Law Reviews so White…and Straight… and CIS…(and Maybe Ableist and Ageist)

I remember vividly the moment I decided not to write on for law review at the University of Texas. I was working as a summer associate at Vinson & Elkins in Houston, and planning to spend my nights and weekends completing the exercise, when I mentioned it to a fellow Black UT Law graduate in his second year of practice at the firm. His words stay with me to this day: “you’ll spend the rest of your career in all White spaces. Why would you voluntarily spend the majority of your free time in law school fighting that battle?”

I had the benefit of being in law school when the market was better, and the grades to land a permanent position in big law, so the decision did not hurt me. But, what I did not realize at the time is that there are doors that are closed to those who do not participate in law review. I will never know what opportunities I have missed because I made the decision that helped to preserve my mental wellbeing throughout law school.

In my current role as a law professor I have noticed a trend that I believe may be the result of marginalized students making the same choice I made as a law student. As we celebrate the advances in gender diversity on law reviews, we are silent about the lack of any other form of diversity on most journals. On Twitter late last year I announced that I would attempt to submit to the most diverse journals first. Many professors weighed in with suggestions of what to ask, so I developed a Google Form,[1] submitted it to all flagship law journals, and waited for results. The exercise has taught me many things, and one lesson is quite troubling. We do not count what we do not care about, and it seems that we do not care what happens to marginalized students beyond what we are required to count for ranking purposes. In other words, the overwhelming response I received from journals was “we don’t keep track of that kind of information.” I received more “we don’t keep track” responses than survey responses. Yet, when a law school or law review wants to celebrate a first—first all female board, first Black editor-in-chief, or a first LGBTG+ editor-in-chief—suddenly the press department can figure out the demographics.

Law journals do take pictures. Going by sight the demographics are clear—law reviews are very white, and do not reflect the overall diversity of their institutions. Schools that are continually celebrated for having diverse student populations, in USNews or elsewhere, have law reviews that look the same as schools deemed to have a “diversity problem.” By merely looking, I am unable to tell who is LGBTQ+, who is a non-traditional student, or who has a silent disability. Law schools are not keeping track of this information, and are not encouraging law reviews to give consideration to these factors, and yet we continue to hold law review up as a benchmark for various honors in the profession. If we do not care about diversity on law reviews, do we care about it in the profession at all?

I will not list the journals that disclosed they do not keep track or data, but I will instead take some time to give credit to the schools who submitted and who have results worth celebrating. I received responses from ten schools: University of Kentucky College of Law, Columbia Law School, Wayne State University Law School, Emory Law School, Berkeley Law, Florida A&M University College of Law, The University of Memphis Cecil C. Humphreys School of Law, Cardozo Law School, and University of Houston Law Center. They submitted responses for the following journals: Indiana Law Journal, Kentucky Law Journal, Columbia Law Review, Wayne Law Review, Emory Law Journal, California Law Review, Florida A&M University Law Review, The University of Memphis Law Review, Cardozo Law Review, Houston Law Review.

The journals range in size from 31 to 152, with 3 schools having 60 members.  All ten have at least 1 Black or African-American member, 9 have a Hispanic or Latino member, 7 have Asian or Asian-American members, 8 have biracial or mixed-race members, and 2 have at least 1 Native-American member.  All 10 of the journals have women and many are majority female, but only 5 have a non-binary or trans+ member.  7 of the 10 journals have at least one member who identifies as homosexual, bisexual, pansexual or polysexual, or asexual. 9 of the 10 journals have a member over the age of 30.  7 of the 10 have members who disclosed a disability. 

Florida A&M University Law Review is the flagship journal for Florida A&M University College of Law (FAMU Law), a historically Black law school in Florida.  All 30 members of the FAMU Law Review identify as Black or Hispanic/Latino, and 20 of its 30 members are female.  Houston Law Review of the University of Houston Law Center has a majority female law review.  Of its 72 members, 45 identify as female.  26 of Houston Law Review’s 72 members identify as one of the racial or ethnic groups measured in the survey.  Houston Law Review has 7 members who identify as homosexual or bisexual, 7 members over 30, and 1 member who identifies as disabled.

