How do Grutter and Fisher Bear on the Question Whether Law Reviews Can Take Race and Gender Into Account in Selecting Members (and Also Articles)? Part Two in a Series

Posted in: Constitutional Law

In our last column, we explored some threshold justiciability issues (focusing on the plaintiff’s standing to sue in federal court) in the recent federal lawsuit by a Texas-based nonprofit organization—Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP)—against Harvard Law Review (HLR), challenging HLR’s use of race and gender in selecting members and also in selecting authors for publication. In this second installment in our three-part series, we begin to analyze some of the most important and interesting arguments concerning the substantive merits of the plaintiff’s challenge. For purposes of our discussion today, we assume that the plaintiff enjoys standing and a private right of action to assert claims under Title VI and Title IX, and that HLR is covered by these statutes (because of the funding Harvard University receives from the federal government and because of the connections between Harvard University and HLR), even though these are all contested questions. (Moreover, we express no views on whether the federal Department of Education [DOE] is a proper defendant in the case—another contested matter.)

Although it is sometimes hard to know by looking only at the complaint in a case precisely which legal arguments a plaintiff plans to rely on (since subsequent motions to dismiss and motions for summary judgment are the stages of civil litigation at which legal argumentation is more developed), FASORP’s complaint against HLR (which is all we have at the time of writing) does seem to take a number of positions on the meaning of federal law that we can usefully evaluate.

Do Grutter and Fisher Apply to Title VI (and Title IX) Claims?

Let’s start with the complaint’s assertion that the US Supreme Court’s 2016 ruling in Fisher v. University of Texas and its 2003 decision in Grutter v. Bollinger, in which the Court upheld the use of race as one factor in a holistic assessment of applicants at public universities, “are . . . inapplicable to private universities.” This assertion is simply wrong as a matter of current Supreme Court case law. While Fisher (and Grutter before it) were litigated primarily under the Equal Protection Clause of the Fourteenth Amendment (which directly governs public universities), the Supreme Court for 40 years now has held that—in the words of Justice Lewis Powell in Regents of the University of California v. Bakke, on a point echoed by four other justices—“Title VI [which prohibits race discrimination in educational institutions receiving federal funding] must be held to proscribe only those racial classifications that would violate the [Fourteenth Amendment’s] Equal Protection Clause. . . .” The Court on several occasions has reaffirmed this statutory interpretation of Title VI—that the statute does not bar (at private or public institutions to which it applies) race-based affirmative action programs that would be permitted under the Equal Protection Clause and case law interpreting it. (For example, the plaintiff in Grutter raised a Title VI claim along with her equal protection claim, and the Court never intimated that she might win on the former even if she lost on the latter.) Thus, on the question of taking race into account (and seemingly too the question of gender under Title IX, which also has been read to permit gender classifications that would satisfy equal protection review), federal statutory prohibitions in the educational arena incorporate federal constitutional standards.

This means not only that equal protection principles will bind lower courts in their assessment of FASORP’s claims, but that these principles will also tightly constrain the Supreme Court should it eventually take up the plaintiff’s case. Why? Because, as the Court has repeatedly observed, stare decisis (adherence to precedent) is extremely strong with respect to statutory interpretations. The Court is not likely to revisit the ruling in Bakke, affirmed many times since, that Title VI incorporates Equal Protection Clause standards even as the precise contours of equal protection limits recognized by the Court may evolve over time. (Four justices in Bakke explicitly embraced a dynamic vision of Title VI in which its meaning would follow each judicial refinement in the meaning of equal protection, and Justice Powell also used the word “incorporation” to describe the statute’s dependence on the meaning of the Constitution. That is the basis on which he rejected a “color-blind” reading of the statute.) As we will discuss in our next column, Part Three, the Court could revisit the meaning of equal protection, which would in turn change the meaning of Title VI.

Until then, FASORP’s assertions that DOE’s regulations fail to follow the “color-blind and sex-neutral” words of “Title[s] VI and IX as written,” and are thus entitled to no interpretive deference by the courts, even under the so-called Chevron deference doctrine, are largely beside the point. Unless the Court reads the Constitution itself to be completely color-blind and sex-neutral, the statutes will not bear the absolutist reading FASORP urges. (Of course, to the extent that DOE regulations interpret these statutes as permitting more use of race and gender than would be permitted under equal protection standards, such regulations would be open to attack.)

