No Such Thing As An Opinion!

"Obama was the first African-American to be elected President of the Harvard Law Review in 1990. Obama’s tenure as Law Review President was not without controversy. Indeed, an unusually low number of women were selected to be Review editors from the class of 1992, leading to considerable debate about the Law Review’s selection policies and the importance of its affirmative action program, which at the time, was limited to consideration of race and physical handicap.

Obama personally responded to the controversy by writing a lengthy letter explaining both the Review’s selection policy and his personal experience with affirmative action. The letter was published in Volume 91, Number 7 (November 16, 1990) of the Harvard Law Record. It is reprinted below in its entirety."

To the Editor:

Since the merits of the Law Review’s selection policy has been the subject of commentary for the last three issues, I’d like to take the time to clarify exactly how our selection process works.

As our Treasurer, Lisa Hay, explained in your first article on our selection policy (October 12th), all students who wish to become editors of the Law Review participate in a writing competition at the end of their first year. The entire writing competition is conducted on a double-blind basis, to ensure absolute anonymity. Each submission is graded by at least three different Review editors to help decrease the effects that any particular editor’s subjective opinions may have on the final scores.

"At least three different Review editors..."  Does Obama need to include the word "different"?  Is it at all possible for three editors to not be different people?

"Decrease the effects" of an editor's opinions?  Why would they want that?  After all, if there's any value at all to having editors grade within the selection process, why would they want to decrease the effects of a particular editor's opinions?  By doing that, one would be increasing the relative effects of the other editor's opinions!

I suspect that the policy of having at least three editors grade submissions was meant to increase the sample size, and hence the validity, of the overall evaluation.  It's meant to increase the validity of the grading process, not to decrease the effects of any particular editor's opinions!

In fact, adding several editors to the grading process wouldn't at all increase or decrease the relative weight assigned to any particular editor's grade.  The impact of each editor's relative grade would remain the same! Two editors would each have equal, 50% weights.  Three editors would each have equal, 33% weights, and so on.

Once all the writing competition submissions have been graded, these scores, as well as the law school transcripts of all those who have chosen to release the, are submitted to a Selection Committee made up of the President ad two other Review editors who have been elected by their fellow editors.

"...Transcripts of those who have chosen to release them..."  So the Law Review was willing to consider selecting, as a president, a student who was unwilling to provide their transcript?  Are grades not important enough to warrant their mandatory inclusion in the selection process?

The Selection Committee first identifies the group of candidates whose excellent performance, either in the classroom or on the writing competition, sets them apart. (Approximately half of this first batch is chosen solely on their performance on the writing competition; the other half are selected on a weighted formula of 70 percent grades and 30 percent writing competition.)

In answer to my question, yes, the grades weren't at all considered during the process of selecting half of the candidates.  What kind of a statement does it make for the newspaper of a college to disregard grades?  Did Obama implement that policy?  And why?

The Selection Committee must then choose the remaining editors from a pool of qualified candidates whose grades or writing competition scores do not significantly differ. It is at this stage that the Law Review as for several years instituted an affirmative action policy for historically underrepresented groups: out of this pool, the Selection Committee may take race or physical handicap into account in making their final decision, if the Selection Committee believes that such affirmative action will enhance the representativeness of the incoming class. On the other hand, the Selection Committee may find that given the make-up of the first batch of candidates, such considerations are unnecessary. In no event is the Selection Committee required to meet any set quotas.

If one believes affirmative action is necessary, why on earth would one not use quotas?  Isn't affirmative action the belief in using race as a selection criteria, the belief in downplaying the real criteria, ability?  If you believe in using race as a criteria, then you believe that some races need a boost in order to overcome discrimination that has reduced their prominence in being selected.  How could you not have a race quota in mind, unless you aren't even really sure as to why it is that you are using affirmative action in the first place?! 

Did they suddenly decide that blacks are being discriminated against, and then set up an affirmative action program to select blacks in random numbers?  Wouldn't that lend itself to continuing the discrimination by selecting blacks in numbers that will end up being lower than, or higher than, the number you'd expect to see among a discrimination-free society?  I'm not sure that Obama and the selection committee even knew what they were doing!

