The Slanted Investigation by a Right-Leaning Publication That Helped the Administration Target Harvard University
The Washington Free Beacon’s report alleging that the elite university’s law journal was making decisions based primarily on race and gender is extremely flawed
As part of its efforts to bring institutions that it identifies as progressive strongholds to heel, the Trump administration pressed Ivy League universities like Columbia and Harvard to adopt a number of ideologically-driven demands or pay the price. Columbia surrendered—but Harvard decided to fight back. So Trump began waging a multi-front pressure campaign against Harvard, including freezing over $3 billion in research grants and attempting to bar international students from enrolling. It also opened an investigation, late last month, into alleged racial discrimination at the Harvard Law Review. That investigation relied partly on a Washington Free Beacon report which, according to the Department of Education’s acting assistant secretary for civil rights, showed that the HLR’s “article selection process appears to pick winners and losers on the basis of race, employing a spoils system in which the race of the legal scholar is as, if not more, important than the merit of the submission.”
The Free Beacon’s story was based on leaked internal HLR documents that the publication concluded “reveal a pattern of pervasive race discrimination.” But a close look at the supporting documents shows that the article’s presentation of these documents is slanted and downright misleading. In fact, the facts are far more complicated and hardly as damning as the Free Beacon makes them out to be.
Manufacturing a DEI Scandal
The Harvard Law Review’s website openly states that nearly half its editors—24 of 54—are chosen via a “holistic review” that incorporates identity. (Of the rest, 20 are picked solely via competition scores on a written exam and 10 on the basis of a combination of scores and grades.) The Free Beacon suggests that the journal obscures the prominence of race by saying that race is considered “only in the context of an applicant’s personal statement”; but in fact, the text on the site makes it quite explicit that the identity traits revealed in the statement—including “racial or ethnic identity, disability status, gender identity, sexual orientation, or socioeconomic status”—are seen as relevant. One of the documents obtained by the Beacon states that “inclusion of qualified editors from underrepresented groups” is given “first priority.” However, as the document states, “underrepresented groups” is a fairly broad term which includes not only race but disability and socioeconomic background.
Reasonable people can certainly debate whether identity, racial or otherwise, should be a significant consideration in HLR’s selection criteria—and whether intellectual diversity should be a bigger concern. But what ought to be troubling no matter where one lands on this issue is that the Trump administration’s investigation was prompted by tendentious and even distorted reporting.
When the Free Beacon asserts that HLR’s editors “routinely kill or advance pieces based in part on the race of the author,” the words “in part” are doing a lot of heavy lifting. So are very cherry-picked snippets of text.
For instance, take this passage:
“The author is a woman of color,” read one 2024 memo. “This meets a lot of our priorities!”
And now look at the actual text:
Our Priorities: As I laid out above, this meets a lot of our priorities! The author is a woman of color who is drawing on her own experiences as a public defender who participated in this program. She also is a clinical faculty member. The piece is on criminal procedure and is essay length—which was exactly what we were looking for!
The memo doesn’t at all say, as the Free Beacon suggests, that race and gender by themselves meet “a lot” of the editors’ priorities. The two statements—“The author is a woman of color” and “This meets a lot of our priorities!”—are a cut-and-paste job that completely misrepresents the broader statement, omitting five of the six priorities listed (experience, past participation in the program, clinical faculty membership, topic, and length of essay) and making it seem as if race was the sole evaluative factor.
Another memo is summarized by the Free Beacon as saying that “one ‘pro’ of an otherwise weak article” is authorship by “a woman of color outside of the T14,” that is, the top 14 law schools that tend to dominate law review authorship. In fact, the memo characterizes the submission as having both strengths and weaknesses, and “diversity” is just one of the six “pros” listed. But, no less important, the memo starts with a recommendation of “a no to advancing” the article to what is known as a committee read, which is the fourth of six stages between submission and final acceptance. In other words: the article is being rejected despite the journal’s commitment to diversity and inclusion.
Perhaps the most shocking claim in the Free Beacon story is that one editor “refer[s] to an author’s [white] race as a ‘negative’ when recommending that his article be cut from consideration.” The article clarifies that the editor’s actual wording is, “not from an underrepresented background.” But even that is a very small portion of a longer paragraph—one of three under a section titled “Negatives”—explaining the number of ways in which the submission fails to meet the HLR team’s goals for its proposed placement:
This piece is on procedural criminal law, not substantive criminal law. It is not an essay length. Nor does it cite state law pieces—instead many of these citations are to well established professors. Lastly, this author is not from an underrepresented background. He is from a non-T14 school but his resume includes many articles in top-tier journals.
Moreover, the “Recommendation” at the top of the memo, which “tentatively” advises that the piece not be advanced further down the pipeline, did not mention any “diversity” factors but discussed only the subject matter and quality. All in all, it seems very unlikely that the author’s race contributed in any significant way to the decision to drop it. But reading the Free Beacon’s write-up, one would form the impression that race was a significant factor.
In other words, both a minority woman’s and a white author’s submissions were rejected because neither met the journal’s standards of editorial rigor.
What percentage of all editorial decisions at the HLR involve some mention of race or diversity? “My impression based on the documents and conversations with multiple sources is that the use of race is pretty pervasive in these discussions,” the report’s author, Aaron Sibarium, told me. But the Free Beacon’s own excerpts and documents suggest that, if anything, “DEI” is not simply a proxy for “pervasive race discrimination.”
