Stuart Taylor Comments On Lawsuit Against Harvard Law Review

[NOTE: Be sure to read the excellent comment to this post by George Washington University law professor John Banzhaf]

Two days ago, in the post immediately preceding this one, I discussed “Another Discrimination Lawsuit Against Harvard,” this one against the Harvard Law Review for using racial and gender preference in selecting its editors.

Stuart Taylor, Jr., co-author with Rick Sander of the “magisterial” book, Mismatch, sent me a typically thorough and thoughtful comment, and he has graciously (also typical) given permission for me to post it here in full. You’ll need to read — or better, re-read — my previous post before reading Stuart’s comment below.

Although I don’t normally refer to credentials, preferring to judge authors by their products rather than their pedigree, for the subject discussed here it may be worth mentioning that Stuart graduated from Harvard Law School with high honors in 1977, having served as an editor of the Law Review.

Stuart Taylor:

I speculate, in part based on what I’ve heard over the years, that the writing competition may not be colorblind, either because it is not really all that anonymous or because candidates may intentionally or unintentionally signal their race and/or gender in their writing entries or both. I therefore would not rule out the possibility that the writing competition, like the Harvard College “personal” rating, may offer a backdoor way for even more racial preferences than are given to the 18 “holistic” winners.

Consider also the well-known fact that Harvard Law School is far more selective in terms of merit than is Harvard College, both because it is more selective, period, and because there are (as far as I know) no (or few) preferences based on athletic ability, legacy status, relationship to law school faculty or staff, or other non-academic criteria. So if, as the OIR data** circa 2012 indicated, only two-thirds of 1 percent of Harvard undergraduates would be black if chosen based on academics alone, it seems likely that the percentage of African Americans in the law school would be substantially less than 2/3 of 1 percent — and the percentage on the law review would be substantially less than that — if law review members were chosen solely based on academic merit. Let’s see: 2/3 of 1 percent of 48 is about 0.32….

**[JSR: OIR is Harvard’s Office of Institutional Research. The Plaintiff’s Memorandum Of Reasons In Support Of Its Motion For Summary Judgment reproduces, on page 11, an OIR chart from its 2013 report showing that if applicants were admitted based solely on their academic qualifications, 43% would be Asian, as opposed to their then-actual 18%, and .67% would be black, as opposed to their then-actual 10.46%.]

Consider also this excerpt from Mismatch 207:

An amicus brief filed in 2003 in the Supreme Court by the Law School Admission Council (LSAC), principally authored by  Walter Dellinger, an eminent lawyer and scholar who had headed the Solicitor General’s Office under President Clinton, stressed that “only about 25” black students do well enough in college each year to rank among the more than 4,000 applicants to the most selective law schools with grades and LSAT scores high enough to qualify under the standards applied to most white and Asian applicants. The message to the Court was, We must keep using very large racial preferences or we will have virtually no black students.

Rick Sander’s “The Racial Paradox of the Corporate Law Firm” might also be of interest.

By the way, I would not infer from the data noted above that President Obama was unqualified to be on (or to be President of) the Harvard Law Review. I did some research in 2008 that led me to believe that he was considered by his peers to be one of the best qualified candidates in terms of brain power for law review president, and was elected in part as a compromise; the other two top candidate in terms of support were to his left and to his right ideologically.

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  1. LawProf John Banzhaf December 24, 2018 at 4:21 am | | Reply

    TaxProfBlog – In Legal Ploy, Harvard University Divorces Harvard Law Review
    Harvard University, in a novel legal argument to escape liability for alleged discrimination on the basis of race and sex, has claimed that the Harvard Law Review, the premier publication of its Harvard Law School, is not only completely separate from the University, but, because it receives no federal funding, immune from federal anti-discrimination laws.
    Under such a legal premise, the Harvard Law Review could presumably exclude African Americans and females and Jews from its membership, or, at the other extreme, insist that all of its members, as well as the authors it chooses to publish, be African American lesbians who are also atheists, suggests public interest law professor John Banzhaf.

    ValueWalk – In Legal Ploy, Harvard University Divorces Harvard Law Review
    Law School’s Top Publication Could Now Have All-White All-Male Board
    But by this logic, the Law Review would be free to discriminate against African Americans as well as in favor of them (as the suit alleges). It – and arguably other student groups likewise affiliated with and permitted to utilize the Harvard name – would likewise be free to discriminate for or against women, for or against Jews, etc., argues Banzhaf.
    He suggests that, at the very least, the court would permit pre-trial discovery – including requiring the disclosure of previously secret documents, as well as testimony under oath – to flesh out just how independent the Review is from the University.

    TheCollegeFix – Harvard Could Exclude Blacks from its Law Review under Argument to Dismiss Lawsuit
    How can the Harvard Law Review get away with race and sex preferences that privilege women, nonwhites and LGBT people?
    Simple: It’s not subject to federal antidiscrimination laws, the university, law school and law review told a federal judge in response to a lawsuit that says it violates those laws in member and article selection.
    Trying a tactic that failed in response to a discrimination lawsuit filed by Asian-American applicants, the university and law school also claim that FASORP doesn’t have standing to file because none of its members directly “suffered or will suffer” from the law review’s practices.
    A law professor expressed amazement at the “novel” argument advanced by Harvard, the law school and law review.


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