More Allegations of Race/Gender/Etc. Focus in Harvard Law Review Screening Process

From Aaron Sibarium (Washington Free Beacon):

When the Washington Free Beacon published documents showing how the Harvard Law Review selects articles based on race, the law review insisted those documents had been taken out of context.

The journal claimed the Free Beacon had quoted "selectively" from "five internal memos going back more than three years," adding that the Harvard Law Review "considers several thousand submissions annually."

"The Review does not consider race, ethnicity, gender, or any other protected characteristic as a basis for recommending or selecting a piece for publication," the journal wrote in a fact sheet published on May 27.

But according to new documents obtained by the Free Beacon, the law review eliminates more than 85 percent of submissions using a rubric that asks about "author diversity." And 40 percent of journal editors have cited protected characteristics when lobbying for or against articles—at one point killing a piece by an Asian-American scholar, Alex Zhang, after an editor complained in a meeting that "we have too many Yale JDs and not enough Black and Latino/Latina authors."

There's a lot more there; worth reading the whole thing. If there's a response from the Harvard Law Review or otherwise, I'll of course be glad to link to that as well. Seems to me valuable to know more about how an institution that has historically aimed to be seen as a leading scholarly journal, rather than just as an ideological advocacy organization, actually operates.

Note that there are also separate questions (1) whether a law review's race-based selection decisions (if such have been made) violate antidiscrimination law (see, e.g., Michael Dorf's posts exploring that), and (2) whether a law review might have a First Amendment defense to any such charges. But at this point I'm just particularly interested in what such journals are actually doing.

Comments

[Armchair]

Reminds me of this article where a whistleblower alleged Lockheed Martin was awarding bonuses based on race.

https://www.city-journal.org/article/lockheed-martin-civil-rights-law-bonuses-race-merit

The story began in December 2022, when the whistleblower was preparing recommendations for the aeronautics division’s year-end bonuses. The whistleblower was proud of the work the team had done to calculate awards. But soon after the bonuses were submitted for approval, higher-ups told the whistleblower that there was a problem: the “Comp Adder” list, which named recipients of bonus compensation, had too many white employees on it.

Santiago Bulnes, a vice president who now leads engineering on Lockheed’s F-35 program, wrote an email to the whistleblower. “I got a call from [human resources director] La Wanda [Moorer] last night regarding diversity stats on comp adder,” Bulnes, who did not respond to a request for comment, said. “They took a run at getting your few approved and we’re told that we need to fit in the box. I asked her to send you the list of diversity names to simplify the task of finding the best in the group.”

Next, our source claims, officials in Lockheed’s human resources department made the demand explicit. One communication instructed the whistleblower to add more than a dozen minorities to the list and recommended removing an equal number of “non-minority” employees. The implication was clear—“increasing POC for Comp Adder will result in removing equal count of non-minority”—and the instructions were deliberate, recommending specific race swaps by manager. For example, for one team, human resources officials instructed the whistleblower to “increase POC 4 and decrease non-minority 4.”

[ObviouslyNotSpam]

What's your point?

[Brett Bellmore]

I suppose that Harvard law review wouldn't be the first institution that didn't actually mind explicitly demanding racial discrimination, or even notice that they should be a bit coy when asking for illegal acts.

[ObviouslyNotSpam]

Awaiting confirmation...

[Armchair]

"Reminds me of this article..."

[AmosArch]

So these top tier pillars of respectability and institutional anchors lie like little kids when caught out? Why do we hold HLR and its parent institution in so much esteem again?

[Bored Lawyer]

This is Law Review. Lawyers in training.

[ObviouslyNotSpam]

It should surprise no one who has ever been on a law review.

[KevinP]

Good article, Prof. Volokh.

It appears that Harvard is not going to fix itself.

We taxpayers are justified in removing federal funds from Harvard if it continues to engage in this bald faced racial discrimination and violation of the civil rights laws.

[David Nieporent]

Nothing in the article describes any violation of civil rights laws, and this isn't Harvard anyway. HLS is an independent entity.

