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NYU Law Review wins dismissal of suit challenging its racial and gender preferences

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The New York University Law Review has won dismissal of a suit challenging preferences given to women and minorities in selection of members and choice of articles.

U.S. District Judge Edgardo Ramos tossed the suit Tuesday by Faculty, Alumni and Students Opposed to Racial Preferences but allowed the group to file an amended complaint. Ramos said the FASORP had not demonstrated standing to sue and had not stated a viable claim for relief.

Law360 has coverage.

The FASORP had alleged that its members were being subjected to race and sex discrimination when they submitted articles for publication, and when their work was judged and edited by “less capable students” who won spots on the law review through preferences.

The New York University Law Review has 50 spots available each year. Fifteen students are selected based on a writing competition, 15 are selected based on their first-year grades, and eight are based on a combination of both, Ramos said in his March 31 opinion. The remaining 12 slots are filled by the law review’s diversity committee.

Authors of articles submitted for publication in the law review are invited to include demographic information that includes their race, sexual orientation and gender identity. The law review says it is committed to publishing scholarship by “authors from underrepresented backgrounds.”

The FASORP had sued for alleged violations of Title VI of the Civil Rights Act of 1964 and Title IX of the of the Education Amendments of 1972. Title VI bars racial and national origin discrimination in programs receiving federal financial assistance, while Title IX bars discrimination in education programs receiving federal assistance.

Ramos found several problems with standing.

The FASORP had failed to identify even one injured member with specific allegations of harm, Ramos said. The FASORP also failed to plead a concrete and particularized injury or a real or immediate threat of repetition of that injury, he said.

The group members did not suffer an injury in fact because “there is no legal right to have one’s article reviewed or published by a student-run academic law journal,” Ramos wrote. “FASORP has cited no legal authority for such a proposition, and the court is aware of none.”

For the injury to be repeated, a “highly attenuated chain of possibilities” would have to happen, Ramos said.

A faculty member of the FASORP would have to write a legal article in the future and submit it to the law review with “less capable” members chosen because of race and gender preferences; the article would have to be rejected or given less consideration because of the author’s race and gender; or the accepted law review article would be edited by “less capable students.”

Such fear of future hypothetical harm can’t support standing, Ramos said.

Even if he was to accept the standing allegations as sufficient, Ramos said, the lawsuit would still be dismissed because it failed to state a viable claim on several grounds, including allegations of discrimination in member and article selection.

The lawsuit states “in a conclusory way” that the article selection process is discriminatory, Ramos said. It is also “devoid of factual allegations” that the law review’s membership selection has been transformed from a valid “holistic process” into the equivalent of “an unlawful quota or set-aside program.”

A similar lawsuit against the Harvard Law Review was dismissed in August 2019 because of standing problems.

The FASORP was given a chance to amend the Harvard complaint, but it didn’t do so by the deadline, according to Law360.

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