The Harvard Law Review will this year consider gender when selecting students for its 2014 board of editors, a decision that is likely to inflame a more than three-decade-long debate on affirmative action.
The number of women editors this year fell to its lowest point in about two decades -- even as the Harvard Law School itself nears gender parity. Of the law review’s 44 editors, only 9 are women. Women make up 48 percent of the class of 2015.
The law review’s decision to adopt the policy adds to the ongoing debate on affirmative action. The U.S. Supreme Court will this year rule on whether race can be a factor in college admissions after hearing oral arguments in the case Fisher v. University of Texas at Austin last October. More recently, the debate about gender disparity in academic research flared when the legal scholar submission service Scholastica's practice of asking its users for demographic data came into focus.
The policy change will in reality only affect the 12 positions (the number will increase from 10 this year) that are filled by a discretionary committee. In selecting the editors, members of the committee consider such factors as academic achievement, race and physical disabilities. Of the remaining 34 positions on the board, 20 are filled based on the results from the law school’s first-year writing test, and 14 on a combination of their grades and writing test results. Official policy dictates no editor be made aware of which stage of the process resulted in his or her selection.
Apart from those factors and the additional ones considered by the discretionary committee, the entire process is anonymous -- a point that continues to be a source of confusion for those searching for a reason why the process consistently selects more men than women.
Former editors of the law review disagree on whether or not adding gender to that list will affect how the discretionary committee selects the law review's editors.
“[D]iversity is something that the law review has valued historically,” said Aileen M. McGrath, a former president who said she was enthusiastic about the change. “I think that the problem of gender disparity is one that’s persisted for several years, and it’s not surprising that the law review has taken steps to remedy that.”
Kevin Walsh, who served on the discretionary committee in 2002, said he was concerned that adding another factor could complicate the committee’s work. While the committee is only asked to take the factors into consideration, there is no formal guidance determining which factor takes precedence, leaving it up to the members themselves to decide which one should be most heavily weighted.
“I’m not sure that just adding another factor to throw into the black box amounts to a policy,” Walsh, an associate professor of law at the University of Richmond, said. He predicted the emphasis on increasing the number of women editors -- or any one of the other factors -- could vary from year to year depending on the interests of the editors on the discretionary committee.
“Putting aside any affirmative action policy, there’s still room for debate about the different factors,” Walsh said.
Both McGrath and Walsh said they remembered discussing gender policy during their time at the law review.
The Harvard Crimson, the university’s independent student-run newspaper, has chronicled  the law review’s attempts to make race and gender factors in its selection process. After the law review in 1981 adopted a quota system that reserved four spots on the board of editors for women or students of minority backgrounds, the university launched an independent commission to study the decision. The law review scaled back the policy, choosing the following year to add race to the factors considered by the discretionary committee. The pared-down policy from 1982 included no mention of female applicants.
“It was a very controversial move,” said Mark B. Helm, who served as the law review’s president at the time. He recalled the policy changed drew unwanted attention from publications such as The New York Times and The Wall Street Journal.
More than 30 years later, “There hasn’t really been a notable response,” said Gillian S. Grossman, the law review’s current president. She said she could not think of law journals with similar affirmative action policies.
“I think that there was a strong feeling among [the board of editors] that we’re sort of always looking for ways to enhance the diversity of the law review,” she said. “The editors thought that this policy was a good step in that direction.”