LETTERS to the Editor

BY

Lieutenant Cuellar underestimates effects of discrimination

While I respect Carina Cuellar’s commitment to and service in the military, I think that she seriously misunderstands the nature of the debate over the university’s deplorable caving with regard to the Law School’s non-discrimination policy. In a free society no institution should be beyond criticism, particularly one that has the power and inclination to actively impose its core values on others who do not agree. To say that gay people, whom the military ruthlessly persecutes, should refrain from standing up for their rights because (in a very nebulous sense) the institution that spits on them also “defends their freedom” is to my mind an overly-simplified and jingoistic argument at best. I came to this Law School because I was assured that one of its core values was freedom and equality regardless of sexual orientation. That core value has now been trampled on and my choice to come here rendered profoundly hollow.

The argument that makes the most sense to me is actually not a traditionally “liberal” one. I don’t particularly want the government to help me force my way into organizations that place a premium on “traditional” values, organizations where I am not welcome and not wanted (And where the people probably can’t dress anyway). What I do want is for the government to refrain from trampling on the rights of those organizations with which, because they share my values, I do choose to affiliate myself.

If the Boy Scouts, despite their substantial use of public resources, still have a free association right to exclude gay people, why shouldn’t the Law School be accorded the same free association right to protect its gay students from discrimination by homophobic organizations? Unfortunately the Law School is not sticking by its guns, so we may never have an answer to that question.

Daniel Weiner2L

Last week, Second Lieutenant Carina Cuellar expressed her frustration with the Law School’s apparent disdain for the U.S. military and its members. She associated opposition to on-campus JAG recruiting with a general lack of respect for the military at HLS. As a former Marine Sergeant with direct experience with the “Don’t Ask, Don’t Tell” policy, I would like to express a different view. To everybody who has spoken out against discrimination in the ranks and urged Harvard to uphold the rights and dignity of its student body, thank you. The men and women who have served honorably over the life of this country, and whose contributions have been scorned on account of their sexual orientation would thank you too, I think.

On several occasions during my tour of duty, I saw Marines physically or verbally attacked by other Marines who believed them to be gay. In most cases, the incidents were not reported. Since investigations into such misconduct often prompt an examination of the victim’s sexual orientation, many complaints are suppressed for fear that they will lead to the victim’s discharge. Of the incidents I am familiar with, the only case officially reported did in fact result in the victim being discharged. The aggressors received a reprimand and thirty days of extra duty. The investigation itself paralyzed the unit and left deep divisions among its members. I was left wondering how an organization that proclaims “honor, courage, and commitment” as its core values could so blatantly fail to live up to them.

“Don’t Ask, Don’t Tell” is a detrimental policy held in place by officials who would rather entertain their own beliefs and prejudices than foster a military that is as strong, just, and efficient as it can be. Don’t let accusations of ingratitude cloud the real issues: discrimination has forced its way onto campus via the Solomon amendment. The Law School has declined to pursue even those remedies that would not threaten its funding. We owe it to ourselves and, if you like, to the men and women serving their country, to struggle against this threat.

Matthew Muller1L

Clarifications from the Largest Law Firm

We want to thank Emily Kimball for her excellent article entitled “The Largest Law Firm in the Nation” describing opportunities for law students at the Department of Justice in the September 25, 2003 issue of the Harvard Law Record and take this opportunity to offer a few clarifications that may be of interest to your readers:

* Third-year students who have judicial clerkships in hand for the following year prior to the application deadline can apply for summer internships with all the Department components who participate in the Summer Law Intern Program, not just the Office of the Solicitor General and the Office of Legal Counsel;

* A number of Department components do in fact extend a limited number of offers of permanent employment in advance to top performing summer interns (they are called “funnel offers”), although not in the same numbers as firms in private practice;

* The Department solicits and accepts applications for the Attorney General’s Honors Program from judicial law clerks, other recognized legal fellowships, and graduate law students, as well as third-year law students. This is an important point since many Harvard Law Students come to the Department following a judicial clerkship. Eligibility requirements and information about all the Department legal hiring programs are available on our web site.

* A preliminary analysis of this year’s interview candidates indicates that close to 50% of the individuals selected for interviews for the Attorney General’s Honors Program participated in the Summer Law Intern Program or were former volunteer legal interns.

We appreciate the opportunity to comment on this article.

Lou DeFalaiseDirector Office of Attorney Recruitment and Management

Yale alums consider effects of journal gender bias in academia

As recent Yale Law School graduates who have completed a comprehensive study of gender disparities in legal education, we read with interest your article on gender imbalance at the Harvard Law Review and the ensuing reactions. Women have made tremendous progress in integrating law schools, but the legal academy’s conception of merit continues to reflect a male bias. That bias is evident in the kinds of behaviors cultivated and rewarded in the classroom, the type of academic work considered worthwhile, and the people whom the legal academy selects for its next generation of scholars.

Nationwide, women make up half of law school classes but represent just 1/3 of law school faculties, where they are concentrated in non-tenured positions. At Yale, of the law school graduates entering the teaching market between 1996 and 2002, 29% were women, even though women represented 44% of the student body during those years. That disparity is preceded by imbalances in law review participation. In 2001-2002, for example, female students constituted 47% of Yale’s J.D. students, yet they published 25% of its student notes. The Yale Law Journal has undertaken a probing study of its own gender and racial disparities and has changed its admissions criteria, leading to more women and people of color serving as editors.

