The Relation Between Background Diversity and Intellectual Diversity: Harvard Law Review Edition

Last week I participated in a wide-ranging discussion of the Trump administration's actions against higher education, with a special focus on Harvard.  The Chronicle of Higher Education published a somewhat abridged transcript of the colloquy among Chronicle reporter Evan Goldstein, Yale Law Professor Cristina Rodriguez, Manhattan Institute senior fellow Ilya Shapiro, and me. The link I provided above is for Chronicle subscribers only, so I'll summarize and quote from the transcript below for the benefit of non-subscribers.

Near the end of our colloquy, we turned to the news that the Trump administration is investigating the Harvard Law Review (HLR) for allegedly using racial criteria as part of the selection processes for student editors and the authors of the articles it publishes, especially the annual Foreword to the Supreme Court issue that leads each volume in November. Professor Rodriguez said this:

I’m a piece of evidence in this potential lawsuit. I wrote the Foreword to the Harvard Law Review in [2021]. I was invited to do it by the editors of the Harvard Law Review, and I did it. Apparently I’m one of the members of the list of non-male, non-white people from 2018 to 2023 or ’24 who was asked to do it, counter to the historical pattern over the last 15 or 20 years of it being overwhelmingly white men and a few women and a few non-white men sprinkled in there.

For the record, I'm one of those white men who wrote the Foreword in prior years, although just outside the date range that Professor Rodriguez identified. I wrote the HLR Foreword in 1998, 23 years before her (excellent) Foreword. It's also worth noting that if there was a HLR policy of taking authors' race, ethnicity, and/or sex into account in issuing Foreword-writing invitations during the relevant period, it was not an absolute rule. Michael Klarman, a white man, wrote the 2020 Foreword. 

In any event, during the HLR Foreword part of the discussion captured in the Chronicle, I did not disagree (because I do not disagree) with Professor Rodriguez's argument that if the HLR editors were attending to the backgrounds of authors in order to increase the representation of a diverse set of voices, that would be a worthy goal. I did acknowledge, however, that if the HLR--which has its own funding sources and is an independent organization--is properly considered part of Harvard Law School, then it would be obliged to comply with Title VI and that Students for Fair Admissions (SFFA) v. Harvard could be read to forbid its use of race, even as a plus factor, in selecting members and article authors.

I went on to note, however, that SFFA does not forbid all means of accounting for race, calling attention to the paragraph near the end of the majority opinion in which Chief Justice Roberts distinguishes between a college admissions office impermissibly giving weight to an applicant's race as such versus permissibly accounting for how an applicant's experience of race affected them--e.g., by describing how they overcame racial prejudice. There wasn't time during the Chronicle-sponsored colloquy to fully elaborate how the SFFA disclaimer might translate to the law review article selection process, but it seems relatively straightforward.

A law journal might simply follow a policy of favoring members of under-represented groups for authorship based on their race or ethnicity. Assuming SFFA applies to such a policy, that would be unlawful. If SFFA extends to sex-based classifications under Title IX in the same way it applies to race-based classifications under Title VI, a sex-based preference would likewise be unlawful. However, a journal might, alternatively, look for evidence of a distinctive viewpoint in an author's scholarship itself. If so, application of the SFFA disclaimer paragraph would not preclude taking the author's experience of race, ethnicity, or sex into account in evaluating that author's perspective--although doing so will not always be necessary, given that the scholarship itself will typically be the best evidence of a distinctive perspective.

As I explained in the Chronicle discussion, we might understand a journal policy of taking account of what the SFFA Court called "how race affected" someone's life as part of

an effort to obtain what Justice Lewis Powell was trying to get at in 1978 in his Bakke opinion when he talked about diversity of background as a kind of proxy for viewpoint diversity. What the court in SFFA said is: You can’t use race as a proxy. But you still can look at how background actually contributes to viewpoint diversity. I’m not saying that’s what the Harvard Law Review is doing. But if that is what they’re doing, and doing it in the name of DEI, that’s perfectly legal and something that a majority of a very conservative Supreme Court has quite recently endorsed.

