On December 9, the Supreme Court will hear Fisher v. University of Texas to decide whether affirmative action is permissible under the Equal Protection Clause of the 14th Amendment.
25 years ago today, President Barack Obama, then-President of the Harvard Law Review, wrote to the Record explaining and defending the Law Review’s affirmative action policy.
Review President Explains Affirmative Action Policy
To the Editor:
Since the merits of the Law Review’s selection policy has been the subject of commentary for the last three issues, I’d like to take the time to clarify exactly how our selection process works.
As our Treasurer, Lisa Hay, explained in your first article on our selection policy (October 12th), all students who wish to become editors of the Law Review participate in a writing competition at the end of their first year. The entire writing competition is conducted on a double-blind basis, to ensure absolute anonymity. Each submission is graded by at least three different Review editors to help decrease the effects that any particular editor’s subjective opinions may have on the final scores.
Once all the writing competition submissions have been graded, these scores, as well as the law school transcripts of all those who have chosen to release them, are submitted to a Selection Committee made up of the President and two other Review editors who have been elected by their fellow editors.
The Selection Committee first identifies the group of candidates whose excellent performance, either in the classroom or on the writing competition, sets them apart. (Approximately half of this first batch is chosen solely on their performance on the writing competition; the other half are selected on a weighted formula of 70 percent grades and 30 percent writing competition.) The Selection Committee must then choose the remaining editors from a pool of qualified candidates whose grades or writing competition scores do not significantly differ. It is at this stage that the Law Review has for several years instituted an affirmative action policy for historically underrepresented groups: out of this pool, the Selection Committee may take race or physical handicap into account in making their final decision, if the Selection Committee believes that such affirmative action will enhance the representativeness of the incoming class. On the other hand, the Selection Committee may find that given the make-up of the first batch of candidates, such considerations are unnecessary. In no event is the Selection Committee required to meet any set quotas.
Once final selections are made, all writing competition material is destroyed. No editors on the Review will ever know whether any given editor was selected on the basis of grades, writing competition, or affirmative action.
The Review as a body feels that the success of the program speaks for itself. The vigor of debate and the wide range of perspectives that results from our current selection process have not been purchased at the price of any “lower standard” of editorial excellence; in fact, our program argues for the proposition that diversity can and should be the companion of quality legal scholarship.
This isn’t to say that our selection procedures are ideal. No matter how anonymous the process, we are in the difficult and unusual position of evaluating our peers; indeed, the absolute necessity of anonymity prevents us from making the nuanced evaluations that a law school admissions office might make. As a result, the design of the selection process – including not only affirmative action but also the use of the writing competition or the use of grades – has been an important subject of discussion for each volume of the Review. As I stated in the first Record article, we decided last year as a body that based on the percentage of women in the Law School and our previous success of attracting a large number of women to editorial and leadership posts at the Review, an affirmative action program for women was unnecessary. Because of the drop-off of women editors this year, that policy is subject to change if the majority of Review editors think it’s appropriate. In the meantime, we’ve been in contact with members of the WLA [Women’s Law Association] to ensure that we effectively recruit women to participate in this year’s competition.
Let me end by emphasizing that the Review is committed to including the widest range of viewpoints on its editorial staff, and strongly encourages 1L women and men of all backgrounds and ideological stripes to participate in this year’s writing competition.
I’d also like to add one personal note, in response to the letter from Mr. Jim Chen which was published in the October 26 issue of the RECORD, and which articulated broad objections to the Review’s general affirmative action policy. I respect Mr. Chen’s personal concern over the possible stigmatizing effects of affirmative action, and do not question the depth or sincerity of his feelings. I must say, however, that as someone who has undoubtedly benefited from affirmative action programs during my academic career, and as someone who may have benefited from the Law Review’s affirmative action policy when I was selected to join the Review last year, I have not personally felt stigmatized either within the broader law school community or as a staff member of the Review. Indeed, my election last year as President of the Review would seem to indicate that at least among Review staff, and hopefully for the majority of professors at Harvard, affirmative action in no way tarnishes the accomplishments of those who are members of historically underrepresented groups.
I would therefore agree with the suggestion that in the future, our concern in this area is most appropriately directed at any employer who would even insinuate that someone with Mr. Chen’s extraordinary record of academic success might be somehow unqualified for work in a corporate law firm, or that such success might be somehow undeserved. Such attributes speak less to the merits or problems of affirmative action policies, and more to the tragically deep-rooted ignorance and bias that exists in the legal community and our society at large.
President, Harvard Law Review
Published November 16, 1990