FASORP: Pushing Back Against Identity Politics on Campus

FASORP is suing the Harvard Law Review and the New York University Law Review for their identity politics quotas.

|The Volokh Conspiracy |

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.


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  1. The poor white man…

    Should we starting kneeling in protest of society’s treatment of us white guys?

    1. My word search does not show “white” or “man” in her post.

      1. Hey you’re right!

        Gee, I wonder why FASORP filed these suits.

        1. Because campus organizations are blatantly violating anti-discrimination laws?

          1. What do you consider to be a blatant violation? Is there a certain category of people who have been systematically excluded from participating in either NYU or Harvard Law Review? If so, what category of people? Or is there a particular person who was excluded from participating because of their personal characteristics? If so, who is it and on what basis were they excluded?

            1. “What do you consider to be a blatant violation?”

              Quotas. For any group.

              1. What you’re missing – and I don’t blame you for missing it, Gail intentionally framed the point to invite your misreading – is that the “quotas” in question are not quotas for women, non-white people, etc. They’re seats set aside for “diversity” or “holistic review” purposes, which doesn’t in itself suggest than any particular class of people would be excluded. It would seem, for instance, that it could be a mechanism to put more men or conservatives on the law reviews, if women and liberals tend to predominate through the normal route.

                1. “which doesn’t in itself suggest than any particular class of people would be excluded”

                  By its text, the specific law in question, (42 U.S.C. ? 2000d) only applies if a person is excluded or subject to discrimination. So it seems essential that a claim under that statute should identify who is being excluded or subject to discrimination.

                  Your framing makes it seem, at most, like a disparate impact claim – curious for Heriot to endorse, given her past criticism of disparate impact claims generally.

                2. “it could be a mechanism to put more men or conservatives on the law reviews”


                  1. Bob:

                    You can “LOL” all you like, but NYU’s statement expressly includes “ideological viewpoint,” which seems very clearly designed to encourage a kind of ideological diversity on the law review board that most of the VC’ers would endorse.

                    1. Is this where we back your assertion that it would include ideological diversity by calling for a disparate impact analysis on conservative voices? You can pretend it is whatever it is; you just have to be really stupid to not understand what the diversity quotas actually do.

              2. “Quotas. For any group.”

                What group has a quota in the NYU case? In the Harvard case?

          2. Lofty appeals to meritocracy notwithstanding, it look like FASORP is going after colleges/universities who discriminate in certain ways (race, gender) that run up against the conservative agenda. Other types of discrimination (against e.g. non-legacy students, or students whose parents aren’t big donors) aren’t getting quite the same focus.

            1. “Other types of discrimination (against e.g. non-legacy students, or students whose parents aren’t big donors) aren’t getting quite the same focus.”

              Are those types of “discrimination” illegal under federal law?

              Strange complaint, why aren’t they filing lawsuits against legal acts.

              1. Excellent point, those anti-discrimination laws were all about protecting straight white male privilege!

                And I am thankful for that!

            2. They’re getting way more focus. From other campus groups.

    2. When someone’s race is considered, that’s racism. If you feel qualified to say, “this racism is good, but that racism is evil”, you probably should re-examine your feels.

      1. By your definition, the Republican Party — home to race-targeting voter suppression, race-targeting gerrymandering, and southern bigots — is racist.

        Congratulations, dangfitz, and thank you.

    3. You don’t get it, do you? It is not “the poor white man” that is being hurt. It is individual persons, who are white, who are being deprived of deserving spots on these law reviews because of the color of their skin. In America, individuals, not groups, or tribes, have rights.

    4. You think you’re being funny, but the truth is that there are millions of white men who were dealt a poor hand in life, and left-wing politics prevent them from having any realistic chance of improvement.

      Disenfranchising millions of people is a lousy way to build a stable society.

      1. I hope you just forgot the /sarc designation.

        There’s nothing more laughable/sorry than a white, American male who doesn’t take the opportunity to succeed.

        1. There is nothing more laughable/sorry than a mindless lefty who doesn’t understand that millions of white males are born with zero social advantages, and, that, legally, they should not be put at a disadvantage when compared with Malia Obama.

          1. Being white is a social advantage, you half-educated rube.

            Being male is a social advantage, you bigoted goober.

            Other than that, great comment, you right-wing loser.

            1. Your first two sentences, while arguably true in most jurisdictions, do not allow the inference that all (or, even most) white men are privileged.
              There are, in a country of 325 million people, millions of white males who have no social advantage at all.
              Learn logic: at least as soon as they start offering it at the community college from which you dropped out.

              1. Smooth – think about it for a sec…

                Who exactly would have an advantage over these millions of white males you speak of?

                White women?
                Black men?
                Black women?
                Latinos (men or women)?

                The answer is: None.

                There is no group that has an advantage over white, American, males, and if that’s the case, then white, American, males CANNOT be disadvantaged.

                1. There is no group that has an advantage over white, American, males, and if that’s the case, then white, American, males CANNOT be disadvantaged.

                  Setting aside that your facts are wrong, your entire framework is wrong, because you are talking about groups rather than individuals.

