Earlier this year, the editors of the Harvard Law Review added a gender component to the journal’s affirmative action policy. The Harvard Crimson headline is “Numbers of Female Harvard Law Review Editors Nearly Doubled in First Gender-Based Affirmative Action Cycle.” But as the story accurately notes, “it is unclear whether the increase in female editors is due to the new affirmative action policy or if more women were selected by chance using the gender-blind process.” And the law review’s President “declined to comment on whether the shift in the admissions process was a success.”
The current President’s refusal to comment is a fitting bookend to that editor’s comment on the new policy as then-incoming President: “It’s too soon to tell what impact the policy will have.” The curious lack of critical curiosity or even comment about how the policy would likely function or is functioning is a consequence of a deliberate insulation from knowledge of effects that has been built into the system itself. And until the law review’s policies provide for some sort of oversight into how the “discretionary committee” that implements the journal’s affirmative action “policies,” it appears that nobody will know how they are working or whether they are needed (putting aside for a moment the difficulty with defining “need” in this context). As I wrote when HLR added gender to its affirmative action “policy”, the existing policies appear designed to create a black box for the accomplishment of undefined mushy quotas:
I was a member of the discretionary committee for Volume 115. Our direction was just to take the various factors into account and then exercise our discretion. That is it. There were some very easy calls, such as applicants who missed the cut-off by a hair’s breadth mathematically. But there was no guidance at all for the tougher calls. The “policy” was nothing more than a list of factors.
At least as of Volume 115, the only people who knew what role various factors played in membership decisions for any given year were the members of that year’s discretionary committee (and even they did not know the identities of individuals selected through that process because everything was done through an anonymous numbering system). As far as the rest of the review was concerned, the committee was a black-box mechanism whose only inputs were a small number of editors and a list of factors for them to “consider” in some unspecified way. The trade-offs made each year were unknown, even to the incoming members of the discretionary committee. If that structure remains the same, then there is no way to track what effect the existing affirmative action policies are having. And if there is no way to track that, there is no way to know what effect a change to the policies would have. Nor is there any way to know when the policies should end.
The Crimson quotes the incoming HLR President as saying that “it’s too soon to tell what impact the policy will have.” Unless the law review has some mechanism in place to provide accountability for how the discretionary committee exercises its discretion, however, the passage of time will not reveal too much about the effect of the policy. It’s a safe prediction that the number of female editors will drift upward and that some kind of mushy quota will result. But nobody will know what trade-offs the discretionary committee is making with the discretion it is charged with exercising. [emphasis added 10/9/13] That is why I fear the editors do not know what “policy” they are adopting in adding gender to the discretionary committee’s list of factors to consider.
(Note: To repeat something mentioned in my earlier comment on this process, I welcome “factual corrections about the nature of the policies now in effect. In particular, if there is some kind of assessment or accountability mechanism in place, I would love to hear about it.”)