BY TAMMY TORRES
Editor’s Note: The following article is a part of an on-going series meant to open up public debate on the Law Review’s gender gap. This week, the Record looks back on the evolution of the problem, beginning in the early 1980s and extending into the current school year. This article is meant to serve as an historical overview, not an exhaustive review, and thus it relies chiefly on past Record articles, Law Review statements, and statistics in order to provide context to an issue that has consistently been brought up over the past twenty years. The next part of the series will focus on student, faculty and administration response to the problem, and we look forward to hearing from Law Review editors as well as non-members about their thoughts on the gender disparity issue.
“…The criteria of achievement that the Review makes relevant to selection relate to skills that systemic biases in our society impede the ability of minorities and women to acquire.” This was what then Law Review president Scott Nelson had to say back in October of 1983, a year after the Law Review implemented an affirmative action policy that excluded women as a discretionary category. In that year, women made up 23% of Law Review editors while making up approximately 34% of the total student body. Twenty years later, they make up just 24.7% of Law Review editors while making up approximately 44% of the entire student body.
As the accompanying chart indicates, the number of women editors has fluctuated dramatically over the years and some classes of editors were more evenly split than others. The chart also highlights a recurring pattern of gender disparity stretching back to the years when Dean Kagan was an editor. Below, the Record traces the evolution of an issue that continues to plague the most prestigious organization on campus, two decades after it was first recognized.
The modern history of the debate over the Law Review’s gender disparity begins on January 13, 1982, when the Review first adopted its affirmative action policy. The policy originally passed with women as a discretionary category included alongside race. However, after protests from some Review editors and some faculty members, a compromise was reached, which excluded women from the plan.
Affirmative action, even for minorities, was controversial from the beginning. In the October 28, 1983 issue of The Record, Professor Charles Fried called the plan “so Byzantine and so coopered up with political compromises” that it is “entirely possible that the beneficiaries of the plan are rather implausible candidates.”
After the initial adoption of the plan, most of the Review’s efforts to increase minority and female representation involved tinkering with the selection process. In 1984, the Review came one vote away from eliminating grades from the selection process completely. The deciding vote was cast by then President Scott Nelson, who had earlier stated, as quoted above, that the grade-based selection process reinforced institutional biases.
Many editors felt that the 1984 plan failed because it was too revolutionary a change for its time. Instead, the Review adopted a plan wherein half of the editors were chosen on the basis of the writing competition and the other half were chosen based on a weighted system of 70% grades, 30% writing competition. The article didn’t specify how many of these slots were reserved for the affirmative action policy.
The 3L editor who had been the biggest proponent of eliminating grades as a selection criteria, Mark Wooster, remained hopeful that the close vote indicated that his plan would eventually pass. “I do think that it is inevitable that the Review will some day completely eliminate the use of grades in the selection of its members.”
However, Wooster’s premonition proved incorrect, and in 1986 some members of the Review started a push to return to a more grade-heavy selection system. However, that measure failed in part due to a 1L petition, signed by 300-350 students, which stated, the Class of 1988 “opposes any effort to increase the influence of grades in the selection of members of the Harvard Law Review.”
The next year, the Review began to question whether there wasn’t also a recruitment problem. In the February 13, 1987 issue of The Record, the newly elected Review president, Raj Marphatia expressed particular concern about the lack of minorities and women on the Review: “Women and minorities are traditionally underrepresented on the Review and one of our priorities is to work on recruitment. We want to try and convince people that the Review is not a completely anal, competitive place; you can learn a lot in a friendly, non-intense atmosphere.”
The Review did increase its recruitment efforts, and, consequently, the number of women applying rose significantly. However, this did not result in an immediate increase in the number of women chosen as editors. Thus a vote was held in the Spring of 1988 attempting to include women in the affirmative action policy.
