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...

[mulched]

Sick burn, bro. Irrelevant, but sick.

[EMS]

Former member of HLR here. Actually, Harvard does not give any support to the Harvard Law Review. It turns out that between the subscriptions and the Blue Book, the Review is self-sustaining, or at least it was when I was there.

[Brett Bellmore]

If true, that might actually get them off the hook, I suppose.

[ObviouslyNotSpam]

I can only speak of the one US law school I graduated from (not "the Big H", alas), but independent meant exactly that during the time I was there. Any attempt at editorial control by the faculty or administration would have been met with stiff and public resistance.

Of course, the main reason why that wouldn't have happened was that the editorial board and the administration were closely ideologically aligned already! But the allegation above was that HLR was somehow "not independent"--an allegation for which there is little to no evidence.

[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.

[Sarcastr0]

FFS read DMN's post; he talks about what's unsupported.

I know for you even mentioning race or gender means evil evil evil, but that's not the thesis of the OP, nor the linked piece.

Stay on topic.

[Brett Bellmore]

I'm defending the propositions I defend, not the ones you'd like me to have defended.

In this case, Armchair's proposition that, while "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,"" they do in fact consider them.

I have no idea how heavily they weight them in practice, that would be a fact intensive inquiry. But their own documents confirm that the above statement isn't true, they do indeed consider those factors.

[Sarcastr0]

Defend your personal positions all you want. But then don't act like they're on topic to this thread, or this post generally.

Armchair took specific issue with something DMN said, and claimed it was inconsistent. I pointed out it was not that.

Then you went off onto your broken record of a crusade. Frankly, it's lazy.

[Brett Bellmore]

"Armchair took specific issue with something DMN said, and claimed it was inconsistent. I pointed out it was not that."

No, what you did was transform Armchair's disputing their claim that, "The Review does not consider race, ethnicity, gender, or any other protected characteristic as a basis for recommending or selecting a piece for publication" and change it into some absolute claim about how much consideration they gave those traits.

So you were simply wrong.

[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?

[hls_guy25]

Hi, David. I really appreciated this thoughtful and critical comment about this article. I'm afraid that my name is listed (three times, no less!) in the documents accompanying the article as an example of the "40 percent of journal editors have cited protected characteristics when lobbying for or against articles." This is, of course, wildly untrue, but truth appears to have been the first casualty in this scandal.

Unfortunately, my involvement with the ongoing situation limits what I can substantively say, but I did want to flesh out a few points I see being debated here and other places:

1. Rotopool (fun fact: nobody on HLR knows what this means, the name has been around for decades) assignments are involuntary assignments handed out to nearly every member of HLR, albeit in different frequencies. The idea is simple: help the Articles Committee by winnowing down the deluge of potential articles that the Law Review receives. To do that, you are provided a rubric to follow. I suspect this is standard practice at many a law journal.

Now, I want to be very clear: Rotopool assignees are, by design, **supposed** not to know the identity of a given author. I certainly never did. When the piece arrives to you, it is stripped of all identifying details. So, as your analysis pointed out, 85% of articles were not rejected because of author identity—this is extremely misleading on behalf of the Free Beacon. Moreover, I'd go so far as to say being aware of author identity in any manner totally negates the entire idea of the Rotopool as a blind control on quality.

2. The rubric that accompanies Rotopools is, I think, the main pain point, and what is driving so much of the confusion here. The language of the rubric was laid down in the Biden era, I believe; it certainly preexists every Editor accused of discrimination in the Free Beacon article. In the years since the rubric's inception, obviously, terms like "diversity" and "underrepresented" and especially "DEI" have become extremely politically charged, such that a sudden mass disclosure of confidential material like this has been seen as confirming the worst fears of the anti-Harvard coalition.

If people want to say the rubric was inartfully drafted, there won't be an objection from me. But I certainly never thought it required me to consider "protected characteristics" for either the author (which, as explained above, shouldn't be possible) or the author's sources in the citations.

3. While I am in some sense flattered that a large swath of the Internet seems to believe I spent countless hours of my law school career combing through footnotes to make sure no White men ended up in our august pages (ostensibly while taking pains not to catch a glimpse of myself in the mirror, one imagines), this did not happen. The truth for many of us, I think, is far more mundane: we aped the language of the rubric in our responses, and that language is now extremely controversial in the Trump era. Now, there is probably a lesson in there for a budding lawyer about judicious word choice, and, in hindsight, I certainly wish I had not used fuzzy terms like "diversity" in my assignments, but that's the worst of it. I suspect many other Editors maligned by the Free Beacon as part of the "87 cases . . . [where] the journal considered protected traits or encouraged its members to do so" are similarly situated.

Finally, there is more than a little bit of bitter irony here for me personally. I was, I suspect, known as one of the more heterodox members of HLR over the past two years. For example, I published a piece broadly supportive of First Amendment rights (by way of the Douglass Mackey case, which Professor Volokh has written on at length), which carries a non-leftwing political valence these days, regrettably. To see my name bandied about as one of the prime examples of "anti-White male racism" is... well, it would be darkly funny if it wasn't actively maligning my reputation. It's just so surreal and bizarre to be caught up in this... I always hated Rotopools!

That's all I can really say at present. Thanks again for your comment. Back to bar prep now.

