Harvard’s motto is “Veritas” (“Truth”). Yale’s motto is “Lux et Veritas” (“Light and Truth”). The University of Arkansas tells people that it will “Veritate Duce Progredi” (“Advance with Truth as Our Guide”). Most other university mottos suggest something similar, maybe with some references to faith or virtue sprinkled in as well.

These mottos about the discovery of truth are federally registered trademarks for their respective schools.Footnote ¹ Yet “Veritas” does not exactly match the perceived mission of university licensing directors and marketing consultants responsible for shaping higher educational brands. How does attempting to register the word “THE” as a trademark for Ohio State University advance the search for knowledge?Footnote ² Is licensing the use of university logos on caskets anything more than a money grab? When a university articulates its brand identity through a constellation of empty signifiers – “excellence,” “community,” “purposeful engagement” – does this contradict the motto that encapsulates its original reason for being?

In general, it is hard to square the university’s search for truth with its practices for building brand awareness and equity. As Derek Bok, Harvard’s president from 1971 to 1991, noted, the values bound up in university research and teaching are not the ones shared by advertising professionals. “Advertising has very different values, animated by an overriding desire to sell the product,” he says. “Although constrained by law from misrepresenting the facts, advertisers continually stretch the truth, engage in hyperbole, omit contrary and qualifying information, and otherwise act in contradiction to standard precepts of good teaching.”Footnote ³

If the university is meant to foster the search for truth and advertising is meant to provide narratives that only have a tangential relationship to the truth, how do different university actors conceptualize academic branding? When an individual holds two or more cognitions that are in conflict, psychologists posit that the individual feels an unpleasant mental state – dissonance – that they are driven to resolve. Cognitive dissonance is so distasteful that we alter our ways of thinking or develop new ways of thinking to push it away.Footnote ⁴

The university is composed of many constituencies and it would be inaccurate to suggest that all of them have the same relationship to academic branding. Brand managers and athletics staff will be more intimately involved with university marketing efforts than professors. Those in the central administration may view themselves as perfectly aligned with such efforts, whereas students may be more conflicted and some faculty members may even define themselves in partial opposition. Still, I think it would be incorrect to deem university marketing as the exclusive preserve of college presidents and provosts with no impact on the thoughts or behaviors of other university actors. As I will try to illustrate below, the disconnect between the university’s traditional mission and the logic of today’s academic branding strategies may influence the attitudes and conduct of various university stakeholders even if they are not aware of this influence.

In this chapter – after further illustrating the divide between the university’s historical mandate to uncover knowledge and the very different goals of modern university marketing – I will discuss the rationales advanced to try and reconcile academic branding with the university’s traditional reason for being. First, there is the confusion rationale, which ameliorates concerns over university marketing behaviors by conceptualizing them as providing informational inputs that can be used for rational decision-making. Second, there is the compartmentalization rationale, which contends that less-than-truthful university branding does not do violence to the university’s larger goals so long as it is quarantined from the core aspects of the university’s truth-seeking function. Third, there is the competition rationale, which maintains that a new era of reduced public funding and global competition has so fundamentally reshaped the university’s mission that a turn to hyper image consciousness in university messaging is necessary. How well these rationalizations succeed in reducing the dissonance that might otherwise trouble different university actors remains to be seen. But their presence signals rhetorical strategies and cognitive adaptations that could influence the shape of the academy for years to come.

I. The Tension between Academic Branding and the University’s Mission

The reasoned pursuit of knowledge is the historical lodestar of the modern university. By contrast, academic branding relies on irrational appeals devoid of information. Changes in the prevalence and content of university self-promotion have made the gulf between the university’s traditional reason for being and its methods of self-promotion wider than ever.

II. Dealing with the Dissonance Created by Academic Branding

Cognitive dissonance theory conceptualizes dissonance as an aversive state much like hunger or thirst that we are compelled to reduce. According to Leon Festinger, the psychologist who introduced the theory, dissonance can be reduced by changing or downplaying one of the two cognitions that produce it.Footnote ³³ If different university actors feel a tension between the university’s mission of using the tools of reason to uncover truth and academic marketing strategies that appeal to the emotions rather than reason, then cognitive dissonance theory suggests that they will engage in a cognitive restructuring to ameliorate this tension. In the rest of this chapter, I unpack what I believe are the three primary rationalizations being deployed as part of this restructuring process.

Conclusion

Academic branding is an intentionally public act with real consequences. Outsiders judge these acts. Insiders internalize them. We can’t compartmentalize academic branding and assume it will have little effect on the university’s public mission. And if we continue to believe that reasoned inquiry should form the centerpiece of that mission, the recent trajectory of university marketing initiatives is cause for concern.Footnote ⁶⁴

Then there is the question of how to better harmonize academic branding with the tools of reason. Maybe debunking the rationalizations justifying the disconnect between current university marketing practices and the university’s core mission will prompt a voluntary realignment, but I’m not optimistic. A more drastic but perhaps beneficial approach would be to alter the legal framework in which the university operates.

The vast majority of advertisers avoid telling outright lies, but university advertisers should be held to an even higher standard. In several areas of the law, exceptions exist for the special space of the university. Designed to promote the public externalities generated by higher education (e.g., technological advancement, supplying the workforce with skilled graduates), massive property tax exemptions for nonprofit status benefit both public and private universities. Another set of generous tax subsidies exists to stimulate demand on the part of potential students. Courts decline to do much to interrogate tenure decisions, in contrast to other employment actions, out of concern for academic freedom. Patent law provides special carve-outs for academic research.

All of these legal exceptions benefit higher educational institutions. But perhaps there is also room for special legal burdens for universities. To claim the benefit of its public mission, the university’s communications messages should reflect that mission. Other businesses engage in puffery, but university marketers should decline the legal privilege to lie their heads off so long as they say nothing specific. Effective advocacy requires telling a good story, so narratives that have emotional as well as factual components should continue to be a staple of academic branding. However, these narratives should be more strictly scrutinized than the marketing of other products and services. The more the university engages in the same branding techniques as the rest of the marketplace, the less claim it has to a public character, or any distinguishing character at all.

Edward Bernays, nephew to Sigmund Freud and architect of the modern public relations industry, built his career as a public intellectual around a single idea, which he articulated in the opening lines of his 1928 book Propaganda:

Such plain talk about propaganda was possible in part because the word was then seldom used in America, and loaded with fewer negative connotations than it holds for us today.Footnote ² It was, from the very moment it was coined by Pope Gregory XV in 1622,Footnote ³ a term associated with the weaponization of language and information – in particular, combating the spread of Protestantism by “propagating” the Roman Catholic faith. But its agnostic use remained uncommon until the nineteenth century, and its association with deception and falsehood did not arise until after the First World War.Footnote ⁴ By writing Propaganda, Bernays hoped to rehabilitate the word and relieve it of some of its wartime associations, which he had, in fact, helped attach in the first place.

Propaganda remains an influential, foundational document for public relations and marketing professionals, but its core ideas were not drawn from private-sector experience; instead, they emerged from what Bernays learned during his time working as a propagandist for the United States government.Footnote ⁵ As director of the Latin News Service Branch of the Committee on Public Information, he’d helped President Woodrow Wilson gain public support for US involvement in the First World War. Even his insistence that propaganda is “an important element in a democratic society” was borrowed from George Creel, a former journalist who had served as the Committee’s chairman. The organization’s methods for stirring up a pacifist society to support American involvement in the war, Creel said, did not constitute “propaganda as the Germans defined it, but propaganda in the true sense of the word, meaning the ‘propagation of faith’” – a distinction which conveniently leaves aside the anti-Protestant origins of the word and its use.Footnote ⁶

In his book, what Bernays sought to propagate was faith in his own brand of propagation, which he claimed would benefit broad swaths of the American public. Businessmen, politicians, scientists, and even women’s rights activists had much to gain by deploying propaganda, Bernays argued throughout the text. He was, of course, correct on every account, but in a roundabout way. Throughout the twentieth century, every aspect of American society, from business and politics to science and activism, was subsumed by corporate values, which privileged profits over every other consideration; but unlike the private businesses which ruled previous centuries, these publicly traded corporations were forced to disclose certain information to shareholders, regulatory bodies, and the public, even when that information might prove unfavorable to their bottom line.Footnote ⁷ And so the production of propaganda came to be a core function of the modern corporation, which necessarily made it a core feature of the corporatized realms of modern business, politics, science, and activism. Footnote ⁸

Propaganda in service of public higher education was of special interest to Bernays. In one of Propaganda’s most prescient chapters, the author made a case for deploying professional propagandists in service of America’s public universities:

It would be many decades after Bernays wrote these words before America’s public universities faced financial straits dire enough to resort to such tactics. And when at last they did embrace propaganda and dramatic narratives, university presidents chose to ignore the “educational issues” Bernays had suggested as the dramatis personae. Instead, they sought to transform their institutions in ways that made them a better conduit for something which was already inherently spectacular: college athletics. They did this not as an end unto itself but in service of forging more lucrative partnerships with the global corporations which manufacture and market athletics shoes and apparel – most prominently Nike and Adidas.

The origins of these partnerships can be traced back to the late 1970s, when Nike employees paid college basketball coaches what was euphemistically called “sneaker money” – cash payments in exchange for a promise that their team would wear only Nike shoes on the basketball court.Footnote ¹⁰ By May 1986, university administrators were so tired of being cut out of such deals that an NCAA committee was convened to draft new rules which authorized formal partnerships between universities and apparel makers; the following year, Nike cut its first “all-school” deal with the University of Miami, allowing the school to profit from a shoe company which had once charged them for sneakers and gear. All they had to do in exchange for free gear and a little cash was transform their student athletes into walking billboards for the brand.Footnote ¹¹ The university presidents who approved such deals became, in effect, a kind of corporate propagandist.

Dave Frohnmayer, who served as president of the University of Oregon for more than a decade, was a pioneer and a model for this kind of public university propagandism. When he took over as the University of Oregon’s top administrator in 1994, Frohnmayer found himself at the helm of an institution facing a dismal financial situation. Four years earlier, Oregon voters had narrowly passed a piece of legislation called Ballot Measure 5, which severely cut the property-tax revenues that public schools across the state relied on for funding.Footnote ¹² The institutions affected by these cuts included places of higher education like the University of Oregon (UO), which lost 10.5 percent of its state funding during Frohnmayer’s first two years as president.Footnote ¹³ More funding would be lost with each passing year, Frohnmayer knew, but rather than appeal to “the people of the state,” as Bernays had advised, he turned instead to one Oregonian in particular: Phil Knight, a UO alumnus who also happened to be the founder and chief executive of the Nike corporation.Footnote ¹⁴

Frohnmayer’s move made a certain kind of sense: while he was determined to replace his school’s lost public funding with private financial support, Knight, as the founder and chief executive of Oregon’s biggest corporation, had nearly endless financial resources.Footnote ¹⁵ The business impresario also stood to gain much from a partnership with Oregon’s flagship university: Nike, which had become a billion-dollar juggernaut selling basketball and running shoes, was increasingly focused on apparel deals with professional and collegiate football teams.Footnote ¹⁶ Frohnmayer, meanwhile, had an appealing piece of drama with which to lure Knight. The University of Oregon needed to secure enough private funding to build an indoor practice facility for the school’s football team, which had recently made a surprise trip to the Rose Bowl only to falter in the big game; with a top-flight indoor practice facility, rainy Oregon’s flagship school could attract top recruits who might otherwise go to schools in California. Better recruits would lead to more wins, which would raise the school’s profile and, Frohnmayer hoped, lead to more out-of-state students, who would pay higher tuition than Oregon residents.Footnote ¹⁷

In theory, Knight’s $8 million gift toward the building of that indoor training facility, called the Moshofsky Center, should have been the start of a mutually beneficial relationship between Nike and the University of Oregon.Footnote ¹⁸ But in practice, the power dynamic remained too unequal for the university to ever be anything but a silent partner. This was by design: Knight was not a philanthropist but a businessman, and his gifts to the University of Oregon were a kind of investment. And like any smart investor, Knight sought to gain maximum value through minimum buy-in – instead of paying for entire buildings or athletics facilities on UO’s campus, he would pay up to half of the cost of a project and leave the school to find the rest elsewhere.Footnote ¹⁹ Meanwhile, Knight maintained naming rights and an enormous degree of control over how these facilities would be built, unveiled, and used. For its part, the University of Oregon gained – along with each shiny new edifice – the tremendous debt which resulted from paying interest on cumbersome state bonds issued to shore up funds for Knight’s on-campus projects.Footnote ²⁰

There was another, far more fundamental reason why this lopsided power dynamic endured for so many years. The University of Oregon’s financial relationship with Nike did nothing to address the core problem Frohnmayer set out to solve when he first courted Knight as a potential donor. The school’s reliance on public funds had been too great, and the loss of those funds too sudden, for increased tuition dollars to completely erase the deficit left by Oregon’s devastating property-tax cuts. And so, rather than improving the school’s financial position, Knight’s funds merely improved its image in the world of collegiate sports. Functionally, it grew more debt-ridden with each partially funded project, which Knight, on more than one occasion, forced the school to issue bonds against as a means of securing the remaining funds.Footnote ²¹ This led the school to become increasingly dependent on Knight’s continued support, which in turn transformed Frohnmayer into something Bernays had not imagined when writing his chapter on propaganda and American education: an educator as corporate propagandist.

Frohnmayer’s role as a Nike propagandist was not metaphorical or symbolic. It was, in fact, shockingly literal. In 1999, he allowed Knight, who was by then the school’s most generous private benefactor, to have his company rebrand the state’s flagship public university. It was in every way unprecedented and, for most, unimaginable – a private corporation, with shareholders and executives and quarterly profit targets, constructing for a public institution of higher learning a “brand identity” which would for years to come define it in the public sphere. The task was carried out by Rick Bakas, a Nike designer working in the company’s apparel department. It was, he said, “unlike anything that had ever been done before in terms of corporate branding.”Footnote ²²

The level of secrecy surrounding the endeavor was also unlike anything previously undertaken as part of a corporate partnership with a public university. Thomas Hager, who was then the University of Oregon’s director of communications, called it “a sort of fait accompli,” known to more people on Nike’s Beaverton, Oregon campus than on the UO campus itself.Footnote ²³

“Supposedly I was in charge of external communications for the university and I had not been privy to any discussions about changing things,” Hager said. In this case, however, he found out only when he was called into a meeting for a kind of unveiling of the school’s new logos and branding materials. One reason that people like Hager were increasingly left out of the loop is because some university work was actually being outsourced to Nike employees; other times, it was passed off to a new generation of university employees who were trained from the beginning of their careers to act in deference to those Nike representatives who were collaborating with the university.Footnote ²⁴ These employees were overwhelmingly communications, public relations, and marketing staff, whose ranks grew so quickly at the University of Oregon that by 2018 they numbered more than the combined faculty of the school’s departments of history, economics, and philosophy. And because they were dispersed throughout various departments and offices at the school, these propagandists spread their habits and impulses to every facet of university operations. The damage they caused through unbridled obfuscation and spin is incalculable, but the symptoms of this disease are easy enough to examine once they do come to light.

One especially egregious example surfaced in May 2014, when various media outlets discovered that a University of Oregon student had reported being raped by three of the school’s basketball players two months earlier.Footnote ²⁵ Instead of sanctioning the players and investigating the incident when it was reported, the school had sought to keep the victim’s criminal report quiet until the team’s post-season “March Madness” participation was complete. And rather than launching a Title IX investigation in accordance with federal law, university administrators instead tasked the school’s top public relations professionals with devising a plan for dealing with the scandal that would unfold if the rape report ever came to light. Within twenty-four hours of the sexual assault, those public relations staff set to work on what they called a “Sexual Violence Prevention Communications Plan.” It consisted primarily of various talking points meant to persuade media outlets that the “University of Oregon provides a safe environment for its students, and leaders are committed to cultural change to focus on survivor support.”Footnote ²⁶

In interviews with local media, Vice President of Student Affairs Robin Holmes reiterated claims about “survivor support,” which was among the “key messages” of the communications plan – a document which effectively served as a blueprint for creating propaganda that cast the school’s mishandling of campus sexual assault in a more favorable light. In an interview with the Oregonian daily newspaper, for example, Holmes emphasized that the University of Oregon has “counseling center staff who have specialty in regard to sexual assault.”Footnote ²⁷ This was true, and in fact Holmes, a licensed therapist herself, was in charge of the office which oversaw such student counseling. But as if to underscore how thoroughly corrupting Nike’s influence on the University of Oregon had become, its Counseling and Testing Center soon developed into yet another arm of the institution’s growing propaganda apparatus. Rather than taking part in the actual production and dissemination of propaganda, its role was one that has been essential to state propaganda operations since the First World War: intelligence gathering.

The case, which unfolded in December 2014, involved the student who reported being raped by three University of Oregon basketball players earlier that same year. Some months after the incident, this student began seeing a therapist named Jennifer Morlok at the school’s Counseling and Testing Center. Another woman working there in an administrative capacity was Karen Stokes, who opened her email one day in December 2014 to find a strangely informal request from a superior named Shelly Kerr. Her request was that Stokes make a complete copy of a medical file belonging to a patient seeing Morlok, and send the copied file to the University of Oregon’s general counsel. Stokes was also asked not to stamp these copied pages, as was usually done with documents that were not originals, and not to document the fact that the file had been copied. Kerr further asked her not to discuss the matter, which was maybe the strangest and most suspicious comment of all. Stokes was unnerved by the odd request, which violated a number of standard procedures and protocols, so she checked the student’s file to see if it included a consent form authorizing any of what she’d been asked to do; when she found no such form, Stokes printed out Kerr’s email and brought it to Morlok, who was also disturbed by it. Before long, the two women realized what was going on: the university, which had mishandled this student’s sexual assault complaint and was anticipating a lawsuit, sought to find information in her confidential therapy files which it might use against her in court.Footnote ²⁸

As propogandists for Nike, the University of Oregon didn’t merely seek out information that might discredit or defame a woman allegedly raped by three athletes wearing the brand’s shoes and apparel. Its agents further sought to conceal information which might cast the company or its relationship with the university in a bad light. In the university’s Office of Public Records, for example, incoming employees were given an intake interview by top public relations officials working at the school. During these interviews, they were asked to forward all public records requests to someone from the Office of Public Relations for vetting, especially if it involved anything which might reflect poorly on the University of Oregon or Nike. Such behavior is, of course, a serious breach of state and federal laws concerning public records, which are supposed to be made available to anyone requesting them, swiftly and with few exceptions – FERPA laws, for example, require that personal identifying information be redacted from emails or other documents released to the public.