The Free Beacon’s discussion of other leaked documents shows the same tendency to decontextualize and oversimplify. For instance, an item in an HLR editors’ training manual advising to look for citations of “diverse voices (e.g., junior scholars, non-T14 schools, underrepresented groups)” is described as an instruction to “consider ‘DEI values’—including the racial diversity of each article’s citations.” But surely directing editors to encourage citations of junior scholars and writers from non-T14 law schools is just the sort of non-identity-based, non-elitist inclusiveness a supposedly populist administration should welcome and its supporters should value.
What’s more, it’s hard to see how this sort of “DEI” justifies intervention from civil rights offices of the departments of Education and Health and Human Services. Is the problem that an elite university is not being elite enough?
Where Race Matters
The one area where the salience of race seems indisputable at the moment is in the selection of constitutional scholars to write the Foreword to the HLR’s annual Supreme Court issue—a tradition that dates back to 1951 and is recognized as having major weight in legal academia. But even there, things are complicated.
A spreadsheet of the nominees for this prestigious role for 2024 shows that of the 29 people considered, only three were white males and eight were white females. This is certainly not a representative pool: in 2022, white men were 35% of full-time law school faculty and white women 37%. The Free Beacon also plays up a couple of instances when the nominee’s identity was openly mentioned in the section outlining reasons for the selection —as in “the first tenured female Asian American law professor in the U.S.”
The Free Beacon also cites the demographic breakdown of the final authors selected for the Foreword in the last seven years as conclusive evidence of race and gender bias: two Black women, one Hispanic woman, one Native American woman, one Asian-American woman, one white man, and one Black man. Yet the same source also shows that of the 38 Forewords between 1981 and 2017, three, or fewer than 8%, were by nonwhite authors. This, too, was unrepresentative given that by 2018 some 23% of tenured law school faculty was nonwhite. Is an imbalance presumed to be non-merit-based only if it goes in one direction?
It is, of course, entirely possible that during the social justice-conscious period of the late 2010s, HLR editors felt a need to make up for the scarcity of minorities as Foreword authors in earlier years. It’s also likely that these choices reflect the prominence of race- and gender-related legal topics in the journal during that period—an editorial decision that, whether one agrees with it or not, can hardly fall under the purview of discrimination law.
In some cases, the documents uncovered by the Free Beacon raise complicated questions of when an author’s race may indeed be relevant. Take this Slack message, reproduced in the report, on choosing authors to comment on an article about police reform:
There is no question that race has been a major part of the last decade’s discussion of policing and police misconduct. The idea that it is necessarily illegitimate to seek input on this topic from a prominent Black legal scholar who has written about it is absurd, and it is quite a stretch to argue that this amounts to “bean-counting” or to illegal discrimination in contracting to fill some racial quota. For that matter, right-wing publications have themselves highlighted race when citing the work of Black scholars who have disputed progressive narratives about race and policing: for instance, a 2016 Daily Wire piece on the work of Harvard professor Roland G. Fryer, whose widely reported and controversial study found no racial bias in police shootings, characterized him as “an African-American economist.”
Cato Institute senior fellow Walter Olson, a contributor to The UnPopulist—a strong critic of racial preferences—told me in an email exchange that while he had not seen the specifics of the administration’s Harvard Law Review probe, he felt that it was substantively different from “challenges to colleges’ handling of student admissions or employment.” In his words: “It seems to me that claiming that it violates federal law for the editors of a publication to use race as a factor in decisions on what articles to run might call for a round of First Amendment briefing.”
Trump Uses State Power to Bring Harvard Into Ideological Alignment
Do the Free Beacon’s leaked documents show a commitment to progressive-coded values at the HLR? Sure. While the above-mentioned training manual for journal editors encourages looking for “underrepresented” topics and viewpoints, the documents evince very little interest in intellectual diversity. And in the Foreword nominee spreadsheet for the 2024 HLR Supreme Court issue, comments by three editors (with no objections from others) expressed dismay at one candidate’s past membership on the board of an oil and gas company and treated it as a self-evident disqualification.
The Free Beacon article did not flag this episode, possibly because it was unrelated to race or ethnicity—yet it surely points to the need for more ideological diversity at the HLR, especially since it does not cast itself as an explicitly progressive publication. But it is not up to the government to require it—and, in fact, any government efforts in that direction would almost certainly violate the First Amendment.
There is also an important question about the extent to which the HLR, legally a distinct entity, can even be officially regarded as a part of Harvard University.
Olson also noted that, legal action aside, there was “nothing wrong with shedding light on the battles over the reputation of the journal and its editors.” True enough; but in that case, an accurate picture is essential.
In this case, the value of the documents published by the Washington Free Beacon in shedding light on the editorial processes and decisionmaking at the law journal is drastically compromised by the tendentious reporting. This is especially dismaying when such reporting becomes the basis for an authoritarian administration’s quest to punish the university for not adopting its utterly unreasonable and ideologically-driven demands.
© The UnPopulist, 2025
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Good article. Hopefully, the major newspapers such as The New York Times and others will begin to cover this story.
That race can be considered an evaluative factor at all is prohibited. End of story.