Law Schools

First Monday Musings By Dean Vik Amar: Reflections On The Lawsuit Against Harvard Law Review

Efforts by law reviews to increase diversity need to be viewed in the larger context of attempts by law schools to diversify more generally.

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For many law students, membership in and service on an academic journal is a highlight of the law school experience, conferring both intrinsic benefits and also tremendous résumé value.  Law reviews have traditionally selected their members based on academic performance, typically a combination of law school grades and scores on a writing competition.  Some law reviews now also take account of race, gender, and other demographic factors in order to increase the diversity of the journal’s membership. The latter practices are being challenged in suits filed against, among others, the Harvard Law Review (HLR), alleging impermissible race discrimination. The outcomes of these suits could affect practices at a great many law schools across the nation.

Before the federal courts reach the merits of this issue, they court must ensure the plaintiff has the right to have the dispute heard in a federal forum. The Texas-based non-profit organization that is bringing the suits — Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP) — may confront challenges in this regard, insofar as none of its members has alleged in any detail imminent plans to seek membership on HLR and is about to suffer substantive or procedural injury from HLR’s affirmative action program.

If and when the merits are decided, efforts by law reviews to increase diversity need to be viewed in the larger context of attempts by law schools to diversify more generally. Most law schools actively seek to assemble diverse classes of entering students, and in so doing they take some account of race, gender, and other demographic factors in making their admissions decisions. In 2003, in Grutter v. Bollinger, the Supreme Court, applying “strict scrutiny,” held that the University of Michigan Law School’s consideration of race as one factor in a holistic review of applicants did not violate the Equal Protection Clause of the Fourteenth Amendment.   Although HLR is a private entity to which the Fourteenth Amendment does not apply, Title VI and Title IX — federal anti-discrimination statutes under which FASORP has sued — do apply to educational entities and programs that receive federal funding, and have been held by the Court to embody the same limits on the use of race (and gender) that equal protection principles do.  In the words of Justice Lewis Powell in Regents of the University of California v. Bakke, on a point echoed by four other justices, “Title VI [which prohibits race discrimination in educational institutions receiving federal funding] must be held to proscribe only those racial classifications that would violate the [Fourteenth Amendment’s] Equal Protection Clause. . . .”  So Grutter (and a case following Grutter — Fisher v. University of Texas) will govern the HLR dispute, unless and until the Supreme Court revisits the meaning of equal protection.

Grutter and Fisher, while deferring to universities as to the importance of diversity, admonish that “the compelling interest that justifies consideration of race . . . is not an interest in enrolling a certain number of minority students. . . . [A] university is prohibited from seeking a particular number or quota of minority students.”

FASORP alleges that HLR impermissibly uses a quota for “diversity” students, but doesn’t really back that up (yet). The complaint alleges that HLR chooses 48 new editors each year from the rising second-year law student class, with 30 students selected based solely on grades and writing competition scores and then 18 additional students chosen “through a holistic but anonymous review that takes into account all available information,” including information relating to race, gender, and other demographic factors.

The key here is that “all available information” needn’t (and in the most ordinary sense wouldn’t) be understood to be limited to race and gender or even to diversity-related factors more generally. It could well include academic and writing competition performance alongside diversity considerations. The dispositive question is whether the number or percentage of racial minorities or members of other underrepresented communities is itself fixed, not whether there is a defined number of seats filled through a holistic process that includes consideration of race or gender. Indeed, the HLR membership process is quite similar to the UT scheme upheld in Fisher. UT’s holistic process that took account of diversity factors supplemented another component of its process in which automatic undergraduate admission was granted to those in the top ten (or so) percent of their graduating high school classes. Nothing in Fisher suggests that UT couldn’t fix the number of seats available through holistic admissions rather than vary the number year to year.

Another question arising in the case is whether the notion that diversity is a compelling interest in law school/undergraduate admissions carries over to law review activities.  This is an interesting question.  On the one hand, Grutter and Fisher embrace diversity not for its own right, but because diversity enhances the education experience for all students and generates some broader social benefits. In Fisher, both the majority and the dissent (albeit for different reasons) focused on how much racial diversity was increased (or not) at the individual classroom level by UT’s supplemental consideration of race in admissions. The implication here in both decisions is that diversity counts most when it exists in those educational venues (lectures, seminars, etc.) where students engage with and learn from each other as they explore ideas.

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And if the classroom seminar is the paradigm setting in which the value of diversity can be most easily appreciated, then it is not hard to see why HLR policymakers might believe diversity is arguably a compelling interest among its membership too. Law review dynamics (when a law review operates well) are very much like a seminar: students engage with each other, in person, to explore and debate legal and societal questions in the course of picking articles, student notes, symposia topics, and outside speakers, and in their internal governance procedures. If assembling a diverse 1L entering student cohort and promoting diversity in specific classroom populations are compelling interests, so too (it would seem) diversity may be a permissibly compelling value for law review leaders to seek in their membership ranks.

On the other hand, in Grutter, the Supreme Court deferred to the judgment of the University of Michigan Law School that diversity, including having a critical mass of racial minority students, was a compelling interest that justified consideration of race under the strict scrutiny standard because the matter involved “educational judgments in an area that lies primarily within the expertise of the university.” It is not obvious that deference to a university on its educational admissions goals would unproblematically extend to a student-operated law review choosing members and selecting articles for publication. Grutter and Fisher both emphasize that university officials deserve deference because of their “experience and expertise” in operating an educational institution.  Law review editors may lack both. They are not (typically) educational professionals themselves. As second- or third-year law students, they have probably not previously been involved in designing and implementing admissions (or other) programs in educational or quasi-educational settings. Indeed, their main tasks — working to put out the journal and picking the next crop of editors — are one-time functions. Law review editors might well believe that diversity will generate benefits to the journal but they have no expertise for determining when, how, how much, or why. Moreover, law review editors are picking their peers — other students with whom they will work in the coming academic year — or selecting the authors with whom they themselves will interact. It is far from clear whether outsiders should have confidence that the end result will be a suitable mix of different perspectives and experiences that will successfully generate educational and other benefits.

Vikram David Amar Vik AmarVikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at amar@illinois.edu.

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