Will this law review article “promote DEI values”? Does it cite scholars from “underrepresented groups”? Will it have “any foreseeable impact in enhancing diversity, equity, and inclusion”? And why did one team of editors solicit “only white, male authors”?
Those are some of the questions that editors at the Harvard Law Review asked in internal documents obtained by the Washington Free Beacon. The documents, which span more than four years and have not been previously reported, include article evaluations, training materials, and data on the race and gender of journal authors. They reveal a pattern of pervasive race discrimination at the nation’s top law journal and threaten to plunge Harvard, already at war with the federal government, into even deeper crisis.
The law review states on its website that it considers race only in the context of an applicant’s personal statement. But according to dozens of documents obtained by the Free Beacon—including lists of every new policy adopted by the law review since 2021—race plays a far larger role in the selection of both editors and articles than the journal has publicly acknowledged.
Just over half of journal members, for example, are admitted solely based on academic performance. The rest are chosen by a “holistic review committee” that has made the inclusion of “underrepresented groups”—defined to include race, gender identity, and sexual orientation—its “first priority,” according to resolution passed in 2021.
The law review has also incorporated race into nearly every stage of its article selection process, which as a matter of policy considers “both substantive and DEI factors.” Editors routinely kill or advance pieces based in part on the race of the author, according to eight different memos reviewed by the Free Beacon, with one editor even referring to an author’s race as a “negative” when recommending that his article be cut from consideration.
“This author is not from an underrepresented background,” the editor wrote in the “negatives” section of a 2024 memo. The piece, which concerned criminal procedure and police reform, did not make it into the issue.
Such policies have had a major effect on the demographics of published scholars. Since 2018, according to data compiled by the journal, only one white author, Harvard’s Michael Klarman, has been chosen to write the foreword to the law review’s Supreme Court issue, arguably the most prestigious honor in legal academia. The rest—with the exception of Jamal Greene, who is black—have been minority women.
That pattern is a stark departure from the historical norm. Between 1995 and 2018, the data show, nearly every foreword author was white.
Harvard sued the Trump administration on Monday after the government froze more than $2 billion in grants and contracts to the school. University president Alan Garber said last week that Harvard had no intention of complying with a sweeping set of demands from the White House’s anti-Semitism task force, including “merit-based admission reform” and an end to all diversity programs.
The documents from the law review could create a new line of attack for the administration as the fight over federal funding escalates, and invite litigation from private plaintiffs eager to join the pile-on.
Such plaintiffs would have no shortage of ammunition. The documents show that the Harvard Law Review continued using race after the Supreme Court outlawed affirmative action in June 2023, implementing several DEI measures within the past year.
Just this January, the law review voted down a proposal to make personal statements the only non-academic factor considered in the admissions process for editors, effectively renewing its policy—adopted prior to the Supreme Court’s decision—of making race the “first priority” of holistic review.
The most overt use of racial preferences comes in the selection process for articles, which includes multiple steps designed to weed out authors based on DEI criteria. In a July 2023 training, for example, the journal told editors that they should consider “DEI values”—including the racial diversity of each article’s citations—when giving pieces a preliminary read.
Articles that make it past that initial screen are subject to even more DEI vetting, with each piece assigned to an editor who decides whether to recommend it for further consideration. As part of that process, editors write memos to the articles committee laying out each piece’s pros and cons—including, in many cases, the race of the scholar who wrote it.
In at least seven memos obtained by the Free Beacon, editors argued that an author’s minority status counted in favor of publishing their article. “The author is a woman of color,” read one 2024 memo. “This meets a lot of our priorities!”
Another memo, from 2022, said that one “pro” of an otherwise weak article was that it had been “written by a woman of color outside of the T14,” a reference to the top 14 law schools that dominate legal scholarship. Still another recommended a piece on the grounds that it would “help advance [the] career” of a “young academic of color on an upward trajectory at UVA.”
At least one attorney is already planning to sue Harvard over the law review’s policies. Jonathan Mitchell, the former Texas solicitor general, told the Free Beacon that he is preparing complaints against both Harvard and the law review based in part on the documents.
While the Harvard Law Review is an independent nonprofit and legally distinct from the university, it operates out of a Harvard building, is tended to by Harvard janitors, and employs only Harvard students as editors. It is also advised by administrators and professors at Harvard Law School, including the dean, and some student editors are on federal financial aid.
Mitchell plans to use such facts to argue that Harvard itself—not just the law review—is on the hook for the journal’s DEI policies. If that argument is accepted by a federal court or taken up by the Trump administration, it could have major implications for law schools across the country, even those that claim to be separate from the law journals that bear their names.
“Every law review is engaged in corrupt and illegal DEI practices of this sort,” Mitchell told the Free Beacon. “The student editors think they can get away with it and the university administrators look the other way. We’re going to expose it and we’ll keep suing them until it stops.”
