So what should be done with the contributions the late Jeffrey Epstein doled out to universities and other charitable institutions? A lot of people consider the funds so tainted that the recipients ought to be busily giving the money back. The Massachusetts Institute of Technology has announced plans to donate the $800,000 it received from Epstein to a charity that assists victims of sexual abuse. But Harvard University, already facing campus fire for its fundraising practices, has announced no present plans to divest itself of Epstein’s reported $6.5 million dollars in gifts.
Critics are understandably furious. Like most people, were I a university official, I’d shed Epstein’s money in a heartbeat. But perhaps we should delve into the issue a bit more deeply. Because although I would not go so far as to say that Harvard has a point, I believe I understand what has the school worried: the difficulty, in these mad times, of drawing sensible lines.
At one level, the case should be easy. Epstein was not merely an accused sexual predator, though that would be bad enough. He was accused, in particular, of assaulting and trafficking underage girls. In other words, according to the allegations, he raped children and helped others to do the same. It’s difficult to imagine a crime more heinous.
So Harvard could try to draw a bright line, announcing that it will accept no money from sexual predators. But would the line hold? Color me skeptical. We live in an era, remember, when law professors can be disciplined for the sin of representing unpopular clients. Fundraising, too, is being transformed by our strange new ideological world. Just five years ago, protesters demanded that New York-Presbyterian Hospital return a $100 million donation from David Koch, whose offense was his politics.
Happily for its patients and staff, the medical center stood firm against such nonsense. But standing firm feels so 2014. Harvard is already under fire for accepting money from the government of Saudi Arabia. The school has so far resisted demands to rename the Arthur M. Sackler Museum due to the Sackler family’s connection with the maker of Oxycontin. In the face of these and other pressures, the school surely fears that ridding itself of Epstein’s money, no matter how narrow the grounds, will lead to insistence by activists that everything else on their agenda is analogous.
Besides, even if we believe in the bright line, the results might prove suboptimal. In 1988, Bill Cosby gave $20 million to Spelman College in Atlanta – to this day still the largest gift ever made to a historically black college. Last year, the comedian was convicted of aggravated assault and sentenced to three to ten years in prison. Now he’s a convicted sexual predator.
But nobody is suggesting that Spelman give the money back. And that’s good. Such an argument would be a luxury most likely to be indulged by those who don’t plan to send their children there. Put otherwise, we might say that whatever harm Cosby has caused, at least some part of his fortune is doing some good.
Should we say the same of Epstein’s money? Here’s one possible distinction: Spelman took the money at a time when Cosby’s reputation was still pristine. People at Harvard, on the other hand, continued to court Epstein after he became a registered sex offender. The distinction might be unpersuasive – both men turned out to be monsters – but if the difference matters, perhaps we should impose upon institutions of higher learning an ethical responsibility to perform due diligence before accepting large donations. (What's large? Seven figures would be a good guideline.) As it turns out, a due diligence rule was among the recommendations of the Woolf report, the outcome of a 2011 Parliamentary inquiry into how the London School of Economics came to accept money from, and become quite cozy with, Muammar Gaddafi’s regime.
According to the report, a school must “guard against being involved in money laundering, receiving money which could come from illegal activities.” The question isn’t whether the giver is bad but how the giver got the money. That’s why the (fictitious) Columbia dean was wrong in an episode from season three of “The Sopranos” to solicit a donation from the eponymous Mafia couple. The money was the fruit of crime. Fair enough.
Alas, beyond the crystalline clarity of that proposal, Woolf’s advice descends into the infinitely malleable. In the same paragraph, he argues that a university “must avoid being used to give respectability to those whose reputation is doubtful.” At first blush this criterion seems entirely reasonable. Certainly such a rule would suffice to exclude donations from Epstein, no matter how he got his money — at least once the recipient begins to hear about the allegations against him. Similarly, the rule might arguably cover the controversial 2017 decision by the University of Southern California to turn down a donation to support the work of female filmmakers, because the donor was Harvey Weinstein, whose motivation was transparent.
But the rule is too plastic. On today’s campus, one can earn a “doubtful” reputation by being on the wrong side of pretty much any cause dear to activists. Just look at the fury directed at Cambridge University earlier this year for even considering whether to accept donations from the fossil fuel industry.
Surely that’s Harvard’s worry: No matter how carefully worded the rejection, once the university declares Epstein’s money tainted, it will face attacks on donations from any of a thousand unpopular industries or individuals.
Don’t get me wrong. Like most people, I’d urge Harvard to get rid of Epstein’s money, preferably by yesterday. But it would be unserious to pretend that the university will be able to hold to any bright line it might sketch to explain its action. In today’s climate, there’s no way to avoid the deluge that will surely follow.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
