As the Trump administration launches multiple probes of the Harvard Law Review in the wake of a Washington Free Beacon report on the journal’s race-based policies, the law review itself will be conducting its own investigation—not into the evidence of discrimination revealed by dozens of documents, but into who leaked those documents to the Free Beacon.
The journal’s top editors asked members of the law review last week to come forward with any information that might help identify the leaker, writing, “The information contained in the article should not have been shared.”
“We are looking into the matter,” the editors said Friday in an email. “Our inboxes and offices are open to anyone with information about these recent events. We will update you with developments.”
The editors, including Harvard Law Review president G. Terrell Seabrooks, also suggested that they had no plans to jettison their discriminatory policies in light of the Free Beacon’s report, which was based on a trove of documents revealing that the journal selects articles for publication—and students for editorial positions—based in part on the applicant’s race.
“We do not anticipate these developments altering our day-to-day operations,” the editors told their colleagues.
The letter, which praised each editor’s “natural brilliance” and assured them that “you belong in this organization,” underscored the mix of defiance and anxiety that has characterized Harvard’s response to the report.
Hours after the report went live, every student at the law school received an email from Faculty, Alumni, & Students Opposed to Racial Preferences, a group represented by former Texas solicitor general Jonathan Mitchell, ordering them to preserve documents that the group plans to subpoena for a pending discrimination complaint against the law review.
The law school condemned the email the next day and said it was “investigating all aspects of these communications.” In a move that surprised practicing litigators, it also implied that no student at the law school—even those in possession of the documents—was required to preserve the materials.
“The requested litigation hold is not legitimate,” Stephen Ball, Harvard Law School’s dean of students, wrote in a message to the school. Lawyers who reviewed the message said it was a brazen violation of legal norms that could result in sanctions for both students and the university.
“I’m surprised that Harvard Law School is taking the position that documents do not need to be preserved,” said Jason Torchinsky, a partner at Holtzman Vogel and a former official in the Justice Department’s civil rights division. “The consequences for students applying to the bar if a judge later disagrees with Harvard and the students destroy documents could be significant.”
By Monday the law school appeared to have abandoned that position. A few hours after the Free Beacon asked for comment, the Harvard Law Review told all editors to preserve documents pursuant to the litigation hold, which had also been sent to the university’s general counsel, Jennifer O’Connor, and to the interim dean of Harvard Law School, John Goldberg.
A spokesman for the law school, Jeff Neal, told the Free Beacon that “Harvard takes seriously every valid litigation hold request it receives.” He declined to comment on whether the law school was investigating any students over the hold.
Harvard sued the Trump administration last month in an effort to unfreeze the more than $2 billion in federal grants and contracts that the government has put on pause. The freeze came after Harvard refused to comply with a list of demands from the White House’s anti-Semitism task force, which is investigating the Ivy League school over alleged violations of civil rights law.
While the law review claims to be independent of the university, the probes announced this week will examine the relationship between the two, including “financial ties” and “oversight procedures.” Depending on what they find, the law review’s policies could be grounds for the Trump administration to revoke even more aid.
Harvard, the nation’s wealthiest university, has been in the GOP’s crosshairs since its response to Hamas’s Oct. 7 attack on Israel, which included a mealy-mouthed statement that downplayed the violence and appeared to draw an equivalence between Israel and the terrorists who invaded it. Citing the importance of free speech, it also declined to discipline students and professors who called for the destruction of the Jewish state.
The inaction was a stark contrast to how Harvard had policed other offensive statements—not involving Jews—in the past. At a congressional hearing in December 2023, Republicans assailed the double standard and asked the university’s former president, Claudine Gay, whether calls for the genocide of Jews constitute bullying or harassment.
“It depends on the context,” Gay replied. Facing blowback for the hearing as well as reports that she had plagiarized in over half of her published works, she resigned a month later.
The law review’s response to the Free Beacon report reveals a similar double standard. Announcing its investigation into the leak, the journal claimed that leaking information about internal editorial processes violated law review policy. But it did not launch any kind of probe when 19 editors did exactly that in December 2023, after the journal voted to kill a controversial piece by a Palestinian scholar, Rabea Eghbariah, that accused Israel of genocide, according to a person with firsthand knowledge of the matter.
In interviews with the Harvard Crimson, several of those editors claimed that the law review had violated its own editorial processes in order to kill the piece. Some also leaked documents to the Nation and the Intercept purporting to show irregularities in the decision-making process, reports that were contested by other editors. The law review took no action against the editors and did not launch an investigation, the person familiar with the matter said.
A more brazen incident came in March 2024 when two journal editors participated in a panel about the controversy hosted by the Bell Collective for Critical Race Theory, an official Harvard student group whose aims include “ending the US-backed Israeli settler-occupation and genocide in Palestine.” The journal’s president at the time, Sophia Hunt, explicitly blessed their participation, telling law review members in an email that “editors retain the autonomy to discuss their personal experiences on the Review.”
The Harvard Law Review did not respond to a request for comment.
The confidentiality requirement isn’t the only policy the journal has been lax about enforcing. The law review’s selection procedures appear to violate its own non-discrimination policy, which states that the law review “does not tolerate discrimination … in all matters with respect to Harvard Law School students selected as editors.”
“Any editor or staff member who engages in discriminatory behavior may be subject to disciplinary action,” the policy reads, “up to and including removal.”
That language would appear to implicate every member of the journal’s “holistic review committee”—including the law review’s president—which selects nearly half of all student editors and in 2021 made the “inclusion” of “underrepresented groups” its “first priority.”
The committee will consider factors such as “race, socioeconomic background, gender identity, sexual orientation, and disability,” a resolution adopted by the journal reads. It will also recognize “the importance of … candidates’ intersectional identities.”
Original News Source – Washington Free Beacon
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