Here We Go Again. It’s that time of year. Almost every year in recent memory, The Record has run an article or two criticizing the gender disparity on the Harvard Law Review. The format is pretty standard: An investigative report detailing the problem and trying to get some answers, or at least a coherent opinion, on how it’s being solved. Although in recent years the Review has developed a cult of silence making it ever more difficult to get editors to speak on the record, the president of the Review is always available for a predictable remark.
Last February, for instance, in a profile discussing, in part, how he would handle the problem of gender imbalance, current president Dan Kirschner said, “Gender discrimination is an enormous problem, and we must do something concrete to address the situation.”
Not exactly fighting words, but then, Kirschner is simply following in the footsteps of other, equally noncommittal predecessors. In 2002, then-president Bert Huang said of the gender disparity, “I think there is a lot of learning and data-gathering, a lot of looking into what the task force in 1996 found, before we can understand the situation. Once we have that information, we will have the material for a serious and open discussion about what is the right thing to do.” Former president Kenneth Bamberger had this to say when asked about the grade/gender controversy in 1997: “This part of the year was really an inward looking part. Now we can progress further when the new board is elected.” One begins to wonder if there’s a Bluebook-like manual on evasion sitting on a shelf in Gannett House.
As much a tradition as making hollow commitments to fix the gender disparity are the meaningless attempts to fulfill those commitments. In 1981, the Review voted in an affirmative action policy for minorities that included women as a discretionary category. After protests from faculty and some review editors, however, a compromise proposal excluding women was instituted in 1982. Since then, the affirmative-action-for-women debate has resurfaced over and over again, seeing its strongest resurgences in 1988 when it was initially voted in but then overturned on a procedural technicality and in the 2001-2002 school year when it was approved by the then-2L class of editors but ultimately rejected by the Law Review as a whole.
The Review also has spent the past twenty years tinkering with its selection and recruitment policies, but all to no avail: the number of women on this year’s staff is only slightly higher than the number in 1984 when Dean Kagan was first selected as an editor. As bleak as this sounds, it’s even worse when one considers that the number of women at the Law School as a whole has increased by almost twenty percentage points.
The major reason the Review usually gives for why the gender disparity has yet to be rectified is that the causes of the problem are unclear. However, one has to wonder what exactly the mystery is. Almost eight years ago, the Review’s own task force found that the grade disparity between men and women who applied to the journal was a key factor and recommended jettisoning grades as a selection criterion. Apparently fifteen years of documented discrimination weren’t compelling enough for that year’s editors, however, as the measure was voted down. An alternative measure advocating the ever-popular affirmative action was also voted down. Again.
Even if one were to reject the task force findings completely in favor of the “women just don’t apply as much” argument that gets carted out every few years, there is still no excuse for this ongoing problem. In recent years, Law Review presidents have complained that it’s simply too difficult to figure out how many women apply (though this rarely stops them from speculating that fewer women than men apply when arguing against changing selection criteria or instituting affirmative action). What they fail to mention is that at least from 1990 to 1996, the Review actually kept statistics on this matter and found that the percentage of women filling out the competition was approximately equal to the percentage of female students at HLS. At some point in the ensuing years, the Review stopped tracking these statistics, and an attempt to restart this tracking was voted down in 2001. So much for the great fact-finding missions the Review presidents perpetually claim to support.
The Law Review has been “actively” trying to solve its gender disparity problem for literally decades, even forgiving the many years when gender disparity was considered not only unproblematic, but desirable. An editor who was selected only a few years after the problem began to be taken seriously is now the first female dean of the Law School, yet the discrimination continues. Adding insult to injury, the Review’s attitude toward fixing the problem remains just as persistent as best summed up by Mark Panton, who presided over the journal in 1996: “We have a proclivity towards re-analyzing. Every issue is likely to be discussed and rediscussed.”
Perhaps, at its heart, Panton’s statement reveals the real issue: the Law Review is not competent to solve its own gender disparity problem. It has proven again and again that it is not up to the task, and two decades of HLS women have suffered the consequences. Forget the task forces. Forget the secret votes. Forget the empty promises. Since the Review has had year after year of opportunities to fix its gender problem and it has failed at every turn, the responsibility for rectifying this situation should no longer rest in its hands. If it does, you can bet your bluebook that come next fall, the tradition of evasion, doublespeak, and, most tragically, discrimination, will continue.