It is also a serious breach of ethics to treat an office of public records as an instrument of propaganda: stewards of public records, who are on staff at all public institutions, are tasked with releasing information to journalists and members of the community based on state and federal laws. Work emails sent by university administrators, faculty, and other school employees, for example, are all public records, and are supposed to be made available to anyone who asks for them – whether they contain information that would be embarrassing to the school or its corporate benefactor should not be a consideration. And yet, for Nike’s propagandists at the University of Oregon, the latter was very often the first and only consideration, according to former UO Office of Public Records employees.Footnote ²⁹

Such behavior casts two very different shadows over claims Bernays made regarding the usefulness of propaganda in a democratic society. On the one hand, its efficacy is unquestionable, especially in the realms of politics, business, activism, and education, as Bernays outlined in Propaganda; at the University of Oregon, propaganda deployed in service of the school’s financial relationship with Nike has been so successful that many now refer to the school as “the University of Nike” – a sobriquet, once derogatory, which it now embraces.Footnote ³⁰ On the other hand, propaganda’s utility for democracy is questionable, and in the realm of public education it is quite clear that it is often incompatible with democratic ends. Because of the school’s relationship with Nike, students at the University of Oregon have unequal access to an education and to facilities funded by their tuition dollars; some students, like the rape victim from March 2014, are even denied access to the most basic forms of justice and dignity. Instead of making Oregon’s flagship university a more egalitarian institution, Knight’s largesse and Nike’s corporate influence have transformed it into a kind of corporate fantasy world. It became the kind of place where reality was less important than appearances; instead of the truth, public records stewards and media relations specialists at the university worked hard to ensure that the outside world saw only favorable coverage of their institution. Like state-run media organizations in authoritarian regimes, they accredit for sporting events only those journalists who cover them favorably, and seek to discredit, censor, or hobble those who offer critical analysis of how the school operates. By restricting the public’s access to information which may reflect poorly on the university or its corporate benefactor, the only options available to the media are positive stories. But of course, propaganda has its limits, and the illusions it creates can only stand up to a certain degree of scrutiny before they collapse.

Until recently, one of the most effective propaganda campaigns carried out by Nike and the University of Oregon had to do with the nature of the partnership between these two entities. Despite the fact that the university has for years remained perpetually underfunded and reliant on significant tuition hikes,Footnote ³¹ while funding from Nike and Knight goes almost exclusively toward building projects that in time become a drain on the school’s dwindling financial resources, it has long been held up as a model of success. Administrators at the University of Maryland, in fact, cited Nike’s partnership with Oregon as its inspiration for pursuing a similar relationship with Under Armour, an athletics apparel company founded by Maryland alumnus Kevin Plank. In 2014, the school signed a $33 million athletics equipment deal with the company, which had positioned itself as a challenger to Nike and Adidas.Footnote ³² But several years later, when faced with financial pressure amid a global economic downturn, Under Armour announced in June 2020 that it would seek to pull out of two major college sponsorship deals. One of these deals was, at the time of its signing in 2016, the largest apparel deal in the history of college sports: $280 million paid out to UCLA over the course of fifteen years in exchange for making Under Armour the school’s exclusive sports apparel partner. The other deal, with UC Berkeley, was worth $86 million over the course of ten years.Footnote ³³ With the matter now headed to the courts, it will not be the first time UC Berkeley has had a corporate partnership end in acrimony and embarrassment. In 2007, the school entered into a controversial partnership with the British oil company BP, which pledged $350 million for the construction of an Energy Biosciences Institute on the Berkeley campus. In the end, the oil company pulled much of its funding after the project failed to improve its image as a company committed to renewable energy sources.Footnote ³⁴

This was a prime example of what Bernays called the promotion of “artificial values,” and in the end it was a disaster for both the institutional propagandist and its corporate client. There is reason to believe that a less artificial pairing might have produced better results – for example, collaboration with a corporation whose executives held some shared values with the leaders of its university partners. But increasingly, it seems that a public university like Berkeley would almost certainly be better served by focusing on ways to “sell itself to the people of the state,” as Bernays emphasized.Footnote ³⁵

In the coming years, it is entirely likely that America’s public universities will need to reimagine propaganda in order to sell themselves to the people of the state, as Bernays once advised – to “propagate faith” in public higher education, which has been diminished in reputation by years of corporatization only to now face financial collapse as a result of an unforeseen global pandemic. Administrators at institutions like the University of Oregon have endured years of criticism for selling out to Nike and other corporate benefactors, but they could at least console themselves with the money, the building projects, and the endowments these partnerships produced. And, of course, they could point to the rising out-of-state enrollment, which helped shore up lost state funding by making the university more reliant on those students willing to pay more to attend. Now, over the course of a year living through a global pandemic, such funding models, which were never well thought out to begin with, have come under tremendous strain and may need to be replaced with something better – many corporations, after all, will be in no position to hand over millions of dollars for building athletics facilities or libraries on college campuses. And students from out of state, as well as those paying in-state tuition, will question in ever larger numbers the wisdom of paying immense sums of money for classes which must be taught partly online; others may question the wisdom of ever going back to the way things were before, especially if the college experience is no longer much of an experience at all.

When the pandemic has ended and America’s public universities must once again sell themselves to prospective students, they will undoubtedly turn to Bernays and the methods he outlined in Propaganda. Their success or failure may depend, ironically, on the effects of propaganda elsewhere in society: What use is a university, after all, in a society which has no use for truth?

I am the current holder of the Royall Chair at Harvard Law School (HLS). I inhabit a troubled brand. This chapter tells a story of a mark associated with it: a heraldic shield with three gold wheat sheaves on a field of blue (Figure 9.1). The vicissitudes of this mark, going on 300 years old, demonstrate how even a long-lived and much-valued brand can fall to the winds of reputational change; and how even a devastated brand can recover its lustre when those winds change course. Looking it all over, I am struck by the stubbornness of symbolic value as much as I am by its frailty in the face of political and moral contestation.

Figure 9.1 Royall family shield with crest.

W.H. Whitmore (ed.), The Heraldic Journal Recording the Armorial Bearings and Genealogies of American Families, vol. i (Boston: J.K. Wiggin, 1865), 12.

For me, the story starts with my becoming eligible for a Chair, through sheer seniority, in 2006. I had come over from Stanford Law School in 2000, and there was a lot about my new local academic culture that escaped me. There are no monetary or other upsides of a Chair designation to the faculty member, and the only expectation it entails is the delivery of an inaugural “Chair lecture.” But still, getting so senior that you qualify for a Chair is not nothing. I noticed that a number of the Law School’s oldest Chairs were empty, and I called up Dean Elena Kagan (who served in this capacity from 2003 to 2010) with a simple request: “Give me an old one.” She took it under consideration, and that was the end of our conversation.

At the year-end faculty lunch where the new Chairs are announced, Dean Kagan announced that I was the new Royall Chair. A gasp went around the room. Why? I was completely in the dark.

Soon afterwards, I learned that I had a tiger by the tail. Daniel R. Coquillette, who was co-writing the unofficial history of the Law School together with Bruce A. Kimball,Footnote ¹ graciously provided me with all his files on Isaac Royall, Jr., the donor of the Chair. His research assistant at the time, Elizabeth Kamali – now a tenured colleague on the faculty – helped me figure out the old documents.

What I learned from these files astonished me. This donor had come with his father and family to New England from Antigua in 1737, where they had owned multiple sugar plantations and held dozens of human beings in bondage. They traded in sugar and slaves as part of the Triangle Trade. In 1734 alone, Isaac Royall, Sr. sold 121 human beings.Footnote ² After a drought and an earthquake, followed by a panic over a slave uprising and its severe repression, the family left Antigua for New England, settling in Medford, a town very close to Cambridge. They brought a large number of enslaved persons to their large Medford estate and proceeded to farm the land and live like the 1 percent of their era. Their large slaveholding was unusual in New England: essentially, they pared down the sugar plantation model of slaveholding and transposed it onto the more household-based New England slave/indentured-labor landscape.

When Isaac Royall, Sr. died in 1739, Isaac Royall, Jr. stepped into his father’s life. Today we can tour the grand Georgian home he and his family inhabited on the banks of the Medford River; it is now run as the Royall House and Slave Quarters and curated to enable a deep comparison of the lifeways of the white Royalls and the people they held as slave labor (Figure 9.2). The site includes the large and well-preserved and probably only surviving slave quarters in New England. The Royall House and Slave Quarters Board commissioned Alexandra Chan to do an archaeological study of the latter, which yielded considerable information unattainable from the written record.Footnote ³

Figure 9.2 Royall House and Slave Quarters.

Samuel Adams Drake, Some Events of Boston and Its Neighbors (Boston, 1917).

Isaac Royall, Jr. fled to London at the outbreak of the Revolutionary War, and wrote his final will there.Footnote ⁴ It had two provisions that continue to provoke interest. In one, he made a grant to Harvard College to establish a “Professor of Laws … or … Professor of Physick & Anatomy” (what we would call medicine) (Item 12, Codicil Item 5). This is the Chair I now hold. And secondly, he provided for a single one of his enslaved human beings, Belinda, the option of freedom or becoming the personal property of his daughter, and stipulated (as the law of Massachusetts then required) that if she chose her freedom, she would not become a charge upon the town of Medford (Item 5). This implied that his estate would provide her with maintenance, if needed, to prevent her from becoming so needy that the town would be obliged under the Poor Law to support her, but the will made no explicit provision for her support.

Isaac Royall, Jr. had no income of which we are aware that was not directly or indirectly derived from slave labor. In light of this whole story, it’s no exaggeration to say that the commencement of legal education at Harvard was enabled by the large-scale exploitation of black slaves. Symbolically, the link from that money to HLS was my Chair.

For my 2006 Chair lecture, I stood beneath the Robert Feke portrait of Isaac Royall, Jr., his wife, their daughter, his sister, and his wife’s sister in the Treasure Room in Langdell Library (Figure 9.3)Footnote ⁵ – now named for a donor, the Caspersen Room – and told his story as best as I could figure it out. I published the lecture soon afterwards in the Harvard BlackLetter Law Journal.Footnote ⁶ What Coquillette and Kamali did was an amazing act of scholarly generosity: Coquillette let me scoop him on his own research, and Kamali helped him do it.

Figure 9.3 Robert Feke, “Isaac Royall and Family.”

Harvard Law School Library, Historical & Special Collections.

As Coquillette and Kimball explain in the first volume of their history of HLS, On the Battlefield of Merit: Harvard Law School, the First Century, the Royall Chair did not automatically lead to the establishment of the Law School. Rather, the original idea was that the Royall Professor would give a lecture series on law to students in the College. This embodied a new theory of legal education: not apprenticeship in a lawyer’s office but the study of legal science equivalent to philosophy and theology as knowledge systems fit for instruction to undergraduates. But when they finally got underway in 1815, the endowment barely yielded enough to pay Isaac Parker, Chief Justice of the Massachusetts Supreme Judicial Court, for part-time work at Harvard. Throughout his service, his primary responsibilities were as a judge. A two-stage, lurching process led to the establishment of a viable Law School. Stage one, beginning in 1817, added a tuition-funded professor, Ashael Stearns, and inaugurated the Law School proper.Footnote ⁷ Yet stability and growth were out of reach for this tiny, overburdened faculty; it was not until 1829, when Nathan Dane and Joseph Story orchestrated the Dane Professorship with a significant endowment – and Story as its first occupant – that the Law School faculty could grow to three professors with a comprehensive curriculum and a stable business model.Footnote ⁸ Coquillette and Kimball exaggerate by quite a bit when they designate Isaac Royall, Jr. as the “founder” of Harvard Law School.Footnote ⁹ By their own account, that role went to Parker, Story, and Dane. But the Royall Chair was the spark that started Harvard out in its commitment to legal education. It remains the Law School’s oldest Chair. That is my Chair. What does it mean? A lot of different things, it turns out.

Isaac Royall, Jr.

In his final will, Isaac Royall, Jr. directed that the vicinity of his house in Medford be called Royall Ville “always” and that anyone who inherited this entailed estate must take Royall as his last name (Items 21 and 22). He was a man obsessed with promoting and celebrating himself as a brand, specifically as the patriarchal, slaveholding, faux-aristocratic social capital of which he was the human embodiment.

His marks were many. The Feke portrait of him as paterfamilias, the John Singleton Copley portrait of his daughters festooned with luxury clothes and toys, the paired Copley portraits of Isaac, Jr. and his wife,Footnote ¹⁰ and the Royall House and Slave Quarters themselves: all survive to us as marks of his brand. But the most literal sign of his identity is the heraldic shield that he and his father adopted as their family crest.

A brief introduction to British heraldry is in order. In British usage, a shield or “coat of arms” is granted by the Crown – and by the Crown only – as a mark of honor and for the exclusive use of the grantee, who may be a knight or aristocrat, an individual who has accomplished something the Crown wishes to reward, a unit of government, or an institution. When granted to a human being, and as befits its character as a mark of royal or aristocratic status, it’s heritable. It is explicitly honorific, and when used by non-royal individuals along the line of descent, it signifies aristocratic status, notable achievement, or royal favor belonging to the original grantee.

These marks frequently take the shape of a martial shield in reference to the idea that in the British tradition, which vastly predominated in colonial New England, the very first such arms were actual shields carried by aristocratic or knightly warriors into actual battle, and are called coats of arms because warriors would wear heraldic devices on coats worn over their armor. It’s called heraldry because, in premodern usage, heralds combed the countryside for family births and deaths and granted shields. The entire system involves an elaborate history and detailed technical know-how. Each coat of arms is a state-sponsored, state-designed, state-bestowed mark, deliberately held scarce to the point of being unique, intended to enhance the status – the brand – of its bearer.

In the special language of heraldry, the verbal description of the Royall family shield (its “blazon”) is “azure three garbs 2 and 1 or,”Footnote ¹¹ that is, three wheat sheaves with one centered for a top row and two more below it in a second row, in gold on a background of azure. Surprisingly, we know a lot about how it was used by the Royall family. It appears on silver vessels given to churches attended by Isaac Royall, Jr. and his family, on a tomb erected in Dorchester to memorialize the grandfather and father, on bottles, bookplates, and wax sealsFootnote ¹² – and that’s just what remains after more than 300 years! Isaac Royall, Jr. and his father clearly engaged in an extravaganza display of the shield.

Correspondence with a Windsor Herald in the British College of Arms confirms that the Royall arms “appear to be those of the medieval Earls of Chester.”Footnote ¹³ In heraldic lingo, this means that the Royall family shield was assumed or assumptive, and not invented but pirated (more heraldry-speak) from arms authentically borne by an ancient aristocratic family.Footnote ¹⁴ That is to say, the Royall shield is not only fake but also stolen.

There is certainly nothing aristocratic about the Royall family. The grandfather, William Ryall, and another man emigrated to New England in 1629 as indentured servants to work as “coopers and cleavors of tymber.”Footnote ¹⁵ He first settled in Salem, and gave his name to a section of the newly settled town: “Ryal Side.”Footnote ¹⁶ Once free, he moved to Maine,Footnote ¹⁷ where according to some sources he gave his name to a river along which he owned land.Footnote ¹⁸ He died in North Yarmouth, Maine.Footnote ¹⁹ The name is recorded as Ryall, Ryal, and Rial before it was converted to the more pretentious Royal and Royall.Footnote ²⁰ At the apex of the family’s prosperity, they were agricultural magnates and traders, including active participation in the slave trade. At the Royall House and Slave Quarters in Medford you can still see the wooden statue that Isaac Royall, Jr. placed in the center of his formal garden. It is of Mercury, the god of trade, an emblem I take as a warrant to claim that Isaac Royall, Jr. was himself not the least bit ashamed of his commercial success, and that he, at least, felt he had no nobility to lose.

Charles Knowles Bolton, one of the primary sources on American heraldic practices, traces the Royall shield back to the grandfather.Footnote ²¹ This is unlikely. The above-mentioned bookplate is surely attributable to Isaac Royall, Sr. and corresponds with a large library, twelve times larger than that of any other Boston household inventoried in the decade of his death.Footnote ²² The church silver dates to Isaac Royall, Jr.’s time, and Chan excavated the bottles decorated with the device from the Medford home, first owned by Isaac Royall, Sr. This is not an ancestral mark: father and son used it to dignify new money.

What would it have meant to the contemporaries of the Royall father and son that they lavishly displayed the shield? There was never a College of Arms in any of the North American British colonies. The Constitution includes clauses barring ranks of nobility,Footnote ²³ and the founders rejected the idea of establishing a national College of Arms.Footnote ²⁴ Heraldry bore a strong anti-republican stigma. But it was permitted, tolerated, and in widespread use. Very seldom did colonial arms-bearers show authentic arms. Far more often they assumed arms to which they had no home-country right.

Indeed, what made heraldry controversial in the revolutionary period and early republic was any claim that it should be made authentic by the establishment of an American College of Arms. The following story is indicative. On July 4, 1776, the same day that the Declaration of Independence was issued, the new nation’s leadership authorized the creation of a national seal.Footnote ²⁵ A state seal would symbolize the country’s full independence and its equality with other seal-bearing states of the world. As a mark, a state seal is far from the heraldic shield of an aristocratic or merely rich family. The state seal is given to the control of an authorized officer, who must apply it to certain official documents for them to be valid; it played an important role in international diplomacy, particularly in the recognition of states by other states as formal co-equals. The US could adopt a state seal without implying anything about establishing a College of Arms issuing family shields in America.