Once final selections are made, all writing competition material is destroyed. No editors on the Review will ever know whether any given editor was selected on the basis of grades, writing competition, or affirmative action, and no editors who were selected with affirmative action in mind.

The Review as a body feels that the success of the program speaks for itself. The vigor of debate and the wide range of perspectives that results from our current selection process have not been purchased at the price of any “lower standard” of editorial excellence; in fact, our program argues for the proposition that diversity can and should be the companion of quality legal scholarship.

Obama compares the vigorous debate emanating from the affirmative action recipients. He claims that affirmative action has not resulted in a "lower standard" of debate.  But it is actually impossible to make this claim, because he's comparing the existing situation with an alternate situation that never actually occurred.  Therefore, it's impossible to make a comparison!

How can he say that the affirmative action recipients provide more vigorous debate than would've been the case had affirmative action not been used? Bizarre!

This isn’t to say that our selection procedures are ideal. No matter how anonymous the process, we are in the difficult and unusual position of evaluating our peers; indeed, the absolute necessity of anonymity prevents us from making the nuanced evaluations that a law school admissions office might make. As a result, the design of the selection process – including not only affirmative action but also the use of the writing competition or the use of grades – has been an important subject of discussion for each volume of the Review.

So, Obama claims that one should look at their peers' writing ability and academic record, while avoiding knowledge of their peers' identity.  Why?  Because such knowledge might bias the evaluation.

Think about that.  Obama (rightly, perhaps) believes that one should be objective and ignore the identity of the person being graded.  Be objective and base it on marks and writing ability.

Yet Obama contradicts that train of thought by claiming that it's fine to dump objectivity, implement affirmative action, and consider the race of the person being reviewed. How is that being objective?

As I stated in the first Record article, we decided last year as a body that based on the percentage of women in the Law School and our previous success of attracting a large number of women to editorial and leadership posts at the Review, an affirmative action program for women was unnecessary. 

So Obama thinks that affirmative action is necessary only to reverse supposed discrimination, not to prevent supposed discrimination from occurring?  Doesn't he think that if an affirmative action program had already been in place, it would've prevented the number of women from dwindling in the first place?  People, as you examine Obama's lack of logic...remember, he is now the president of the USA! How sad.

Because of the drop-off of women editors this year, that policy is subject to change if the majority of Review editors think it’s appropriate. In the meantime, we’ve been in contact with members of the WLA [Women's Law Association] to ensure that we effectively recruit women to participate in this year’s competition.

Let me end by emphasizing that the Review is committed to including the widest range of viewpoints on its editorial staff, and strongly encourages 1L women and men of all backgrounds and ideological stripes to participate in this year’s writing competition.

That's a real kicker.  If you were a white law student, would you be strongly encouraged to participate in the competition, knowing that your race would reduce the chance of your being selected?

I’d also like to add one personal note, in response to the letter from Mr. Jim Chen which was published in the October 26 issue of the RECORD, and which articulated broad objections to the Review’s general affirmative action policy. I respect Mr. Chen’s personal concern over the possible stigmatizing effects of affirmative action, and do not question the depth or sincerity of his feelings. I must say, however, that as someone who has undoubtedly benefited from affirmative action programs during my academic career, and as someone who may have benefited from the Law Review’s affirmative action policy when I was selected to join the Review last year, I have not personally felt stigmatized either within the broader law school community or as a staff member of the Review.

If indeed Obama has not felt stigmatized by being selected based on his race, perhaps that's because he's too arrogant to feel stigmatized!

Indeed, my election last year as President of the Review would seem to indicate that at least among Review staff, and hopefully for the majority of professors at Harvard, affirmative action in no way tarnishes the accomplishments of those who are members of historically underrepresented groups.

Obama considers that being selected based on skin color, and not just ability, is not akin to being tarnished?

I would therefore agree with the suggestion that in the future, our concern in this area ia [sic] most appropriately directed at any employer who would even insinuate that someone with Mr. Chen’s extraordinary record of academic success might be somehow unqualified for work in a corporate law firm, or that such success might be somehow undeserved. Such attributes speak less to the merits or problems of affirmative action policies, and more to the tragically deep-rooted ignorance and bias that exists in the legal community and our society at large.