial Administrative Officer (JAO), a retired professor of medicine, whose task it was to make the machinery of justice work. On this occasion, the JAO had made the decision to postpone the case until the fall semester because the faculty advisor to the complainants had decided to withdraw and they did not yet have another advisor. Postponement was unfair to Jacobowitz, of course, because he would have to live even longer with uncertainty. It was also unfair to the women, some of whom were graduating and would not be around the following year. The end of the term was rapidly approaching, so the JAO had a serious problem, and so did the University. A second WSJ editorial crucified Penn for the muddled postponement.
Before their campaign was over, the WSJ editorial board had not only colored the reports of the events at Penn in ways that were not flattering to me, they also published a number of outright untruths. For example, with regard to the other campus crisis of that spring, over the theft by black students of an edition of the DP, as a protest against perceived racism by the paper and at Penn, the WSJ claimed I had failed to say that the theft of the newspapers was wrong and that I had defended the newspaper thieves on the ground that they were exercising their right to free speech. Other untruths included that I had punished a Wharton professor for insulting black students in class; that I had proposed banning ROTC from the campus because of the anti-gay policies of the military; that I defended political correctness on the grounds that it promoted a free exchange of ideas; that I defended blasphemous slogans written in chalk on Locust Walk in support of a visit by the controversial artist, Andres Serrano; that I followed a double standard in protecting controversial left-wing speakers but not people on the right. All of those charges were demonstrably false.
Meanwhile, newspapers, magazines, news broadcasts, and talk shows all over the country were filled with stories about an appealing young student being persecuted by Penn’s thought police because of a crazy interpretation of innocent words. Eden Jacobowitz became a folk hero for the conservative cause. He made a very sympathetic guest on television and radio talk shows.
I was astounded when I learned of the postponement of the hearing. The provost and I and the vice provost for University Life urged the JAO to schedule another hearing so the matter could be resolved. To his credit, he saw immediately that it had been a mistake to postpone the April 26 hearing, but the University was now in the midst of the exam period. He scheduled a hearing, therefore, for May 14, a week after the end of exams, the Friday of Reunion Weekend, just before Commencement the following Monday. This was the last possible moment.
Even though he and his advisee had been eager to dispose of the matter earlier, Kors now got the JAO to agree that the hearing on May 14 would not be dispositive. It would only hear Kors’ argument on his procedural motion to drop the charges. The JAO agreed that the hearing would not go into the question of guilt or innocence. To make matters worse, the JAO did not tell the other parties to the hearing that he had done this deal with Kors. They all arrived expecting to go through a regular hearing. The result was that no one was happy. Penn again looked inept, if not malevolent. The panel, frustrated by their inability to complete the hearing, warned Kors not to comment in public, and they announced that they would give their procedural report to the VPUL within 10 days.
To the delight of the huddled masses of reporters waiting outside the hearing room, Kors emerged with a handkerchief clenched between his teeth, indicating that he had been gagged. As he revealed later, in his book, The Shadow University, as soon as he was out of the public eye that night, he immediately gave his version of the hearing to Dorothy Rabinowitz at the WSJ. The result of this was another round of exclamation-point headlines and full-throated denunciations. For me, there was more standing in the public stock.
The day after Commencement, I began the ticklish business of mediating a solution to the Water Buffalo case. I communicated with the advisors of both sides, and my message was the same: no one is benefiting from the situation. After a tense week of discussions among themselves and with their advisors, the women decided that they would drop their charges against Jacobowitz. They had come to the conclusion that they would never get their side of the story out until the case was ended and they could speak publicly.
They announced their decision at a press conference on May 24. They made it clear that they were upset that they had been required to remain silent while they were ridiculed in the press, and that they felt thoroughly abused because their side of the story had not been told. With regard to the incident itself, they said they had heard Jacobowitz call them not just water buffalo but “black” water buffalo. Moreover, his shouts were part of a general barrage of insults, including “the N word” and the “word for a female dog.” Of course they were offended. Professor Peggy Sanday, their advisor, Professor Houston Baker, and Trustee Gloria Chisum Gr’60 Hon’94 had all been extremely helpful to the students as they thought their situation through. In addition, those three appeared at the press conference and spoke sympathetically about the plight of the complainants, bound as they had been to silence.
No effects of this effort were discernible in the press reports about the news conference or later. The WSJ editorialized on May 25 that the case “revealed what the descent of America’s campuses into the mire of speech codes and harassment codes has wrought. What they have wrought, namely, is an assault on free expression and reason that is virtually without precedent in a modern, free society.” I wondered about what the WSJ thought of the death squads in Guatemala, Pinochet in Chile, the dirty war in Argentina, apartheid in South Africa and similar situations, but it would have been churlish to raise those questions.
In the fall, with the events of the previous spring safely put to rest, and with me out of the way, Provost Marvin Lazerson appointed a Board Of Inquiry to find out what had gone wrong with the judicial process the previous spring. Jacob Abel, former chair of the Faculty Senate, and one of the most respected members of the faculty, was the chair. The Board issued its report in April 1994. The Provost welcomed their report because, he said, it described how the judicial process had failed when it had become politicized. The report also concluded that Jacobowitz had not been treated fairly, but the five young women had been treated even worse and had suffered more harm. The JAO was criticized for allowing Alan Kors to manipulate the process on behalf of Jacobowitz. The board also made some sensible recommendations: the process needed to be speedier; mediation should be used more; and there should be a group (note: not the President or the Provost) that supervises the bringing of serious charges by the JIO.
Displaying his knack for deft understatement, Alan Kors, as quoted in the April 5, 1994, DP, said, “The farce continues, and the members of the committee should be ashamed of themselves.”
In addition to my function as a cudgel with which conservatives could batter President Clinton, and as the anti-hero of the running narrative that conservatives had created that was designed to undermine the moral authority of liberalism, there is an additional large lesson to be learned from the journalistic treatment of the events of the spring. Those who shaped the public perception of them were not trying to inform the public so much as to capture its attention.
When the mainstream press first learned of the Water Buffalo story, they learned it from the WSJ editorial page. The story line was already set. In addition, the Water Buffalo story was easy to shape into a story of an innocent individual oppressed by a cruel bureaucracy. It had an appealing victim, Eden Jacobowitz, who was tested but eventually triumphed over a bullying university. It needed an identifiable villain, all the more satisfying if he were powerful and privileged, and much better if he were a person rather than a group or an abstract idea. I was available for that role. For the story to work well, there could be few ambiguities or contradictions, few bothersome realities that would get in the way of the plot. It had to be stark. For instance, the counterclaims of the black women students on the sympathies of the public must be muted. The hero had to be protected from any suspicion that he was engaging in unattractive mob activity. Procedural due process had to be portrayed as obfuscation and inhumane bureaucracy. Their strategy worked beautifully.
However, it did not succeed in blocking my appointment. After a tough grilling and floor fight, I was ultimately confirmed by the Senate 76-23 (including 22 Republican Yeas) as chairman of the NEH.
As I have thought back on my experience during the spring of 1993, I have come to realize that I survived because I was able to escape from the story that had been created by the conservative masters of mass media. I could do that only when the setting shifted to the United States Senate, an arena in which face-to-face relationships are still important. There, in my old-fashioned way, I could present myself to the audience that was to decide my fate. I could tell my own story.
History Professor Sheldon Hackney Hon’93 was Penn’s president from 1981-1993 and chairman of the NEH during the first term of the Clinton Administration. This article is excerpted from The Politics of Presidential Appointment: A Memoir of the Culture War, ©2002 by Sheldon Hackney and published by NewSouth Books, Montgomery, Alabama (1-866-639-7688).