But in 1788, William Barton, who had already contributed the eagle to the design of the Great Seal of the United States (which was not finally promulgated until 1782),Footnote ²⁶ wrote to George Washington urging the establishment of state-authenticated heraldry:

Washington himself made prolific use of ancestral arms, probably brought to America by his great-grandfather, and cared enough about their authenticity to obtain ratification from the College of Arms in 1791.Footnote ²⁸ But setting up a College of Arms in the United States was a bridge too far. He gently rejected Barton’s argument that heraldry could harmonize with life in a republic of juridical equals. Washington’s diplomatically stated response declares that he was chary of introducing official heraldry not because he deprecated it, but solely because the political moment was too inflamed to risk even an innocent move that could enable the opponents to denounce “the proposed general government … [as] pregnant with the seeds of distinction, discrimination, oligarchy and despotism[.]”Footnote ²⁹

Thus authentic arms were extremely rare and highly prized, but derived from a remote and contested sovereign; assumed coats of arms were ubiquitous and unregulated; and heraldry signified social rank, even aristocratic family origins, in a society committed both to social hierarchy and to legal equality for white men. In these circumstances, what would people make of a shield like the Royalls’? Much later, heraldry and genealogy aficionados earnestly heaped contempt on assumed arms.Footnote ³⁰ But these strenuous efforts all have an antiquarian feel to them: it would be a mistake to read them back onto the colonial cultural milieu. At the time the Royall family was brandishing its shield, the distant past that these later strivers were trying to preserve was the common present. Rules and rolls separating authentic wheat from assumed chaff would have been unnecessary where the very few who had authentic arms would have been known to do so. Isaac Royall, Jr.’s use of his faux-ancestral shield could have indicated some fondness for the aristocratic hierarchy of the homeland or sympathy with colonial officialdom; but its ersatz origins could equally have signaled disrespect for colonial pretensions to aristocratic status. With his flight at the outbreak of the Revolution, it might have been used as part of the case against his loyalty to the new government – but it would not do to take that line of thought too far. According to the American Heraldry Society, thirty-five signatories of the Declaration of Independence, including John Hancock and Benjamin Franklin, were armigerous;Footnote ³¹ even John Quincy Adams bore assumed arms.Footnote ³²

Fittingly, perhaps, the very issue of revolutionary fervor for a government dedicated to freedom and equality – to life, liberty, and the pursuit of happiness and to the proposition that all men are created equal – had a direct, personal impact on Isaac Royall, Jr., in the form of a precipitous fall from political grace. The revolutionaries’ rapid victory in the Battles of Concord and Lexington on April 19, 1775, switched out the governing powers in eastern Massachusetts overnight. Isaac Royall, Jr. had gone to Boston three days earlier, separating himself from the patriot-controlled countryside and lodging in an urban, armed camp controlled, at King George’s command, by General Gage.Footnote ³³ Did his travelling to Boston at that moment suggest loyalty to the Crown (the thinking would run: “Royall was with the Royalists so he must be one”) or was he on an anxious mission to repair bridges to the British after his bold refusal of the oath to become a Mandamus Councilor as part of George III’s plan for repression of the colonists?Footnote ³⁴ Close reading of his political engagements before this crisis suggests that he preferred a mediating role between the increasingly alienated extremes;Footnote ³⁵ on April 19, 1775, the space for such political ambivalence shrank to the vanishing point. Even if his trip to Boston were entirely innocent of political intentions, it could not now be unmarked by political signification. But the polarization of the semiotic field and the emptiness of his sign produce an ambiguity that will probably never be resolved.

Nor did his subsequent actions bestow a clear meaning on his travel to, and his subsequent flight from, Boston. Within days of the opening of the Revolutionary War, he fled in the general evacuation of loyalist civilians from Boston, landing in Halifax. About a year later, he proceeded to London.Footnote ³⁶ When seeking to ingratiate himself with the British aristocracy and to obtain a share of the monetary support being doled out to loyalists forced into exile by the Revolution, he represented himself as “one of the unfortunate persons who from the dreadful tempest of the times in the Massachusetts Bay was obliged to leave that country and finally take refuge in this[.]”Footnote ³⁷ But when seeking to ingratiate himself with Massachusetts elites he explained his trip from Medford to Boston as the first stage of a voyage to Antigua to settle some financial matters, his trip to Halifax as an effort to gain a safe harbor whence to complete his trip to Antigua, and his decision to shift to London instead as a concession to his desperate family, who had already settled there. How else could he see his grandchildren, he pathetically asked.Footnote ³⁸ In the former letter, he denounced the “Colonists” as “deluded” and unable to see that their “true interest” lay in “their duty to their Mother Country and to the best of Kings”; in the second letter he professed loyalty to the new Commonwealth. If in controversies over his character centuries later Isaac Royall, Jr. has been subject to radically divergent interpretation – the dizzying oscillation that this chapter traces – it is perhaps safe to say that it began in his own acts of self-branding.

This calamitous bouleversement was family-wide. Isaac Royall, Jr. and his sons-in-law Sir William Pepperell and George Erving were named in the Banishment Act of 1778; the latter two were also named in the Conspirator’s Act of 1779 and thereby lost all their Massachusetts holdings; the Massachusetts property of Isaac Royall, Jr. was seized under the Absentee Act of 1779 and was returned to his estate only near the end of the century.Footnote ³⁹ These seizures included personal as well as real property. And having left Massachusetts after April 19, 1775 and “join[ed] the enemy,” they were all subject to the Test Act of 1778, proscribing their return.Footnote ⁴⁰ The only reason that their exile was not spent in complete destitution was the continued enjoyment of their West Indian holdings and any assets they had managed to extract from North America prior to restrictions being imposed by the loyalty acts.Footnote ⁴¹

From its very first day, the Revolutionary War and its eventual turning-upside-down of political control crashed the Royall brand. Two subsequent stories, one involving his bequest to Belinda, the other involving his bequest to Harvard College, show how temporary this nadir was.

Belinda Sutton

After Isaac Royall, Jr. died in 1781, Belinda took her freedom and triggered his estate’s legal duty to support her if she were in need.Footnote ⁴² Starting only two years later, she filed six petitions – in 1783, 1785, 1787, 1788, 1790, and 1793Footnote ⁴³ – with the Massachusetts Legislature, sitting as the General Court, seeking that support. Belinda signed all these petitions with “her mark,” an X, a reliable indicator that she was illiterate and could not have written them herself. In response to the first petition, the General Court ordered that fifteen pounds, twelve shillings be paid to her annually from the Commonwealth Treasury.Footnote ⁴⁴ The fair copy of this “resolve” was signed by John Hancock and Sam Adams.Footnote ⁴⁵ The next two petitions complained that payments had stopped after one annual cycle; Belinda’s petition of 1793 indicates that only one further payment had been made, in 1787; and in 1790 she sought payment from the estate of a promised ten shillings per week for life. In 1788 and 1793 she signed as Belinda Sutton; apparently she had married. The latter petition was witnessed by Priscilla Sutton: was this the infirm daughter Belinda mentioned in her first petition? In 1793, Belinda alleged that she had sought recourse to Isaac Royall’s son-in-law, Sir William Pepperell, and that he “made her some allowances, but now refuses to allow her any more[,]” causing her to seek once again the original “bounty.”

As the years go by, the petitions become increasingly desperate, speaking of her old age, inability to work, and poverty. And indeed, she would have been very old: she indicated in the first petition that she was seventy years old, so by the time of the last one she would have been about eighty-three. There is a crescendo of misery: Belinda spoke of “her distress and poverty” (1785); averred herself “thro’ age & infirmity unable to support herself” (1787); and complained that she was “perishing for the necessaries of life” (1790).

The nearly perfect failure of the Treasury to follow the 1783 order, despite dramatic signatory support from Hancock and Adams and continually renewed petitions from Belinda, has the earmarks of back-channel controversy: someone or some ones inside government was or were putting themselves in the way. Who was responsible for Belinda’s suffering?

The first petition blames Isaac Royall, Jr., the exploitation of slavery, and the hypocrisy of the revolutionary elite. It is an indictment of the man precisely for his role in enslaving human beings. The petition links his tyranny over Belinda to his affinity for British tyranny: Belinda denounces them both and shames the Legislature for seeking freedom for white colonists but not black slaves.Footnote ⁴⁶ This was the first time – and, as far as I know the last time, until the Royall House and Slave Quarters leadership and then Coquillette took up the issue – that Isaac Royall, Jr. was in any way held to account as a slaveholder. This singeing document appealed to the wartimeFootnote ⁴⁷ legislature of Massachusetts – a body of men who had staked all on independence from Britain – by praising them for their commitment to freedom and equality for all, and then shaming them for not extending succor to a victim of slavery and oppression much worse than anything they had suffered at the hands of Britain. It pointed the finger of hypocrisy directly at them, and gave them a handy exit from moral opprobrium: relieve Belinda’s need.

The petition begins with an idyllic account of Belinda’s birth and childhood on the African Gold Coast. It then tells of her seizure by white slave traders, of the misery she endured on what we call the Middle Passage, and of her shock when she arrived in America to find herself in a Babel of strange tongues and in slavery till death. Then she made her appeal for justice, which is worth quoting in full:

Note that when the petition names Isaac Royall in its first sentence, it shifts to a strikingly larger script, exaggerating the pun involved in his last name: even Isaac Royall’s name condemns him.

Roy E. Finkenbine tells the story of this petition’s publication by revolutionary-era critics of slavery.Footnote ⁴⁸ Whoever wrote it – probably Prince Hall, a member of the politically and culturally active free black community of BostonFootnote ⁴⁹ – intended, and got, an audience wider than the Massachusetts Legislature. Belinda’s first petition thus marks a second nadir for the Isaac Royall brand.

After wrangling with the records, I can explain how but not why Belinda was subjected to such prolonged deprivation of the support due to her. If Royall had not fled Medford, if his estate, once in probate, had remained under his executor’s control, and if Belinda, once freed, became (as she did) unable to support herself, the Poor Law overseer of Belinda’s town could have brought suit against the estate for emancipating Belinda without providing security. But Royall’s estate was under the control of the state, though it never escheated. Ironically, it was Royall’s fall from grace as an absentee that made it possible for as-yet unidentified forces in the colonial and then new Commonwealth government to choke off her support. Only when Isaac Royall was relieved of that opprobrium were funds returned to the control of his executor.

The story of this gradual re-rise of Isaac Royall is a law story.Footnote ⁵⁰ On May 25, 1778, the Town of Medford placed Royall’s estate in probate, with Simon Tufts as agent.Footnote ⁵¹ The Selectmen based this move on the fact that “the said Isaac Royall voluntarily went to our enemies and is still absent from his habitation and without the State.”Footnote ⁵² Two years later, the Massachusetts Legislature adopted the Absentee Act. A letter from Tufts dated May 26, 1780 indicates that he and Willis Hall (to be distinguished from Prince Hall, the probable drafter of the first petition), already named executor under Royall’s will, petitioned together for release of the estate, but that “the Court … have … Hung it up”Footnote ⁵³ – that is, opted for inaction with the result that the estate remained in state hands.

Royall died in 1781. Belinda’s first petition resulted in the 1783 General Court order on her behalf, which directed: “That their [sic] be paid out of the Treasury of this Commonwealth out of the rents and profits arising from the estate of the late Isaac Royall esq an absentee fifteen pounds twelve shillings p[er] annum[.]” The Absentee Act had moved the funds into the Commonwealth Treasury. The verso of the original order includes calculations of the recent income to the Treasury from Royall’s property. There were sufficient funds to pay Belinda her due.

Isaac Royall, Jr.’s will was entered in probate in 1786, empowering Willis Hall to serve as his executor.Footnote ⁵⁴ On February 28, 1787, Hall registered a list of Royall’s legacies and debts in the Suffolk County Probate Court. The debts included “for support of Belinda his aged Negro servant per annum for 3 years ₤30.”Footnote ⁵⁵ This roughly corresponds with the Treasury’s then-unpaid support allowances for 1784, 1785, and 1786 (shaving off twelve shillings). Hall apparently had control of some assets, but in the 1790 petition Belinda (that is, probably, Willis Hall) indicated that “the Executor of [Isaac Royall’s] … will doubts whether he can pay the said sum without afurther [sic] interposition of the General Court[.]” So Hall took Belinda’s cause to the General Court: he witnessed and probably wrote the 1787 and 1793 petitions, and likely had at least a guiding hand in those of 1788 and 1789.

It is very possible that Willis Hall believed that, in petitioning for Belinda’s relief, he was pursuing his principal’s intentions. From a contemporary perspective, this is not entirely exonerating. Isaac Royall’s will bequeathed four enslaved human beings – “my Negro Boy Joseph & my Negro Girl Priscilla” to “my beloved Son in Law Sir William Pepperell Baronet” (Item 4) and “my Negro Girl Barsheba & her sister Nanny” to his daughter, Mary Erving (Items 5) – and Hall may have executed those instructions. Nor is it clear why both Royall and Hall were so committed to relatively favorable treatment of Belinda Sutton. But I think it is evident that, even after the abandonment of the fiercely political strategy embodied by the first petition, Mrs. Sutton was not without friends.

The stakes for Belinda of Isaac Royall, Jr.’s flight to London were therefore very high. Willis Hall was clearly dedicated to her support. If Royall had not fled, and had been able to appoint Hall his executor, Hall would have had not only the inclination but also the power to pay for her support. But because of Royall’s flight, his estate was locked up in the Commonwealth Treasury for most of her time as a free woman.

Two years after Isaac Royall, Jr. died in London, Britain and the United States concluded a peace. After independence, anti-loyalist confiscations continually lost ground, a process that indirectly improved Royall’s reputation. The Treaty of Paris (1783) nominally committed Congress to urge the states to restore property they had confiscated under their loyalty statutes.Footnote ⁵⁶ David Edward Maas shows in detail the ever-so-gradual success of Massachusetts absentees in regaining legal capacity between 1784 and 1790: permissions to possess and inherit, to collect debts, and to return were gradually granted to the lucky few, with an equally gradual diminuendo of anti-loyalist vitriol and controversy.Footnote ⁵⁷ Harvard started receiving land granted to it by Royall in 1795/96.Footnote ⁵⁸ And in 1805, the General Court issued a resolve allowing Royall’s loyalist heirs to convey property that they inherited under his will.Footnote ⁵⁹

Belinda’s 1788 and 1790 petitions designated the man she had denounced in her first petition as “the honorable Isaac Royall.” Her petitions were now in the hands of Willis Hall, not Prince Hall: she may have still felt intense scorn for her former owner, but expressing it was no longer an option. Between 1793, the year of Belinda’s last petition, and a 1799 petition filed by successors to Hall acting as executors of the Royall estate – thus roughly in the same period during which Harvard started taking possession of its Royall land bequests and well before his loyalist heirs were allowed to step into their inheritance – a settlement was reached securing support for Belinda and Priscilla Sutton.Footnote ⁶⁰ The atmospherics as well as the institutional situation had changed dramatically. Royall’s new executors felt safe in offering an exonerating description of his 1775 flight from Boston. They depicted him not as a refugee or absentee, but as a loyal albeit hapless invalid, and made note that the estate had been returned to his executors. Isaac Royall had, it seems, gotten a posthumous moral get-out-of-jail-free card:

Belinda and Priscilla must be the two servants for whom these funds were reserved: there simply are no other candidates. That neither woman petitioned again after 1793 suggests that sufficient support payments had been made from the escrow set aside in the Commonwealth Treasury – or that both of them had died so soon after funds became available that no legal process could be brought on their behalf. I have not found any record of their deaths.

Isaac Royall, Jr.’s bequests to Harvard and other elite public interests in the new Commonwealth cemented his posthumous rehabilitation. In 1797, Hall petitioned the General Court seeking to recoup for Royall’s heirs funds which, he claimed, had been wrongfully appropriated from the estate. He supported his claim by emphasizing Royall’s “very large and liberal Donations … to the University at Cambridge, and to other Public and benevolent uses, in this Commonwealth.”Footnote ⁶² James Henry Stark, in his biography of Isaac Royall, Jr., in The Loyalists of Massachusetts and the Other Side of the American Revolution, acknowledges that Isaac Royall, Jr.’s bequests to Harvard College and other public causes constituted an intentional and successful rehabilitation campaign.Footnote ⁶³ The unpaid bequests also created important incentives for an array of Massachusetts elites to side with Hall and the Royall heirs. When those bequests were paid out, they reintegrated him, symbolically, into the elite symbolic landscape of Boston and Cambridge.

The capstone of Isaac Royall’s re-rise came in 1815 when Harvard accepted its bequest and established the Royall Chair. This decision had to be both the effect and the cause of a complete reversal of reputational fortunes. And it paid itself forward. Isaac Parker, the first occupant of the Royall Chair, gave an inaugural lecture in which he invited “future benefactors” to follow in Royall’s footsteps, and to fund not just a Chair but a school of law. They too could bask in the glow of the commitment to freedom and equality that motivated, Parker imagined, Royall’s original bequest:

The university as reputation-launderer – (re)cycling virtue from its production of socially beneficial knowledge to its donor base and back again – here rears its immemorial head. There is nothing “neo” about it.

Isaac Royall, Jr. was back in the 1 percent. Not only that: surprise! He was a fount of the liberality that defined the new republic. Meanwhile, the voice denouncing Royall as a slaveholder, slave trader, and exploiter of slave labor had been silenced over the long course of Belinda’s miserable treatment – and perhaps by it. It now goes quiet for almost 200 years.

The Royall/HLS Shield

The next major merger of the Royall brand with that of HLS came in 1936, when Harvard University adopted the Royall coat of arms as the Law School’s mark (Figure 9.4). We are going to follow its rise and successive transformations up to 2016 when, in response to a Law School report concluding that the mark was so stigmatic that University leadership should “release us from” it, the Royall/HLS shield was disappeared.Footnote ⁶⁵

Figure 9.4 Royall/HLS shield. HLS retired and removed this shield in March, 2016 (see Figure 9.13).

Harvard Law School Office of Communications.

