United States District Court, D. Massachusetts
FACULTY, ALUMNI, AND STUDENTS OPPOSED TO RACIAL PREFERENCES et al., Plaintiffs,
HARVARD LAW REVIEW ASSOCIATION et al., Defendants.
ORDER ON DEFENDANTS' MOTIONS TO DISMISS (DOC.
NOS. 42, 44, AND 46)
SOROKIN, UNITED STATES DISTRICT JUDGE.
plaintiffs allege that Harvard's Law School
(“HLS”) and Law Review Association
(“HLRA”) violate Titles VI and IX by using race
and sex preferences when selecting student members of HLRA,
choosing articles by HLRA, and hiring HLS faculty. They also
allege that the United States government, through the
Department of Education and its Secretary, enable this
alleged discrimination by incorrectly interpreting the
relevant statutes as permitting the use of race and sex
preferences, and by continuing to provide federal funding to
Harvard. The defendants have moved to dismiss the action for
lack of standing and failure to state a claim. For the
reasons that follow, the defendants' motions are ALLOWED.
Court recounts the facts as they are alleged in the Amended
Complaint and reflected in the exhibits attached to it.
plaintiffs are two “unincorporated nonprofit membership
association[s] organized under the laws of
Texas.” Doc. No. 33 ¶¶ 3-4. They
“seek to restore meritocracy at American universities
by eliminating the use of race and sex preferences.”
Id. ¶ 36. Each plaintiff association has:
“[a]t least one member” who is a “current
student at [HLS] who intend[s] to apply for membership on
[HLRA], ” id. ¶ 38; “[a]t least one
member” who is a “faculty member or legal
scholar who ha[s] submitted articles to [HLRA] in the past,
and who intend[s] to continue submitting their scholarship to
[HLRA] in the future, ” id. ¶¶
39-40; and “[a]t least one member” who has
“sought and applied for entry-level or lateral teaching
positions at [HLS] and intend[s] to do so again in the
future, ” or who remains a “potential candidate
for visiting professorships and lateral faculty appointments
without any need to formally apply, ” id.
record contains no other facts about the associations, how
they operate, or any of their members.
defendants are HLRA, the President and Fellows of Harvard
College (“Harvard”), and United States Secretary
of Education Elisabeth DeVos (who is sued in her official
capacity). Doc. No. 33 ¶¶ 5-7. HLRA
publishes the Harvard Law Review, “an academic journal
edited and operated by students at [HLS].” Id.
¶ 9. The plaintiffs allege that HLRA “receives
Federal financial assistance” because its members
receive federal financial aid to pay their tuition, and
because it “draws upon” the resources of HLS and
Harvard. Id. ¶¶ 49-50. Alternatively, they
allege that HLRA is “a ‘program or activity'
of [HLS] and Harvard, ” and that HLS and Harvard
receive “Federal financial assistance.”
Id. ¶ 49. In particular, the plaintiffs assert
that HLRA members must be enrolled at HLS, that HLRA relies
on HLS to provide applicants' first-year grades, that
HLRA is subject to rules and regulations HLS and Harvard
establish for student organizations, that HLS faculty
“assist and advise” HLRA, and that HLRA occupies
space on Harvard's campus. Id. ¶ 50.
“is a student-run organization” that “is
formally independent of [HLS].” Doc. No. 33-1 at
Student members “make all editorial and organizational
decisions, ” id., including choosing articles
and selecting HLRA members and editors, Doc. No. 33 ¶ 9.
At one time, HLRA membership was based on first-year grades
and performance in a writing competition, making it “an
academic honor.” Id. ¶ 10. About
twenty-five years ago, HLRA adopted a race-based affirmative
action policy as part of its membership selection process.
