Introduction
Debate about the relative quality of various law review volumes is usually confined to student editors’ offices. On rare occasions, such discussion may spill over into the faculty lounge. But, in 2008, as then-Senator Barack Obama began his bid for the White House, the comparative merits of legal scholarship improbably became the subject of national news. Politico published an extensive article noting that Obama’s presidency of the Harvard Law Review “has generated a . . . dust-up in the blogosphere.”
In 1990, Obama became the first Black person elected to lead the Harvard Law Review in its century-long history.
That event generated a tremendous amount of celebratory coverage at the time.
But eighteen years later, some observers suggested that Obama had presided over a notoriously weak volume of legal scholarship. One commenter on a legal blog counted the total number of citations to Obama’s volume and to the adjacent volumes and concluded that “Obama’s [Volume] 104 is the least-cited volume of the Harvard Law Review in the last 20 years.”
Another commenter went further, stating that Obama “presided over a general ‘dumbing down’” of the Review’s standards.
Though it went unstated, the subtext of these remarks was clear: In selecting a Black student as president of the Harvard Law Review, the editors who ran that journal had sacrificed quality at the altar of diversity. The implication was that Obama’s volume garnered low citations not just by random chance, or because his skills lay more with politics than with selecting law review articles, but because he had been awarded the position in part due to his race. There was, of course, zero evidence that race aided Obama’s membership on the law review or his ascension to its presidency.
But the idea that there might be a tradeoff between “merit” and diversity was by then so well-ingrained into the public consciousness that the accusation had force even without evidence.
A decade later, similar accusations resurfaced, this time in the form of a lawsuit. In early October 2018, groups of students, faculty, and alumni filed lawsuits against the Harvard Law Review and the New York University Law Review opposing practices that, they claimed, had “subordinated academic merit to diversity considerations.”
The lawsuits claimed that the law reviews’ policies to diversify their editorial boards have reduced the quality of the articles that the law reviews published by ensuring that articles “are judged by less capable students” and by “dilut[ing] the quality of the students who edit an author’s” work.
These allegations implicate longstanding criticisms of diversity initiatives. Ever since Justice Lewis Powell’s 1978 opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs,
critics of affirmative action have pitted diversity against ideals of merit. They have argued that efforts to attain diversity will necessarily lead to lower quality results, as “less meritorious” individuals are selected in place of people with ostensibly stronger qualifications.
Moreover, scholars and jurists who are critical of affirmative action have frequently cast doubt on the diversity rationale’s empirical foundations. In 2014, Professor Peter H. Schuck of Yale Law School contended: “[T]he premises underlying the diversity rationale for race-based affirmative action are empirically tenuous and theoretically implausible.”
That same year, scholar Abigail Thernstrom similarly asserted that “the entire edifice of [affirmative action] is built on a purely speculative promise that ‘diversity’ will bring educational benefits.”
Two years later, noted economist Thomas Sowell voiced a particularly acerbic version of this skepticism: “Nothing so epitomizes the politically correct gullibility of our times as the magic word ‘diversity.’ The wonders of diversity are proclaimed from the media . . . and confirmed in the august chambers of the Supreme Court of the United States. But have you ever seen one speck of hard evidence to support the lofty claims?”
Such skepticism has made its way to the august chambers of the Supreme Court as well. In 2016, Justice Samuel Alito dissented in an opinion upholding affirmative action at the University of Texas at Austin. In doing so, Justice Alito expressed frustration that those “invoking ‘the educational benefits of diversity’” had “not identif[ied] any metric that would allow a court to” assess whether the purported benefits were being realized.
Even some supporters of affirmative action have doubted the quality of empirical evidence that has been marshaled to support the diversity rationale. For example, Professor Randall Kennedy of Harvard Law School wrote a book defending affirmative action, titled For Discrimination, in which he confessed: “I remain doubtful about social scientific ‘proof’ of diversity’s values; much of that [research] seems exaggerated and pre-determined with litigation in mind.”
Professor Kennedy is correct that the existing empirical literature on diversity in higher education is lacking. A major reason is the difficulty of measuring and evaluating performance in a manner that would shed light on the value of diversity in higher education. How can one measure the output of a university (or a law school)? Suppose a law school is able to attract a particularly diverse class for a given year. How would we be able to tell if the class’s diversity improved the students’ educational experience? Given that students are graded on a curve relative to each other, assessing whether having a more diverse class improves outcomes is not a straightforward task. Accordingly, the empirical evidence on the effects of diversity has remained lacking, and the debate has raged on.
It is difficult to exaggerate the stakes of this debate. In January 2022, the Supreme Court agreed to hear lawsuits challenging the affirmative action admissions policies at Harvard University and the University of North Carolina.