By 1936, a small near-hagiography of Isaac Royall, Jr. had come into print, provided by boosters of Medford and Harvard. An 1855 history of Medford by Charles Brooks picked up where the 1799 petition left off, regretting that Royall, a “timid” man,Footnote ⁶⁶ was “frightened into Toryism”Footnote ⁶⁷ by the outbreak of hostilities on April 19, 1775. “He was a Tory against his will,”Footnote ⁶⁸ but only because “He wanted that unbending, hickory toughness which the times required.”Footnote ⁶⁹ But much could be said on Royall’s behalf, including his bequest founding the Royall Chair.Footnote ⁷⁰ “Happy would it be for the world, if at death every man could strike as well as he did the balance of this world’s accounts.”Footnote ⁷¹

Brooks acknowledged that Royall had been a slave owner, but it did not appear to weigh heavily against him: after all, “As a master he was kind to his slaves, charitable to the poor, and friendly to everybody.”Footnote ⁷² This assessment comes just pages after Brooks reports Royall’s instructions to Simon Tufts, by then his agent, on March 12, 1776, almost a year into his exile:

Perhaps it was kind to prefer a good place for Mira and a good family for Nancy. But the fire sale prices contemplated for Stephen and George suggest that they were old or disabled; they were being offloaded in all their vulnerability. Chan argues that the Royalls seldom separated mothers and daughters,Footnote ⁷⁴ and we know that emancipating a slave without providing security for her support was against the law. Yet in his driving need for money, Isaac Royall, Jr. was blowing through multiple norms held even in a slave society. The sheer audacity of selling human beings because you can do it makes this letter, to us, a scandal; Brooks had no problem with it, or any of the lesser cruelties embedded in this episode.

When Charles Warren published a history of HLS in 1908, he lifted entire passages from Brooks’ account, including the “kind to his slaves” nostrum,Footnote ⁷⁵ but he balked at including Royall’s letter to Tufts. In Warren’s eyes, Harvard’s reputational requirements – or maybe just space limitations – subjected Royall’s character as a slave owner to a deliberate forgetting.

All of that preceded the 1936 adoption of the Royall/HLS shield by a generation. We are about to trace the Royalls’ ersatz heraldry as it morphed into a modern logo with various forms of ever-deepening oblivion covering Isaac Royall, Jr.’s political and moral deficits.

The backdrop of this struggle is, again, British practice. When a royal or aristocratic family chartered and endowed a college at Oxford or Cambridge, the Crown would authorize a shield, adapted (“differenced” in heraldry-speak) from the granting family’s shield, for its exclusive use. The result was another official, state-sponsored system of marks representing the carrier’s royal charter or memorializing the aristocratic or institutional status of its founding donors.Footnote ⁷⁶

Seven years after the founding of Harvard College, way back in 1641, its Overseers imitated this homeland practice by adopting a mark for the College. They authorized a “seal,” shaped like a shield and bearing the word VERITAS across the figures of three books (Figure 9.5).Footnote ⁷⁷ The mark was not granted by Crown authorities in London or in the colony. Once again, assumed arms.

Figure 9.5 Original sketch of the Harvard seal. Harvard University. Corporation. College Book 1, 1639–1795. UAI 5.5 Box 1.

Harvard University Archives.

Though the motto and design have changed from time to time,Footnote ⁷⁸ this shield-shaped seal had remained in intermittent use for almost 300 years when, in 1935/36, the University tercentenary loomed. Outgoing President Abbott Lawrence Lowell had bestowed arms on the first seven residential houses and he was gunning to carry on.Footnote ⁷⁹ He strove for authenticity when he could get it, but when the British College of Heralds charged a heavy fee to authenticate a pirated coat for Dunster House, “President Lowell resolved that thereafter the University would proceed heraldically on its own.”Footnote ⁸⁰ The new president, James B. Conant, who disliked Lowell’s pomp and circumstance, ceded to him the role of “President of the Day” of the tercentenary celebrations. Doubtless following Lowell’s cue, the director of the tercentenary celebrations decided that sub-units of the University should display heraldic shields in the upcoming celebrations. He commissioned Pierre de Chaignon La Rose, a member of the University’s Committee on Arms, Seal, and Diplomas and its expert on heraldry, to design banners for the College, the graduate schools, and seven residential houses to fly at the tercentenary celebrations.Footnote ⁸¹ In a later defense of his insignia, La Rose invoked the British practice of bestowing coat armor on Oxbridge colleges.Footnote ⁸²

Not only did his suite of arms lack official authorization, they trenched on the exclusivity of the University’s almost 300-year-old seal. Resistance came from Samuel Eliot Morison, the Chair of the University’s Committee on Arms, Seal, and Diplomas, who had written in 1933 that the Harvard shield could be used by sub-units of Harvard with limited variation of the design, but that the seal was a legal mark for the exclusive use by the President and Fellows of Harvard College.Footnote ⁸³ He was probably the moving force when, a year before the tercentenary celebrations, the Office of the Governing Boards issued a four-page pamphlet, The Arms of Harvard University: A Guide to Their Proper Use, asserting its exclusive right to the use of the seal:

The pamphlet instructed sub-units of Harvard that they could “combine the Arms with their own title” and advised them to seek advice from the Secretary to the Corporation (the term for the governing body made up of the President and Fellows) about how to draw up a design to surround it, such as an ivy garland or cartouche; however, it ruled out a circular inscription, which would make the overall design too similar to the seal. Commercial firms were instructed that they could use the arms as “a pleasant decoration on stationery (printed in black or red), on jewelry, book-ends, etc.,” but not on “clothing, arm-bands, ‘stickers,’ and the like.” “The Arms should always be treated with dignity[.]” For guidance, manufacturers using the arms were directed to the University Purchasing Agent. The pamphlet left it to be understood that the Office of Governing Boards would police uses inside the University and possibly even sue outsiders who exceeded the narrow permissions granted.Footnote ⁸⁵ In a tentative and uncertain way, the Corporation was invoking common-law and equitable rights to exclusive use of its trademark.Footnote ⁸⁶

La Rose’s design for the College’s shield adopted a design apparently ruled out in the pamphlet: it was “the present coat of the University, differenced, however, by the reintroduction of the chevron which for many years appeared on the Harvard seal.”Footnote ⁸⁷ He went even further into conflict with the pamphlet’s proper-use guidelines in his design for the Graduate School of Arts and Sciences, adding a “‘fess’ (horizontal stripe) between the books instead of a chevron.” La Rose defended these unauthorized innovations as “strictly in accord with heraldic precedents.”Footnote ⁸⁸

For the Law School, La Rose’s choice was obvious: the Oxbridge analogy led directly to the Royall shield. Isaac Royall, Jr., if he could have lived to see this, would have been delighted. He was being analogized to an aristocratic British family – even a royal one – founding an Oxbridge College; and the Law School tout court, not merely its first professorship, was being credited to his gift. There was not the slightest acknowledgement of Belinda or the other human beings held in bondage.

But once again the mark was controversial – this time, simply in its status as a mark. La Rose brought on the controversy by seeking official University adoption of his arms. In June 1937, he petitioned the University’s Committee on Arms, Seal, and Diplomas to approve his designs: to make them official at least as far as the University went, and thus to elevate them closer to the status that their analogues occupied in the Oxbridge symbolic branding landscape.Footnote ⁸⁹ Within days, the Committee forwarded La Rose’s petition to the Corporation, thereby placing the proposal in President Conant’s court.

The Corporation did not act on the proposal until early December,Footnote ⁹⁰ and during this interval the Committee received a letter from the New England Historic Genealogical Society Committee on Heraldry attacking the La Rose designs in the name of heraldic purity. “[M]ost of the school arms” designed by La Rose were based on “false assumptions.” We know by now that “assumptions” is used here as a term of heraldic art, not as a reference to an unproven premise in a logical argument. “[I]t would be a mistake” for the University to “put itself in the position of sanctioning” them. The Royall arms came in for particular criticism:

The Royall name was dashed again, this time for pirating the authentic arms of an English family of the same name.

In the end, the Corporation gave a very limited sanction for the use of the designs: “the Corporation, while having no objection to the use for decorative purposes on the occasions of ceremony or festivity of the blazons proposed for the several departments or faculties, do not approve their use for other purposes.”Footnote ⁹² The idea that the graduate faculties and residential houses should have official marks of their own would have given them equal status, as far as heraldry goes, with the University itself. But the University and its seal had already occupied this field, and the Corporation had no wish to share it. To this day, degrees are not granted until approved by the Corporation, and diplomas throughout the University bear the University seal; the La Rose shields are not allowed to authenticate – or even to adorn – these critical documents.Footnote ⁹³

By the time the Royall shield next became the object of campus controversy, its origins in heraldry and the controversies belonging to its heraldic dignity (or lack thereof) had been forgotten; over the latter half of the twentieth century, the semiotic register in which it signified shifted from the language of heraldry to that of commercial trademarks.

From New Corne to Corporate Trademark

My colleague Charles Donahue fills in the next stage in the re-re-re-signification of the Royall brand: this time, he argues, as an effort to erase Isaac Royall and rewrite the shield quite completely. Donahue reports that early in his deanship, HLS Dean Erwin Griswold (served 1946 to 1967) had the shield inscribed on the pediment of a beautiful bookcase that had been permanently installed in the Treasure Room (now the Caspersen Room)Footnote ⁹⁴ (Figure 9.6). The inscription originates in Chaucer’s poem The Parliament of Fowls:

As Donahue reports, this was a favorite source for the English jurist Sir Edward Coke, to whom it signified the ever-renewing traditionalism of English common law: “To the Reader mine Advice is, that in Reading of these or any new Reports, he neglect not in any Case the Reading of the old Books of Years reported in former Ages, for assuredly out of the old Fields must spring and grow the new Corn[.]”Footnote ⁹⁶ And for that reason, in turn, it was a favorite motto for Griswold, who borrowed from it for the title of his memoir, Ould Fields, New Corne: The Personal Memoirs of a Twentieth Century Lawyer.Footnote ⁹⁷ There is no sign in Griswold’s papers, housed in Langdell Library, that he knew or cared that Isaac Royall, Jr. had been a major slaveholder and trader;Footnote ⁹⁸ rather, Donahue suggests that Griswold probably thought it would be good to have less of Isaac Royall because of his doubtful loyalty to the American cause. And so he rewrote the shield in the key of Coke, as a symbol of the ever-stable, ever-renewing fount of human wisdom that is the common law.

Figure 9.6 Bookcase in the Caspersen Room with the Royall/HLS shield.

Brooks Kraft.

This was a normatively rich, highly self-congratulatory gloss on the shield. Senior colleagues have told me that, to them, this was what the shield meant. It anchored, in their minds, high ideals for the proximate relationship between law and justice. For them, the association with the Royall family, much less with its slaveholding and slave-trading practices, was not even forgotten: it was simply and completely unknown.

Fast-forward to the postwar Law School, when the shield began to appear on a few “old school ties” (Figures 9.7 and 9.8). In an eerie echo of the bottles then still buried in the slave quarters’ yard at Isaac Royall’s house in Medford, HLS Professor Archibald Cox had it embossed on a wine bottle (Figures 9.9 and 9.10). The 2016 HLS report recommending the shield’s removal observes that its use expanded dramatically in the mid-1990s.Footnote ⁹⁹ This is when it appeared carved in wood as a presiding emblem high behind the bench in Ames Courtroom, and replaced the University seal behind the introductory matter to Ames Competition videos.Footnote ¹⁰⁰ It began to appear everywhere: on letterhead, mats laid down to protect people from slipping when entering buildings on rainy days, webpages, syllabi, infinite varieties of Law School swag offered for purchase at the Coop or given away at conferences, retreats, fundraisers, alumni gatherings, graduation celebrations, et cetera.

Figure 9.7 Advertisement.

Harvard Law School Bulletin 21:1 (October 1969).

Figure 9.8 Wm. Chelsea LTD, Scarsdale, NY, “Harvard Law School Silk Necktie.”

Harvard Law School Library, Historical & Special Collections.

Figure 9.9 Glass bottle with Royall family shield. Theresa Kelliher for the Royall House and Slave Quarters.

Figure 9.10 Heitz Wine Cellars, St. Helena, CA, “Wine bottle belonging to Archibald Cox.”

Harvard Law School Library, Historical & Special Collections.

In cultural use, it was becoming a logo, the equivalent of the Nike swoosh or the (football) Patriots’ helmeted avenger. All of this was in flagrant violation of the restrictions set by the Corporation in 1936, of course, but who cared? It was also quite out of tune with Griswold’s lofty ambitions for the resignified shield, but who needed anything so heavy? Let a thousand shields bloom!

The dean under whom this efflorescence took place, Robert C. Clark (served 1989 to 2003), still speaks of developing the School’s “brand,” especially to distinguish it from Yale Law School. HLS was vastly larger, more international, more global, more connected to its sister professional schools:Footnote ¹⁰¹ a city to Yale’s club. The “university as brand” – complete with a charismatic mark – had arrived at HLS. Clark, who remembered enjoying the mentorship of Griswold during his deanship, has repeatedly told me that he saw the shield through the “ould fields, new corne” lens, which had effectively erased its Royall origins. Nor did he associate the Royall Chair, which he selected for himself when he became dean, with the shield, or with slavery. During this period, I can find no inkling in the Law School’s branding landscape of a taint on the shield or its family of origin. As late as 2005, the Charles Hamilton Houston Institute for Race and Justice celebrated its grand opening brandishing the three-garbs shield (Figure 9.11). For the time being, the shield was everywhere and presumed to be benign; the Chair was the dean’s because the dean had it; and the original donor who linked them was forgotten.

Figure 9.11 Charles Hamilton Houston Institute for Race & Justice Grand Opening Celebration web page.

Harvard Law School.

Meanwhile, three miles away from the Law School, the institution founded to preserve Isaac Royall’s actual home was shaking itself to its foundations to take seriously Royall’s legacy as a slave owner and slave trader.

From the Elegant Royalls to the Royall House and Slave Quarters

In 1906, the Royall house in Medford faced demolition to make way for suburban homes. The Daughters of the American Revolution – made up exclusively of proven female descendants of patriot fighters in the Revolutionary War – bought the property and entrusted its care to a newly established nonprofit, the Royall House Association.Footnote ¹⁰² To them, the value of the house would have been its association with George Washington, who is said to have interrogated two British soldiers there, and with General John Stark, who encamped there.Footnote ¹⁰³ They curated the site in the spirit of colonial-revival nostalgia. As Chan reveals, the Royall House Association sponsored re-enactments of high tea out on the lawn, complete with white gentlemen and ladies in elaborate colonial garb and servants in blackface (Figure 9.12).Footnote ¹⁰⁴

Figure 9.12 Tea ceremony at the Royall House.

Harper’s Bazaar, 1915.

Almost simultaneously, a similarly Tory interpretation of Isaac Royall, Jr. was underway in the form of a hagiography of the loyalists (such are the reversals wrought by time). In 1907, James Henry Stark published his massive The Loyalists of Massachusetts and the Other Side of the American Revolution, a thoroughgoing, family-by-family account of the victimization of the loyalists by the revolutionary elites, both during and after the Revolutionary War. He included detailed and highly favorable accounts of Isaac Royall, Jr. and his sons-in-law Sir William Pepperell and George Erving as well as his brother-in-law Henry Vassall.Footnote ¹⁰⁵ Isaac Royall’s colonial politics and flight to London were reinterpreted yet again: he and his family finally found voice as the darlings of pro-loyalist reactionaries.

Much-softened revisions of these apologies reappeared sixty years later, once again reworking Isaac Royall’s reputation to serve the reputational needs of contemporary institutions, this time HLS and the Royall House Association. In a 1967 history of HLS, Arthur E. Sutherland styled the Revolutionary War a “civil war”; construed Royall’s Anglican and Anglophile alliances to his credit; and reflected that the Feke portrait, then hanging in the entrance hall to Langdell Library, and the Royall Chair offered fitting reminders that, even at stressful moments in history like Sutherland’s present – 1967 was plenty tumultuous politically in the US – “generous impulses could survive even ingratitude, disappointment, and disillusion.”Footnote ¹⁰⁶ Like many historical accounts produced in mid-century America, Sutherland reconfigured Royall’s enslaved human beings as “Negro ‘servants’” and is otherwise silent on the subject.Footnote ¹⁰⁷

And just a few years later, in 1974, Gladys N. Hoover, a member of the Royall House Association,Footnote ¹⁰⁸ published The Elegant Royalls of Colonial New England as her contribution to the upcoming national bicentennial. Explicitly following Brooks, she defended Royall as a timid mediator.Footnote ¹⁰⁹ Juxtaposing him with Paul Revere the patriot and Sir William Pepperell the true loyalist, she urged: “Honor to the consciences of all three!”Footnote ¹¹⁰ But she did not think that the family’s slavery legacy needed excuse. Of their years in Antigua, she noted the island’s “equable and delightful climate” and optimal conditions for agriculture: “Conditions for growing sugar cane were perfect there and black slave labor was abundantly available.”Footnote ¹¹¹

The turning point came in 1988, when Peter Gittleman, a freshly minted Master of Arts in Preservation Studies from Boston University, toured the house. The site included the Georgian mansion house built by Isaac Royall, Sr. and, only thirty-five feet away, the highly conspicuous slave quarters. The tour guide dwelt on Isaac Royall’s wealth and de luxe way of life, making no mention of the enslaved people so manifestly connected to the site. As Gittleman later related, “my jaw dropped.” He joined the Board and formed an alliance with Julia Royall, an eighth-generation collateral descendent of Isaac Royall already on the Board, and together they mounted a long, careful campaign to convert the Royall House to the Royall House and Slave Quarters.Footnote ¹¹²

It was slow work. Clearly there was significant opposition within the Board. In 1999, it commissioned Chan to do her archaeological explorations, specifically to enrich knowledge about the lives of those enslaved at the site. She conducted digs over three seasons and published the results as her dissertation in 2003.Footnote ¹¹³ The Board held a Planning Retreat in June 2005 and began to revise the mission statement and to redirect the Association.Footnote ¹¹⁴ The following December, the Board announced “A New Vision for a New Age”:

A majority of the Board was moving forward even if it meant that some members and donors, strongly opposed to the new direction, resigned or closed their checkbooks. The reformers changed the site’s name and embarked on its top-to-bottom reinterpretation.

