The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
FASORP (Faculty, Alumni and Students Opposing Racial Preferences) recently filed Title VI/Title IX lawsuits against the Harvard Law Review and the New York University Law Review (in both cases Education Secretary Betsy DeVos is also named as a defendant for failing to enforce the law). FASORP is being represented by the very talented Jonathan Mitchell, former Solicitor General of Texas.
The NYU Law Review in particular has made itself a rather obvious target. It's not just that it discriminates; it has quotas. The Harvard Law Review isn't much better. It has quotas too, but it is a tad more delicate in how it presents them on its web site.
Title VI of the Civil Rights Act of 1964 states, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Title IX of the Education Amendments of 1972 is similar, but applies only to educational institutions. It states, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
In Grutter v. Bollinger (2003), the Supreme Court watered down Title VI by construing it to allow colleges and universities to discriminate in the name of diversity. But the Court has consistently come down hard on colleges and universities that set actual quotas (UC Regents v. Bakke (1978)) or set numbers of "points" for an applicant's race (Gratz v. Bollinger (2003)).
The NYU Law Review sets quotas. Its web site declares that it "evaluates personal statements in light of various factors, including (but not limited to) race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability, and age." It then goes on to state that "Exactly 12 students will be selected by the Diversity Committee" for membership." Really? Exactly 12?
The Harvard Law Review is only a bit subtler. It sets aside exactly 18 seats for "holistic review," quickly adding the it is "strongly committed to a diverse and inclusive membership" and that "[a]pplicants who wish to make aspects of their identity available through the Law Review's holistic consideration process will have the opportunity to indicate their racial or ethnic identity, physical disability status, gender identity, sexual orientation, and socioeconomic status."
I plan to keep an eye on this litigation.