The vote actually passed, but was later nullified by a procedural technicality. Apparently, there was not a quorum of members present, and according to the Review’s rules at the time, this meant that a larger percentage of editors had to vote for an issue than was ordinarily required. At that time, some members, refusing to be identified due to a vow of confidentiality taken after the vote, claimed that even had a quorum been present and several additional members had been against the measure, it still would have passed. However, no new vote was scheduled.
The next year, however, women were accepted as editors in record numbers. The percentage of women accepted in the Fall of 1988 was approximately 40%, roughly proportional to the number of women in the then 2L class as a whole. Although some members of the law school community expressed skepticism that the problem had suddenly resolved itself based on the results of one year, then President Dan Kahan was guardedly hopeful.
Said Kahan in the September 23, 1988 issue of The Record, “We are really eager that people in the law review community know about these numbers. We were concerned like everybody else about last year. I know this can affect what 1L women envision themselves doing over the next two years, and we want to let them know that we encourage them to apply. The Review is a better place when a diversity of opinions are represented.”
Fast forward to 1993, and the gender disparity on the Review, while not quite falling to its pre-1988 level, had not managed to maintain the high expectations set by that record-setting season. By then, however, the Review was beset by even bigger problems. Then Review President Emily Schulman had begun her tenure dealing with the uproar over a satirical piece mocking the life and death of a feminist professor. Schulman ended her tenure amid accusations of sexism, racism and anti-Semitism. After a three-month investigation, the final report concluded that although Schulman was guilty of bad judgment, her conduct had not been severe enough to warrant disciplinary action.
However, the controversy put the Law Review back under the microscope, and, once again, its gender disparity began to be noticed. Shortly after the election of Schulman’s successor, Van Nguyen, the Law Review once again nixed a proposal to include not only women, but also gays, lesbians, and the socio-economically disadvantaged on the list of groups that benefit from its affirmative action policy.
The inability to get women onto the list, however, seemed to cause the most controversy among members. Some editors argued that allowing gender as a category for affirmative action would stigmatize female editors. Others disagreed. Then editor Rebecca Eisenberg asserted that “Being a woman in general has a stigma. When I walk into job interviews, judges often ask me what the selection process is. I doubt that white males get asked that question.”
Another editor, Kevin Warsh, did not of
fer his support either way, but suggested that there needed to be more discussion as to how affirmative action would work. “There’s a lot of misinformation out there,” he said. “The policy should be open. Everyone should know what it is.”
A proposal by Eisenberg to hire an outside expert to study the selection process was rejected. During that same voting session, however, editors agreed to keep statistics on how various groups perform in the Law Review application process. The study would take place over a three-year period allowing the Review to reevaluate the policy in the future.
In October of that same year, the Review was once again featured in The Record due to a low percentage of newly admitted female editors. Then Review Treasurer Mike Labson described the situation as “a problem we’re trying to address,” and suggested that it was possible that women simply completed the application process in lower numbers.
The data-gathering process accepted on Eisenberg’s suggestion aided the Review when it created a task force to study its gender disparity in October of 1995. That year’s President, David Friedman, said, “The task force first and foremost is looking at the reasons why we have the number of women we have and inquiring as to whether it is an undesirably low number because that is a value judgment. We intend to take a fresh look at the problem without any assumptions one way or another. Then, based on the results, we may consider policy changes.”
In the March 15, 1996 issue of The Record, the task force findings, which had been released to The Record via a confidential task force memo, debunked the theory that not enough women were applying. The task force found that the number of women competing for selection to the Review was roughly proportionate to the percentage of women at HLS as a whole. Instead, the task force found that the gender disparity occurred after the selection process. Quoting the article written by Jaclyn Liu:
“The task force concluded that the grades differential among male and female participants explains these findings. The average and median GPAs of women who applied to the Review and chose to reveal their grades were lower than men’s and, ‘by comparison, women scored much closer (although still slightly lower than men) on the writing competition.’”