We don’t know Harvard’s statistics in these areas, but we do know that the Harvard Law Review serves as a gate-keeper of the academy – making its exclusionary policies particularly worrisome. Remedying the imbalance requires institutions to change their standards of “merit” where those standards reward characteristics which are more likely to be displayed by men than by women, yet which fail to reflect the diversity of skills needed for good lawyering and scholarship. We encourage Harvard Law School and the Harvard Law Review not only to collect the necessary data, including examining any gender differential in grades, but also to take the potentially uncomfortable steps needed to fix the problem.

The raw results of a Yale Law Women study of gender disparity in law schools are available here and are
the subject of an article on file with the authors.

Sari Bashi and Maryana IskanderYLS ’03

Law Review alums respond to Law Review alums

It took guts for 15 of our colleagues to write the letter they did. Perhaps it would have been better to circulate the proposed letter to all the members of their class for input, but that is beside the point.

The letter is a model of passionate address, suggesting that there was a “systematic denial of equal opportunity” to women at the Harvard Law Review, and “unconscionable” inaction, with “corrosive effects”. But in striving for passion, it obscures some important points. We write today not to disagree with our colleagues who have with a stroke of the pen opened up an internal debate to the Law School and the world. Rather, our goal is to clarify a few things in order to contribute to a more informed debate:

* As the letter indicates we attempted every conceivable “structural solution” – a euphemism for “every solution short of affirmative action.” This effort required hundreds of hours of editor investment, including rerunning the competition with different selection criteria (eliminating grade-ons, changing the weight of the writing sample, etc.) for each of the past 10 years to see if any of the changes would have led to admission of more women on to the law review. None of these proposed changes would have produced a significant effect.

* This result reduced the debate to a question of whether to implement an affirmative action program of some type. “Affirmative action”, is, of course, itself a euphemism. In this context it could mean a number of possible steps, each of which would be a departure from our current policy of selecting applicants in a gender-blind manner. The main affirmative action proposal before the law review’s membership last year, though not the only possible one, was to allow gender to be taken into account in selecting who would fill our “discretionary spots.” We recognize that the editorial written by our fellow former editors did not explicitly call for an affirmative action policy to increase the number of women on the Law Review, and those editors may not have meant to suggest that such a policy is the only possible solution. However, because much of the debate about the number of women on the Law Review has and will focus on affirmative action it, is important to face this issue head-on.

* In debating whether to implement some type of an affirmative action program, a large number of female (and a smaller number of male) alumni were consulted. The overwhelming majority opposed adopting gender affirmative action, many of them believing that it would cause employers and others to devalue their participation in the law review. Whether this effect is empirically true is a different matter, and we acknowledge that this is an imperfect sample (those women who get on to the Law Review are not necessarily a representative sample of the law school population as a whole), but many found it significant that this concerned a large number of the constituency most affected by the decision.

* Given a choice between the status quo and considering gender in allocating discretionary spots, a majority of our class and that below us voted not to make the change. Perhaps we voted wrongly. Perhaps the decision should not have been our’s to make, but rather that of the law school as a whole. Affirmative action, especially in our situation-as an institution that has not in the recent past intentionally discriminated but quite the contrary actively, sometimes even desperately, tried to increase the number of women participating-is an issue that is divisive in America and on which reasonable people can disagree.

* The decision not to release the data to the law school at large, although in part influenced by “P.R.” considerations, also had to do with respecting privacy and the source of the data. Other law schools that shared their gender data to better help us assess and address our problem did so on the explicit promise that we would keep the data confidential and not publish it. In terms of data about our own population, the Law Review receives its demographic data and de-identified grade reports from the Law School registrar. It is this data that made the analysis of the gender program, and the grade-on portion of our competition process, possible. Individuals check boxes (and some of them don’t) on their application releasing the information to the Law Review for one purpose and one purpose only: to consider them for the purpose of the grade-on spots. Many editors felt that using this information for a purpose not authorized would be a violation of privacy and a breach of trust. Admittedly, this is far from dispositive, and many will find it unpersuasive, but it was a key motivating factor as to why the Law Review decided not to release it and not a conspiracy of silence.

Although this has not proceeded in the form we would have liked, we are pleased that our colleagues have brought this important debate out into the open. We write only to ensure the debate is an informed one.

I. Glenn Cohen ’03 Adam Raviv ’03Matthew Stephenson ’03Sasha Volokh ’03

The Record’s ‘spin’

I appreciated last week’s guest column by former editors of the Harvard Law Review: it was a thoughtful invitation for further dialogue and action on the gender disparity problem on the Review. I wish I could say the same of much of The Record’s coverage of the issue to-date. Indeed, rather than providing the campus community with balanced reporting of a complex problem with multi-dimensional solutions, The Record – with its staged photograph of its editorial staff posing dramatically in front of Gannett House, its reluctance to incorporate viewpoints contrary to its own particular “spin” on the story, and its sensationalistic, inflammatory language – elided the distinction between fact and fiction, news and editorial. Most regretfully, it missed an opportunity to set a tone for productive conversation on an important issue.

The truth is that no “straitjacket of silence” cloaks the Review. Regardless of what may or may not have been in days of yore, far more fashionable around Gannett nowadays are a welcoming and supportive environment, commitment to a quality product, and lively, open debate. But this is not to say that the Review’s membership couldn’t be more diverse and representative. Like many former and current editors, I, too, am troubled by the decrease in the number of women on the Review over the last two years. Any attempt to address the problem, however, must contemplate a panoply of possible causes and solutions – not blindly rush to potentially ill-advised or counterproductive action.

The gender disparity on the Review is just one aspect of a broader inquiry into women’s equal participation and opportunity at HLS. Rest assured that members of the Review have taken up the invitation to engage meaningfully in this process. I challenge The Record to do the same.

Amanda Teo3L

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