Meanwhile, on an entirely separate path, HLS was also moving toward a reckoning. In September 2000, Professor David B. Wilkins inaugurated a semi-annual Celebration of Black Alumni, welcoming hundreds of graduates back to campus for programs held under a huge white tent in Holmes Field. The lunchtime speaker – Coquillette, who was at the time preparing his history of the Law School, together with Kimball – was asked to share his research on the history of black students at HLS. The audience expected a retelling of a familiar story, from George Lewis Ruffin to Charles Hamilton Houston to Reginald Lewis, and that’s what they got, but with a surprise. Coquillette distributed a “Black History Quiz” made up to look like a Law School examination, with images of important figures in the Law School’s history. The first question – essentially, “Who is this person?” – was about a collection of three images: Isaac Royall, Jr. (taken from the Feke portrait), the Slave Quarters in Medford, and a group of enslaved black workers toiling in a sugarcane field. Spectacularly, no one could identify these images or how they were associated. Coquillette then dropped an Isaac-Royall bombshell: these were Isaac Royall, Jr., the donor of the first Chair in law at Harvard; his slave quarters in Medford; and enslaved laborers in Antiguan sugarcane fields.Footnote ¹¹⁶ Coquillette proceeded to publish a short “banner” article in the Law School’s alumni magazine titled “A History of Blacks at Harvard Law School.” In sixty-seven words, he published, for the first time, the bare-bones story of Isaac Royall, Jr., his Chair bequest, and his slaveholding.Footnote ¹¹⁷

Chan’s and Coquillette’s researches were simultaneous but independent.Footnote ¹¹⁸ Gathering the fruits of their work, I gave my 2006 lecture to the gathered law faculty: the title was “Our Isaac Royall Legacy.”Footnote ¹¹⁹ Then, in 2015, Coquillette and Kimball published On the Battlefield of Merit, complete with their full account of the legacy of the Chair – and, subsequently, Harvard Law School itself – in enslaved labor.Footnote ¹²⁰

In Medford and at HLS, the stigma of slavery that Belinda had affixed to Isaac Royall’s name was back.

Engagement v. Repudiation

Knowledge that Isaac Royall, Jr. was tied to HLS through the Royall Chair and that he was a slaveholder and slave trader, called many to offer some kind of moral and/or political response. Two approaches emerged: clean hands, which required repudiation or distancing of some kind, and engagement, which could never be conclusive or fully perfect. The Royall House and Slave Quarters had chosen engagement. What would HLS do?

In 2003, when Elena Kagan stepped into the HLS deanship, she did not select the Royall Chair, which was available to her because Dean Clark had vacated it and the office simultaneously. Instead, she took the newly endowed Charles Hamilton Houston Chair. That Chair, funded by an anonymous gift, was named for a black HLS graduate who had played a leading role in fostering a cadre of black civil rights lawyers,Footnote ¹²¹ who is sometimes dubbed “the man who killed Jim Crow,”Footnote ¹²² and who mentored Thurgood Marshall, the Justice for whom Kagan had clerked.Footnote ¹²³ This made a lot of sense: Coquillette had affixed the slavery stigma to the Royall Chair in his Celebrating Black Alumni lecture three years before, a fact of which Kagan had to be fully aware. Why go there? And the Houston Chair was brand-fresh; it’s very possible that Kagan had even been involved in its creation. Quoted in Harvard Law Today, the School’s in-house outlet for carefully groomed news about itself, she proudly pointed to the lineage from Houston to Justice Marshall to herself.Footnote ¹²⁴ It was a deft, elite, civil-rights- and self-affirming branding strategy.

Seven years later, however, when rumors flew that President Obama was going to nominate Kagan for a post on the US Supreme Court, a group of left-of-center law faculty of color attacked her decanal faculty-hiring record for being a diversity desert.Footnote ¹²⁵ They basically accused her of talking the talk but not walking the walk. In response, nominee Kagan’s supporters offered a Royall-themed talking point: the Royall Chair was by “tradition” the Dean’s Chair, and yet Kagan had “declined” it when she became dean in 2003 precisely because of its slavery taint, taking instead the Charles Hamilton Houston Chair, symbolically the Royall Chair’s new virtual opposite.

The tradition/taint/decline/instead narrative became a small but persistent element of Kagan’s vicarious campaign for confirmation as Supreme Court Justice, debuting on May 12, 2010. HLS Professor Randall Kennedy offered support for Kagan’s nomination with praise for her pride in being the first Charles Hamilton Houston Chair, but made no reference to her declining the Royall Chair.Footnote ¹²⁶ His version was fully supported by Kagan’s own public statement quoted in Harvard Law Today.Footnote ¹²⁷ The full story complete with the taint of the Royall Chair, the tradition that it was the Dean’s Chair, and Kagan’s refusal to take it, first emerged in a post by HLS Professor Charles J. Ogletree, Jr., which claimed that all the Law School deans had held the tainted Chair.Footnote ¹²⁸ HLS clinical faculty member Ronald Sullivan made the more modest claim that the Chair was merely traditionally the dean’s.Footnote ¹²⁹ And from there the narrative jumped to position papers supporting Kagan’s nomination that national political groups submitted to the Judiciary Committee.Footnote ¹³⁰ Sullivan repeated it at Kagan’s confirmation hearing.Footnote ¹³¹ And thence it entered the bloodstream of journalistic copy-and-paste, in articles written without any effort to fact-check the dubious elements of the story.Footnote ¹³²

After much searching, I have found no instance of Kagan relating the tradition/taint/decline/instead narrative; nor have I been able to find any press or other coverage of it before 2010. In addition, I have two further bits of evidence that Kagan was probably not deeply invested in repudiating Isaac Royall, Jr., and his Chair. Leaving the Chair empty was an option, but in 2003 she gave it to David Herwitz, a very distinguished, very senior tax and accounting specialist. I doubt that a supreme strategist – which Dean Kagan assuredly was – would have placed what she understood to be an institutional reputational liability on the shoulders of a faculty member with zero track record in social-justice mud wrestling. And then, when Herwitz retired, she gave it to me, when I was in the most bad-girl phase of my career. Armed with the Royall Chair, I could have done the institution a lot of damage. She seems not to have fully grokked the potential for virtue-signaling repudiation that Coquillette’s revelations enabled.

And I think that’s to her credit. This story can help us see one of the dangers of the repudiation route: the way in which it tempts those on it to craft Manichean good-and-evil patterns out of more complex and ambiguous human material.

It starts back in 2000, right in Coquillette’s quiz lecture. His Royall narrative contains two exaggerations, both of which can be reduced to more accurate size using his, and Kimball’s, own work on the Royall Chair! In 2000, it was not enough for Coquillette that the Royall Chair was the first Chair in law at Harvard; instead, Royall’s “bequest established the Harvard Law School.” And it was not enough that the Royall Chair “was the most senior endowed chair in the Law School”; rather, it was also “traditionally occupied by the Dean.”Footnote ¹³³ The latter exaggeration is probably the origin of the link to tradition found in the pro-Kagan campaigners’ tradition/taint/decline/instead narrative. Turns out, sadly for the narrative, that it isn’t true. Nor did the Royall bequest establish the Law School. Here is what happened instead.

As we have seen, the Royall Chair, first established in 1815, and first occupied by Isaac Parker in 1816, was initially a part of Harvard College. The Law School did not open until 1817.Footnote ¹³⁴ In expanding from a single professorship to a School, the University launched on an experiment in legal education as a university-based professional education for postgraduates. As Coquillette and Kimball reveal, the School’s original business model – an inadequately funded Royall Chair held by Parker and dedicated to undergraduate lectures, when he could be spared from his duties as Chief Justice of the Massachusetts Supreme Judicial Court, plus a tuition-funded professor, Ashael Stearns, with responsibility for everything necessary for the construction of a Law School – was profoundly unstable.Footnote ¹³⁵ The Royall Chair did not establish the School, though Parker, its first holder, tirelessly campaigned for it.Footnote ¹³⁶

And second, it was the Dane Chair, not the Royall Chair, that traditionally, in the School’s first seventy-five-odd years, belonged to the dean. The Law School enterprise did not become viable until Joseph Story took a second endowed chair, the Dane Professorship, on carefully negotiated terms that made him the leader of the new School.Footnote ¹³⁷ When Story died in 1845, Simon Greenleaf relinquished the Royall Chair to assume both leadership and the Dane Professorship.Footnote ¹³⁸ The place was known as the “Dane Law College,”Footnote ¹³⁹ and rightly so: Nathan Dane’s endowment gift enabled the establishment of a full-fledged, sustainable School. He later made the loan that structured co-financing by himself and the College to create Dane Hall, the School’s first freestanding building.Footnote ¹⁴⁰ He contributed a major impetus to Story’s career as treatise-writer par excellence.Footnote ¹⁴¹ And he was an anti-Royall in the sense that he consistently played a role in anti-slavery politics. He had drafted the Northwest Ordinance in 1787, which abolished slavery in the new territory; and participated in the secessionist Hartford Conference in 1814.Footnote ¹⁴² If a new twenty-first-century dean wanted to signal commitment to civil rights by taking a Chair traditionally associated with the leadership of the School – the Dane Chair, specifically – he or she might have to revive this forgotten, anti-slavery piece of HLS history.

In 1846, the Corporation issued new rules interrupting the Dane leadership tradition. They required that the senior professor would be considered the “head” of the School; that the Dane and Royall professors had joint responsibility for the course of instruction; and that the faculty “equally and jointly ha[d] the charge and oversight of the students.”Footnote ¹⁴³ In this arrangement, there was a “head” of the School but no dean, and both the Royall and Dane Chairs were subordinates with defined responsibilities.

In 1870, President Eliot erased this teamwork division of labor when he inaugurated the office of dean and persuaded Christopher Columbus Langdell to fill itFootnote ¹⁴⁴ – as the Dane Chair.Footnote ¹⁴⁵ The President wanted, and got, a strong dean with the power to make big changes and answerability to him rather than to a disorganized passel of colleague-subordinates.Footnote ¹⁴⁶ The Dane Chair was back on top, and for the first time it was the Chair of a dean.

But Langdell proceeded to break the revived link between the Dane Chair and the leadership role by holding onto the former when he resigned from the latter in 1895.Footnote ¹⁴⁷ Between Langdell and Robert C. Clark there were nineteen deanships, but only two were Royall Professors. Joseph Henry Beale took the Royall Chair in 1913,Footnote ¹⁴⁸ and served as dean in 1929/30; Edmund Morris Morgan occupied the Royall Chair from 1938 to 1950,Footnote ¹⁴⁹ and served as acting dean in 1936/37 and from 1942 to 1945.Footnote ¹⁵⁰ In neither case was there any relationship between their holding the Chair and serving as dean. Clark provided the first reason to think of the Royall Chair as the dean’s Chair when he assumed it upon becoming Dean in 1989 and relinquished it when he returned to the faculty in 2003. There is a rumor, which I have heard several times but cannot substantiate, that Clark took the Royall Chair from its prior occupant because he thought that, as dean, he was privileged to hold it. The rumor, to be sure, supports the traditionally-the-dean’s-chair line but only as an urban legend: it can’t be true. Vern Countryman, the Royall Chair right before Clark, retired in 1987,Footnote ¹⁵¹ leaving the Chair vacant until Clark selected it two years later. Clark informed me – and I believe him – that when he left the deanship, he gave up the Royall Chair not to make way for the new dean but because he had cultivated the gift of the Austin Wakeman Scott Chair in part by promising the donor that he would be its first occupant.Footnote ¹⁵²

Thus the Royall Chair was not traditionally the dean’s chair. Originally, the Dane Chair belonged to the head of the School; in the late nineteenth and through the twentieth centuries, no chair was associated with the deanship. Clark’s one-off stint as both Royall Chair and dean provided the hook for an invented tradition that, like most invented traditions, is a pastiche of truth and fiction.

I think there is a lesson here about the dangers of moral repudiation as a branding exercise. On the repudiation path, Royall, the Royall Chair, and their relationship to the School had to be aggrandized in order to more effectively convey a shocking taint and to deflect all the light in the room onto the virtue of the repudiator. This happened when Coquillette first introduced the HLS community to Isaac Royall, Jr., at the Celebrating Black Alumni event, and again when nominee Kagan’s supporters embellished her careful decisions and messages about her Chair in an effort to make of them a good-against-evil story. Yet the Isaac Royall precedent is bad enough without exaggeration.

Much later, when the press began to add that Dean Martha Minow (served 2009−17) had also declined the Royall Chair, “traditionally reserved for the dean,”Footnote ¹⁵³ the story made even less sense. She would have had to take it away from me to bestow it on herself (which she never suggested doing) and, by then, why would she? The taint was public knowledge and I was doing my sorry best to keep it alive by distributing the published version of my Chair lecture and taking tours for various HLS constituencies to the Royall House and Slave Quarters. Moreover, Minow’s path was engagement, not repudiation. She hosted welcome-to-HLS dinners for 1L sections in the Caspersen Room so that she could point to the Feke portrait and invoke the Isaac Royall slavery legacy as an object lesson in the chasm that can separate law and justice.Footnote ¹⁵⁴ She was acknowledging the hard work of moral sorting. The opposite of repudiation.

The momentum to repudiation would not begin its rush until 2015.

“Royall Must Fall” and the Demands

During the academic year 2015/16, HLS was the scene of multiple student movements focused especially on racial injustice in the world and at the School. Students mounted sustained and multi-front protests against their legal education and called for change. They re-re-re-re-signified the Isaac Royall/HLS shield to focus directly and exclusively on the fact that it memorialized the donor of the first Chair in law at Harvard who was a slaveholder. Isaac Royall, Jr.’s brand took a nosedive; the dean convened a special committee to make a recommendation about the shield; the committee recommended elimination of the Royall/HLS shield; and the Corporation acceded to that advice. The shield came down all over the School and throughout its many productions (Figure 9.13).

Figure 9.13 Removing the shield from Ames Courtroom.

Lorin Granger/HLS Staff Photographer.

I was involved in the protests, in consulting with some of the protesters, in faculty discussion of the School’s response to the protesters, and on the special committee empaneled to consider what to do about the shield. I was also personally denounced as a racist by one of the protesters, in part for benefiting from the Royall Chair. Every step of the way was intensely controversial. It will be even more than usually impossible for me to be objective about what it all meant. But I’ll try to write it so that those who disagree with my interpretation of it, and those who chose for themselves very different roles in it, can see it in retrospect as a story not only about social good and evil, or political wisdom and folly, but also about a brand and its mark.

And a note on method is also in order. The student activists (both right and left) and the HLS administration, and, more occasionally, the involved faculty, all had press strategies. They often staged events precisely for their value as public messaging. After these interventions, controversies – which were also performances – routinely followed. Groups and individuals accused one another of distorting, omitting, exaggerating, and grandstanding. Fights over meaning abounded. This was, in addition to being a social-justice conflict, a battle over a large assemblage of brands. In this chapter, I rely on the products of this struggle – journalism, an admittedly unscientific public opinion survey, physical/visible installations, open letters, intercepted meeting notesFootnote ¹⁵⁵ – not as evidence of what really happened, but as what happened. This is an account of people deploying artifacts in a fight over multiple brands.

A brief introduction to the dramatis personae will help readers follow this story. The dean was Martha Minow, a lifelong center-left social-justice scholar, teacher, expert, and advocate. A group formed by students in the three-year Juris Doctor (or JD) program – mostly from the US -- called Students for Inclusion, dedicated to ensuring that legal education at HLS foster “productive and contextualized conversations on matters related to race, gender, and class,”Footnote ¹⁵⁶ had been developing a critique of the School since Spring Term 2014. After the police killings of Eric Garner and Michael Brown in the summer of 2014, Students for Inclusion significantly expanded its local activism, becoming the School’s most explicit engagement with Black Lives Matter and the national upsurge in racial-justice activism. A distinct group, initiated in the fall of 2015 by LLMs from sub-Saharan Africa, named itself Royall Must Fall and demanded, inter alia, removal of the Royall/HLS Shield. JD activists from Students for Inclusion joined Royall Must Fall as soon as it issued its first call to action, and Students for Inclusion reframed itself as a coalition of student groups named Reclaim Harvard Law School (aka Reclaim HLS, Reclaim, etc.). Reclaim’s major achievements were a list of Demands for reform of the Law School, and a long-running occupation of a major lounge area at the center of student life, which they named Belinda Hall. Behind the scenes, if you were witnessing the whole thing from my perch on the faculty, Royall Must Fall and Reclaim merged around Thanksgiving, but the two groups retained separate public profiles. Because their agendas were distinct, they coursed through the upcoming year on very different pathways. Finally, Minow appointed Professor Bruce H. Mann to head a committee to address the issue of the Royall/HLS shield: in early March 2016, it issued what I will call the Mann Report recommending removal of the shield.

Protest started slowly and quietly, and got faster and louder over time. According to Students for Inclusion’s published “Timeline of Student Activism” at HLS, its own commencement as an activist group dated to the spring of 2014, marked by some private meetings with Minow and Dean of Students Ellen Cosgrove.Footnote ¹⁵⁷ It argued for what it called contextualized learning – learning law, in detail, as the effect and cause of a radically unequal society.Footnote ¹⁵⁸ The following fall, it launched a tumblr, “Socratic Shortcomings,” which displayed students’ posts about the many failings of their teachers and each other.Footnote ¹⁵⁹

On December 7, 2014, a coalition of HLS student affinity groups posted an open letter to Minow urging her to address the crisis produced by the deaths of Garner and Brown and the failure of grand juries to indict their killers. The letter expressed students’ anguish about racial injustice in America, their determination to use their legal training to uproot it, and their deep distress, described as trauma and exhaustion, about their semester-long deep dive into protest and activism. Invoking Garner’s last words, they intoned, “We can’t breathe.” A follow-up letter urged Dean Minow to commit the Law School to a message about racial justice at least equivalent to ones that she had issued at the time of the Boston Marathon Bombing, the death of Nelson Mandela, and the Sandy Hook school shooting.Footnote ¹⁶⁰ The coalition stated that “we expect” the dean to allow students, at their individual discretion, to postpone their exams, scheduled to begin on December 10; to provide them “grief/trauma counselors”; and to create school-sponsored programming on social-justice issues. They staged a die-in outside the last faculty meeting of the fall term in a dramatic bid for faculty support: an event I witnessed myself.

