Does Federal Civil Rights Law Forbid Race-Based and Sex-Based Affirmative Action by the Harvard Law Review?

The NY Times recently reported that the Justice Department is using a "cooperating witness" in its investigation of the Harvard Law Review (HLR) for alleged discrimination against white men. The Times article's primary focus is on the unusual circumstance that the cooperating witness--who was a HLR staffer until his graduation last week--is also now employed by the government and working for White House deputy chief of staff Stephen Miller. I want to put aside whatever ethical or legal issues that raises to focus on what might be the Trump administration's underlying theory of liability.

The factual allegations are that HLR uses race and sex as criteria in selecting some of its members and articles for publication. Is that unlawful? The short answer is probably not. The long answer is . . . well . . . longer.

(1) Title VII

The Times article, citing a story in the Free Beacon, refers to "a 'pervasive pattern of racial discrimination' in hiring editors and selecting articles." But HLR doesn't "hire" its editors, at least not in a legally relevant sense. All of the editors of the HLR are unpaid students. They are thus not covered by the federal antidiscrimination statute applicable to employment, Title VII.

Although the language of Title VII's definition of employer and employee could in principle be extended to apply to volunteers, federal district courts and courts of appeal have consistently construed it to be inapplicable to unpaid workers--except in circumstances in which there is very substantial non-financial compensation. The fact that students derive a collateral benefit from their work on the law review--i.e., that it helps them secure plum jobs--is not relevant, as that is not a benefit from the HLR.

Given the aggressiveness of the Trump DOJ, I would not be surprised if it nonetheless alleges a Title VII violation. I would be very surprised if such an allegation survived a motion to dismiss in court.

(2) Titles VI and IX

An employment relationship is not necessary for a finding of liability under Titles VI and IX, which, taken together, forbid race, color, national origin, and sex discrimination against any "person in the United States" by federally funded entities. We know from Students for Fair Admissions v. Harvard that the current Supreme Court considers race-based affirmative action violative of Title VI. Whether it would also deem sex-based affirmative action a violation of Title IX is formally undecided but seems likely. Thus, if Titles VI and IX are applicable, then race and (probably also) sex discrimination in the selection of HLR editors and in the selection of articles (except perhaps by authors outside the U.S.) would be unlawful.

But the HLR is not a federally funded entity to which either Title VI or IX directly applies. Harvard Law School (HLS) and Harvard University (HU) are, of course, federally funded entities. Accordingly, HLR is subject to Titles VI and IX if and only if it is deemed part of the larger educational units for purposes of federal civil rights law. Should it be?

An unpublished 2019 opinion by Federal District Judge Leo Sorokin dismissed a complaint against HLR and HLS based on similar allegations to those discussed in the Times article because, in Judge Sorokin's view, the plaintiffs in that case lacked standing. As an alternative ground for the dismissal, he found that plaintiffs had failed to allege sufficient facts to support the conclusion that HLR--which is an independent organization--is part of HLS for purposes of federal civil rights law.

A federal district court opinion, whether or not it is published, does not establish a precedent binding even on the same judge in a new case, so in any future litigation by the DOJ (which was not a party to the 2019 case and thus is not bound by it as a matter of preclusion law), the question whether HLR is part of HLS will be considered de novo. Judge Sorokin's opinion will be relevant only insofar as it is persuasive.

To my mind, Judge Sorokin's opinion is persuasive. It quotes the 1999 SCOTUS decision in NCAA v. Smith for the rule that an entity constitutes a covered program for federal civil rights law if it "receive[s] federal assistance, whether directly or through an intermediary." There, the Court held that the NCAA was not covered by Title IX, even though it was funded by dues from member colleges and universities that are covered by Title IX. It would seem to follow a fortiori that HLR is not a covered entity, because HLR, in addition to being a formally separate entity from HLS and HU, does not receive any funding at all from them. If dues payments from covered institutions don't amount to federal assistance via an intermediary, then surely no payments at all falls short of the coverage threshold.

Bottom line: There does not appear to be a sound basis for concluding that HLR's affirmative action programs for selecting members and articles violate federal civil rights law.

I conclude with two caveats.

First, the foregoing analysis depends on my understanding of the relevant facts regarding HLR and HLS. That understanding could be incorrect. Moreover, it is limited to HLR and HLS. At some law schools, students receive course credit for work they do on journals. In addition, some law journals have more formal relationships with their law schools than the HLR has with HLS. Some law schools subsidize some of their journals. Thus, the right legal answer to the question whether federal civil rights law applies to a law journal could differ for different journals at different law schools.

Second, my discussion of the (in)applicability of federal civil rights law to HLR is meant to be purely descriptive, rather than normative. For purposes of today's essay, I take no position on whether, as a matter of journal policy, HLR or any other journal should take account of race or sex in making membership and/or article selection decisions. Nor do I express an opinion on whether Title VII should be amended to cover volunteer workers or about any other aspect of what federal civil rights law should cover. I've approached the topic of today's essay in the way that I imagine counsel for HLR would: assessing the likelihood that DOJ would prevail if a case were brought in court.

-- Michael C. Dorf