[AmosArch]

HLS still sucks at the teat of taxpayers if indirectly through resources provided by Harvard. Also schools have cracked down hard over the past decades on organizations like frats and sororities even though they are technically often independent too and overall receive less support from their respective schools. They don't even typically benefit from the name like HLS does. Do you think schools should have a hands off policy on all independent student organizations or just the ones you like?

[David Nieporent]

Do you think schools should have a hands off policy on all independent student organizations or just the ones you like?

I'm not sure you grasp what the word "independent" means.

[mulched]

I'm not sure you grasp that their claims of independence are hogwash.

[ObviouslyNotSpam]

I'm sure you've never been on law review...

[David Nieporent]

With all due respect to Prof. Volokh, the author of that Free Beacon piece is way over his skis. None of the linked documents even remotely support the thesis, which is phrased incredibly disingenuously.

The claim that "85 Percent" (actually, 86%, according to the body, but I'll assume that's just rounding for a headline) were "axed using a race-conscious rubric" is designed to make it sound as if 86% of submissions were rejected because of the race of the author. But that's not at all what their evidence shows. What their evidence shows is that (a) 86% of all submissions are rejected (duh; they get way more submissions than they can publish); and (b) the guidelines given to the editors to screen pieces mention diversity as something the editors should think about. But diversity — which is one of eight categories identified — is described as "diversity along multiple axes, including: topic-area diversity, institutional diversity, author diversity, and author experience (e.g. publishing practitioners and younger/upcoming authors)." In other words, this doesn't actually establish that even a single submission — let alone 86% — was rejected based on the author's race.

The Free Beacon's one specific example — the submission by Alex Zhang — was not, as the article claims, "voted down narrowly"; the vote was 4 no, 3 abstain, 1 yes. The Free beacon links to a 4 page summary of the HLS discussion about the article, in which race was mentioned once, in passing, by someone who actually said they have too many Yale JDs, and expressly disclaimed "box checking" in the selection process; all the rest of the editor comments made clear this piece was being dinged because of its content. One could suspect that the piece would have gotten more support if it had a black author, but there's no actual evidence of that, let alone that it would've gotten enough support to be published.

And when the Free Beacon tries to bolster its thesis by citing statistics, it does sleight-of-hand to make readers think that lots of pieces are evaluated based on the race of the authors, but it does that by conflating the issue of the diversity of people cited in the submissions with the race/sex of the authors. They looked at all 461 evaluations from 2024, and found only 6 (1%) where the evaluations mentioned the authors' characteristics. (They found 61 — just 13% — where the sources' characteristics were cited.)

To be clear: I don't doubt that HLS does sometimes consider the race/ethnicity/etc. of the authors of submissions, and while I think that's protected by the 1A I also don't think there's a good reason to do that. But looking at who the pieces cite — and the topic of the pieces — is even more 1A protected, if there were such a thing as even more protected, and has nothing to do with the topic that the Free Beacon article is raising.

[Armchair]

The Harvard Law Review explicitly said ""The Review does not consider race, ethnicity, gender, or any other protected characteristic as a basis for recommending or selecting a piece for publication," the journal wrote in a fact sheet published on May 27."

But, as you admit...they clearly DO consider race, ethnicity, gender and other protected characteristics.

[Sarcastr0]

DMN said he has no doubt, but also that the article in the OP doesn't establish that.

[Armchair]

I see you're going with the "just lie" strategy.

[Brett Bellmore]

Their screening rubric.

"Diversity
This category would generally add a plus
for articles that contribute to our goals of
increasing diversity along multiple axes,
including: topic-area diversity,
institutional diversity, author diversity,
and author experience (e.g. publishing
practitioners and younger/upcoming
authors).

Now, this is only one criterion among many, but it is explicitly considered according to the rubric.

Further evidence linked to in the Beacon article.

Sure seems to me like they established it.

[Stupid Government Tricks]

Not credible.

None of the linked documents even remotely support the thesis, which is phrased incredibly disingenuously.

If that were the case, HLR would have used that as a defense, rather than just claim cherry picking without providing the full documents to back it up.

[ObviouslyNotSpam]

A defense to what?

[LivvyTheZioSlayer]

The Harvard Law Review’s Palestine Exception

[Sylvie1]

". . . across academia, we can no longer prioritize individual accomplishment over a genuine commitment to critically interrogating the truth . . . "

Fail.