Diversity and Inclusion

Jan 7, 2021

Acknowledgement of History

The Virginia Law Review, established in 1913, has enjoyed a reputation of publishing leading scholarship—pieces that have changed laws, been cited in Supreme Court opinions, and spotlighted the ideas of both prominent scholars and emerging voices. The Review is proud of the many pieces it has published that have strengthened democratic institutions and the rule of law, as well as those that have helped expand access to justice for all.

But the Review has also published pieces that have promoted inhumane, unjust, and racist laws. In the Review’s inaugural volume, for instance, the Editorial Board published an article advocating sterilization of “the unfit,” such as immigrants whom the author deemed undesirable.1 1.J. Miller Kenyon, Sterilization of the Unfit, 1 Va. L. Rev. 458, 465–66 (1914).Show More The author relied on eugenicist pseudoscience and compared the practice of forced sterilization to that of breeding farm animals.2 2.Id. at 466.Show More The Review’s first volume also featured an author who wrote approvingly about racial segregation on intrastate transportation.3 3.John C. Doolan, Validity of Separate Coach Laws When Applied to Interstate Passengers, 1 Va. L. Rev. 379, 379, 383 (1914).Show More

Virginia Law Review editors later solicited and published work by the architect of Virginia’s forced sterilization laws, giving a platform to racist, dangerous, and discredited ideas.4 4.Aubrey E. Strode, Sterilization of Defectives, 11 Va. L. Rev. 296 (1925).Show More The article was so influential at the time of publication that the Review printed more issues and wrote to the author to thank him for his contributions.5 5.Aldona Dye, Aubrey Ellis Strode, Virginia Eugenics Project: A Public Archive of Virginia’s Eugenic History (July 10, 2019), http://eugenics-in-virginia.law.virginia.edu/node/1346.Show More

Seven years after women won the franchise with the passage of the Nineteenth Amendment, the Review published a piece asserting that “equal rights for women” was a “militant war cry[] . . . loaded with dynamic possibilities for evil.”6 6.Edwin S. Puller, When Equal Rights Are Unequal, 13 Va. L. Rev. 619, 630 (1927).Show More The author argued, among other claims, that women were too emotional to sit on juries and that discriminatory laws were for their protection.7 7.Id. at 620, 624.Show More In the mid-twentieth century, the Review published a piece that uncritically examined the constitutional validity of Jim Crow laws.8 8.Cynthia D. Zimmerman, Note, Constitutional Validity of State “Jim Crow” Laws Under the Commerce Clause, 32 Va. L. Rev. 668, 675 (1946) (though the author predicted the Supreme Court might reverse course).Show More And in 1966, our pages included an article arguing the Fourteenth Amendment did not prohibit laws criminalizing interracial marriage.9 9.Alfred Avins, Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent, 52 Va. L. Rev. 1224, 1255 (1966).Show More Defenders of Virginia’s anti-miscegenation laws cited the article in their brief to the Supreme Court in Loving v. Virginia.10 10.Brief for Appellee at 30, Loving v. Virginia, 388 U.S. 1 (1967) (No. 395).Show More The Court rightly dismissed this argument and struck down the statutes.11 11.Loving, 388 U.S. at 9–12.Show More

It is true that despite articles laced with prejudice and prevarication in our pages, there were also many that advanced thoughtful, groundbreaking theories of equality.12 12.See, e.g., Rhonda V. Magee, Note, The Master’s Tools, from the Bottom up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863 (1993); Walter Wadlington, The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189 (1966) (providing a diametric view to Avins, supra note 9).Show More Still, these commendable pieces do not erase or excuse the harm our journal caused. While similarly abhorrent articles can be found in the archives of other leading law reviews, it is important that the Review acknowledges and accounts for the injustices to which our own journal contributed. The Review regrets its role in promoting discriminatory and inhumane laws.

The history of the Review’s own membership also contains troubling facts. The staff makeup was entirely white and male for the first eighteen years of publication, with Marion Boyd Crockett becoming the first female editorial board member in 1931. Men led the Review for its first sixty-five years of existence. Carol Stebbins became the first female editor-in-chief in 1979. There was no Black representation on the Review until Dayna Bowen Matthew, now dean of George Washington University Law School, broke the color line in 1987.

For more than a century, publication in the Review has conferred prestige on authors, lending legitimacy and a platform to their ideas. With this gatekeeping role, the Review has a responsibility to promote a more just and inclusive legal system. The Review strives to meet this responsibility by continuing to learn from its history and drawing from diverse perspectives in assembling each volume. While we cannot undo the harm caused by some of the scholarship we published in the past, we can commit ourselves to building a brighter and more inclusive future. By expanding access to our pages and membership, the Review will strive to do just that.

Timeline:

  1. J. Miller Kenyon, Sterilization of the Unfit, 1 Va. L. Rev. 458, 465–66 (1914). ↑
  2. Id. at 466. ↑
  3. John C. Doolan, Validity of Separate Coach Laws When Applied to Interstate Passengers, 1 Va. L. Rev. 379, 379, 383 (1914). ↑
  4. Aubrey E. Strode, Sterilization of Defectives, 11 Va. L. Rev. 296 (1925). ↑
  5. Aldona Dye, Aubrey Ellis Strode, Virginia Eugenics Project: A Public Archive of Virginia’s Eugenic History (July 10, 2019), http://eugenics-in-virginia.law.virginia.edu/node/1346. ↑
  6. Edwin S. Puller, When Equal Rights Are Unequal, 13 Va. L. Rev. 619, 630 (1927). ↑
  7. Id. at 620, 624. ↑
  8. Cynthia D. Zimmerman, Note, Constitutional Validity of State “Jim Crow” Laws Under the Commerce Clause, 32 Va. L. Rev. 668, 675 (1946) (though the author predicted the Supreme Court might reverse course). ↑
  9. Alfred Avins, Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent, 52 Va. L. Rev. 1224, 1255 (1966). ↑
  10. Brief for Appellee at 30, Loving v. Virginia, 388 U.S. 1 (1967) (No. 395). ↑
  11. Loving, 388 U.S. at 9–12. ↑
  12. See, e.g., Rhonda V. Magee, Note, The Master’s Tools, from the Bottom up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863 (1993); Walter Wadlington, The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189 (1966) (providing a diametric view to Avins, supra note 9). ↑
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