                  White male Bill Gates having lots of money and power does not mean that white male Bill Smith, a truck driver from Bumblefuck, Arkansas, has lots of money and power. You can’t refute the claim that the latter person is disadvantaged by saying, “Well, he’s a white male, and lots of white males are doing very well.”

              2. You should learn to stop admitting that you are a bigoted, half-educated rube. Society has changed, and it is an unforced error in most contexts to admit that you are a bigot these days.

                Pro tip: Save your true feelings (about blacks, women, immigrants, gays, Muslims, and the like, and about white nationalism) for safe spaces, such as private homes, militia meetings, Federalist Society events, and Republican committee gatherings.

            2. Being white is a social advantage, you half-educated rube.

              Being male is a social advantage, you bigoted goober.

              Blacks get less education, are sent to jail at a much higher rate, die younger. People therefore conclude that blacks are socially disadvantaged.

              Men get less education, are sent to jail at a much higher rate, die younger. Therefore?

  2. I plan to keep an eye on this litigation.

    Is that a Republican eye or a certified Non-Republican eye?

    (Speaking of quotas, how did right-wingers overcome statutory political party quotas to pack the civil rights commission? By arranging cheating by character-deprived Republicans for the partisan purpose of advancing conservative preferences related to bigotry and backwardness?)

    Carry on, clingers. So far as your betters permit, anyway.

    1. Do you have anything to actually add to the discussion?

      1. He’s just a bigot who likes to publicly laud his bigotry.

        1. So you’re saying… he’s the bigotest bigot that ever chose to bigot?

      2. Look up the background, you bigoted goober.

      3. He’s a troll, so no. His only purpose in any Volokh thread is (and has been for years) to derail the conversation.

  3. Does the NYULR diversity committee select 12 candidates only from designated minority groups, or does it consider all applicants using some manner of holistic review? The latter seems facially lawful, the former not so much.

    1. From what Gail has presented, it would seem (and I would guess) that the law reviews in question follow the legal, “latter” model. I imagine the whole point of FASORP’s lawsuit is to challenge “diversity” and “holistic” review itself.

  4. Until the complaints are amended to include people who were rejected, I don’t see how standing can be established.

    1. You mean they didn’t even bother to find a plaintiff first? Are they hoping to attract some whiny white students by filing without one? (Maybe that’s why Gail is posting about it?)

      1. Supposedly, the FASORP website did not even go active until the complaints were first filed. I could be wrong. My guess is that few professors will come forward to argue that but for their gender/race they would have had their articles published. More likely there will be some chump that wrote an article, and for whatever reason, it was not accepted.

      2. Wait… now we are asking for a plaintiff that was actually harmed? A judge in california just granted a motion to the ACLU sans an illegal immigrant denied a chance at amnesty. No cries for a harmed defendant there…

        1. Have you read the complaints? The organizations that are plaintiff’s in the asylum case claim that they are actually harmed by the policy. That can be debated, but the law review cases do not claim any harm falling on actual individuals or groups.

  5. Seems pretty bold to file a suit like this without even alleging that a particular applicant was rejected from participating due to their personal characteristics. Without alleging any particular disparate treatment, this comes across as essentially a disparate impact argument with no supporting data (but of course Heriot would not endorse such claims, so they won’t call it that).

    1. As we’ve seen in other lawsuits regarding disparate impact… you often have to file suit first to ask for the data to prove the disparate impact.

      1. This is a disparate treatment case.

  6. Proggies: Race and Gender don’t matter. Everybody is the Same!

    Also Proggies: Normal Guy: Hey are we going to pick new members based on their belief systems or different experiences? Proggy: Nah! Let’s pick based upon Race and Gender and who they like to sleep with. Thats what’s important!

    1. Get an education. Start with standard English.

  7. It occurs to me – since Trump is a white supremacist racist, why can’t he have his Department of Education defund schools with affirmative action? Attacking affirmative action is of course on the racist agenda, after all.

    And Secretary DeVos has already shown that she is in favor of coeds being raped, so I suppose she’d have no moral objection to trying to stop affirmative action.


    1. Because some lesbian federal district judge would issue a nation injunction the next day.

      1. Hasn’t stopped the President before.

  8. While I have little sympathy for identity politics, there is one gaping hole in the reasoning that stands out to me. There are a long string of cases going (Rosenberger v. UVA specifically involved a student publication) which recognize that student groups are private nonprofit organizations, they are not subsidiaries or education programs of the universities with which they are affiliated. I don’t know of a case specifically involving a law journal, but I can’t think of a reason why a law review would be any different. And I’m pretty sure (having once been the business manager of a law journal) that they generally don’t take money from the federal government. So law journals shouldn’t even be subject to Title IX or Title VI.

    1. This is an interesting point; seems odd that a law professor might not have picked up on this particular legal wrinkle.

      1. I would think that, *if* a law review is protected by the 1st Amendment like other student publications, then it would be hard to separate the editorial policy (which the government can’t meddle with) from the personnel policy (because who do you think runs the editorial policy?).