Citing these results, the task force recommended that the Law Review eliminate grades from its selection process or, alternatively, de-emphasize grades in favor of the writing competition, include gender as an affirmative action category or reduce the number of individuals who are chose on a 70% grades basis. The Review chose the last of these proposals.
Editors explained that the elimination of grades was “too radical,” a sentiment echoing that of their predecessors a full decade earlier. Explaining why affirmative action once again failed to pass, then Law Review President David Panton said, “Some people opposed affirmative action on its principle. Others felt that the problem with women was not so great as to require such a drastic measure. They wanted to wait and see the results of our new proposals that had passed.”
Another editor, Lisa Grow, explained the result this way: “I think there are reasons for raced-based affirmative action that do not exist in the gender-based context. There is no deep seated societal discrimination that led to this result…maybe there is something about law school or this particular institution that causes the disparity, but this is not a broad social problem that affirmative action [for women] is designed to correct.”
However, some people expressed frustration with the voting process itself claiming that members who favored the status quo had used strategic voting to insure that neither measure passed. Apparently some editors voted against affirmative action arguing that the Review should change its selection process since grades were the cause of the discrepancy; this same block of editors, however, also voted against the elimination of grades in the selection process at the previous meeting.
In the Fall of 1996, there seemed to be revived hope that the gender disparity problem was waning, as the number of women accepted onto the Review rose. Another task force was created at that time to address what the Review called “lingering concerns” over the issue. Said David Panton, “The number of women is still not proportionate to that of the student body.”
However, only a few weeks later, the Record reported that the task force had already stalled. The Review was still collecting statistical information on the new selection criteria it had instituted the year before, which was complicated by the fact that not all applicants chose to release their grades to the Review. Panton was also worried about confidentiality issues though he expected “that at some point in the future [the Law Review would] make the information public.” When asked why the task force was delayed, he answered, “It’s just the internal dynamic of the Law Review.”
1997 was another record-breaking year for the Law Review as the number of women chosen as editors reached record numbers. The Review attributed the results in part to its de-emphasis of grades in the selection process and to conscious recruiting efforts to reach out to women. However, while the Review expressed optimism that the rise in women accepted was evidence of a new trend, Professor Carol Steiker, a former Law Review President herself, was more cautious. Steiker noted, “I think it’s great, but time will tell. There have been some lean years and some better ones, but hopefully this is not a statistical glitch.”
The Law Review Today
Unfortunately, Steiker’s note of caution appears to have been well-placed. Although the Review maintained its female numbers for a few years, recent years have once again shown a sharp drop-off. One explanation may be that since the number of Law Review editors chosen on the basis of 70% grades, 30% writing competition is tied to the number of sections, the Law School’s increase in the number of sections from five to seven a few years ago has once again heightened the influence of grades. In a Record article last fall, the prospect of eliminating grades was once again raised.
That article also discussed the prospect of adding women as a discretionary category in the affirmative action policy. The previous winter, the proposal had been initially approved by the then 2L class of editors, but it was eventually rejected by the Law Review as a whole. In the aforementioned Record issue, then 2L editor Meaghan McLaine said, “It would be unfortunate to use only an affirmative action remedy but permit the competition to be corrupted, if that’s the case. But if it isn’t feasible to take a holistic approach, I’d support a systemic one like affirmative action.”
The gender issue was at the forefront in the Spring of this year, when current President Daniel Kirschner was elected. Kirschner expressed his sympathy with the issue of gender disparity and signaled a willingness to work on correcting the problem at last. To this end, the Review recently changed its policy of weighting grades 70% and the writing competition 30% to a 50/50 weighting system for the slots chosen partially on grades. However, in last week’s issue of the Record, fourteen former editors expressed skepticism about this change saying, “The adopted change to the grade-on process was mostly symbolic – it has no hope of substantially increasing the number of women on the Law Review.”
Unfortunately, the gender disparity actually widened this year as the total number of women serving as Law Review editors decreased once again. Thus, an issue that was first addressed in the pages of this paper twenty years ago maintains its relevance to this day.