Lawsuit Alleging Harvard Law Review Discriminates in Member Selection Process Dismissed

UPDATED: August 11, 2019 at 10:43 p.m.

A federal judge dismissed a lawsuit Thursday that was brought against the Harvard Law Review in October alleging the legal journal violates federal anti-discrimination laws in its member and article selection policies.

The suit — which was filed by the Texas-based anti-affirmative action group Faculty, Alumni, and Students Opposed to Racial Preferences — also implicated the University, Harvard Law School, and the United States Department of Education.

The Law Review staff selection process accepts 48 second and third-year law students each year in a three-pronged process. Twenty of the 48 students are chosen based solely on their performance in a writing competition, 10 are selected based jointly on the writing competition and HLS grades, and 18 are selected through “a holistic but anonymous review that takes into account all available information,” according to its website.

This “holistic” review includes information applicants may share regarding “their racial or ethnic identity, physical disability status, gender identity, sexual orientation, and socioeconomic status.”

The FASORP suit argued that this part of the selection process violates federal laws Title VI — which prohibits discrimination based on race, color, and national origin — and Title IX, which prohibits gender-based discrimination.

The University and Law School filed a joint motion to dismiss the suit in December. The Law Review filed a separate motion to dismiss.

Both motions noted that the Law Review is independent from the University, and thus does not receive federal funding. Both motions also argued that FASORP had no standing to bring the suit because the group failed to identify a member of the organization who had been affected by the Law Review’s policies.

FASORP amended its suit in January to include a new plaintiff — fellow Texas-based organization Coalition for Meritocracy at Universities — and to claim that the plaintiffs have standing to sue because their membership includes current Law School students and affiliated faculty. The amended suit also introduced new complaints that the Law School illegally uses affirmative action policies in its faculty hiring process.

Despite the plaintiffs’ elaboration on their standing to sue, the court Thursday granted the defendants’ motions to dismiss.

Federal judge Leo T. Sorokin wrote in the court order that the plaintiffs’s assertions of standing, which did not include the names of any of its allegedly “affected” members, “falls woefully short” of the demanded level of specificity.

“Their failure to supply even the slightest description of any member who might satisfy the prerequisites for Article III standing — including concrete and particularized, actual or imminent injury redressable by a favorable decision in this case — requires dismissal of the Amended Complaint in its entirety,” Sorokin wrote.

Sorokin also wrote that the court found it “prudent” to elaborate on the suit’s “deficiencies,” and added that the plaintiffs failed to prove that the Law Review receives federal funding, offer any facts regarding the Law Review’s article selection process, or demonstrate that the editor selection process functions as an “unlawful quota.”

“Although the plaintiffs describe in detail HLRA’s membership-selection process, the facts they recount do not support an inference that the process violates federal law,” Sorokin wrote on the final point.

Sorokin added that the plaintiffs failed to substantiate its charges against the Law School for its allegedly discriminatory hiring practices.

“The Amended Complaint likewise contains no facts — let alone sufficient facts — to illuminate the conclusory assertion that HLS (“along with nearly every law school in the United States”) discriminates on the basis of gender and race when hiring faculty,” he wrote.

Sorokin also dismissed the claim against DeVos.

Lauren N. Beck, president of the Law Review, declined to comment, writing that the court’s opinion speaks for itself. The Law School did not respond to comment, and the Department of Education also did not respond to a request for comment.

The plaintiffs have 30 days to file a second amended suit, according to the court order.

—Staff writer Juliet E. Isselbacher can be reached at juliet.isselbacher@thecrimson.com. Follow her on Twitter @julietissel.