        Of course, I don’t know if they’ve given the press an exemption from the Civil Rights Act – I’d think they should have.

        1. I don’t know of any exemption for the press from the CRA or Title IX. That’s an interesting argument, just not the one I was trying to suggest. I should have been clearer. I wasn’t even really suggesting a free speech argument per se, just one that shares a common premise with a line of free speech cases. There are a number of cases where the courts have protected the free speech rights of student groups (often not student newspaper or publications of any kind) against infringement by university administrators. From SCOTUS, Widmar v. Vincent and Healy v. James come to mind in addition to Rosenberger. In order for student groups to have free speech rights, they have to be separate legal entities, not part of the university, and the courts have been pretty explicit that this is the case. Hence, NYU Law Review is not part of NYU at all. Title VI and Title IX by their terms only apply to educational institutions that receive federal funds. Since the NYU Law Review is not part of NYU, and is not an educational institution receiving federal funds in its own right, Title VI and Title IX simply do not apply to the NYU Law Review. That’s my argument.

          1. OK, so don’t defund the university for the sins of the law review? I think I get it.

            I’m thinking also of the antidiscrimination laws which apply to employment in general. Assuming working at the law review is “employment,” which I don’t know.

            But assume a regular newspaper – or an online equivalent like, I don’t know, a TV program or podcast or magazine with a various contributors. Would it be illegal to take the race of commenters into account? Like for instance, if they happen to select Ta-Nehisi Coates (sp?), could they get in trouble for picking him because he has a “black” perspective? Would they have to answer questions about whether they had an open process which considered white commenters with similar views, etc?

            It reminds me of the disputes over drama companies which might be accused of taking race into account in casting Othell, Hamilton, etc.

            1. I’ve never heard of anyone being paid to work on a law review, law students generally do it (like just about everything else) for the resume line. So I doubt this would qualify as employment.

  9. This is interesting to read. I pass it along in a spirit of “this is interesting” and am not taking a position about his conclusions.

    An essay by a Korean immigrant argues in favor of the merits of affirmative action policies that work against people like him.


    It is thoughtful and thought-provoking and I found it worth reading.

    Since he’s a lawyer, he also presents the case against those same policies.

    1. A liberal propagates liberal beliefs, news at 10?

  10. I like how universities are inadvertently saying they are completely pointless. If grades and test scores are ineffective for comparison and you can’t measure qualification by testing knowledge that is supposed to be taught in class what the heck is anyone in school for? Might as well disband the entire college system and just select our doctors and engineers etc through color coordination.

    1. These are law schools, actually. But yeah. They’re pointless.

    2. More than that, those schools are inadvertently saying that they, themselves, are vile racists. 1L’s all take the same core curriculum from the same (or randomly selected) professors.

  11. As I understand it, the Supreme Court has linked the Civil Rights Act to the 14th Amendment, which they read to require strict scrutiny of racial preferences…but strict scrutiny is satisfied when it comes to “holistic” diversity policies at colleges, for the sake of diversity…*but* that the need for such policies will probably expire in 2031 or so. Which would probably mean that this stuff will be illegal starting in 13 years or so.

    I hope I’ve summarized this correctly.

    So…does this mean everyone is freaking out over something with a constitutional expiration date?

    1. Oh, and what plans are in place for when the expiration date arrives?

  12. The links to FASORP did not work, but I gather FASORP was formed by the same right-wingers who promote affirmative action for Republican academics, advocating that strong libertarian-liberal schools emulate fourth-tier schools by hiring more movement conservatives as faculty members.

    They apparently lack self-awareness as well as character.

  13. Shorter HLR: people who are white or “white-adjacent”–i.e. Asians, whose personal ratings will just happen to be consistently lower than everyone else’s–won’t be eligible for the “diversity” seats.

    1. Harvard used to use the same “holistic” process against (((other groups))), but I don’t think in those days they used the word “holistic.”

  14. Why are conservatives so desperate for admission into these second rate SJW clubs? You’ve got Bob Jones, Liberty, etc. If anything, the lefties should be banging their doors down. The right is so elite.

  15. A weakness of human thinking is a tendency to think in binaries and entertain only two positions at a time. Our binary logic works this way.

    A way to exploit this weakness is to present an extreme version of the opposite position, as extreme as possible, and present this as the alternative to your position. Since the other position is wrong, it logic seems to dictate that your position is right.

    This is the world of the false dichotomy. There are nearly always many possible alternative positions, sometimes gradations on a continuum, sometimes involving additional dimensions of thought.

    The idea that some of the sentencing laws in previous decades are too harsh and should be ameliorated, or that a world where ordinary people who follow prescriptions turn into addicts suggests a different model for dealing with addiction might be appropriate, is hardly an attempt to abolish the very concept of crime.

  16. Reminds me of the great Thomas Sowell a black conservative, Harvard Economics professor, & lifelong academic. Who has been quoted saying, ” The next time some academics tell you how important diversity is. Ask how many Republicans are in their Sociology Department? Liberals outnumber Conservatives 44:1″ LOVE IT

  17. Ms. Heriot doesn’t seem to understand what a “quota” is.

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