Rethinking One Aspect of the Harvard Law Review Case

Here on the blog last week, I expressed puzzlement over the Department of Justice's investigation into allegations that the Harvard Law Review (HLR) has been practicing race-based and sex-based affirmative action for some of its membership slots and in its selection of articles for publication. I explained that Titles VI and IX of federal civil rights law don't apply to HLR because it is a separate entity from Harvard Law School and Harvard University. Under the case law as I read it, there are insufficient financial ties (essentially none) between those federally funded institutions and HLR to trigger federal civil rights law, and HLR itself does not receive any federal funds. I also explained that because HLR editors are unpaid and not "employees," Title VII also doesn't apply.

A number of my fellow constitutional scholars (including Vikram Amar and Eugene Volokh) expressed to me the view that HLR might be covered by 42 U.S.C. § 1981, which was enacted during Reconstruction (and amended thereafter, including in 1991). That's a possibility I'll explore today, beginning with the statutory text, which, as relevant here, provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .  The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

One might think that the peculiar phrasing means that § 1981 extends rights only to nonwhite people. After all, by definition, white citizens have the same rights as white citizens. However, the Supreme Court held in McDonald v. Santa Fe Trail Transportation Co. (1976) that § 1981 is, like other civil rights laws, omni-directional. It is a prohibition on all race discrimination with respect to contracts (and some other items I replaced above with ellipses). Notably, § 1981 does not apply to sex discrimination. Thus, even assuming § 1981 applies to HLR, at most it constrains HLR's ability to use racial criteria, not sex-based criteria.

Does § 1981 even apply to HLR? Article selection is a stage in the making of a publication contract, so that seems pretty clearly to be covered. What about selection of HLR's members?

I noted above that HLR's unpaid student-editors are almost certainly not employees for purposes of Title VII. But are students seeking to be members of HLR seeking "contracts" for purposes of 42 U.S.C. § 1981? I don't know what the current practice is at HLR. It's possible that members sign a document called a "contract" or an "agreement" under which they agree to undertake certain responsibilities in exchange for the valuable consideration of being able to list HLR on their résumés. Even if there is no such written document, any first-year law student can tell you that an oral contract can be valid.

Meanwhile, there is some lower court authority for the proposition that a contract for § 1981 purposes can be implied informally (through oral statements, written documents, and conduct that together manifest a shared agreement). There is also some lower court authority for the proposition that membership organizations and people who are volunteers are not covered by a contract for § 1981 purposes.

Whether becoming a member of HLR amounts to making a contract for purposes of § 1981 thus depends partly on the facts and perhaps also on what level of formality is required to demonstrate a contract. There is also some uncertainty as to where to look to determine whether some relationship counts as a "contract" under § 1981. Should the answer be formulated by courts via a uniform body of federal law in order to effectuate the federal civil rights purpose or, instead, by state law, which is what typically governs contracts? That question--whether to formulate a federal common law rule or to borrow state law--arises in many contexts but, to my knowledge, has not been definitively addressed in the § 1981 context.

Let's put aside the question whether students hoping to be selected for HLR membership are seeking contracts for § 1981 purposes. Even if they are, it's not clear that the government can bring a case against HLR. Indeed, the Trump administration itself apparently doesn't believe it can sue HLR to enforce § 1981. At least that's the position it has taken in other litigation, stating that "42 U.S.C. § 1981 is enforced by private action rather than by the Attorney General," while seeking to be heard in what amounts to an amicus role because of its interest in enforcing parallel obligations under Title VI and the Constitution.

That said, I’m not sure why the Trump administration believes that it can’t directly enforce § 1981. After all, a federal regulation, 28 CFR § 0.50, assigns to the AG the authority for “Enforcement of all Federal statutes affecting civil rights ....” That regulation then says “including” and provides a long list of kinds of statutes, none of which involves the making of contracts, but that omission wouldn’t seem to undermine the conclusion. “All” means “all,” and “including” doesn’t mean “including only.” So maybe the government could claim authority to sue under the regulation.

Or maybe not. Generally, statutes, not regulations, give rise to the ability to bring lawsuits, and no statute expressly empowers the government to sue to enforce the rights conferred by § 1981. But that general proposition itself is usually subject to an exception for the government. Although the Supreme Court in recent decades has been reluctant to find implied private rights of action under statutes that do not grant the ability to sue expressly, it has generally been assumed that the U.S. has a sovereign prerogative to enforce federal statutes.

And that is the outcome for which I'd advocate in just about any other circumstances. If we had a normal administration in power, I'd want it to have the power to enforce civil rights laws, including 42 U.S.C. § 1981. The problem is that the only civil rights that the current administration is interested in enforcing are the rights of white men and conservative Christians. To be sure, the current administration is also aggressively using charges of antisemitism in violation of Title VI as a cudgel to destroy higher education, but that's not because it cares about protecting Jews; it's because it views the academy as the enemy.

-- Michael C. Dorf