[Estragon]

Thank you— this was thoughtful and insightful. Good luck on the bar, don’t get too stressed out if you can help it

[LivvyTheZioSlayer]

The Harvard Law Review’s Palestine Exception

[ConservativeProfessor]

My God, that was cringe inducing. These people and their childish jargon.

[Sylvie1]

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

Fail.

[Scooter]

One wonders if, perhaps, the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Weird.

[Rubbish!]

Just got accepted.

"Keepin’ It Equal: The 14th Amendment’s Equal Protection Clause in the Struggle for Justice"
By Spittin Troofs, J.D.
Yo, let’s talk about the 14th Amendment, fam. This joint, ratified back in 1868, is straight-up the backbone for fairness, tryna make sure everybody—Black, white, rich, poor, whoever—gets a fair shake under the law. We gon’ zero in on the Equal Protection Clause, ‘cause it’s the heart of the amendment, holdin’ it down for justice. This ain’t just some dusty legal text; it’s a promise to keep things 100 for everybody, even when the system be slippin’.
The 14th Amendment: What’s Good?
Aight, so the 14th Amendment dropped after the Civil War, when the country was tryna stitch itself back together. Slavery was done, but the vibe was still mad unequal—especially for Black folks fresh outta chains. The amendment got five sections, but Section 1 is the MVP, layin’ out the Equal Protection Clause: “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” In plain talk, that’s the government sayin’, “We ain’t playin’ favorites. Everybody gets the same rules.”
This clause was a game-changer, fam. It was s’posed to make sure states couldn’t wild out and treat people different just ‘cause of who they are. Back then, they was mainly thinkin’ ‘bout race, ‘cause Jim Crow and all that mess was already creepin’ in. But over time, the clause stretched to cover all kinda folks—women, immigrants, LGBTQ+ people, you name it. It’s like the Constitution’s way of sayin’, “Chill, we all in this together.”
The Equal Protection Clause: Breakin’ It Down
So, how this clause work? Courts use it to check if laws or government moves are discriminatin’ in a way that’s foul. They got this thing called “levels of scrutiny” to figure out if a law’s cool or if it’s straight-up trash. Check it:
Strict Scrutiny: This the toughest test. If a law messes with fundamental rights or targets a “suspect class” (like race or religion), the government gotta prove it’s got a damn good reason, and the law’s gotta be tight, no sloppiness. Think Brown v. Board of Education (1954), where the Supreme Court was like, “Nah, segregated schools ain’t it. That’s unequal as hell.”

Intermediate Scrutiny: This for stuff like gender. The government gotta show the law’s got an important goal and ain’t just wildin’. Like in Craig v. Boren (1976), they struck down a law lettin’ women drink at 19 but makin’ dudes wait ‘til 21. Court was like, “Y’all trippin’.”

Rational Basis: This the chillest test. If the law ain’t about race, gender, or nothin’ like that, it just gotta make some kinda sense. Most laws pass this one, but it’s still a check to make sure the government ain’t actin’ a fool.

The Equal Protection Clause been holdin’ it down in cases that changed the game. Like, in Loving v. Virginia (1967), the Court used it to say bans on interracial marriage was straight-up wack. They was like, “Love is love, fam. Let people live.” Same vibe in Obergefell v. Hodges (2015). The clause keeps evolvin’, tryna keep up with how society moves.
The Struggle Is Real: Challenges and Limits
But let’s keep it a buck—Equal Protection ain’t perfect. The system still be sidesteppin’ fairness sometimes. Like, back in the day, Plessy v. Ferguson (1896) said “separate but equal” was cool, which was basically a green light for segregation. That was some nonsense, and it took ‘til Brown to fix that mess. Even now, folks argue the clause ain’t doin’ enough. Look at shit like voter ID laws or gerrymanderin’—some say they hit certain groups harder, but courts don’t always call foul. Das racism!
Plus, the clause only applies to state action. If some private company or person’s discriminatin’, the 14th Amendment ain’t got no say unless the government’s mixed up in it. That’s why folks be pushin’ for other laws, like the Civil Rights Act, to fill in the gaps. And don’t get it twisted—courts can be mad inconsistent. One day they’re all about equality, next day they’re lettin’ shady laws slide. It’s like they pick and choose when to keep it real. Das rayciss too!
Why It Still Matters
So why we still talkin’ ‘bout this? ‘Cause the Equal Protection Clause is like the North Star for justice. It’s what folks point to when they’re fightin’ for their rights—whether it’s Black Lives Matter callin’ out police brutality or immigrants pushin’ back against unfair policies. It’s the legal muscle behind keepin’ things fair, even when the world’s tryna do you dirty.
But it ain’t just on the courts. We gotta hold the system accountable—call out when it’s slippin’ and make sure it’s livin’ up to that 1868 promise. The clause is only as strong as the people pushin’ for it. From the streets to the courtroom, it’s on us to keep the vibe equal.
Conclusion
The 14th Amendment’s Equal Protection Clause is the real deal, fam. It’s been holdin’ it down for over 150 years, tryna make sure the law treats everybody right. From knockin’ out segregation to openin’ the door for marriage equality, it’s a tool for justice that’s still got juice. But it ain’t perfect, and it’s on us to keep it pushin’. So next time you hear about the 14th, know it’s more than just some old words—it’s the Constitution’s way of sayin’, like a 1980's Mickey D's, “You deserve a break today.”

[ObviouslyNotSpam]

AI these days is just so much better than jive.exe was, back in my day...