The pending litigation follows a wave of lawsuits against other elite schools, including Northwestern and NYU, over the diversity policies of their law journals, as well a separate complaint Mitchell filed against the Harvard Law Review in 2018 that was based on publicly available information.
Though all three complaints were eventually dismissed, most of the litigation took place before the Supreme Court banned affirmative action in college admissions. And it did not have the benefit of the breadth of materials reviewed by the Free Beacon, which provide an unusually wide window into the decision-making process of a top law journal.
Some of the most brazen bean counting at the law review comes in the solicitation process for the foreword to the Supreme Court issue. That process, which is separate and more centralized than the one used for normal articles, typically begins with a list of nominees compiled by five people: the editor in chief, two Supreme Court editors, and one representative from each of Harvard Law Review’s two diversity committees, including the “Women, Nonbinary, and Trans Committee.” Two other editors were added to the foreword committee this year.
Armed with more votes than the journal’s top editor, the diversity officials help whittle down the list by summarizing the pros and cons of each candidate. In a section titled “Why should they write the foreword?”, one 2024 spreadsheet stated that Shirin Sinnar, a professor at Stanford Law School, would be “the first hijabi, Muslim woman to write the Foreword.” Other scholars got points for being “one of few Latino professors in this space” or, in the case of critical race theorist Mari Matsuda, “the first tenured female Asian American law professor in the US.”
Eventually, the entire law review votes on the list of finalists. To inform the vote, the foreword committee circulates memos on each of the candidates, taking care in many cases to note their race and gender.
“If selected, Rodríguez would be the third woman of color, and the first Latino/a scholar, to write the Foreword,” read a 2020 memo on Yale Law School’s Cristina Rodríguez. She was ultimately chosen as the foreword writer.
This process has had a dramatic effect not only on which scholars are selected but on which topics they address. The 2019 foreword, “Abolition Constitutionalism,” discussed how the Reconstruction Amendments could be used to bring about a “society without prisons.” The 2022 foreword, “Race in the Roberts Court,” was written by a law professor at UC Berkeley, Khiara Bridges, who had emerged the previous year as an outspoken defender of critical race theory. The 2023 foreword, by Maggie Blackhawk, was called the “Constitution of American Colonialism.”
The choices reflect what some lawyers say is a growing divide between the topics covered in elite law reviews and the actual issues in appellate law. Advocates rarely consult journals like the Harvard Law Review, said O.H. Skinner, Arizona’s former solicitor general, because the journal’s obsession with DEI has led to “ever-more-ridiculous levels of academic myopia” and pushed the most pressing legal questions to the side.
The documents from Harvard “show a journal that no longer seems interested in much beyond their own performative score-keeping amongst categories of diversity,” Skinner said. “Actual substance comes second to box-checking in discussions of articles’ worth.”
That kind of box-checking was on full display when, in 2024, some editors were debating who should be invited to reply to a piece about police reform.
“Four of the five people raised in this message are white men, which I find concerning,” one editor wrote in Slack. “Having read the article pretty thoroughly, I think a huge missing piece was that of how race fits into policing and misconduct.”
In a separate exchange, an editor implied that a piece should be subject to expedited review because the author was a minority. “POC author,” the editor wrote in Slack, adding that the scholar already had a publication offer from Northwestern. “We should send for [review] tonight if we want to move on this.”
Harvard did not respond to a request for comment. The law review’s current editor in chief, G. Terrell Seabrooks, did not respond to a request for comment.
Mitchell plans to argue that the journal’s article selection process violates Section 1981, the law banning race discrimination in contracting, as well as Title VI and Title IX, which ban race and sex discrimination, respectively, at schools receiving federal aid.
“It doesn’t matter whether the Harvard Law Review is legally distinct from Harvard University,” Mitchell said. “The students on the Law Review receive federal financial aid, and that subjects the Law Review to the anti-discrimination rules of Title VI and Title IX. The Law Review is also violating 42 U.S.C. § 1981, which applies to everyone whether they receive federal funds or not.”
Whether Harvard itself can be held liable for the law review’s behavior is a more complicated question, said Dan Morenoff, the executive director of the American Civil Rights Project. It would depend, in part, on the exact relationship between the law school and the law review, which says on its tax forms that it is “functionally integrated” with Harvard University.
The law review has also adopted several policies that, while not racially discriminatory, seem designed to ensure that editors toe the party line. One resolution passed in 2023 called for “Indigenous inclusive citation practices.” Another required officers to “make a good-faith effort to encourage use of pronouns” and “include pronouns in self-introductions,” adding that “very few editors engage in the standard practice of using their pronouns in conversation.”
“As a result, the burden of ensuring correct pronoun usage typically falls on trans and nonbinary editors,” the resolution, which passed with over 80 percent of the vote, said. “At the same time, pronouns should not be mandatory. For instance, an editor exploring their gender identity might be unsure of their pronouns.”
This article was originally published at freebeacon.com