The dean’s response did not satisfy the protesters. Together with Yale Law School Dean Robert Post, and in her personal capacity, Minow published an op-ed in the Boston Globe arguing that accountability and police reform were necessary for the preservation of the rule of law.Footnote ¹⁶¹ She held a public meeting on December 10 in Ames Courtroom at which students related their experiences of racism and marginalization at the School.Footnote ¹⁶² But the bid for exam postponement and trauma counseling met with stiff off-campus rebuke. Black alumni of the School issued strong objections to the exam-postponement proposal; for instance, one posted: “Nope. No. Absolutely not. You don’t get an extension because this racism is killing you inside … A lawyer kind of has to be able to function in the face of grand jury decisions. That’s part of the job.”Footnote ¹⁶³ Mockery emerged from right-wing media and quickly spread to centrist venues.Footnote ¹⁶⁴ HLS exams took place as planned.

Stung, student activists reconsidered their strategy. They made a decisive pivot from asking the Law School to side with them against racism, to aligning racism with the School and mounting a thoroughgoing critique of their legal education.Footnote ¹⁶⁵ Early in Spring Semester 2015, Students for Inclusion sponsored a major conference, “Law School Matters: Reassessing Legal Education Post-Ferguson,” with Dean Minow appearing on a panel after the keynote address by HLS alums Gary Peller and Kimberlé Crenshaw. Professors modeled contextualized teaching of important 1L cases, and panels explored the history of racial activism at HLS and the contributions of critical race theory to the study of law.Footnote ¹⁶⁶ The road to the Demands was now under construction.

Over the remainder of the semester, Students for Inclusion and affinity groups met with Dean of Students Ellen Cosgrove several times with reform proposals, including student access to faculty meetings and disclosure of the names of faculty on Law School committees and of lists of recent faculty visitors; course evaluation questions about contextualized learning; and changes to orientation. Students for Inclusion co-sponsored teaching awards for five faculty members, most of whom were, conspicuously, visitors.Footnote ¹⁶⁷ During this time, I also remember large meetings of activist students with regular and clinical faculty who supported institutional reform, at which we discussed a broad array of possible changes such as a mandatory 1L course focused on social justice and student representation on important faculty committees. The spring and early fall of 2015 were thus the Time of Closed Meetings, hours and hours of them, in which students met with administrators, students met with faculty, faculty met with faculty, administrators met with faculty – in small and large groups, one-on-one – to seek out common understandings of the possibilities for institutional change.

Campus activism lurched back into the public eye in the middle of Fall Semester 2015. The impetus came from our LLM program, a one-year Master’s Degree program largely focused on students coming from abroad with non-US law degrees. Some of our new LLM students arrived on campus that fall fresh from the massive protests underway in South Africa against large proposed increases in higher education tuition fees at public universities, which protesters saw as a way to cement post-Apartheid racial inequality in South African society. One element of those protests was a demand that Rhodes Must Fall: that statues of Cecil J. Rhodes – a primary architect of South African Apartheid – be removed from a central plaza at the University of Cape Town and from a façade niche at Oriel College, Oxford. Another was an effort to critique and reimagine the substance of higher education that protesters framed as “decolonizing the curriculum.”Footnote ¹⁶⁸

Arriving from that heated context, several LLMs from sub-Saharan Africa explicitly announced a Royall Must Fall campaign. Their initial call to action, issued October 23, 2015, was almost entirely focused on the South African struggle. It invited “solidarity with the college students of South Africa in their brave stand against escalating fees … and against the continued economic and social oppression that black students continue to experience in South Africa.”Footnote ¹⁶⁹ It also launched the call for removal of the Royall/HLS shield, which was promptly taken up by The Harvard Crimson (aka The Crimson) as the whole point.Footnote ¹⁷⁰ On November 18, Royall Must Fall issued an open letter shifting its full attention to HLS and the issue of the shield.Footnote ¹⁷¹

To Royall Must Fall, the Royall/HLS shield was a “symbol of mass atrocities” committed in the brutal 1736 suppression of the slave uprising on Antigua. Seventy-seven slaves were burned alive, five broken on the wheel, six gibbeted, and thirty-six banished.Footnote ¹⁷² Two Royall slaves were caught up in this cataclysm of punishment: Hector, a driver, burned alive; and Quaco, banished.Footnote ¹⁷³ Royall Must Fall took care to describe, in gruesome detail, precisely what being broken on the wheel involved.Footnote ¹⁷⁴ They followed the lead of Coquillette and KimballFootnote ¹⁷⁵ in laying the responsibility for this cascade of cruel punishment at the feet of Isaac Royall, Sr. and Jr.; Coquillette has gone further, attributing it personally and directly to Isaac Royall, Jr.Footnote ¹⁷⁶

This is another instance in which making the moral case against Isaac Royall, Jr. as extreme as possible required getting slightly out ahead of the historical record. The centrist Mann Report determined, instead, that it remains unclear whether Isaac Royall, Jr., or even his father, was actively involved in the suppression process.Footnote ¹⁷⁷ The historical record is indeterminate. First, it is not even clear that there was a plot: historians disagree, with some designating the event a panic.Footnote ¹⁷⁸ There can be no doubt, however, of the ferocity of the repression. Isaac Royall, Jr. was almost certainly in Antigua at the time: he would at least have witnessed it.Footnote ¹⁷⁹ And he and his father were surely complicit, being integral to the island’s planter class. But the premier study of the slave revolt and repression does not mention either father or son in its lengthy analysis of records of trials assigning blame and punishments, and of the legislative reports compiled soon after the events.Footnote ¹⁸⁰ Many prominent planters played large roles in this terrible process, but the Royalls go unmentioned. We simply cannot know how close they were to the many, many decisions made then about interrogations, charges, convictions, and punishments.

But none of that mattered in the heat of denunciatory politics. In the activists’ October 2015 rebranding of Isaac Royall, Sr. and Jr., accurately or not, they stepped anew into a classically late-twentieth-century species of extreme wrongdoer: they became violators of human rights not so much because of slaveholding and slave-trading but because of mass atrocities.

Royall Must Fall’s second plea assumed that a new shield would be forthcoming and that it would symbolize the structural bias built into US society by its roots in the slave system:

Two distinct social-justice visions are merged here. One version is both material and distributive: removing and replacing the shield would be a dramatic act highlighting the roots of contemporary racial maldistribution in the legacy of slavery and the slave trade; redistribution rectifying material racial disparities would (somehow) follow. But the other is symbolic and dignitary: the acceptability of the shield for all these years is just like endemic racism hidden in plain sight; repudiation of the shield would signify the reverse by transferring value from the shield to disrespected persons, producing a recognition of “the equal worth and dignity” of “every member of our society.” Neither vision came with a plan for its realization. Though Royall Must Fall members stipulated that “The Royall crest is merely one aspect of [a] … broader justice project,”Footnote ¹⁸² the bottom-line call – Royall Must Fall – was for an erasure: it could be satisfied by disappearing the shield without any accompanying program of redistribution or recognition.

The next morning, November 19, the Law School exploded. Early arrivals in the main hallway of our biggest building, Wasserstein Hall and Caspersen Student Center, nicknamed WCC, reported black tape placed across the faces of some, not all, of the black faculty depicted in the “tenure” portrait gallery there (Figure 9.14).Footnote ¹⁸³ Royall Must Fall quickly issued a statement announcing that they had created an anti-racism installation in the middle of the previous night. They claimed that they had put black tape across Royall/HLS shields in WCC and mounted educational posters about Isaac Royall, Jr. Then, they implied, their black tape had been highjacked and repurposed for defacement of the black faculty portraits.Footnote ¹⁸⁴ No identification of the individuals responsible for either action has ever been made public.

Figure 9.14 Black Tape Incident.

Lark Turner.

Outrage ruled the day. When Professor Randall Kennedy, whose portrait had been among those defaced, told students that he didn’t feel indignation because he didn’t know who had done it or why – that it could even be a hoax – he provoked a second explosion from students “bristling with certainty” that the tape was a manifestation of the systemic racism of the School.Footnote ¹⁸⁵

Given the sense of crisis that the black-tape episode produced, Dean Minow held a town hall meeting that very afternoon, the first of three that were attended by hundreds of students and by scores of faculty, administrators, and staff. These were open mike meetings; I attended the first and the last of them. The dean, and sometimes faculty and top administrators were gathered on the stage and students in the audience; the open mike ensured that speakers could hold the floor for long, passionate denunciations; and the dean was chronically unable to convince activist students that she was on their side. Predictably, perhaps, these gatherings intensified rather than allayed the sense of crisis.

Students for Inclusion and Royall Must Fall were flooded with new recruits, including more middle-of-the road students activated by the turmoil.Footnote ¹⁸⁶ Students for Inclusion reformatted itself as Reclaim Harvard Law. Royall Must Fall and Reclaim Harvard Law began working behind the scenes on a major intervention targeting not only the shield but the HLS brand tout court. They merged around Thanksgiving, but kept distinct public profiles.Footnote ¹⁸⁷

By now, the University had an Office of Trademark Programs (OTP) with web-available rules requiring units of the University to obtain permission before licensing any Harvard insignia and warning third parties that the University planned to protect its name and marks to the full extent of its own policies and trademark law.Footnote ¹⁸⁸ The website announced to the world that the University had registered the Royall/HLS shield as one of its marks with the US Office of Trademarks and Patents.Footnote ¹⁸⁹ The transformation of the shield from (assumed) heraldry to decoration to logo to trademark had been completed.Footnote ¹⁹⁰

It was against this regulatory backdrop that Dean Minow acted. Between November 30, 2015 and January 22, 2016,Footnote ¹⁹¹ she assembled the Mann committee, made up of faculty, alumni, students, and staff, with the charge to “study, discuss, and make a recommendation about the law school shield.”Footnote ¹⁹² It is highly unusual at HLS for such a broad range of “stakeholders” to be included on any committee: this was about establishing a legitimate consensus on a community-wide issue. The job of the committee was to make a recommendation to the University President and Fellows – that is, the Corporation. Far from seeking to modify the permission granted in 1936 to make decorative but dignified use of the shield, the Law School was now seeking permission to change a legal trademark from its legal proprietor.

By the time the committee started to meet, a lot had happened. Much of it never made it into the press. But published as well as intercepted documents indicate the depth and breadth of the conflict going on at the School, and indeed were one of the many media in which the conflict was conducted.

On December 4, 2015, Reclaim HLS issued a list of eight Demands for institutional reform.Footnote ¹⁹³ The Demands incorporated the Royall Must Fall agenda while also operationalizing the Students for Inclusion agenda across the breadth of the student-facing Law School. They brought to fruition hard work on Law School issues that had begun in earnest after the exam postponement request had blown up in students’ faces.

Thus, Demand Number 1 called for the “remov[al of] the Royall family crest from the HLS seal.” But the new document went further by demanding the creation of a permanent monument acknowledging “the institution’s legacy of slavery,” and renaming of the Royall Chair as the Belinda Chair or allocating the Chair to a scholar in critical race theory (which I manifestly am not).Footnote ¹⁹⁴ This agenda far exceeds the mere disappearance of the Royall/HLS shield. It would have cost money and institutional effort, possibly required legal action (to deviate from the terms of a bequest), and modestly but substantively changed the educational and research profile of the School.

Other Demands sought (inter alia) the establishment of a Critical Race Program, with a tenured faculty member hired in a process featuring student input; equal status of clinical faculty with classroom faculty, including tenure; a mandatory 1L course “contextualizing racial justice and inequality”; new student evaluations allowing students to assess faculty on whether they contextualized legal materials; establishment of an Office of Diversity and Inclusion outside of and coequal with the Dean of Students Office; improved financial aid for students of color and other marginalized student populations; and increased effort to enable students to begin careers outside the big firms.

The Demands were a detailed blueprint for reform. Sub-demands included, for instance, a timetable for hiring critical race theory specialists; mandatory cultural competency training for all faculty; student, clinician, and staff membership on all faculty committees; and full tuition forgiveness for any student committing to a “civic-minded career.”

Taken together, the Demands sought a major reorientation of institutional energy, funds, and ways of doing business. Faculty and administrators privately exclaimed over the lack of insider knowledge about “how things really work” that the Demands betrayed, but – to me – they read as a very thoughtful list of sites for concrete institutional self-examination and reform. If students articulated the need for this much change, I thought, surely we would engage with them and examine our practices across the board.

Roughly simultaneous with the rollout of the Demands and in an act of graphic genius, activists adopted a counter-mark. They redesigned the Royall/HLS shield, now with three silhouetted black bodies bent under the heavy load of the wheat sheaves. It began to appear everywhere. In the context of the Demands, which it soon adorned, it was not about the taint of the shield but about the taint of the School. My own view is that this single act doomed the Royall/HLS shield. But it was an equivocal victory. Students were aware that the shield issue could be bait for the administration, absolving it of the onus levied by the full suite of Demands, but there was no going back.Footnote ¹⁹⁵

Reclaim HLS gave Dean Minow forty-eight hours to respond to its Demands, a move that personalized its address to her. When a group of Reclaimers showed up at her office on Monday, December 7 (a year to the day after the publication of the affinity group open letter), they were told she was traveling. In an email to the community, the dean declined to respond on the students’ terms: “Some students and staff presented a list of demands. We are, however, a community of many voices and hopes, and we have an obligation to provide and protect the opportunity for all to participate, speak and be heard.”Footnote ¹⁹⁶ Though the dean’s door remained open to Reclaim HLS and Royall Must Fall, it was closed to the Demands.

Briefly, controversy gripped the School. Reclaim members met with three faculty members on December 5, the day after the Demands went public. One or two of the faculty supported a proposal for a major curricular effort, involving faculty and students over months in the development of a reform project for “the real world,” perhaps focusing on mass incarceration or policing. Reclaimers pushed back, insisting that faculty solidarize with the Demands.Footnote ¹⁹⁷ Students received death threats and were doxed in blog posts; they consulted with HLS administrators and at least considered seeking the aid of the FBI and Harvard University Police Department (HUPD), all in an effort to protect members’ safety and to discover “who is behind the blogs.”Footnote ¹⁹⁸ On December 10, thirty-seven HLS students – twenty-three of them signing anonymously – criticized the Demands for attempting to infuse the curriculum with left ideology and to suppress not only academic freedom but also ideological diversity (code for conservative voices). In the open letter’s comment section, its anonymous manager disclosed that a student had tried to sign it as “U.R. Acist.”Footnote ¹⁹⁹ The next day, thirty-three left-leaning regular faculty, clinical faculty, and staff (myself included) published an open letter joining in the call for reform at the School.Footnote ²⁰⁰ Dean Minow met repeatedly with students.Footnote ²⁰¹ With thirteen other faculty members, I attended a December 14 meeting with student activists about strategies for securing reforms called for in the Demands. I have intercepted two sets of notes with fairly complete transcripts of this meeting.Footnote ²⁰² I am struck by my optimism: I really thought that we would work together to get resolutions onto the agenda for faculty meetings. In retrospect, I look so naïve.

These open letters and meetings punctuated exam period. Soon, winter break depopulated the School, and January Term reconvened the teaching program but in highly fragmented ways. Activism had lost its theatre.

On February 15, 2016, Reclaim opened an entirely new front in its campaign. It staged an “occupation” of the large lounge at the center of WCC, which it renamed Belinda Hall.Footnote ²⁰³ At first an overnight event complete with drawn curtains and sleeping bags, the occupation evolved into a rich program of “justice school” teach-ins and meetings clustered in the center of the room and sometimes so well attended as to be standing room only. Posters lined the walls; meals were shared there; Reclaim held an alternative graduation in the space. The group got outsize exposure for its programming because that lounge is a passageway between two of the School’s most heavily used buildings. For Reclaim, the occupation constituted an alternative law school within the School.Footnote ²⁰⁴

The occupation brought into play the possibility of student discipline before the Administrative Board. A rule limiting posters to bulletin boards was openly flouted without consequence. Top administrators disagreed about whether the occupation avoided a rule against interfering with Law School programs and facilities, which has often led to protesters being disciplined. No one’s access to or egress from Belinda was blocked, though the central area of the hall was in fact full of Reclaimers and their events. The space was effectively cancelled as a lounge. But the occupation was tacitly permitted, while complaints about it flooded into administrators’ offices and students who found it inhospitable took alternate routes through campus.Footnote ²⁰⁵

Intercepted emails show that, in the days immediately before the occupation, Dean Minow and leadership of both Reclaim HLS and Royall Must Fall had been meeting to produce a slate of reforms, but that the administrators and students were very far apart on what it should look like.Footnote ²⁰⁶ After launching the occupation, Reclaim seems to have abandoned this strategy, shifting to a sustained volley of criticisms of Dean Minow and her every move. The capstone event in this campaign took place on February 26 at Brandeis University, where, through spokesperson Brandeis Professor Anita Hill, the University honored Minow for her lifelong dedication to social-justice work. Her talk, “Bystanders, Upstanders, and Justice,” discouraged bystanding and urged upstanding. Several Reclaim members, in collaboration with a Brandeis student group, upstood – by entering the lecture hall with signs denouncing Minow. They chanted during her remarks and remonstrated her during Q&A. So impoverished were Minow’s and Hill’s toolkits for defending the institutional legitimacy within which they envisioned effective upstanding that they both felt compelled to praise and thank the demonstrators.Footnote ²⁰⁷

Through its spokesperson, Reclaim took responsibility for this action.Footnote ²⁰⁸ For what it’s worth, the incident crashed my own confidence both in the group and in the Law School’s response to it. The School had backed itself into a corner hiding behind the dean, leaving Minow alone out there to face the activists. And she was nonplussed that the protesters – whose Demands she had categorically refused to consider – scorned her vast trove of social-change knowledge. She seemed incredulous that she was being framed as part of the problem, not part of the solution. Meanwhile, Reclaim’s personal focus on her, initiated with the forty-eight-hour ultimatum, was crystalized in the last student comment thrown at her at the Brandeis event: “You are constantly condescending, like you know what’s best for us.”Footnote ²⁰⁹ To me, the optics recalled not progressive wisdom, political opposition, or tough resistance, but rather the confrontation between a baffled, frustrated parent and her angry teenager.

