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Sunday, February 17, 2013

Disconnects in the Law Review "Affirmative Action" Discussion

All the notional ink spilled in the past week on the question of whether law reviews ought to self-consciously select articles with a thumb on the scales of particular identity traits has certainly been interesting. The discussions have been interesting, and so has the amount of energy spent on it. I have little to add on the main subject, largely because I am still undecided about precisely how small the stakes are.

But I would like to make one observation. It seems to me that, in a sense, the arguments in favor of allowing law reviews to engage in this kind of activity actually end up with two very different implications, and not especially welcome ones for those making these arguments. On one reading, those arguments end up suggesting that there are good reasons why public law schools' law reviews cannot legally do so. On another, perhaps more puckish reading, the arguments in favor of "affirmative action" by law reviews amount to arguments against the constitutionality of affirmative action altogether, at least under current doctrine. Of course some generalizations follow. I think they're supportable ones, but they're not meant as definitive, so much as they're meant to make us ask what this smaller debate says about the larger issue.

Several things strike me as common features in contemporary arguments for the constitutionality of race-conscious admissions in the university context. 1) Largely because the Supreme Court requires it, it is routinely argued that such admissions programs involve a careful, holistic, nuanced, all-things-considered consideration that takes full account of the merits of each applicant and takes more than just race into account for diversity purposes. 2) For a variety of reasons, offices of affirmative action, diversity management, etc., both inside and outside of universities, routinely argue that their job is a complex one that requires a good deal of expertise and experience. 3) For both reasons, as well as for reasons relating to academic freedom, defenders of race-conscious university admissions argue that both the need for and the execution of such programs requires expert judgments of the kind that courts are ill-suited to make, and that courts therefore ought to afford universities substantial deference in this area.

Now contrast that with some of the arguments in the past week suggesting that law reviews, presumably including public university law reviews, are entitled to and perhaps ought to engage in article selection in part based on particular identity traits of the authors, including race. The arguments have been interesting and sometimes persuasive. But they still involve a brute bottom-line conclusion: that sorting according to identity trait (including race) can be undertaken by a bunch of 24-year-olds, who have at most a year's experience as journal editors and who, most people seem to agree, are not even qualified to judge the merits, such as they are, of the articles they are reading.

To the extent that it is true that journal editors are young and inexperienced--not to mention busy with a full load of coursework--I find it hard to imagine that anything they do would fall within the kinds of parameters that have led courts to defer to and permit race-conscious actions by other sectors of public universities. (Of course, it may be that the law reviews' actions fall outside the legal scope of any 14th Amendment prohibitions, if only because the law should not concern itself with trifles and law reviews are just that.)

Understandably, I haven't seen any suggestion, from defenders of law review editors engaging in this kind of authorial sorting, that those editors are simply unqualified to engage in what everyone has been calling "affirmative action." They seem to assume they are competent to do so. That leads me to my second, somewhat more provocative question. To the extent that they, or anyone else, think that law review editors are qualified to do so, and draw on broader arguments about race-conscious university admissions in talking about what law reviews might be doing or ought to do, shouldn't that lead us to doubt all the claims concerning complexity, expertise, holistic consideration, and so on that are made on behalf of public universities? Shouldn't it lead us to wonder whether any deference at all is warranted on the part of courts toward those universities? And if universities didn't receive that kind of deference, isn't it much more likely that race-conscious policies by universities would be struck down altogether? In short, if, for God knows what reason, the Supreme Court justices are sitting in Washington, taking a break from working on their opinions in the Fisher case to read the blog arguments in favor of affirmative action in law review article selection, shouldn't they conclude that Grutter v. Bollinger ought to be overruled?

Just a thought.

Posted by Paul Horwitz on February 17, 2013 at 11:57 PM in Paul Horwitz | Permalink


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I agree with Sheldon on this -- the deference shown in the higher ed. affirmative action cases is deference as to how diversity in the classroom fits into the educational mission of a university. It is not deference to the way in which race is taken into account (at least on my reading of the cases). Law reviews would presumably want to put forward a case for why taking race into account in article selection is important, but if they make that case then I think the Court could easily show deference to the judgment.

As for narrow tailoring, which is more closely connected to what I think you are talking about Paul, I don't think the Court has shown deference. But I think there is a fair argument to be made that if law reviews are using race in the selection process, they are doing it in precisely the way implicitly approved of by the Grutter/Gratz court. It is not transparent; it is presumably part of a much more complex decision-making process in which many factors are taken into account; it is doubtful that the law reviews are scoring the articles in the way disapproved of in Gratz, with specified points for race, gender, etc.

Posted by: Alex Reinert | Feb 18, 2013 2:44:52 PM

I think that Paul Horwitz is creating a straw man. Affirmative action programs do not solely (or largely) survive because super qualified experts with super nuanced understandings of race are better able to make decisions involving race than courts. There are no "offices of affirmative action" (as Justice Scalia so awkwardly alluded to in the Fisher oral arguments). There are admissions committees. And these admissions committees look at a variety of criteria--one of these criteria can be race.

You seem to argue that a university's admissions committee is given deference because considering race is somehow complex. But a reading of Justice O'Connor's opinion in Grutter doesn't reveal any such concern over complexity. University's admissions committees are given deference because of academic freedom to decide how to deliver what they (the university) considers to be the best educational experience. That is why the search for educational diversity was ruled to be a compelling government interest.

Inserting a heightened standard of "the complexity of considering racial issues" as a pretext for whether an institution should be able to use race for the purposes of affirmative action is not only a misreading of precedent, but I don't think that it reflects the opinion of a majority of advocates of affirmative action.

We trust law review editors to make a variety of decisions that often have racially discriminatory impact against scholars of color. We somehow trust students to make these difficult assessments about the quality of an article in conjunction with the professor's law school alma mater, current institutional affiliation, and publication record. I could see how a journal--with an interest in producing a diverse scholarly output would want perspectives from scholars of different institutional rankings and geographies. Now, I do not think this is the reason why law review editors request this information. But if race is being used in conjunction with these other factors, I do not see how this new, additional category is somehow beyond the intellectual acumen of the student editor--or how the functioning of affirmative action, as currently iterated, is somehow implicated.

Also as a side note, this is not just an issue for public universities. Private universities are also implicated. Fisher v. Texas, like most of the higher ed affirmative action cases, in addition to deciding Fourteenth Amendment equal protection arguments, is also considering statutory Title VI claims, which means that private universities receiving federal funds will be bound by rulings on affirmative action.

Sheldon Lyke
VAP, Northwestern Law

Posted by: Sheldon Lyke | Feb 18, 2013 1:10:25 PM

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