Rethinking the Writing Competition: Developing Diversity Policies on Law Journals After FASORP I and II.

• Author: Willison, Paul

CONTENTS INTRODUCTION PART I: DIVERSITY IN LEGAL EDUCATION AND PRACTICE--BENEFITS, BARRIERS, AND THE LAW A. Benefits of Diversity in Law Schools B. Barriers to Diversity in Law Schools C. Law Surrounding Diversity Policies for School Admissions PART II: STUDENT-RUN LAW JOURNALS A. A Brief History of American, Student-Run Law Journals B. Purposes and Functions of Law Journals PART III: DIVERSITY AND LAW JOURNALS A. Current Journal Demographics B. Current Law Journal Editor-Selection Processes 1. First-Year Grades 2. "Canned" Writing Competitions C. Current Attempts to Incorporate Diversity into the Law Review Editor Selection Process D. Challenges to Diversity Polices for Selecting Law Review Editors PART IV: A WAY FORWARD--RE-EVALUATING LAW REVIEW DIVERSITY POLICIES A. Core Considerations for Law Journals Formulating Diversity Policies 1. Alterations to Existing Editor-Selection Policies 2. Legal Considerations to Guide Law Journals' Diversity Policies B. Sample Diversity Policy for Case Western Reserve University School of Law Journals C. Potential Pitfalls of Diversity Policies on Law Journals CONCLUSION INTRODUCTION

I grew up in Uganda attending an international school where my graduating class of thirty-six students came from twenty different countries. My experience in middle school and high school was different from most American schools, but I never thought twice about the broad array of differences between my classmates and I. Throughout middle school and high school we learned to appreciate each other's distinctions--often at school-sponsored events--and built bridges across cultural barriers inside and outside the classroom. It was unique. But I did not fully appreciate it until I returned to the United States for college, and now law school. Where diversity and inclusivity permeated the social fabric in Uganda, many doors in legal education remain closed to those who cannot assimilate to a certain culture.

Law journals represent one of the pinnacle achievements for law students. They help students obtain jobs, clerkships, and teaching positions. Law journals, however, have remained predominantly white and male throughout most of their existence. In the past two decades, law journals have turned to face their homogenous history, and some have developed policies to promote a diverse editorial staff. This prompted two recent lawsuits against New York University's and Harvard's law reviews for allegedly unconstitutionally considering applicants' race and gender in selecting members--arguably at the expense of white and male students. Although both complaints were dismissed for lack of standing, these lawsuits demand attention from all journals as they consider implementing their own diversity policies and reap the benefits that flow from a diverse editorial staff.

This Comment aims to provide color behind the conversation. Part I discusses diversity in law schools, barriers to achieving a diverse student body, and the relevant law for considering race and gender for applicants in institutions of higher education. Part II takes a closer look at law journals and discusses their history and modern purpose. Part III reviews the intersection of law journals and diversity and unpacks policies that have contributed to this homogenous membership. And finally, Part IV highlights key considerations for law journals that want to implement a new diversity policy in selecting new journal editors and considers a sample diversity policy that Case Western Reserve University law journals could implement.

PART I: DIVERSITY IN LEGAL EDUCATION AND PRACTICE-BENEFITS, BARRIERS, AND THE LAW

The legal profession has been, and continues to be, homogenous. Even "[c]ompared to other professions, the legal profession remains one of the least diverse of all professions in the US." (1) It comes as no surprise then that law schools are similarly homogenous. For decades law schools have been predominantly white and male. (2) This flows partly from law schools' refusing to accept Black students into their halls until 1936 while also prohibiting women from entering the profession until women obtained the right to vote. (3) Nearly three decades later, in 1964, only 1.3% of law students were Black. (4) And, in 1978, minorities represented 9% of the national incoming JD class. (5) Some blame "the 'systemic and institutional bigotry and prejudice' that undergirded law school admissions well into the 1970s" for this homogeneity. (6) As of 2018, 31% of the entering JD class identified as racial minorities. (7) Forty years later, law schools have generally shifted towards pursuing diversity--even going so far as providing "Diversity Index[es]" in the notable U.S. News and World Report Law School Rankings (8)--but remain primarily white. (9)