Id. ¶¶ 11-12; Doc. No. 33-2 at 1. In 2013,
it expanded the affirmative action policy to consider gender,
along with race and physical disabilities, when selecting a
certain number of new members. Doc. No. 33 ¶ 13; Doc.
current process for selecting its members operates in three
stages as follows. Each year, forty-eight students are
invited to join HLRA. Doc. No. 33 ¶ 15; Doc. No. 33-1 at
6. All students wishing to be considered for HLRA membership
must complete a writing competition at the end of their first
year in law school. Doc. No. 33-1 at 5. Twenty students are
selected for HLRA “based solely on their [writing]
competition scores.” Id. at 6; Doc. No. 33
¶ 15. Ten students are chosen “based on an equally
weighted combination of [writing] competition scores and
[first-year] grades”-one from each of seven first-year
sections, and three others without regard to section. Doc.
No. 33-1 at 6; Doc. No. 33 ¶ 15. According to the
plaintiffs, the thirty students invited to join HLRA in these
two phases of its process are “selected on the basis of
merit.” Doc. No. 33 ¶ 16.
plaintiffs' claims in this action center on the remaining
eighteen positions, which are filled “through a
holistic but anonymous review that takes into account all
available information.” Doc. No. 33-1 at 6; Doc. No. 33
¶ 16. At this stage, HLRA considers information
applicants choose to share regarding “their racial or
ethnic identity, physical disability status, gender identity,
sexual orientation, and socioeconomic status.” Doc. No.
33-1 at 6. Applicants also may submit a brief
“expository statement . . . that identifies and
describes aspects of their background not fully captured by
the categories” listed above. Id. Such
statements “remain anonymous” and are considered
by HLRA “only after grading” of the
writing competition. Id. (emphasis in original). In
describing the member-selection process, HLRA notes its
“strong commit[ment] to a diverse and inclusive
membership.” Id.; Doc. No. 33 ¶ 16.
forbids student organizations from “discriminat[ing]
against any person on the basis of race, color, . . .
national or ethnic origin, . . . sex, gender identity, sexual
orientation, [or] disability, ” among other
characteristics. Doc. No. 33 ¶¶ 20-21. The
plaintiffs allege that HLRA violates that policy by using the
“holistic” component of its member-selection
process to permit “women, ‘underrepresented'
racial minorities, homosexuals, and transgendered people . .
. to leapfrog candidates with better grades or better scores
on the writing competition.” Id. ¶ 18.
The plaintiffs further contend that HLRA impermissibly
“discriminates on account of race and sex when
selecting articles, by giving preferential treatment to
articles written by women or racial minorities.”
Id. ¶ 19. Also, the plaintiffs assert that HLS
“discriminates on account of race and sex when hiring
its faculty, by discriminating in favor of female or minority
faculty candidates and against white men.” Id.
plaintiffs claim their members suffer various “injuries
in fact” as a result of the challenged practices.
Members who are “white or male” faculty members
or legal scholars who submit articles to HLRA allegedly face
race and sex discrimination in HLRA's article-selection
process. Id. ¶ 29. Members who are faculty
members or legal scholars who submit articles to HLRA,
irrespective of their race and gender, allegedly have their
work judged and edited “by less capable
students.” Id. ¶¶ 30-31. Members who
are HLRA alumni,  irrespective of their race and gender,
allegedly suffer “diminish[ed] . . . prestige of
the[ir] law-review credential, ” which the plaintiffs
claim “no longer acts as a reliable signaling device
for academic ability or achievement.” Id.
¶ 32. Members who are female or minority HLRA alumni
allegedly have “their law-review membership . . .
viewed with suspicion-and it is difficult or impossible for
them to prove that they earned” the credential
“because of academic merit rather than” through
“diversity set-asides.” Id. ¶ 33.
Members who are current HLS students allegedly “will be
denied an equal opportunity to compete for [HLRA] membership
. . . on account of their race, sex, sexual orientation, or
gender identity.” Id. ¶ 34. And, finally,
members who are female or minority students at HLS “and
who would have earned their way on to [HLRA] without help
from the Diversity Committee” will have their
credentials “tainted by the journal's diversity
set-asides.” Id. ¶ 35.
plaintiffs assert that Supreme Court decisions considering
racial preferences used in public-university admissions do
not apply to private universities, to faculty hiring, or to
the selection of members and articles for student-run
journals. Id. ¶ 52. In addition, they claim
HLRA's process amounts to a “fixed, numerical
set-aside of 18 slots reserved for ‘diversity'
candidates, ” that HLRA “failed to adequately
consider race- and sex-neutral alternatives, ” and that
HLRA's “race and sex preferences are not limited in
time.” Id. ¶¶ 53-55.