Cardozo Law Review of Cardozo Law School has 60 members.  The law review did not provide a breakdown of numbers within each category, but reports having members who identify as Black, African, or African-American, Asian or Asian-American, Hispanic or Latino, or bi-racial or multi-racial; female; and homosexual or bisexual.  10 of the 60 members are over 30. Memphis Law Review, the flagship journal of The University of Memphis Cecil C. Humphreys School of Law has a majority female membership, with 30 of 50 members identifying as female.  10 of its members identify as Black, African, or African-American, Hispanic or Latino, or multi-racial or biracial.  5 members of the Memphis Law Review are over 30. 

Indiana Law Journal, of the Indiana University Maurer School of Law has 60 members, with 7 identifying as Black, African, or African-American, Asian or Asian-American, Hispanic or Latino, or bi-racial or multi-racial.  28 of Indiana Law Journal’s members identify as female, 1 member identifies as homosexual, and 6 members are over the age of 30.  Kentucky Law Journal, the flagship journal of the University of Kentucky College of Law, has 60 members.  4 of its members identify as one of the racial or ethnic groups included in the survey.  29 of its 60 members are female.  2 members identify as homosexual or asexual.  Kentucky Law Journal has one member over 30.

Emory Law Journal, the flagship journal of Emory Law School, currently has its first openly LGBT editor-in-chief, Rashmi Borah. The journal has 82 members with 19 identifying as Black, African, or African American, Hispanic or Latino, Asian or Asian-American, or biracial or multiracial. 35 members are female, and 1 member identifies as non-binary or gender fluid.  Emory Law Journal has 6 members who identify as homosexual or bisexual, and 3 members over the age of 30. 

Columbia Law Review  of Columbia Law School appears to have diversity in all varities questioned.  41 of 90 Columbia Law Review members identify as Black, African, or African American, Hispanic or Latino, Asian or Asian-American, biracial or multiracial, or Native-American.  23 of its 90 members are female and 1 member is non-binary or Trans+.  10 members are homosexual, bisexual, or pansexual or polysexual. 5 members are over the age of 30.

California Law Review  (Berkeley Law) also has diversity in every category questioned, and is the largest law review to respond to the survey, with 152 members.  76 of the 152 members identify as one of the ethnic groups surveyed, and it stands out as the only other journal (besides Columbia) with a Native American member.  There are 90 female members, and 5 members who are Trans+ or non-binary. 46 members identify as homosexual, bisexual, or pansexual or polysexual.  11 members are over 30, and 11 members identify as disabled.

I am not an empiricist, but I do know enough to know that these results are not statistically significant.  I didn’t set out to engage in a true study, but I did want to learn whether my own experience as a law student was a unique experience.  As a faculty member, I also would like to get to the heart of why marginalized students enter law school with the demographics that should land them on law reviews at the same rate as their admission but it doesn’t happen.  Instead, on the faculties upon which I’ve served and at the law school I attended I see the diversity of the school reflected on trial advocacy boards, specialty journals, and in affinity groups—organizations that are deemed far less prestigious when hiring for judicial clerkships, academic positions, and even law firms.  I thought my own law school experience was unique to the circumstances of my law school, but I have had many conversations with Black lawyers, and Black women in particular, who avoided law review for the same reason.  Although not statistically significant, I think these results matter.  If we care about the future of the legal profession and access to justice, we have to give consideration to all aspects of the pipeline for lawyers—not just what US News tells us to count.

I may not end up hitting this submission cycle—as it’s the end of February and my paper is not finished—but when I do submit in the fall cycle or next spring I will probably start with these ten journals.  Through this exercise and through my activity on social media I have had interactions with Rashmi Borah of Emory Law Journal and Noor-ul-ain Hasan of California Law Review—trailblazers in both law review diversity at their own institutions and in working towards a more welcoming environment at their law schools as a whole.  Both are focused on the experience of diverse students on their journals and at their law schools. I think we owe it to these and other students to give credit where credit is due.  These editors and the members of many other journals are recognizing the importance of diverse voices on their boards and in the pages of their journals.

My institution, Washington and Lee, has a law review ranking system that many rely on when making placement choices, but that system does not factor in the diversity of journal membership in its ranking. I have not seen a ranking system that does. I think the next step is to start caring enough about law review diversity to count it and factor it into our placement decisions, and for the ranking systems to factor it in when they measure the quality of a journal. Until then, I think it is important to consider the realities of a law school culture that continues the trend of minimizing diversity on flagship law reviews.

[1] The form is still open to submissions. I will continue gathering results through the end of this academic year.