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A significant decline in the number of women on the Harvard Law Review has spurred the publication to conduct an internal review of its selection process—and to consider establishing gender-based affirmative action for the first time.
The number of women on the Review has fallen to its lowest point in a decade—a mere 25 percent of 84 editors are women, while Harvard Law School (HLS) has nearly half female students.
Although the prestigious publication has always been dominated by men, after seeing the gender gap widen in past years the Review wrote a confidential report in March 2003, obtained by the Harvard Law Record.
The report suggests several modifications to the application process—mostly centered around the weight allocated to grades and the writing sample—that could potentially boost the number of female staffers.
But Review editors say that shifting the emphasis on these application parts would have little effect on the number of women awarded spots at the Review—causing a dispute among editors and professors over whether the publication should institute affirmative action for women.
Leah Pogoriler, a second-year HLS student, called the issue a “very close battle” that has divided Review editors, with some worried about students not taking the Review seriously and others advocating the need for equal gender representation.
“People are really worried about the stigma associated with so-called affirmative action,” Law Review Editor Meaghan McLaine said. “In any given year, you might not use it, but I don’t think that it is as stigmatizing as people make it out to be.”
McLaine pointed out that currently the Review accepts seven to nine students on a discretionary basis, taking into account applicant information besides the usual grades and writing competition, like race and disability status. gender is not one of these categories, according to McLaine, and a change in this policy could allow the Review to increase the number of women at its discretion.
But some HLS professors, including HLS Dean Elena Kagan, said if the Review announced an affirmative action policy, it would imply that women could not be accepted based on merit alone.
All three of the Review’s faculty advisors—who are also all women—do not support introducing affirmative action for women.
“Such a plan would offer Law Review membership to perhaps a handful more women per class while making all women selected for the Law Review wonder whether they would have been selected absent such a program (and making other Review editors, as well as judges and other future employers, wonder the same thing),” HLS Professor and Review faculty advisor Carol S. Steiker told the Record.
The Review’s application process for editorship allows students to be judged in three separate ways. All applicants are required to take a writing test and have the option of submitting grades.
The Review accepts 14 first-years as “grade-ons”—those with the highest average score giving equal weight to grades and the writing sample. Twenty students are accepted solely on the basis of their writing scores, and seven to nine editors are accepted based on a student committee’s review of all their information, including grades, writing scores, race and any kind of disabilities—but not gender.
Review President and HLS third-year Daniel Kirschner said the publication initiated its investigation into the admissions process because of a “desire to discover why the numbers [of men and women] just don’t match up.”
“The Law Review’s study was launched because the law review body was disappointed with the number of women on the law review and wanted to figure out what was going on,” said Kirschner.
Kirschner said that the confidential report has not led to any specific policy changes yet, but that the Review will decide as a whole on the proposed amendments.
The report suggests eleven new ways to change the application process, which include reducing the maximum weight of grades to 30 percent for the 14 students selected based on grades and the writing sample. Other scenarios include selecting the top male and top female from each section and completely eliminating “grade-ons” as a selection category.
McLaine said the Review should remedy the problem because the gender disparity has become plainly visible on the Review.
“There are times when you notice that it is a very testosterone-heavy environment...There are moments when you notice a lack of female voices. You’ll be in the editors’ lounge, and you’ll notice that you’re the only woman,” McLaine said.
The Review’s study has also sparked discussion over whether the gender disparity at the Review is indicative of a larger problem of women under-performing at HLS.
Steiker noted that few women graduate in the top 10 percent of the class.
But Beneficial Professor of Law Charles Fried said he didn’t think the HLS student body had an over-arching gender problem.
“Women are just as smart as men, and obviously we have a lot of smart women here who strike me as being able to take pretty good care of themselves,” Fried said. “We have had a number of women Law Review presidents, and this seems to me to be a manufactured issue.”
Fried said women typically perform well in his class.
“They’re doing terrific work, hitting home runs,” he said.
Kagan said more important than focusing on the Review’s admissions process would be a broader study of the under-performance of women in law school.
“The under-representation of women on the Law Review is a concern, but I’m not inclined to think an affirmative action plan is the answer. I think that in this context the costs of affirmative action would outweigh the benefits of putting another handful of women on the Review,” Kagan wrote in a statement. “I think we should focus instead on discovering the reasons for gender disparities within law schools generally; that would be a very significant contribution to legal education.”
But McLaine said the Review’s situation deserves immediate attention because editorship can greatly benefit law students in applying for jobs.
“Not having women on the Law Review is influential with who gets clerkships or professorships—a lot of those clerks looking over applications are former-law-review people and you get the benefit of them knowing your character,” McLaine said.
—Staff writer Lauren A.E. Schuker can be reached at firstname.lastname@example.org.
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