I was not alone in my sense that alliances were being tested to and beyond the breaking point. During the week of the Brandeis protest, the Harvard Law Record conducted an (admittedly unscientific) poll to determine the level of support among students for the various Demands. Students could vote and post comments online; only students could participate, only once, and only anonymously. The Record published all the comments posted to the poll. This substantial, if random, archive of contemporary statements confirms my sense that, by the time of the Brandeis demonstration, many students who had been in solidarity with social-justice activists after the black-tape incident were stepping away and even turning against.Footnote ²¹⁰

Centrifugal forces surged dramatically on March 28, the first Monday after Spring Break. A student who had long criticized Reclaim, and who had co-sponsored the conservative-student open letter, mounted posters in Belinda that equated Reclaim HLS with Donald Trump, then a candidate for the Republican presidential nomination. Reclaimers promptly took them down, and proceeded to adopt a formal policy of removing further posters.Footnote ²¹¹ Calling Belinda “its own space,” Reclaim declared that the occupation was an Office of Diversity and Inclusion and that, as such, it was entitled to “retain control over its own decorating policy to maintain a space that reflects its values.”Footnote ²¹² For the rest of the week, initially carefully crafted limits on the physical scope of the occupation gave way. Reclaim now claimed ownership of Belinda. Meanwhile conservative students appeared in Belinda many times a day, their leader posting dozens of posters mocking Reclaim – which were promptly taken down by Reclaimers.

Yet another sudden reversal: Reclaim was now the stodgy establishment pestered by its own ludic protester. As Admitted Students Weekend loomed, tensions between them escalated – so much so that faculty and administrators alike were concerned that some students in Belinda Hall were on the verge of physically assaulting other students. The conservative students’ posters were defaced; both sides accused each other of videotaping the action in violation of a Law School rule requiring advance consent. By Friday, administrators cracked down. They announced a new speech policy for the WCC lounge, requiring equal space for opposing posters and reminding students that poster removals, threats, and violence were violations of the student conduct code. They made a filmed record of activities for enforcement purposes; announced that “Matters are being referred to the Administrative Board as appropriate”; and prepared for arrests by asking HUPD to install plainclothes officers, which it did.Footnote ²¹³

After Postergate, Reclaim rapidly unraveled as a coherent organization. Confusing events abounded. Reclaim reported discovering recording devices under tables in Belinda and a classroom, but declined to cooperate with School and law enforcement investigators.Footnote ²¹⁴ The public never learned who had put them there, how long they had been there, or what had happened to the tapes. Open letters quibbling with Dean Minow’s smallest announcements and silences proliferated, with student affinity groups signing on en masse. Near the end of the semester, at speaker events, a Palestinian student affiliated with Reclaim but acting on his own called a Palestinian guest speaker, and a week later Tzipi Livni, former foreign minister of Israel, “smelly.” The latter intervention was met with an intense wave of grief and rage over the anti-Semitism attributed to it. The student apologized; Reclaim-affiliated students posted angsted-out statements to Socratic Shortcomings; some faculty demanded discipline despite the fact that the student had not broken any rule; and the Dean denounced the second “smelly” comment faute de mieux.Footnote ²¹⁵

Reclaim’s last demand was a pale survivor of its initially robust policymaking élan: transplanting the South African students’ demand that “#FeesMustFall” to an elite private law school, Reclaim now demanded that all students admitted to HLS should attend tuition free.Footnote ²¹⁶ But a free-tuition proposal in a public university setting transplants very awkwardly into the HLS context. HLS financial aid is entirely need-based; when a student and/or his or her immediate family have adequate resources to finance a very expensive year of attendance and attributed living expenses, that student not only receives no support but also pays tuition, which in turn goes into the pool of funds available for the School’s activities, including its financial aid program. Within its many constraints, including the debt it imposes on many students who do qualify for financial aid, it is a progressive redistributive policy. The Reclaim proposal could not be implemented without a massive redistribution of financial aid funds from the School to the adult children of rich and well-to-do families. It made no sense from any imaginable left perspective. As a politically coherent voice, Reclaim went out not with a bang but a whimper.

The Royall Must Fall process was something else entirely. Chairman Mann’s committee set up a website open to submissions from all members of the Law School community; held open meetings in which members of the community sat in ten-person circles for public reflection on the issue (no open mikes here!);Footnote ²¹⁷ spoke, through committee members, with scores of constituents; met a few times; and, on March 3, issued its report. The dean promptly referred the report to the President and Fellows of Harvard College, moving the entire issue out of the Law School.Footnote ²¹⁸ The Corporation was quick to accept the Committee’s recommendation,Footnote ²¹⁹ and within days about 200 shields all around the School began to come down.Footnote ²²⁰

During the quiescent period of the Belinda occupation, weeks before Postergate, the Law School had cleaned its hands of the shield. Call it cooptation, call it rational deliberation: this process was calm, official, and formal; the committee was appointed by the dean and reported directly to the highest authorities in the University; and it got what it asked for: the removal of the Royall/HLS shield.

The contrast between the two outcomes calls for comparative retrospection. But how to assess something as complex as Reclaim? You could say it was a failure because HLS officialdom never responded to its Demands. To be sure, Reclaim collaborated with Royall Must Fall in seeking removal of the shield and it is gone; and Reclaim demanded a monument to the School’s legacy in human bondage, which did happen (Figure 9.15). But neither of those outcomes can be attributed to the Demands. The shield was disappeared in response to Royall Must Fall while institutional uptake of the Demands was explicitly refused; and the monument was unveiled in September 2017 by incoming dean John Manning as the kickoff event of the School’s Bicentennial, entirely independently of the Demands.

Figure 9.15 Drew Faust and Annette Gordon-Reed unveiling the monument in the Crossroads.

Rose Lincoln/Harvard University.

More specifically, I continue to occupy the Royall Chair; the Chair has not been renamed; and the richly endowed center for the study of racial injustice has yet to appear. For the record, my position has consistently been that I will resign the Chair if a large constituency believes it has a better use for it that actively memorializes the Law School’s slavery legacy and that has a reasonable chance of being put in place; and of course the dean can take it away from me at any time.

Overall, I think it’s fair to say that not one single Demand was formally acknowledged or officially incorporated while the Demands were on the table.

Instead, in August 2016, Dean Minow appointed a Task Force on Academic Community and Student Engagement and charged it with identifying ways to promote “vigorous inquiry and debate” in a community that “embraces people of all races, sexes, identities, national origins, social and economic backgrounds, religions and political perspectives.”Footnote ²²¹ Professor Bruce Mann chaired the Task Force, and it had faculty and student members (no staff, no alumni). The Report reads to me as a translation of the Demands into institutionally tolerable language. In a not-very-veiled rejection of the zeitgeist of the Brandeis demonstration and of the post-Spring-Break occupation, the Report concluded that “Differing views and identities must be respected and engaged, not dismissed or stereotyped” and that “it is incumbent on everyone to recognize that learning how to express and navigate differences of opinion on fundamental and difficult issues is an essential part of legal education.”Footnote ²²² The goal is to promote not diversity and inclusion alone, but “diversity, inclusion, respect, and belonging[.]”Footnote ²²³ The report recommended many changes for faculty, administrators, and students: for instance, in lieu of a required course in contextualized learning, the Task Force recommended that faculty be provided with resources to enhance their teaching on issues of “social, racial, and economic justice,” and in lieu of a special professorship in critical race theory, the Report concluded that ongoing efforts to diversify the faculty “must continue.”Footnote ²²⁴ The four students on the Task Force – joined by its only clinical professor – issued an “Addendum” (not a “Dissent”) that denounced the group’s investigation into student opinion as “utterly meaningless” and its recommendations as “worthwhile tweaks.”Footnote ²²⁵ The Report and its Addendum were published on June 29, 2017, the penultimate day of Minow’s deanship, suggesting that it was DOA, but in my own experience the spirit of the Task Force has very much animated the deanship of John Manning.

And so Reclaim HLS was highly productive, for good or ill depending on your politics. The movement matured many young activists and deepened their alliances and antagonisms in ways that will endow their careers; shocked many with the learning they underwent in all that turmoil; encouraged many teachers and administrators to deepen their consciousness about the unequal reception of our legal education on many dimensions of disadvantage and to alter syllabi, pedagogy, and programming. Many faculty strove hard to contextualize more in their teaching, both individually and in curricular and extracurricular programming. Administrators installed dozens of reforms, selected for their pragmatism in addressing ascertained student needs and for their non-resemblance to the Demands.Footnote ²²⁶

But Reclaim also broadened a rising stridency among students, especially on the left, that their ideology must be manifest in their teachers’ pedagogy; and confirmed in many hearts the precise opposite views to those that Reclaim espoused. My own journey with Reclaim, begun in admiration and hope, ended in melancholy and disenchantment in the post-Spring-Break unraveling of the organization. I am certain that the long-term activist genius of our students has by now recovered from that low point, and that they have done great things in the George Floyd renewal of Black Lives Matter energy, but I am sobered. Having come of age in an era when left protest devolved to bombings by underground radicalsFootnote ²²⁷ and the Woodstock Festival flickered out in the dark shadow of the Rolling Stones’ deadly Altamont concert,Footnote ²²⁸ I am disenchanted once again.

From its own perspective, I think, members of Reclaim would say that it had lost; but that it had won some important shifts in consciousness and practice even while losing. I am sure that – given the right conditions – their successors will try for institutional reform again.

Assessing the outcomes of Royall Must Fall is a simpler task. Here’s my take: in the scrum between the activists and the dean, Royall Must Fall attained its specific goal at the expense of its broader one.

The Royall Must Fall bottom line was a demand for a disappearance. And that’s what the Mann Report recommended. But two members of the Mann Committee – Professor Annette Gordon-Reed and one student – expressed their disagreement with that recommendation. In “A Different View” – again, nominally not a dissent – they argued that the Royall/HLS shield should be retained precisely because it was a constant reminder of the School’s slavery legacy.Footnote ²²⁹ Without the Royall/HLS shield, they argued, everyone at HLS was in constant danger of washing their hands of Isaac Royall, Jr. and his stigma, and moving to an unwarranted complacency about the moral status of our vast enterprise.

I worry that precisely this is happening. For many members of the HLS community, removing the shield was good because it would cleanse the institution of a terrible, revolting, and undeserved taint. One reason Royall Must Fall’s demand for disappearance succeeded on its own terms is that it managed to align three powerful sets of interests: that of protesters calling for removal or for removal-plus; that of many who loved HLS and wanted to affirm its basic goodness; and that of the custodians of the institutional brand, who of course did not want a logo dripping in blood. Seen as a trademark, the shield had become a liability to the Law School imagined as a brand: it could go. Again, whether you call that a success or a failure depends on your politics. I now regret my vote to eliminate the shield: in retrospect, it appears to me as the easy way out.

Conclusion

This chapter has been a story of three brands – that of a man and his family, that of an institution, and that of a social movement – through which people with ever-new and ever-surprising motives battled with and against each other for one of the richest resources of all: meaning. When Isaac Royall, Jr. sealed his will with a wax impression of his stolen heraldic mark – when Belinda and her allies in the free black community attempted to leverage the reputational downfall of Isaac Royall, Jr. in an anti-slavery campaign addressed to the white revolutionary elite – when Harvard turned to ersatz heraldry to make itself look like Oxford and Cambridge Universities – when the University converted a heraldic mark into a trademark and licensed it for sale on T-shirts and baseball caps – when Erwin Griswold and later Reclaim deployed the Royall/HLS shield to anoint and tarnish the Law School – they were involved in very serious symbolic play.

The Corporation made promises on HLS’s behalf when it acceded to the recommendation that the Royall/HLS shield be retired. It announced that, in permitting the disappearance of the shield, “we do so on the understanding that the School will actively explore other steps to recognize rather than to suppress the realities of its history, mindful of our shared obligation to honor the past not by seeking to erase it, but rather by bringing it to light and learning from it.”Footnote ²³⁰ But – with the exception of the plaque in the plaza outside WCC, and tours for members of the HLS community of the Royall House and Slave Quarters that I, the Alumni Office, and the Graduate Program organize, and that I chaperone whenever I can – after the spring of 2016, the Law School largely fell away from the Isaac Royall slavery taint in a state of moral exhaustion. In retrospect, the Corporation’s promise on the Law School’s behalf reads like a branding exercise, not an institutional commitment.

Whither the Royall slavery taint now? I cannot predict. While I wrote much of this chapter, during the terrible spring of 2020, we were in the midst of an immense national revival of Black Lives Matter that is sure to matter for the School, whether through protest or reform or both; through denunciation or engagement or both. After the pandemic, I will continue to do what I can with the Royall Chair, primarily by continuing in a modest way to make the Royall House and Slave Quarters tour a part of student, faculty, alumni, and staff life at HLS, and teaching and writing about Isaac Royall, Jr., as in the present chapter. The School may eventually find a better person for the Chair, but I don’t currently have plans to resign it.

And this even though I discovered in January 2020 that the University still has a budget line, with $317,502 in assets as of January 2019, with Isaac Royall’s name on it. It kicks off about $14,000 a year, which is used to defray my salary: a state of affairs that makes me queasy. As Kimball and Coquillette show in the second volume of their history of HLS, throughout the nineteenth century the University appropriated most of the income and all of the appreciation of the Weld Chair into general funds, limiting the Law School to a small, capped allowance that fell far short of a professor’s salary.Footnote ²³¹ Doubtless it did the same with the much smaller Royall bequest. That would help explain why there is so little money in the account after more than two centuries’ time for appreciation. It also means that the Royall taint is so thoroughly sprayed all over the University that it feels fetishistic and a little hysterical to claim that my Chair is dirtier than any other part of the institution. It even feels fictional to assert that that budget line “has Isaac Royall, Jr.’s money in it”: that sum is an artifact of accounting, not a real link to the man and his evil way of making money. And who can warrant that Royall is the University’s or the Law School’s only or most morally dubious donor? Even this new discomfiting fact about my Chair is a branding problem: my choice is to make it known but to discourage efforts to make it a focal point of moral outrage when there is so much social suffering, right now, that so much more urgently calls for our engagement.

Looking back over this chapter’s longue durée, vicissitude is the norm. Isaac Royall, Jr., his shield, and his Chair have had many meanings – often precisely the opposite of the ones they had had just moments before. Why are they so subject to secular revision? I think it’s because he had a pretty ambiguous life, left a scant record, and was and remains sufficiently unimportant to be – relative to figures like Thomas Jefferson and George Washington, both slaveholders and both politically complex actors – reputational small change. The few things that can be known about him are like rocks on a beach: their GPS coordinates can stay precisely the same while waves of new political and moral consciousness transform the landscape around them, again and again. But, mutatis mutandis, the same can be said of Harvard Law School, its social-justice student movements, and even myself in my life as a brand. Our own moral certainties are historical artifacts: we labor over them, too often forgetting that they are contingent.

Postscript

On April 26, 2022, Harvard University issued the massive Report of the Presidential Committee on Harvard University and the Legacy of Slavery detailing the institution’s centuries-long involvement in slavery and subsequent racist regimes. In response, Dean John Manning of Harvard Law School announced that the School was renaming a central space of the School the Belinda Sutton Quadrangle and setting up a committee to commission an art installation memorializing its namesake; and inaugurating a Belinda Sutton conference and lecture series housed in Charles Hamilton Houston Institute for Race and Justice, then headed by HLS Professor Guy-Uriel Charles. In anticipation of these changes, which I regard as robust institutional ownership of the moral issues implicated in the Royall bequest and highly likely to ensure that the legacies of slavery at HLS will not be forgotten, I resigned the Royall Chair. Dean Manning announced that it would never be occupied again. Still, I intend to continue to conduct research into and teach about HLS’s slavery legacies, and to take community tours out to the Royall House and Slave Quarters.

In the course of co-editing this volume on “Academic Brands,” the world suffered a once-in-a-century pandemic, the Black Lives Matter movement forced a national reckoning with racial injustice, and my oldest child applied to college. Our family dallied with US schools from coast to coast, public and private, rural and urban, research universities and liberal arts colleges. Each tour (or Zoom information session)Footnote ¹ coyly revealed elements of a school’s brand – its assemblages of identity and values on display for purchase, for the mere price of a Tesla every year for four years. Some schools give thanks to the Native Americans on whose land the campus sits. Brochures and social media showcase multiethnic student bodies. One school boasts scholar athletes; another flaunts quirky geniuses unicycling through campus. Elite universities that admit 5 percent of applicants tout their generous financial aid. University Instagram filters reveal much more than who is socially distancing responsibly. University brands riff off other brands. Every school proclaims itself Hogwarts.

Brands are the lingua francaFootnote ² through which individuals, celebrities, politicians, cities, and more distinguish themselves in a brand new world.Footnote ³ Universities are no exception. Indeed, university brands are among the world’s most recognizable and valuable brands, as Haochen Sun argues in his contribution to this volume.Footnote ⁴ Harvard rivals Hermès in prestige and exclusivity – and is certainly more elusive than the purchase of a tie or scarf.Footnote ⁵ This volume is the first to interrogate university brands as a distinct and influential form of branding. The chapters herein explore the brand as media and mediator, the filter through which the modern university perceives, represents, and ultimately remakes itself.Footnote ⁶ How does the brand as a vehicle of self-fashioning transform the university? Furthermore, how do university brands reveal the peculiar nature of the brand itself?

But first – what is a brand? As a professor of trademark law, I have argued that brands transcend that narrow legal category. Where trademarks provide information – signaling the source of a product or service – brands commodify meaning. “[T]he brand is a social currency, a way in which people bring meaning to various exchanges,” Celia Lury wrote in her foundational book, Brands: The Logos of the Global Economy (2004).Footnote ⁷ Another influential early investigation of brands, Adam Arvidsson’s Brands: Meaning and Value in Media Culture (2006), describes them as the “fusion” of “aesthetics and economics.”Footnote ⁸ Brands commodify the communicative sphere of human life – the lifeworlds in which we play, experience, love, learn, and feel. Brands “become valuable through their ability to manage and program human communication and appropriate the ethical surplus – the commons – that it produces as a source of value.”Footnote ⁹ Brand value derives from the sacred rituals, mythologies, stories, and emotions of life itself.Footnote ¹⁰ Brands translate aesthetic feelings – joy, belonging, pride – into tradeable market commodities, bringing meaning into markets, yet also distorting the sacred acts of life itself.

