On April 28, the Trump administration announced it was investigating Harvard Law Review. I should not have been surprised after all that has happened since January 20. But I was.
The country is in chaos. Every day, or so it seems, another court rules against the Trump administration, prices rise, and uncertainty reigns.
So, who has time for Harvard Law Review?
Criticizing the review has long been fashionable in conservative circles. They have been particularly critical of the review’s explicit commitment to equity.
For example, writing in 2016, Federalist Society favorite Prof. John McGinnis wrote that the fact that the demographics of the Harvard Law Review membership would “resemble the demographics of the Harvard Law School class…would indeed be a cause for celebration if it were not the result of preferences rather than merit selection.”
He claimed that the history of the Harvard Law Review “illustrates three ‘laws’ of preference.” They are: “First, once instituted they expand over time in numbers, degree, and scope of categories preferred…. 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…. 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.”
McGinnis said he was “saddened” by what he saw as a wrong turn at Harvard Law Review. But he did not claim that the law review’s conduct violated any law.
That was then. 2016 seems like another era.
Today, going from critical engagement to threats of legal action is very much the coin of the realm in the Trump administration. And attacking Harvard Law Review is another part of the administration’s strategy of targeting this country’s most prestigious and powerful non-governmental organizations.
Not surprisingly, the weapon of choice—Title VI of the 1964 Civil Rights Act. A tool intended to advance rights and to protect historically disadvantaged groups is now being used by the most anti-civil rights administration in recent history.
As an article in The Harvard Crimson explains, “Claims under Title VI are evaluated by the Department of Education’s OCR with two considerations: whether an institution fostered a “hostile learning environment” and whether it subjected a select group of students to ‘disparate treatment’….”
“A learning environment,” it continued, “could be considered ‘hostile’ if discrimination ‘is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from a school’s education program.’” Someone wanting to prove disparate treatment—“when a group is treated differently because of a protected class—needs to show both impact and intent to hold legal ground.”
Moreover, the targeting of Harvard Law Review is another disturbing example of outside groups acting as collaborators and informants. As Thor Benson writes in Wired, “Authoritarian societies depend on people ratting each other out….” In that context, anything people or institutions did “during democratic years can be used against you once the new regime takes power.”
The Departments of Education and Health and Human Services did not hide their reliance on collaboration from outside the government, though they did not identify the source of their information about Harvard Law Review. They merely cited “reports of race-based discrimination permeating the operations of the journal” as the basis of their investigation.
The “reports” that spurred the administration to act surfaced on April 25 and were found in an article in the ultra-conservative Washington Free Beacon. The Beacon said it had obtained “internal documents which span more than four years and have not been previously reported, include article evaluations, training materials, and data on the race and gender of journal authors.”
It argued that “[R]ace plays a far larger role in the selection of both editors and articles than the journal has publicly acknowledged. Just over half of journal members, for example, are admitted solely based on academic performance. The rest are chosen by a ‘holistic review committee’ that has made the inclusion of ‘underrepresented groups’—defined to include race, gender identity, and sexual orientation—its ‘first priority.’”
The Beacon claimed that it had uncovered “a pattern of pervasive race discrimination at the nation’s top law journal [that] threaten[s] to plunge Harvard, already at war with the federal government, into even deeper crisis.” And, as if teeing up the Trump administration’s investigation, it said, “The documents from the law review could create a new line of attack for the administration as the fight over federal funding escalates and invite litigation from private plaintiffs eager to join the pile-on.”
“Such plaintiffs would,” the Beacon concluded, “have no shortage of ammunition. The documents show that the Harvard Law Review continued using race after the Supreme Court outlawed affirmative action in June 2023, implementing several DEI measures within the past year.”
The Trump administration got the message.
Taking his cues from the Beacon, Craig Trainor, the Acting Assistant Secretary for Civil Rights at the Education Department explained, “Harvard Law Review’s article selection process appears to pick winners and losers on the basis of race, employing a spoils system in which the race of the legal scholar is as, if not more, important than the merit of the submission.”
The announcement of the administration’s investigation also included the claim that “The Harvard Law Review’s editor reportedly wrote that it was ‘concerning’ that ‘[f]our of the five people’ who wanted to reply to an article about police reform ‘are white men.’ Another HLR editor suggested ‘that a piece should be subject to expedited review because the author was a minority.’”
Moving forward, as Politico notes, “The Trump administration is probing financial ties, oversight procedures, selection policies, and other documentation for both membership and article publication.” And here again, it is mobilizing the language of “merit” to denigrate efforts to achieve equity.
As that process moves forward, Trainor warns, “No institution no matter its pedigree, prestige, or wealth—is above the law.”
Of course, the question is, what is the relevant law here?
It could and should be the First Amendment.
We may not like the content of what the Harvard Law Review publishes or the preferences it gives to certain types of authors. However, the First Amendment gives ample latitude for it to prioritize particular perspectives in what it publishes or to have policies that favor different groups of authors.
The administration seems unconcerned about whether its investigation would interfere with or offend those First Amendment concerns.
Moreover, Harvard Law Review is “independent of the Harvard Law School.” Neither Harvard Law School nor Harvard University directly funds it.
The Harvard Law Review Association provides its funding.
But the Beacon notes:
[A]t least one attorney is already planning to sue Harvard over the law review’s policies…. While the Harvard Law Review is an independent nonprofit and legally distinct from the university, it operates out of a Harvard building, is tended to by Harvard janitors, and employs only Harvard students as editors. It is also advised by administrators and professors at Harvard Law School, including the dean, and some student editors are on federal financial aid.
As if the administration’s latest attack and the threat of more litigation were not bad enough, after publication of the Washington Free Beacon’s story, Faculty, Alumni, & Students Opposed to Racial Preferences allegedly sent two emails to Harvard Law students.
One email urged that “students applying to the Law Review [this year] [to] claim they belonged to a racial minority, pretend to be gay or transgender, and conceal their identities if they were Asian American or Jewish.” The other told them “to save any personal statements they had submitted or planned to submit to the Law Review because they would be subpoenaed during a planned lawsuit.”
As the academic year ends, MAGA world and its allies are again trying to turn one part of a school community against another. That is, as McGinnis might say, something that should “sadden” us.
But we should be saddened even more by the administration’s “departure” from principles that have allowed people in this country to live freely and without fear.
