Diversity Under the Law

While Harvard College gears up for a lawsuit on its undergraduate admissions process, the Harvard Law Review is facing a similar lawsuit. Filed by Texas-based group Faculty, Alumni, and Students Opposed to Racial Preferences, the new suit alleges that the publication uses discriminatory procedures when selecting new members. FASORP argues that the Law Review’s selection process, which in certain cases takes into account gender, violates Title VI and Title IX. We believe that this lawsuit threatens the First Amendment rights of the Harvard Law Review and is a disturbing attack on a student extracurricular.

FASORP has thus far failed to provide concrete evidence that the Harvard Law Review discriminated against students of a certain race by admitting underqualified editors. Merely incorporating race and gender into a holistic admissions process, as the Law Review does, is eminently constitutional, and is a goal of affirmative action that aims not to favor one race or gender over another ― it is to encourage diversity and openness in institutions that have historically been dominated by members of a privileged race or gender.

If anything, the Law Review demonstrates the effectiveness of this policy. Prior to implementing its new admissions policy, the Law Review had never elected a majority-female class. Since expanding its affirmative action policy in 2013 to include gender, the Harvard Law Review has reached a milestone by electing its most diverse class in its history 2016 and the first ever female majority class in 2017.

Moreover, the law does not impact everyone equally. Gender, class and race affect how the law is applied and who it protects; a diverse class of writers is necessary to encapsulate the lived experiences of all Americans. Just as we have stood by affirmative action in admissions processes, we support the Law Review’s current policy in admitting members and choosing articles.

The Law Review is hardly alone in recognizing the need for diverse perspectives. The New York University Law Review, another target of FASORP, also considers race, gender, or other background experiences in its holistic admissions process. This policy is in line with the Grutter v. Bollinger decision in 2003 that upheld affirmative action; we are thus skeptical of FASORP’s claim that it is discriminatory under the law.

FASORP’s lawsuit is likely to bring disastrous effects to the Law Review if it successful, undoing the publication’s newfound diversity. This would be more than a minor setback. Diversity in law schools, and their communities, affect how the law is interpreted and applied, and the law affects everyone. The Law Review therefore can, and should, give access to voices that represent us all.

This staff editorial is the product of discussions at regular Editorial Board meetings. In order to ensure the impartiality of our journalism, Crimson editors who choose to opine and vote at these meetings are not involved in the reporting of articles on similar topics.