A Fairer Review

THE HARVARD Law Review deserves praise for wrestling with the thorny and divisive issue of affirmative action and showing a commitment to increase the diversity of its membership. As the most prestigious law journal in the country, its actions of the past few weeks are significant not only because they will allow more minority and women to benefit from Review membership, but also because of the symbolic value of the Review's new commitment to minorities and women.

Review members, year after year, found the dearth of minorities and women among their ranks a source of embarrassment because they viewed their selection procedures as objective and meritocratic. Under the leadership of Stuart Singer, outgoing Review president, the Review has tried to change its image in and around the Law School as an elitist group of white males.

Because Review membership is often a key to academic and professional positions, opening it to greater numbers of minorities and women can also help alleviate the embarrassing paucity of women and minorities on law school faculties, or at least, make administrators less able to excuse it by citing a short supply of qualified applicants.

The Review was wise to scrap the plan it originally adopted three weeks ago and replace it with an affirmative action policy that avoids rigid quotas or targets but still aims to increase minority and women representation. The original mechanical procedure would have been an ineffective means to achieve more diversity. Underlying any affirmative action policy is a belief that a person who has been underprivileged--economically, socially or educationally--in the past will achieve a level of academic performance beneath his or her potential. But if past deprivation is the explanation for the fact that over the past two years only one minority had the grades to qualify for the Review, then simply picking the highest-ranking minority to join the Review would help the most privileged minorities. Some of the minorities attending the Law School come from affluent families and benefit, in fact, from very privileged educations.

After two weeks of impassioned debate and a four-hour-long meeting last Wednesday, the Review saw fit to adopt a better affirmative action policy based on two principles: first, that more diversity is desirable; and second, that membership selection should continue to be made on the basis of merit rather than on race or gender. The new plan incorporates both principles and avoids leaving the Review open to charges of reverse discrimination. It also broadens the definitions of merit to facilitate selecting a more diverse membership and vitiates the claim that minorities selected because of the affirmative action policy would be stigmatized.

The Law Review's new affirmative action policy is reasonable enough to show that affirmative action can work without compromising the principle of meritocracy and effective enough to insure more minorities and women greater access to Review membership.