Outside law schools, a similar trend permeates the legal profession. This likely stems in part from exclusionary policies that precluded Black people from professional legal organizations into the twentieth century. (10) In the past decade, however, the number of lawyers who identify as racial or ethnic minorities grew slowly (11)--even though only 15% of all lawyers across the U.S. identified as a racial or ethnic minority in 2019 and "[n]early all minorities are underrepresented in the legal profession compared with their presence in the U.S. population." (12) This is particularly noticeable among Black people who comprise 13.4% of the entire U.S. population but only 5% of lawyers nationally. (13) Racial and ethnic minorities are especially few and far between among law firm partners where only 9% of partners across the U.S. identify as racial or ethnic minorities. (14) Although the legal profession has progressed slowly throughout the years, "[r]acial minorities are seriously underrepresented ... among the practicing bar." (15)

The legal profession demonstrates a similar trend regarding the gender gap. In 1970, 91% of all law students identified as men. (16) Women gradually attended law schools in greater numbers and finally, "[i]n 2014, for the first time, there were more first-year female students than male students." (17) As of 2018, 52.4% of all JD enrollees identified as women. (18) But, in 2019 only 36% of the total lawyers across the U.S. identified as women. (19) Thus, male lawyers still outnumber female lawyers nearly two to one and women can expect to leave an institution of relative equilibrium for a more male-centric occupation after graduation. (20)

It is difficult to know exactly how the legal profession has become more diverse because, unfortunately, data is scarce. (21) "Outside of law firms and Article III judgeships, the profession lacks even basic gender and racial/ethnic breakdowns ... or more inclusive efforts covering sexual orientation and disability status." (22) Law schools and the profession at large can, and should, do better. By collecting and consolidating more information, schools and legal organizations can better display how they are creating a more diverse and inclusive profession.

1. Benefits of Diversity in Law Schools

   A full and growing body of research documents the benefits that flow from diversity generally. (23) As sociologists have argued, "each time an excluded group joins the larger legal discourse, society learns more about the 'limits of [its] current way of seeing.'" (24) This research focuses primarily on racial and ethnic diversity and because a wealth of research highlights these benefits in an educational context, (25) many law firms have pursued diversity to similarly leverage the benefits associated with a diverse workforce. (26)

   Diversity benefits student bodies in many ways. A diverse student body leads to "reductions in prejudice, appreciation of other's perspectives, improved critical thinking, greater connection to the institution, improved self-confidence, greater civic engagement, and enhancement of leadership and professional skills." (27) Diversity's benefits also transcend education and psychology by physiologically reducing anxiety levels while also reducing prejudice among students. (28) Specific to racial diversity, "[g]reater intergroup contact increases cognitive abilities within racially diverse educational settings" (29) not only because of what racial minorities say, but also because of how minorities' perspectives challenge stereotypes. (30)

   Diversity also improves public perceptions of institutions of higher education. As Justice O'Connor stated in the preeminent affirmative action case, Grutter v. Bollinger, "[a]ll members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training." (31) Thus, in law schools, improving student body diversity validates that people across demographics can access legal training in law schools. (32) Law students share this sentiment, valuing diverse student bodies that expose them to new perspectives--an experience particularly relevant after law school. (33)

   Finally, diversity impacts the legal profession--the sphere where law students eventually work. Recent studies show that diversity on the bench can affect case outcomes. (34) Managing Partners and General Counsel have also heralded multiple business justifications for diverse legal talent such as a broader base of experience, avoiding groupthink, and better representing the communities in which these organizations operated. (35) Thus, diversity's benefits transcend educational settings and diverse student bodies provide a necessary training ground to engage with divergent perspectives before practicing law.

   Greater diversity among a law school's student body improves students' experiences and public perception of law schools before practice. As Justice Ruth Bader Ginsburg commented as she joined the bench in 1993, "[a] system of justice will be the richer for diversity of background and experience ... [and] poorer, in terms of appreciating what is at...