In Justice Sandra Day O’Connor’s 2003 majority opinion in Grutter v. Bollinger upholding the University of Michigan Law School’s affirmative action policy, she suggested that affirmative action would no longer be necessary in 2028.
The Court now could very well be poised to eliminate the practice five years ahead of that schedule.
This dispute implicates private institutions as much as it does public ones: The Court held in Bakke that Title VI of the Civil Rights Act, which prohibits racial discrimination by any private institution that accepts federal funding, is coextensive with the Fourteenth Amendment’s Equal Protection Clause.
If diversity provides no benefits, then, under current doctrine, it cannot serve as a compelling governmental interest. If it cannot serve as a compelling governmental interest, then affirmative action programs throughout higher education rest on an infirm foundation and may soon fall.
This Article aims to offer empirical evidence of the effects of diversity in higher education. Indeed, we believe that the lawsuits against the Harvard Law Review and New York University Law Review offer an ideal setting in which to study the influence of diversity policies on group performance in higher education. The work of law review editors involves core higher-education functions: Students work together in a group to evaluate the merits of scholarly work, selecting a few articles to publish from thousands of submissions.
The editors then edit the substance and style of those articles before publishing them.
The articles that student-run law reviews publish have the advantage of presenting a publicly observable outcome: article impact, as measured by citations.
And although diversity policies for selecting editors may only result in a few additional diverse law students selected as editors, research suggests that even minimal increases in diversity can radically change group decisionmaking.
We specifically investigate whether the citations to articles that a given law review publishes change after the adoption of a diversity policy for selecting editors.
To do so, we documented the adoption of diversity policies by the flagship law reviews for the top twenty law schools since 1960. We compiled a dataset of the citations to the nearly 13,000 articles published by leading law reviews during this period. In our preferred specification, we assess changes in the citations of articles published from the five years before a change in a journal’s diversity policy relative to the five years afterward.
We find that law review membership diversity policies increase median article citations by roughly 25%. In addition to exploring the effect of diversity policies on median citations, we also explore the effect of diversity policies on mean citations. When doing so, our estimates are consistently positive, but they are largely not statistically significant at conventional levels.
Notably, we find that this increase does not appear to be driven by a change in the share of articles a journal publishes on different subjects. One could imagine a diversity policy resulting in a journal publishing more articles on (for instance) constitutional law and fewer on tax law. Because citations systematically vary between subjects—for instance, constitutional law articles are cited more than tax law articles
—the increase in citations to journals that adopted diversity policies could be driven by changes in the subjects of the articles being published. Nevertheless, we find no evidence that journals systematically changed the mix of subjects among the articles they accepted.
These findings have implications beyond the law review setting. If diverse groups of student editors perform better than nondiverse groups, it lends credibility to the idea that diverse student bodies, diverse student organizations, diverse faculties, diverse teams of attorneys, and diverse teams of employees generally could perform better than nondiverse teams. We thus view these results as placing empirical heft behind Justice Powell’s much-derided rationale from Bakke. To the extent that the results are generalizable, courts should continue to view diversity as a compelling governmental interest when adjudicating affirmative action cases under the Equal Protection Clause or under Title VI.
Before continuing, it is important to acknowledge that citations are not a perfect measure of an article’s impact, much less a perfect measure of its quality. In some instances, excellent work is no doubt lowly cited and execrable work is highly cited. Nevertheless, citations are a widely used measure of research impact across different disciplines
and a reasonable proxy for academic impact, as they indicate the extent to which an article has shaped the scholarly conversation.
In addition, citation counts are particularly pertinent because law review editors themselves consider how likely a piece may be cited when deciding whether to publish it.
Thus, the measure used here is one that law review editors themselves prioritize. It is advantageous to assess the performance of law review boards according to a metric they value themselves. We also have it on good authority that citations are important to law professors, who endeavor to place their articles in publications with high visibility in order to maximize their citations.
This Article proceeds as follows. Part I sketches the legal history of the diversity rationale for affirmative action programs in the United States, which predates Justice Powell’s opinion in Bakke. It then lays out the many criticisms of Powell’s opinion that writers and thinkers across the political spectrum have lodged. In addition, Part I surveys the existing empirical literature on diversity. Part II describes the data collected for this study. Part III explains the research design used to assess the relationship between the adoption of diversity policies and article citations. Part IV presents the primary results, as well as a variety of checks on the robustness of those results. Part V connects the results to the broader debate over diversity and affirmative action. We argue that the law should provide even more space for institutions to pursue policies that will add to their diversity while simultaneously improving their work and results.