Dean and Other Harvard Law Women Faculty Opposed Law Review Affirmative Action Proposal:

UPDATE: My bad, I didn't notice the date (Nov. 2003) on the article, which was just emailed to me. A reader reports in the comments that "Review membership in last year's incoming editor class had roughly the same male/female proportion as the HLS class as a whole. There are currently no affirmative action proposals pending." I still think the information below is quite interesting, and the updated information makes me wonder: (a) what was the fate of the affirmative action proposal? and (b) Did the Law Review otherwise take steps to raise the percentage of women, or do the statistics just naturally ebb and flow?

Harvard Crimson:

But some HLS professors, including HLS Dean Elena Kagan, said if the Review announced an affirmative action policy, it would imply that women could not be accepted based on merit alone.

All three of the Review's faculty advisors—who are also all women—do not support introducing affirmative action for women.

"Such a plan would offer Law Review membership to perhaps a handful more women per class while making all women selected for the Law Review wonder whether they would have been selected absent such a program (and making other Review editors, as well as judges and other future employers, wonder the same thing)," HLS Professor and Review faculty advisor Carol S. Steiker told the Record.

According to the article, the Review does practice race and disability-based affirmative action.

Tennessean (mail):
I know that some non-zero fraction of the other "top" law reviews practice some sort of affirmative action (or at least announce a policy of such practice -- whether it is ever put into place I don't know).

Any anecdotal evidence from other law reviews?
7.20.2006 3:06pm
Word (mail):
I'm on the Harvard Law Review. That Crimson article is THREE YEARS old. Review membership in last year's incoming editor class had roughly the same male/female proportion as the HLS class as a whole. There are currently no affirmative action proposals pending.

This incredibly misleading post needs to be removed.
7.20.2006 3:10pm
Stanford Law Review does not practice affirmative action, and when the idea was briefly considered, current and past BLSA presidents were among the individuals who opposed the idea. Their reasoning was similar to Dean Kagan's-- especially since SLR's membership has been relatively diverse without it.
7.20.2006 3:10pm
asdf (mail):
The Columbia Law Review practices affirmative action. I believe seven spots were on the basis of grades, writing competition and other diversity factors.
7.20.2006 4:12pm
Guest Poster (mail):
The Harvard Law Review did take certain affirmative steps to increase the representation of women; for instance, it engaged in "targeted" recruitment of women to try to increase the number of women who applied. (Previously, far more men than women applied to law review, making it unsurprising that far more men than women made law review.) The entire grading process, however, remains completely blind as to gender.

The numbers do fluctuate from year to year; it remains to be seen if the numbers of men and women will stay even.
7.20.2006 4:39pm
Why does Kagan oppose affirmative action as to women but not minorities? Shouldn't the same logic apply to minorities, especially if there are only 7-10 minority editors (roughly the number of affirmative action slots)?
7.20.2006 5:24pm
some guest:
Between this and David Post dredging up that sarcastic 2001 Judge Kent opinion, the VC is fast becoming my go-to source for commentary on 3 to 6 year old news stories.
7.20.2006 5:44pm
I don't think NYU Law Review has a formal affirmative action policy, but it's pretty clear that it gets taken into account. 12 out of approximately 40 students are selected on the basis of personal statements alone as long as they're in the top half of applicants based on grades and the writing competition. The selection criteria say that "The Law Review evaluates personal statements in light of various factors, including (but not limited to) race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability, and age."

There's also a diversity statement and I believe a diversity committee, though the committee isn't listed on the website.

NYU Law Review
7.20.2006 7:00pm
Grant Hackley (mail):
Regardless of the currency of the quoted story, the topic (at least that of minority representation) is still ripe for further discussion. I am the EIC of the University of Pittsburgh Law Review and find disconcerting the general paucity of minority representation on law reviews around the country. Fortunately, I have not noticed as much of a concern with respect to male/female distribution, particularly at my own review where women are often over-represented.

I'm interested in pursuing greater minority participation in my own review and did what I could during the spring to encourage minority participation in the writing competition, an approach I believe to be similar to Harvard's 'targeted recruitment.' However, other than targeted recruiting and affirmative action-type membership policies, I don't see many alternatives.

I am very interested in hearing of others' successes and failures with respect to attempts to increase minority or gender representation on their own reviews. If anyone has anecdotal information or thoughts on different avenues to pursue, please don't hesitate to contact me via email.
7.20.2006 8:11pm
Houston Lawyer:
I remember several years ago clerks from Columbia wondering whether anyone wanted to be known as occupying the "gay/lesbian" position reserved for such a person on their law review. Who is it that looks at a group chosen solely on merit and says, "no, this won't work, too many straight white guys"? The diversity mongers have a low opinion of those they are promoting.
7.20.2006 9:52pm
logicnazi (mail) (www):
I'm generally skeptical of affirmitive action. There are many ways it could do harm as well as help and there is no good evidence suggesting it achieves its aims (to the extent it has well-defined aims). However, I think there is far more reason to support affirmitive action for minorities than for women.

There are three plausible rationales for affirmitive action I can think of:

1) By increasing fraternization between the classes affirmitive action will erode prejudices based on ignorance and stereotypes, i.e., if white people work with black people they will start to see them just as other people like them.

2) By lifting some members of the disadvantaged class into higher socioeconomic classes you reduce the unfortunate correlation between class membership and low socioeconomic class in the next generation, i.e., if we make more black lawyers now their children will grow up with all the advantages. Hopefully reducing the correlation between class membership and social status will alleviate tensions.

3) By creating role models who are members of the class and showing society that the class can perform high status work you will break down stereotypes and encourage the next generation.

Notice that only reason 3 applies to affirmitive action for women (they generally have the same socioeconomic class as men and their is no shortage of male-female fraternization). However, all the disadvantages from affirmitive action apply to women.

In fact the ultimate hope for race based affirmitive action would be that people would stop really noticing race, i.e., you would see Jim as your smart quirky co-worker not your black or white co-worker. It seems totally possible that one day race will register as no more significant than hair color or eye color. Human biology makes sure this can never happen for gender. Our reproductive tendencies make sure we notice our peers as male or female, at least we (and they) are of reproductive age.

Moreover, the performance/interest gap between men and women seems much more intrasigent than the gap between whites and blacks. Racial differences in interest and performance seem to mostly disappear when children are raised in upper class enviornments which value academic achievment (though some effects from broader culture persist). However, the difference between men and women in science shows up at an early age even when raised by parents committed to equal treatment. Whether this is explained by deep ingrained cultural forces or inherent differences it doesn't seem to be the sort of thing a few more role models will fix. Despite violent resistance women have become almost equal in the law profession (affirmitive action came about after great strides had been made) but despite a more welcoming atmosphere (back in 70s) they have remained a small minority in math/science suggesting a much deeper cultural (or inherent) problem is at play than lack of role models or women aspiring to be scientists.
7.21.2006 4:00pm
I know of a very reliable account from the Michigan Law Review of an individual shamelessly and conveniently "discovering" that he was gay the week before the write-on competition, in a succesful attempt to fill the then existing gay/lesbian quota. Of course, he ended up marrying his long-time girlfriend upon graduation.
7.22.2006 3:40am