What all this means is that FASORP’s path to victory likely require it to successfully press one or both of the following two arguments: (1) HLR’s policies do not comply with the requirements of Grutter/Fisher; and (2) Grutter/Fisher should be overruled, something that could happen only at the Supreme Court. We begin to take up these arguments here, and continue our analysis in Part Three of the series.

When a Numerical Cap is Not an Impermissible Quota

As to law review membership processes, FASORP’s complaint asserts that HLR is using race (and gender) in a way that Grutter and Fisher specifically prohibit, but so far FASORP has not alleged (let alone proven) particular facts to support this contention. As we explained in our last column, the Grutter Court (and the Fisher Court as well) accepted the notion that attaining diversity in a law school (or undergraduate) student body, including by ensuring a critical mass of racial minority students, is a compelling government interest because it enhances the educational experience for all students and produces broader social benefits. But these cases admonish that “the compelling interest that justifies consideration of race . . . is not an interest in enrolling a certain number of minority students. . . . [A] university is prohibited from seeking a particular number or quota of minority students.”

FASORP alleges that HLR impermissibly uses a quota for “diversity” students. The complaint contends: “In all events, the Harvard Law Review’s fixed, numerical set-aside of 18 slots reserved for ‘diversity’ candidates is a constitutionally forbidden quota that fails even if one were to assume that Grutter and Fisher govern the Harvard Law Review’s membership-selection process.”

However, FASORP’s own description of HLR’s membership processes does not necessarily support this claim. The complaint alleges that HLR chooses 48 new editors each year from the rising second-year law student class, with 30 students selected based solely on grades and writing competition scores and then an 18 additional students chosen “through a holistic but anonymous review that takes into account all available information,” including information relating to race, gender, and other demographic factors.

The key here is that “all available information” needn’t (and in the most ordinary sense wouldn’t) be understood to be limited to race and gender or even to diversity-related factors more generally. It could well include academic and writing competition performance alongside diversity considerations. In this vein it bears noting that nothing in HLR’s description of its membership selection process remotely suggests that these 18 slots are reserved for persons of a particular race or gender (in the way the UC Davis scheme struck down in Bakke set aside 16 medical school admission slots for ethnic minorities, such that whites could not compete for these slots).

The Michigan Law School’s plan upheld in Grutter used a holistic assessment process for the entire law school class whose aggregate size may have fluctuated from year to year, and yet Grutter would surely not have come out differently had Michigan prescribed that its overall entering class size was fixed—say, at 350 students each year. The key question is whether the number or percentage of racial minorities or members of other underrepresented communities is itself fixed, not whether there is a defined number of seats filled through a holistic process that includes consideration of race or gender. Indeed, the HLR membership process is quite similar to the UT scheme upheld in Fisher. UT’s holistic process that took account of diversity factors supplemented another component of its process in which automatic admission was granted to those in the top ten (or so) percent of their graduating high school classes. Nothing in Fisher suggests that UT couldn’t fix the number of seats available through holistic admissions rather than vary the number year to year.

It is of course possible that if the case proceeds through discovery, evidence will demonstrate that HLR does in fact use a quota or that its consideration of race and gender is too rigidly mechanical (in the way that the University of Michigan undergraduate admissions scheme, struck down in Gratz v. Bollinger, the companion case to Grutter, was). It is also possible that evidence could show that HLR already attains critical diversity mass through its use of grades and writing competition scores so that there is no justification for additional consideration of race or other diversity factors. Our observation at this point is simply that the only facts alleged in FASORP’s complaint—that 18 slots are reserved for holistic review and that holistic review includes aspects of diversity—miss the mark.

Is Diversity in Law Review Operations Even a Compelling Interest (Under Grutter and Fisher) and One as to Which Judicial Deference is Owed?

Another argument FASORP offers is that the acceptance in Grutter and Fisher that diversity is a compelling interest in law school/undergraduate admissions does not carry over to law review activities. Here we think FASORP’s argument is not necessarily persuasive when it comes to law review membership, but it may have somewhat more traction when it comes to law review article selection processes.

