The Harvard Law Review and Harvard University have come out swinging against a lawsuit that claims the legal journal employs racial and gender preferences in violation of federal antidiscrimination laws.
The Harvard defendants this week filed separate motions to dismiss the suit brought in October by a Texas group called Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP), which claims that the law review’s policies regarding the selection of student editors and articles runs afoul of Title IX and Title VI because it disadvantages white males. The same group also sued the New York University Law Review with nearly identical claims, though the defendants in that case have yet to respond in court.
Harvard has called in some big names to shepherd its defense, with Supreme Court regular and former Solicitor General Seth Waxman heading up the university’s team. Donald Verrilli, another former solicitor general, is representing the law review. Texas attorney Jonathan Mitchell, who is representing the plaintiff, declined to comment on the Harvard motions.
The Harvard defendants pulled no punches in their motions to dismiss, calling the allegations “threadbare” and riddled with “fatal defects.” First, the plaintiff—a self-described “voluntary membership organization that litigates against race and sex preferences in academia” of which membership is confidential—lacks standing to sue because it doesn’t identify a single law student, professor or Harvard Law Review alumni who was allegedly injured by the law review’s racial preference policies, the motions argue.
Second, the complaint fails to establish that the law review receives any federal funding—which would make it subject to federal antidiscrimination laws, argued the law review’s motion to dismiss. The university’s own motion goes further, claiming the law review is completely independent from Harvard University, and does not receive federal funding.
“The Law Review’s independent publication policies are not subject to Title VI or Title IX and do not provide a basis for liability against Harvard under those statutes,” reads the university’s motion. “Moreover, several of the harms alleged by the Complaint—namely, the alleged injuries to alumni who claim their credential has lost prestige and to faculty who claim their articles have been reviewed and edited less well—are not legally cognizable under Title VI or Title IX.”
Additionally, the law review’s stated affirmative action policies do not violate federal law, the defendants argue. Of the law review’s 48 student editor positions, 18 are selected through a “holistic” review of the applicants’ credentials in which race and sex are among the factors considered, according to the journal’s motion. (The remaining 30 positions are filled through a writing competition and first-year grades.) Such a holistic review has been held constitutional by the Supreme Court, it continues. And the plaintiff offers no evidence of discrimination against professors who submit articles to the law review beyond the assertion that it gives preferential treatment to articles written by women and minorities, it reads.
Harvard University is currently awaiting a ruling in a separate case that claims its admissions policies discriminate against Asian applicants.
“To remedy these asserted violations, FASORP seeks extraordinary judicial relief that would transform this Court into an Article III Editor-In-Chief, with the responsibility to oversee the Law Review’s editor- and article-selection decisions,” reads the law review’s motion to dismiss. “FASORP’s claims lack any merit, and its complaint must be dismissed.”