The Trump administration announced on Monday that it was investigating the Harvard Law Review over allegations of race discrimination. Seventy-two hours later, the journal asked prospective editors to disclose their race as part of the application process, writing in an email that it would use this information to select candidates from “diverse … backgrounds.”
The email, which was sent to all first-year law students, included a memo that encouraged applicants to “convey aspects of their identity,” including their race, through an optional “holistic review” statement.
“This statement may identify and describe aspects of your identity not fully captured by the categories on the previous page,” the essay prompt reads. It proceeds to list a slew of characteristics that applicants are invited to disclose, including race, socioeconomic status, and seven different kinds of disability—”physical, intellectual, cognitive/neurological, psychiatric, sensory, developmental, or other.”
Lawyers who reviewed the memo said it provided further evidence of discrimination at the nation’s top law journal and appeared to violate the Supreme Court’s warning, in its decision outlawing affirmative action, that essays may not be used to circumvent the ban on racial preferences.
“It’s a common tactic,” said David Bernstein, a professor of constitutional law at George Mason University’s Antonin Scalia Law School. “The implicit claim is that if you are looking broadly at all sorts of diversity, illegal racial discrimination becomes legal. But that’s an absurd interpretation” of the law.
Though the prompt gives applicants 200 words, it does not ask them to explain how race affected their personal development or posed unique challenges—factors the Supreme Court said were lawful to consider. That omission is especially damning, said Dan Morenoff, the executive director of the American Civil Rights Project, as it seems to indicate that the law review is using the statement for unlawful purposes.
“It’s kind of them to so openly dispense with any pretenses concerning what they’re doing and why,” Morenoff told the Washington Free Beacon. That should “make the case move much faster.”
Harvard Law Review president G. Terrell Seabrooks did not respond to a request for comment.
The Department of Education and the Department of Health and Human Services both launched probes of the law review on Monday after the Free Beacon published documents showing that the journal routinely selects editors and articles based on race. The probes, conducted by each agency’s office of civil rights, are also investigating Harvard University itself and its connection to the law review, which claims to be independent from Harvard Law School.
Evidence against that claim emerged this week when The Editors reported that Ibrahim Bharmal, the Harvard Law Review editor charged with assaulting an Israeli classmate, had been chosen by a panel of Harvard professors to receive a $65,000 fellowship in the journal’s name. Titled the “Harvard Law Review Fellowship,” the program in fact selects fellows based on the judgments of a “faculty committee,” according to a Free Beacon review of a fellowship advertisement hosted on a Harvard grant database.
Bhamal, who received the award after he was charged, will use the money to fund a stint at the Council on American-Islamic Relations, whose leader celebrated the Oct. 7 attacks.
If the government decides that there is no meaningful separation between the law review and the university, Harvard could lose billions in federal aid over the journal’s racial criteria. The Trump administration has already frozen more than $2 billion in grants and contracts to Harvard after the school rejected the demands of the White House’s anti-Semitism task force, a move Harvard is now challenging in federal court.
The lawsuit argues that the government flouted the procedures for revoking funds set forth by Title VI. The probes of the law review, however, do appear to be following those procedures, meaning Harvard would have less legal room to maneuver if the investigations don’t go its way.
The school is also facing a pending lawsuit by Faculty, Students, & Alumni Opposed to Racial Preferences, the group represented by former Texas solicitor general Jonathan Mitchell, which last week sent litigation holds to every student at Harvard Law School instructing them to preserve the personal statements submitted to the law review. Harvard condemned the holds the next day and, at least initially, implied that students were under no obligation to comply with them.
The university backpedaled hours after being asked for comment, telling the Free Beacon that “Harvard takes seriously every valid litigation hold request it receives.” The law review also instructed its members to comply with the hold, but not before vowing to investigate who had leaked internal documents to the Free Beacon.
“We are looking into the matter,” the journal’s top editors, referring to themselves as the “Big Five,” said in an email last week. “Our inboxes and offices are open to anyone with information about these recent events.”
The probe appears to violate Harvard’s non-retaliation policy, Bernstein, the law professor, argued on X, insofar as the school “forbids anyone” from retaliating against a whistleblower who “opposes … unlawful acts.” Archived web pages indicate that the policy was scrubbed from a university website sometime after March 17.
The holistic review statement is evaluated by a committee composed of three editors, including the journal’s president, that in 2021 made the “inclusion” of “underrepresented groups” the “first priority” of the admissions process. That mandate does not appear to have changed in the years since. In January, the law review even voted down a proposal that would have barred the journal from considering race when selecting editors.
The selection process for articles is also shot through with racial preferences, which have affected the demographics of published scholars and the subjects of published scholarship. Since 2018, only one white author has been selected to write the foreword to the law review’s Supreme Court issue—long considered the most prestigious slot in any law journal—while the forewords themselves increasingly revolve around race and identity.
“I hope to show that the prison abolition movement can reinvigorate abolition constitutionalism,” the University of Pennsylvania’s Dorothy Roberts wrote in a 2019 foreword to the issue. “In turn, today’s activists can deploy the Reconstruction Amendments instrumentally to further their aims and, in the process, construct a new abolition constitutionalism on the path to building a society without prisons.”
Original News Source – Washington Free Beacon
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