Law Review Debates Affirmative Action Policy

Professional schools have long been home to the most contentious affirmative action battles, and Harvard’s are no exception. But at Harvard Law School, disputes about affirmative action have focused less on admissions and more on the prestigious Harvard Law Review, the legal periodical whose editorships are often tickets to judicial clerkships and professorships.

In 1981, all 80-some editors except one were white, and it would be another decade before the Review elected its first black president, Sen. Barack H. Obama, (D-Ill.) Fewer than a dozen of the editors on the Review were women, although Susan R. Estrich, the law professor and Democratic political operative, served as the Review’s president in 1977.

It was then that the saga of the Law Review’s affirmative action program began, when the editors adopted a race- and gender-conscious policy by a 45 to 39 vote, to the vehement opposition of some faculty members. Several months of intense debate and negotiations ensued between the Review and the faculty, at the end of which the Review began for the first time considering factors other than merit in choosing its members.

AN AFFIRMATIVE ACTION

Prior to 1981, law students could join the Review either by being among the top five students in their first-year sections—each class used to be divided into four sections—or through a combination of their grades and their scores on an annual writing competition, a process designed to preserve absolute objectivity.

But the 1981 editors felt it necessary for their admission policy to take into account the underrepresentation of minorities and women.

Under their modified plan, the top four students in each first-year section would still be elected to the Review, but the fifth spot would be reserved for the top-scoring minority student among the top 25, and if no such minority student existed, the fifth spot would go to the woman with the highest grades.

Two days after the adoption of this policy, three editors—including one woman—resigned in protest.

In response, the Review’s leadership convened to reconsider their plan, opting for a non-quota system that would merely take race and gender into consideration. But despite the modification, the Review continued to encounter opposition from students, alumni, and most importantly, from the faculty.

THE FACULTY VOTES NO-CONFIDENCE

In response to the affirmative action policy, the law school appointed a committee led by Detlev F. Vagts ’48, the Bemis professor of international law emeritus, to study the issue.

Though the Review is formally autonomous from the Law School, Vagts pointed out that it relies on the faculty to disclose the grades of the top-scoring students in each first-year section, which the Review uses to select members.

“They got grades from us, individual members of the faculty helped them out, and they occupied Harvard space,” Vagts said of the 1981 Review.

In late March, the faculty committee released its report, stating that although faculty members are “content with the abstract principles of better representation for minorities, [there are] better ways to accomplish the same objectives.”

Within a month, and in light of the concerns expressed by faculty and alumni, the Review voted to postpone the implementation of its affirmative action program if the faculty would accept the general concept behind the policy—something the faculty eventually did.

Mark B. Helm ’78, the Review president at the time, recalls: “The faculty didn’t necessarily agree with the direction we were heading, but the collision course that it seemed like we were on was avoided. We were not especially keen to provoke a fight with the faculty but we weren’t willing to abandon our plans either.”

The following year, the Review adopted an affirmative action policy that allowed the editors to consider race in selecting its new members.

BRINGING IN THE FAIRER SEX

In the ensuing years, the Review has also been criticized for the dearth of women on its staff, a matter left unaddressed by the 1982 policy.

“The law review’s current affirmative action policy is directed towards members of traditionally underrepresented and disadvantaged minorities, and individuals with disabilities,” the current Review’s President Aileen M. McGrath wrote in an e-mail. “There is not an affirmative action policy for gender.”

The call for extending affirmative action to women was most recently renewed in 2003. That year, the portion of women editors fell to 25 percent—the lowest level in a decade.

But the argument for gender-based affirmative action gained little traction.

Beneficial Professor of Law Charles Fried said at the time that “this seems to be a manufactured issue,” citing the fact that a number of the Review’s recent presidents had been women. Law School Dean Elena Kagan—who was the supervising editor of the Law Review during her time at the Law School—told The Crimson then that “the under-representation of women on the Law Review is a concern, but I’m not inclined to think an affirmative action plan is the answer.”

Despite the lack of an affirmative action policy for women, the number of women on the Review’s staff has increased. Of the 43 editors from the Class of 2007, 19 are women.

ADMINISTERING EQUALITY TODAY

The Review’s selection process has also markedly changed since the disputes of 1981. McGrath said that “the writing competition is [now] the central part of the process.”

Today, 14 editors are selected with equal weight on grades and writing competition scores and 20 on the basis of the competition alone.

The remaining seven to nine spots are filled on a discretionary basis, which McGrath wrote “can be used for [the] affirmative action program.”

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.