Another Discrimination Lawsuit Against Harvard

[NOTE: Be sure to read the post immediately after this one, “Stuart Taylor Comments On Lawsuit Against Harvard Law Review,” and the excellent comment on that post by George Washington University law professor John Banzhaf.]

Another discrimination lawsuit against Harvard has been filed in federal district court in Massachusetts. A Texas-based group, Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP), has filed suit against the Harvard Law Review, Harvard Law School, and Harvard College claiming that the Law Review is “flouting” the requirements of Title VI and Title IX “by using race and sex preferences to select its members.”

The National Law Journal reports that the defendants “have come out swinging” and “pulled no punches” in their motion to dismiss, calling the allegations ‘threadbare’ and riddled with ‘fatal defects,” claiming that such preferences are legal and that the plaintiff lacks standing. Nevertheless, Harvard must be taking this complaint very seriously because it “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.”

In its own motion to dismiss the Harvard Law School emphasizes that the Law Review “is formally independent of the Harvard Law School.” Harvard College agrees, stating in its motion to dismiss that the law review “is an independently incorporated and governed legal entity that does not receive federal funds. 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.”

In other words, Harvard’s defense is something like this: the Law Review does not discriminate; its discrimination is legal; but even if the Law Review does discriminate on the basis of race and sex and even if it is illegal, Harvard is not doing the discriminating and can’t be held responsible. Lawyers have to make arguments like this; that’s why people love them so much.

Perhaps the most interest revelation in these filings is the Law Review’s statement that “relevant to membership selection, the Law Review invites forty-eight editors to join each year from the rising second-year class of Harvard law students. Of those forty-eight new members, twenty are selected based solely on their scores on an annual writing competition; ten are selected based on a combination of their writing-competition scores and 1L grades; and eighteen are selected ‘through a holistic but anonymous review that takes into account all available information.’” For those of you not fluent in diversity-speak, “all available information” means they take race and sex into account.

This breakdown may have some interesting implications for Students For Fair Admissions v. Harvard, the other pending discrimination lawsuit against Harvard. For example, does the fact that the Law Review selects just under two-thirds of its members based on pure merit alone (as measured by writing samples and grades) and considers race and sex for only a little over a third suggest that merit is a more reliable method of picking better editors? Since “holistic” has become the holy grail of diversiphiles, why doesn’t the Law Review use it to select all its editors?

Harvard College, you will recall, selects all its students based on the “holistic” process. Perhaps if it followed the example of its (OK, lawyers, the totally independent, nothing to do with Harvard) Law Review, it would admit enough more Asians to satisfy some of its current critics

Say What?