Brown v. Board is one of the most important decisions of the 20th century, but it rests on deeply confused logic.
The Harvard Law Review has announced that it has the most diverse intake of editors in its history when diversity is measured by race, ethnicity, and gender. In fact, according to an article in the Crimson, the demographics of the intake resemble the demographics of the Harvard Law School class. This development would indeed be a cause for celebration if it were not the result of preferences rather than merit selection.
Racial preferences began during my time at Harvard Law School and their first implementation occurred when I was an editor. My memory is that they were focused on African Americans and quite limited in number. Indeed, my impression was that they were used only when candidates were close to the cutoff in the writing competition. I say “my impression,” because like the very few other conservatives on the review I had no position of authority there.
But since then the number of “discretionary positions” to be potentially filled by preference has expanded first to ten positions and in 2013 when gender was added to race and ethnicity as a category to twelve positions or more than 25 percent of the intake. Moreover, last year in keeping with the student stirs on the HLS campus, activists complained about the review’s demographic makeup, no doubt putting pressure on it to make use of all the slots, regardless of performance.
This history at the Harvard Law Review illustrates three “laws” of preference. First, once instituted they expand over time in numbers, degree, and scope of categories preferred. And they do so even when it is less likely that the groups preferred face discrimination than they once did. For instance, today women are rightly encouraged and accepted in the legal profession more so than they were during my time at HLS.
Second, preferences also move from assuring that people have a seat at the table to assuring that they have one of the most honored seats. Being an editor of the Harvard Law Review is a job, but it is also an honor, making a difference to future careers. There is little agitation to create proportional representation on obscure law reviews that lack prestige. Racial, ethnic and gender preferences for honors strike me as more intuitively disturbing, the greater the honor.
Third, the conceit that racial, ethnic, and gender preferences will result in the representation of more diverse views, which indeed could be important in putting out a publication, is often false, as it is in this case. It should not come as shock that the most important axis of intellectual diversity in legal perspectives is political or ideological. Debate centrally concerns such matters as the role of the state versus the market, and abstract principles versus tradition. And there is every reason to believe that given the demographic groups for which the slots will be used, that the Harvard Law Review editors will lean even more decidedly left than they would under merit selection. The result will be less political and ideological diversity among articles accepted.
When on its 100th anniversary the Harvard Law Review asked me to write about “the firsts” during my time on the review, I wrote that for the first time in its storied history the review used a criterion other than merit for selection. It saddened me then and the greater departure from that principle saddens me even more today.