Harry Elkins Widener Memorial Library at Harvard University

A month after the Trump administration began investigating the Harvard Law Review over allegations of race discrimination, the journal published a "factsheet" purporting to set the record straight.

Referencing "recent news reports" that led to the investigation, the factsheet, published May 27, claimed that the Washington Free Beacon had "mischaracterized" the admissions process for student editors, half of whom are selected by a "holistic review committee" that in 2021 made the inclusion of "underrepresented groups" its "first priority."

That language came from a so-called transition resolution passed by journal editors. The factsheet claimed that such resolutions are "not binding" and proceeded to quote from what it claimed were the current guidelines for editor selection, noting that they "closely follow" the guidance set forth in the Supreme Court’s decision banning affirmative action.

The quoted policy—which does not appear in the journal’s operating manual or anywhere else on its website—says that the law review "may not consider race or any other protected characteristic for its own sake." It will only consider how race affected an applicant’s life and leadership qualities.

But according to new evidence unearthed by the Free Beacon, that policy appears to have been implemented ex post facto in an attempt to shield the journal from liability. In a statement announcing the factsheet, Harvard Law Review president G. Terrell Seabrooks said it was being published in "the spirit of openness and transparency." But when the Free Beacon asked three current and former editors about the policy quoted in the factsheet, none of them were familiar with it.

"That was the first time I’d seen it," one current editor said. Another editor said he had "never heard that policy before" and suggested that, if it existed, it would have been disclosed at a law review transition meeting in January.

"Frankly I don’t believe them," a third editor said.

Seabrooks’s statement claimed the new policy had been adopted "this year." But as recently as May 4, the law review’s online application packet said that the journal considers "all available information," including "racial or ethnic identity," in order to select editors from "a diverse set of backgrounds," according to an archived webpage. The packet, which was emailed to prospective editors that week, encouraged applicants to disclose their race via a personal essay.

Though the essay prompt was changed two weeks later to remove any reference to race, the seesawing is one of several pieces of evidence that—at least until last week—the law review has been skirting the law behind closed doors.

The Free Beacon spoke with editors about internal meetings, reviewed documents outlining law review policy, and obtained several previously unreported emails among the journal’s top brass. What emerged was a portrait of a law review determined to circumvent the 2023 Supreme Court ruling it now claims to follow, raising questions about the journal’s fate as it squares off with the Trump administration.

A few days after that decision came down, the Columbia Law Review paused its admissions to make sure they complied with the new precedent. But when an editor at the Harvard Law Review emailed his colleagues about the pause, the journal’s president at the time, Apsara Iyer, replied that Harvard’s law review was "differently situated" from Columbia’s and implied that it was not subject to the ruling.

"We’ve engaged with counsel on this prior to and following the decision so the below is not just my own opinion!" Iyer wrote on July 6, 2023. She had blasted the Supreme Court’s ruling in an email sent to all law review editors a week earlier, writing that it "forecloses opportunities for students of color and heightens the anxieties of belonging."

Prior to the factsheet’s publication, it does not appear that the journal ever issued a formal statement on how it would respond to the ruling. The lack of guidance left editors in the dark about how, exactly, their colleagues were being selected by the holistic review committee, which consists of the journal’s president and two other editors.

The president selects those editors unilaterally and does not disclose their identity to the rest of the law review. The only caveat, former journal president Sophia Hunt explained last year, is that one of the two editors must be a member of the law review’s diversity committee—a body that explicitly excludes white, straight, non-disabled men unless they were the first in their family to go to college.

"I am required to select one person from DivComm to serve on the [holistic review committee]," Hunt told editors in a June 2024 email. The diversity committee consists of the heads of each affinity group at the law review, including "BIPOC, LGBTQIA+, first-class, and disability communities," according to a transition resolution passed that year. It also includes a separate LGBT affinity group—the "Women, Nonbinary, and Trans Committee"—aimed at "improving gender diversity on the Law Review."

The system stoked suspicion that "holistic review" was code for racial preferences. Still, editors couldn’t know for sure how the admissions committee was making decisions, or even what information it had access to.

"People were doubtful about what happens behind closed doors," one editor told the Free Beacon. "It’s a complete black box."

A rare ray of light came this January when Hunt, the journal’s outgoing president, told editors at a meeting that the admissions committee sees each candidate’s race and gender. Though she claimed the committee does not consider that information, two people present at the meeting said, her remarks raised questions about why that information was in front of the committee at all.

"There was a lot of discussion and disagreement over what was considered," one editor said. "This was supposed to be clarification."

Seabrooks, Hunt, and Iyer did not respond to requests for comment.

The Trump administration has already cut $550 million to Harvard over the law review’s practices, separate and apart from the billions in funding it has frozen to the university for other reasons. It has cited not just the admissions process for editors but the selection process for articles, which have repeatedly been killed or advanced based on the author’s race, according to internal memos by journal editors.

The factsheet claimed that the Free Beacon had quoted five of those memos "selectively." But race was also cited as a grounds for publication in at least five other memos that have not been previously reported, including some written after the Supreme Court’s decision.

"If selected Haney Lopez would likely be the second Latinx scholar to write the Foreword – a momentous step for the Harvard Law Review and the legal academy in itself," an October 2023 memo read.

Another memo, from February 2024, said it was a "positive" that the author was a "Black female professor from a non-T14 school."

Other memos do not address the race of the author but instead discuss the racial diversity of the scholars cited in the footnotes.

"Perhaps I am overlooking some positive aspects of this piece, but one of the most disappointing features for me was the lack of diverse scholars being cited or referenced in the footnotes," one editor wrote in a 2024 memo. "The breadth of the sources cited is somewhat impressive, but it would be mor [sic] impressive to see research that brought in a variety of perspectives."

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