An Affirmative Response

THE LAW SCHOOL faculty quietly voted last week not to respond to an affirmative action plan that the Harvard Law Review staff had adopted earlier this year It's rarely noteworthy when a Harvard faculty fails to act; the Law faculty's decision not to intervene, however, marks the end of a year-long controversy during which law professors often seemed all-too-willing in trade upon the Review's internal affairs.

When the Review adopted its original affirmative action policy last February howls of protests went up. In establishing quotes for minorities the Review, it seemed, was ending its traditional meritocratic selection process. Before the dust had settled, Review editors had resigned, professors had protested, and even. The New York Times had condemned the new policy on its editorial page.

Why the dramatic faculty-about-face? Though some professors who continued to oppose the new plan based their cases on philosophical arguments, the move flexible nature of the updated policy seems responsible for last month's warner reception. That suggests that affirmative action proponents on the Review learned tactical lessons from their earlier bouts with professors and fellow staffers.

The first plan, which led three Review editors to resign after it was adopted last February, would have used rigid quotas to bring racial balance to the Review. The top four students in each of four sections of the first-year class would gain Review membership, the top ranked minority student in the top 25 students in each in each section would join them. If there were no minority students in the top 25, the Review would select a woman instead.

A compromise plain approved two weeks later avoided quotes, but faculty members quickly made it clear they weren't enthused about it either. This plan allowed four-fifths of the applicants to he judged without regard to race and the other one-fifth chosen later. The Review would consider the minority status of applicants In the second pool if the racial mix of the earlier group proved in balance. The reason for the continuing faculty misgivings; professors felt the weight put on minority status would undermine the publication's traditional "meritocratic" selection process and place a stigma on minority editors.

The most recent affirmative action policy requires the Review to consider throughout the selection process an applicant's optional personal statement on the "economic", societal of educational obstacles he has overcome. The membership committee will now strive to choose a crop of incoming editors that "significantly represents historically underrepresented groups in the student body "But at the same time, the Review has warned the committee, it should choose only those applicants who "can adequately perform Review work" and only minority applicants with grades "close to" those of other students. Many professors appreciate those new caveats.

The plans, then, have gone from highly concrete to highly abstract, and that seems the key to the faculty's acquiescence. Under last February's plan one-fifth of the new staff would have almost inevitably been minorities. The revision later that month meant the Review would use one-fifth of the slots as tools with which to balance the staff. Now the membership committee uses subjective standards to strive to meet a highly abstract goal-whose meaning itself under several limitations open to much interpretation.

Tactically, the new plan represents a victory for affirmative action as long as proponents of racial balancing continue to run the Review Under its new pro-affirmative action leadership, the Review could use the broadly stated policy to swell its staff with large numbers of minority students, whatever their qualifications. On the other hand, the Review could effectively have only the most token of affirmative action policies under the new arrangements. It all depends on how the leadership chooses to define "adequate" and "close to."

The Review's decision to couch its new plan in abstractions, then, led to its success. It's much easier to make abstract decisions without specific costs than to make concrete decisions with concrete costs. The danger is that under conservative leadership, the Review's abstractions could prove meaningless wording changes.