Grutter and Fisher embrace diversity not for its own right, but because diversity enhances the education experience for all students and generates some broader social benefits. As the Court has observed: “enrolling a diverse student body promotes cross-racial understanding,” “promotes learning outcomes, and better prepares students for an increasingly diverse workforce in society.” In Grutter, the Court explicitly focused on the fact that many Michigan Law School graduates would go on to leadership positions in the private and public sectors, and that ability to succeed in these positions would be improved by having learned law in a diverse law school classroom environment. In Fisher, both the majority and the dissent (albeit for different reasons) focused on how much racial diversity was increased (or not) at the individual classroom level by UT’s supplemental consideration of race in admissions. The implication here in both decisions is that diversity counts most when it exists in those educational venues (lectures, seminars, etc.) where students engage with and learn from each other as they explore ideas.

This does not mean diversity is not also helpful in dorms, dining halls, and other university settings too. But if the classroom seminar is the paradigm setting in which the value of diversity can be most easily appreciated, then it is not hard to see why HLR policymakers might believe diversity is arguably a compelling interest among its membership too. Law review dynamics (when a law review operates well) are very much like a seminar: students engage with each other, in person, to explore and debate legal and societal questions in the course of picking articles, student notes, symposia topics, and outside speakers, and in their internal governance procedures. If assembling a diverse 1L entering student cohort and promoting diversity in specific classroom populations are compelling interests, so too (it would seem) diversity may be a permissibly compelling value for law review leaders to seek in their membership ranks. Of course, as Grutter and Fisher make clear, holistic review that satisfies the Constitution requires consideration of the many attributes that can generate diversity benefits. A law review that considers only race and gender as diversity elements, for instance, would have a harder time justifying its approach than a journal that takes account also of the benefits of having different political viewpoints, professional experiences, and educational backgrounds among its members.

Consideration of race and gender seems to us somewhat less defensible (though perhaps not entirely indefensible) with respect to the article selection process. When a law review publishes an author, that author is—in some sense—engaged in conversation with readers, including other authors, policy-makers, and the like. But this conversation does not occur in person the way a classroom discussion or a law review membership or committee meeting does. And people who read an article can find out the race/gender of the author (and perhaps learn from that fact as it might bear on the views of the author), regardless of which law review has published the piece. To be sure, student law review editors work with authors in the editing process (as FASORP itself mentions), and having HLR students work with a set of authors that has some demographic diversity might enhance the educational experience for some editors. But most of the work students do these days with law review authors (after articles are accepted for publication) involves technical matters; while there is some intellectual back-and-forth, the most serious discussion of ideas tends to take place among the students themselves (and with their faculty advisors) during the article selection phase.

It also may be that HLR has a strong interest in ensuring diversity among the participants of any in-person events or symposia it sponsors. But the generic notion that HLR has a compelling interest in diversifying the ranks of its authors seems to us somewhat attenuated from the rationales of Grutter and Fisher when compared to the notion that HLR membership benefits from having some critical mass of members of underrepresented groups. (In some respects this also illustrates the elasticity of the diversity rationale, which is why some people find it less satisfying than the remedial rationale for affirmative action that the Court no longer seems to accept as easily.)

Yet another merits issue (implicating both membership and article selection processes) that will likely become important if the case proceeds is the extent to which courts should defer to law review members concerning their views of the importance of diversity. As noted above, we find the analogy between law review and a seminar to be a plausible one, but one big difference is that seminars—and other parts of the curriculum—are supervised and orchestrated by professional academics, to whom the Court in Grutter and Fisher felt it owed some deference. (This was a key question on which the majority and dissent in both cases parted company.) HLR, which purports to be quite independent from the law school whose name it takes, is run by a group of law students, mostly in their twenties, who are admittedly able persons but not exactly educational professionals who have held their positions for many years and gained expertise that comes from administrative and teaching experience.

In our third and final installment of this series, we will explore this crucial question of deference in more depth, and the future of Grutter and Fisher and affirmative action more generally in the new Supreme Court.