The university as a site of enormous brand value should not be surprising. The more transformative the life experience, the more valuable the commodity.Footnote ¹¹ The university “experience” far surpasses the four years typically required for a degree. University brands mediate identity from cradle to grave: from onesies for newborns that feature a parent’s alma mater to university-branded caskets.Footnote ¹² Indeed, university brands represent the complete colonization of life. Today the brand goes far beyond a school name, coat of arms, logo, colors, or a mascot. The university brand seeks to capture and commodify as completely as possible the aesthetic value in belonging and participating in an academic community and its storied past. For all life’s pleasures, big and small – from intellectual transformation to social and emotional awakening, from sports games to all variety of university-branded kitsch – trademark laws are increasingly stretched and deployed to profit off the endorphins associated with memory and membership. The crux of trademark doctrines, from initial interest and post-sale confusion to sponsorship and endorsement confusion, is to keep all of the surplus value of a brand – its aesthetic meaning – for the profit of the brand holder alone. The aesthetic move in property seeks to capitalize on all thought and pleasure associated with one’s alma mater.

In the experience economy mediated by brands, the commodification of human experience becomes, in turn, the new medium in which life itself is created and enacted. Life is mediatized, to use the word of cultural studies. Brands are a vehicle through which individuals create and perform the lifeworld. As Arvidsson puts it, “With a particular brand I can act, feel and be in a particular way.”Footnote ¹³ The aesthetic university is a stage on which transformative life experiences are enacted, recast, and traded. One becomes a Harvard woman or man not by merely studying at Harvard, but by performing the brand and reshaping it from the inside. This is the sense in which the social theorist Bruno Latour describes human beings as “hybrids” of the techno-cultural worlds in which we live; as individuals we are formed by our media while simultaneously developing our agency through them. Students and faculty over generations re-enact the meaning of the university brand, from debates about tuition, debt, and access, to the institution’s historic entanglements with slavery and white supremacy. Praise or critique takes place through celebrating or shaming not the university, but its brand meaning. This endeavor is prominently on display in the current moment of racial reckoning as universities rename buildings, tear down statues, and revisit curricula for their role in perpetuating systemic racism.

To be sure, the commodification of the aesthetic university raises a number of concerns. The university experience is considered a central part of a good life, but whose life? In the United States today, most people cannot afford the experience of a four-year college. Students coming from high-income families are six times more likely to complete a college degree than those from low-income families.Footnote ¹⁴ Access to elite colleges is even more skewed. Two-thirds of students at Harvard come from the top one-fifth of income earners. Furthermore, long-standing requirements for admission to elite schools, including high standardized test scores, themselves correspond with income.Footnote ¹⁵ In his book The Tyranny of Merit: What’s Become of the Common Good, the philosopher Michael Sandel argues that while we have been touting “education, education, education” as the mantra of opportunity, in truth, a lack of access to higher education has led to stalled economic mobility and generations of Americans who have bought into the myth of merit at the expense of their own self-esteem and dignity.Footnote ¹⁶ To make matters worse, universities are becoming luxury goods, with institutional rankings corresponding with the most exclusive admissions policies.Footnote ¹⁷ Deven Desai in this volume proffers that branding may be a tool to help institutions distinguish themselves in the global flow – with public institutions emphasizing their role as engines of social and economic mobility, for example.Footnote ¹⁸ My co-editor Mario Biagioli disagrees, arguing that branding measured by metrics – which emphasize student test scores first and foremost – forces schools into a cookie-cutter mold.Footnote ¹⁹ There is some movement on this front. In May 2020, the influential public university system of California announced it would phase out standardized test scores, with the aim of ushering in a more diverse student body.Footnote ²⁰ And calls to forgive college debt are gaining steam.Footnote ²¹ At present, though, academic brands in the United States, at least, function more like exclusive luxury goods and services, fueling at best, ambition, at worst, greed, corruption,Footnote ²² and widening social disparities.Footnote ²³

In the meantime, the global lockdown due to COVID-19 left many paying full price for “the college experience” only to get a mere nugget of it – that is, academics – online. How does this pandemic-mediated experience compare to the ongoing expansion of universities into online and global campuses, which Paul Berman explores in this volume?Footnote ²⁴ In the latter, the co-ed experience is left behind altogether in favor of the “auratic” experience of the university’s brand alone. Universities exploit association with the “aura” of the university in numerous ways – from seemingly endless tuition and fee hikesFootnote ²⁵ to the low salaries paid to adjunct faculty, who receive value through affiliation with the university.Footnote ²⁶

Others perceive university brands as an oxymoron. For Mark Bartholomew, the university is synonymous with truth, rationality, and the production of knowledge.Footnote ²⁷ Brands, in contrast, are about emotion and feelings. Worse still, like the “black art” of advertising,Footnote ²⁸ university brands obscure truth with the Veritas shield. The brand as filter creates an alternate reality, or alternate facts. A study of university catalogs, for example, found that students of color were overrepresented in images.Footnote ²⁹ As the legal scholar Nancy Leong describes:

A black student at the University of Wisconsin, Diallo Shabazz, successfully sued his school in 2000 for photoshopping him into a picture of students at a football game. The University admitted to including Shabazz in the photograph because of his race.Footnote ³¹ While universities may argue these images are aspirational, reflecting values and commitments, a more cynical view is that the university cares more about image than truth.

Joshua Hunt’s contribution to the volume bemoans that in some cases the university has become all marketing. He writes that by 2018 at the University of Oregon, Nike’s sponsorship of the university eventually meant that communications, public relations, and marketing staff “numbered more than the combined faculty of the school’s departments of history, economics, and philosophy.”Footnote ³² Sponsorship raises the question of whose identity university brands are promoting. How is the university’s mission of promoting access to knowledge and the pursuit of truth compromised by its dalliance with corporate sponsors and the commodification of athletics? Hunt’s contribution suggests the interests of women students may be compromised to protect the reputation of lucrative male sports teams.Footnote ³³ How do universities recruit women students when their successful sports teams inadvertently create a macho, exclusive brand? Obsession with brand control may unduly override the plural commitments of a university – in particular, to the flourishing of a diverse student body. Hunt argues that the University of Oregon’s ability to respond to sexual assault and other grievous charges against student athletes was compromised by Nike’s sponsorship of student athletes. The critique of branding as myth-creation and fiction-over-fact has a parallel in critiques of identity politics. As the premier philosopher Kwame Anthony Appiah writes, identities are “lies that bind.”Footnote ³⁴ University brands fuse identity and branding, a potentially corrosive concoction that hoodwinks.

At the core, the essays in this volume interrogate how the medium is altering the message of what the university is and aspires to be. Jeremy Sheff argues that university brands are akin to geographical indications, with fans seeking to benefit the home team – what Sheff likens to “boosterism.” He, too, like Hunt, is concerned that this gives donors outsized control over the university’s mission.Footnote ³⁵ Indeed, what is the university’s mission in the age of brand marketing? The essays herein explore how tensions arising from privatization and escalating tuition costs, enormous endowments and low spending rates, #MeToo, athletics scandals, controversial Title IX and sexual assault policies and compliance, and the myth of meritocracy and social mobility create cognitive dissonance and ethical tensions for Brand U. “We can’t compartmentalize academic branding and assume it will have little effect on the university’s public mission,” Mark Bartholomew argues.Footnote ³⁶ And Haochen Sun suggests that universities should affirmatively counteract the effects of branding, for example by investing luxury-price-tag tuition dollars into scholarships to promote access for diverse students and to support public-facing research.Footnote ³⁷ We must also contend with the “taint” on the university when ignominious donors, from Isaac Royall, Jr. in the eighteenth centuryFootnote ³⁸ to Jeffrey Epstein in the twenty-first, seek to rebrand themselves by basking in a university’s aura.Footnote ³⁹

Finally, this volume explores what branding collegiate experience reveals about the nature of the brand itself. How distinctive or generic are university brands? Do academic brands display traits and functions that differ significantly from other corporate brands? Are universities like other corporate “brand bullies,”Footnote ⁴⁰ or even worse? Are students, scholars, and alumni co-creators of the university brand, and if so, how might this be different from the relationship between consumers and producers outside the university? This collection of essays is intended as an important start in addressing these questions, but is by no means the final say. These contributions do, however, reveal three qualities that university brands most exemplify, though to some extent they are shared by other brands as well: kinship, exclusivity, and sites of reckoning. I briefly consider these here, while also suggesting them as potential areas of future research for trademark and brand scholars on the commingling of markets and meaning in the artifact of the brand. Scholars have yet to fully grapple with the commodification of aesthetic experience, including that of life’s most transformative experience: education. Are university brands a contagion or a recursive tool for promoting engagement with all of one’s senses with the university? How do we reconcile the cognitive dissonance of brands themselves? Is a world without brands dull and less human? Can brands be democratic? Is brand recursion an inevitable feedback loop in the social construction of the world? These are some of the questions future scholars may wish to explore, with a focus on better understanding the following three features of university brands that emerge in this volume.

Kinship. University brands more than brands for other goods and services derive value from social relations, memory, and belonging over the life cycle. Arvidsson writes that:

Brands are all in the family. To be sure, the underbelly of belonging is exclusion, social hierarchy, homogenization, and erasure of individuality.Footnote ⁴² At the same time, brands are a site of dynamic “aesthetic production”Footnote ⁴³ creating a feedback loop between producers and consumers who are continually updating brand meaning with new information and values. Arvidsson explains that “What consumers pay for is access to the communicative potential of the brand, the possibility of inserting the brand in their own assemblage of compatible qualities.”Footnote ⁴⁴ In Chapter 2 of this volume, Celia Lury highlights the next turn in university brands, that is, the emergence of what might be seen as a contradiction in terms – a personalized generic brand: MyUniversity. As Lury demonstrates, university brands offer a complex vehicle for self and group definition. Now the ultimate goal is a university that helps you brand yourself.

Exclusivity. Despite increased attention to the high costs of higher education – public and privateFootnote ⁴⁵ – and crippling student debt,Footnote ⁴⁶ university brands paradoxically grow in value by virtue of their exclusivity. In his contribution to this volume, Haochen Sun notes that the world’s most selective universities, which accept just 4–5 percent of applicants, have many of the qualities of luxury goods.Footnote ⁴⁷ Like Louis Vuitton bags and Rolex watches, the price tag of admission is, in the broadest terms, elusive. But Veblen goods in scarves and handbags are one thing; higher education is another matter. What does it mean for universities, the engines of social and economic mobility, to have become largely the sanctum of the rich and well-educated? While interdisciplinary study of luxury goods has begun,Footnote ⁴⁸ we need more work specifically focused on the university as a luxury and “hyper luxury”Footnote ⁴⁹ good.

Sites of reckoning. More recently, university brands have revealed themselves as sites of historical reckoning. Yale’s Calhoun College, originally named after John Calhoun, a prominent nineteenth-century alumnus and outspoken white supremacist and proponent of slavery, has been renamed after Grace Murray Hopper, a woman alumna, mathematician, computer scientist, and Navy rear admiral.Footnote ⁵⁰ Following the death of George Floyd at the hands of Minneapolis police in May 2020, Princeton renamed its public policy school and one of its residence halls, both of which long adorned Woodrow Wilson’s name.Footnote ⁵¹ Wilson, who served as Princeton’s president beginning in 1902,Footnote ⁵² was known to have been a proponent of segregationist policies. He was believed to have supported the ideology of the Ku Klux Klan,Footnote ⁵³ and discouraged enrollment of African American students during his tenure as president.Footnote ⁵⁴ At the University of Oregon, two statues known as the pioneers were toppled by a group of demonstrators amidst ongoing protests for racial justice.Footnote ⁵⁵ The statues, which symbolized white supremacy against Native Americans, were an ongoing source of controversy.Footnote ⁵⁶ The Rhodes Scholarship – one of the world’s most competitive academic scholarships, enabling postgraduates to study at the University of Oxford – has also been under fire to rebrand.Footnote ⁵⁷ It is named after Cecil Rhodes, a British imperialist who annexed large areas of land in southern Africa and started the De Beers diamond company.Footnote ⁵⁸ In a movement called “Rhodes Must Fall,”Footnote ⁵⁹ those calling for the university to rename the scholarship and take down a statue of Rhodes cite his imperialist beliefs and oppression of southern Africans, which they argue paved the way for Apartheid.Footnote ⁶⁰ To date, the University of Oxford has indicated that the statue would be better served in a museum but has not made an indication that the name of the scholarship would be changed.Footnote ⁶¹ In 2018, there was a call for the scholarship to be renamed the Mandela Scholarship.Footnote ⁶²

Martha S. Jones led a research team that discovered that the namesake of Johns Hopkins was not, as lore had it, an abolitionist, but rather, had enslaved four individuals who tended to his comforts in his home and were used as collateral for loans. Jones shared that her discovery elicited shame, which directly affected her willingness to wear the university’s logo with pride:

My own university, Georgetown, has grappled with the fact that early Jesuit leaders financed the University’s operations from enslaved labor and later the sale of 272 enslaved people, including men, women, and children.Footnote ⁶⁴ This Roman Catholic order, formally, the Society of Jesus, has pledged $100 million to descendants of the enslaved people and to finance racial justice initiatives, the most significant reparations to date by an American university, and indeed, by any major institution.Footnote ⁶⁵ And, of course, in this volume Janet Halley recounts the historic gift from an enslaver, Isaac Royall, Jr., to Harvard College, to endow the first Chair of law at what would eventually grow into the Harvard Law School.Footnote ⁶⁶

The brand as an object of meaning is not static. It is, in Lury’s words, “an object in movement.”Footnote ⁶⁷ This “complex artefact”Footnote ⁶⁸ is propelled in time by the convergence of multiple actors and systems, from producer and consumer to community members, the institutions of advertising, the law, and the court of public opinion, to name just a few of the multiple forces at play in shaping and reshaping brand meaning. Halley vividly demonstrates the vicissitudes of the Royall name and its heraldic shield through 300 years of history: from the British loyalist Isaac Royall, Jr. falling out of favor during the American Revolutionary War; to charges made against him as an enslaver of human beings by a woman named Belinda, an enslaved person whom he freed in his will; to the benefactor’s rehabilitation through his bequest to Harvard in 1815; to the student campaign “Royall Must Fall” to abolish the Royall shield as the de facto Law School logo 200 years later.Footnote ⁶⁹ The brand – presented in three acts, from the man, to the heraldic shield, to the modern trademarked logo – is the stage on which each new generation of political actors “performs.” The dramatis personae in Halley’s gripping story include a formerly enslaved woman, Belinda, centuries of Harvard Law School deans (including an aspiring Supreme Court nominee), generations of law faculty, and more recently, international graduate students from South Africa and Black Lives Matter activist students. As Halley tells it, “Fights over meaning abounded” and the stories take on lives of their own, becoming real, however un-fact-checked.Footnote ⁷⁰ There is room yet for prequels and sequels.

Concerns about the ability of stakeholder engagement in brand meaning to produce genuine reform are on display in Halley’s compelling history. The ultimate decision of the Harvard Corporation to abandon the Royall shield/logo/trademark was the “easy way out,” she believes.Footnote ⁷¹ To date, none of the thoughtful, challenging demands of student activists to decolonize the curriculum have been addressed. Is rebranding merely symbolic lip service, or will refashioning the university’s imagery affect more deeply who is included, supported, respected, and recognized in the university? The symbols that wallpaper our halls matter. The fall of racist brands during summer 2020 – from Washington’s National Football League team to Aunt JemimaFootnote ⁷² – may seem like corporate whitewashing, but in truth, these logos have long been the target of equality activists who recognize how culture industries’ production and circulation of images shape, perpetuate, and maintain racial hierarchy and white supremacy.Footnote ⁷³ Brands are zeitgeist – the look and feel of the times. I see the abandonment of the shield as a required step to make the halls of Harvard Law more welcoming to diverse members. Indeed, the School should go further to interrogate the messages it sends to all who experience (or are subjected to) its aesthetic decor, from students to faculty to staff, from the unending portraits of white men that adorn the halls to the names of buildings and endowed Chairs. At the same time, the Harvard Law School “brand” goes well beyond these artifacts, to include the 1L experience,Footnote ⁷⁴ and more. Moving to this experiential terrain, perhaps Harvard Law (and peer schools that often seek to copy this luxury brand) will start to reconsider how structural inequality is embedded in legal education, from rethinking Socratic pedagogy to studying how doctrine and scholarship perpetuate white supremacy. The school should do this in conversation with its students and other community members asserting their desire to “reclaim” the Harvard brand.Footnote ⁷⁵

In this volume, we have considered many of the cognitive difficulties of university branding. What are the implications of contesting meaning in this most meaningful domain, the university, through the artifact of the brand? The critiques notwithstanding, there is, perhaps, an important way in which the university brand connects with the university’s broader mission. From the humanities to social and behavioral sciences, the university is the site for understanding who we are as human beings. This endeavor includes understanding human rationality and our yearning for aesthetic experience, art, narrative, belonging, and meaning itself. The brand may be the university’s best hope yet of affirming the humanities. Brands reject the notion that reason is “the only authority for the university.”Footnote ⁷⁶ In contrast, the “primary task” of aesthetic theory, as John Dewey urged, is “to restore continuity between the refined and intensified forms of experience that are works of art and the everyday events, doings, and sufferings that are universally recognized to constitute experience.”Footnote ⁷⁷ Failure to engage aesthetic experience in everyday life, Dewey warns, deprives us of something essential because aesthetic perceptions “are necessary ingredients of happiness.”Footnote ⁷⁸ The aesthetic university makes life more meaningful. It is a stage for telling and retelling stories of who we are, collectively and individually in a space that matters to us. Starbucks learned this some time ago. Its brand “is not about the coffee.”Footnote ⁷⁹ It’s about the stories in the cup. The university brand is a site for claiming and reclaiming the meaning of the university and of education itself. Social movements from #blackatharvard to the introspection over the luxurification of higher education exposed in the Varsity Blues scandal demonstrate the nimble tool of the brand to convey membership, exclusion, hope, and heartache. Brands re-enact life itself, once more with feeling.