In response, Mr. Shapiro said this:

That is either disingenuous or naïve. DEI as enforced means restricting intellectual diversity. It would be great if we lived in a utopia and diversity actually meant diversity. But what it means is this illiberal intersectional matrix based on identities and privilege hierarchies, and that violates the Constitution and civil-rights laws, in addition to being morally repugnant, in my view.

Putting aside the dog-whistling right-wing buzzwords, that's wrong even on its own terms. Suppose that, as Mr. Shapiro apparently assumes, back in the days when I was invited to write the Foreword, HLR did not take account of race, ethnicity, gender, or experience thereof in selecting its authors. Suppose further that, as he also apparently assumes, that former policy resulted in the overwhelming majority of authors of HLR Forewords and other HLR articles being written by white men with broadly similar backgrounds and viewpoints. That would mean less viewpoint diversity than the journal would obtain by following a policy of intentionally taking account of author background in order to diversify the set of voices. One might still conclude that taking account of race, ethnicity, and gender is illegal and immoral. But that's a wholly different objection.

To be sure, as I explained in my 2024 article in the Texas Law Review, undergraduate admissions offices have a prudential reason to avoid taking advantage of the SFFA disclaimer by inviting applicants to describe how race affected their lives: the resulting admissions pattern could be then used as prima facie evidence that the college or university is giving weight to race as such, even if it isn't. That could mean great difficulty obtaining a summary judgment if the college or university is sued for violating SFFA. Similar considerations might lead a law journal to avoid weighting viewpoint diversity with respect to issues of race and ethnicity in its article selection process (assuming that SFFA applies to such processes). But, contrary to what Mr. Shapiro assumes, taking account of race, ethnicity, and sex would not typically result in less viewpoint diversity. Indeed, if done in the way that the SFFA disclaimer suggests, it would result in more such intellectual diversity.

Put another way, Mr. Shapiro and other opponents of affirmative action and DEI have apparently misunderstood their own argument. Given longstanding patterns we see in, for example, voting, they cannot plausibly claim that racial, ethnic, and gender have no correlation with viewpoint. Thus, they cannot plausibly claim that diversity along racial, ethnic, and gender lines does not, on average, lead to greater viewpoint diversity. Their argument has traditionally been that reliance on race, ethnicity, or gender as a proxy for viewpoint should be impermissible because it stereotypes, stigmatizes, and (with respect to zero-some opportunities) is unfair--even if it produces greater viewpoint diversity.

Reasonable people can disagree about whether the ostensible costs of classifications based on race, ethnicity, and sex are so great as to outweigh the benefits of viewpoint diversity (and other benefits of affirmative action, such as remedying and preventing discrimination). We can also disagree about whether there are sufficiently effective neutral means of achieving diversity (and remedying and preventing discrimination) to render the use of classifications based on race, ethnicity, and/or sex unnecessary. But the claim that such classifications have nothing to do with intellectual diversity--or even more strongly, as in Mr. Shapiro's assertion, that they restrict intellectual diversity--is false.

How could a smart person like Ilya Shapiro make such an obvious mistake? I suspect that he is conflating two right-wing talking points: (1) the claim that, even after SFFA, elite institutions (like Harvard and the HLR) are surreptitiously continuing to use racial, ethnic, and gender criteria; and (2) the claim that elite colleges and universities are bastions of left/liberal groupthink at which conservative viewpoints are suppressed.

Although claims of political correctness and wokeness at elite institutions are greatly exaggerated, there is a kernel of truth to claim (2). And to the extent that claim (2) is true in any setting, that will indeed restrict intellectual diversity. However, that is analytically separate from the extent to which any particular institution or unit within an institution unlawfully gives weight to racial, ethnic, or gender in allocating opportunities. There is probably a correlation between those settings in which one finds left/liberal ideological rigidity and support for weighting race, ethnicity, and gender in allocating opportunities, but these are distinct phenomena. Mr. Shapiro's conflation of them is at best sloppy. Perhaps his thought processes have been corrupted by too much right-wing group-think.

--Michael C. Dorf