Department of Education interprets Titles VI and IX “to
permit universities to discriminate in favor of” women
and racial minorities, “and against men” and
“whites, ” “whenever” women or racial
minorities “are underrepresented relative to their
numbers in the general population-regardless of whether the
alleged underrepresentation was caused by previous” sex
or racial “discrimination.” Id.
¶¶ 24-25. According to the plaintiffs, this
interpretation is at odds with the language of the statutes,
and it enables HLRA and Harvard “to engage in race and
sex discrimination” by allowing them to receive federal
funding despite the allegedly discriminatory practices.
Id. ¶¶ 43-44.
filed the original complaint in this action in October 2018.
Doc. No. 1. In it, FASORP asserted claims under Titles VI and
IX against HLRA, HLS, and Harvard for using race and sex
preferences to select HLRA members and for engaging in race
and sex discrimination when selecting articles by HLRA.
Id. at 1. It also asserted a claim against DeVos
under the Administrative Procedure Act (“APA”)
for continuing to provide federal funding to the defendants
despite their alleged use of such preferences and
discrimination. Id. ¶¶ 36-37.
defendants moved to dismiss the original complaint, arguing
FASORP had not alleged sufficient facts to plausibly state a
claim or to establish associational standing. Doc. Nos. 23,
24, 29. FASORP responded to the motions by amending its
complaint in January 2019. Doc. No. 33. The Amended Complaint
added CMU as a plaintiff, eliminated HLS as a defendant,
added a claim against Harvard for race and sex discrimination
in hiring HLS faculty, and supplemented the plaintiffs'
“standing” allegations. Compare
generally Doc. No. 1, with Doc. No. 33.
Amended Complaint requests the following relief: a) a
declaration that HLRA's member- and article-selection
policies violate Titles VI and IX; b) a permanent injunction
barring HLRA “from considering race, sex, sexual
orientation, or gender identity when selecting its members,
editors, or articles”; c) a permanent injunction
barring HLRA “from soliciting information about an
applicant's or author's race, sex, sexual
orientation, or gender identity”; d) an order requiring
HLRA “to establish a new membership-selection policy
that is based entirely on academic merit and that explicitly
disavows any consideration of race, sex, sexual orientation,
or gender identity or expression, ” and to submit its
new policy to the Court and DeVos for review and approval; e)
a permanent injunction barring HLRA “from selecting any
new members or editors without first securing
preclearance” from the Court and DeVos, “each of
whom must certify that [HLRA's] selection of those new
members and editors was based on academic merit and was not
in any way affected or influenced by race, sex, sexual
orientation, or gender identity”; f) an order requiring
HLRA “to establish a new article-selection policy that
explicitly forbids any consideration of an author's race,
sex, sexual orientation, or gender identity or expression,
” along with a “process that conceals” such
characteristics “and all other information that could
be used to identify the author before the article is
selected, ” and to submit its new process to the Court
and DeVos for review and approval; g) an order requiring
DeVos “to terminate federal funding to all components
of Harvard University until [HLRA] renounces its use of race
and sex preferences when selecting its members, editors, and
articles”; h) an order invalidating two specific
regulations “and any other agency rule, order, action,
or guidance document that purports to allow universities to
use race or sex preferences in faculty hiring, or that
purports to allow law reviews to use race or sex preferences
when selecting members or articles”; i) costs and
attorneys' fees; and j) any other relief the Court deems
appropriate. Doc. No. 33 ¶ 59.
defendants renewed their motions to dismiss, urging that the
plaintiffs had not cured the pleading and standing
deficiencies that had plagued the original complaint. Doc.
Nos. 42, 44, 46. The plaintiffs opposed the motions, Doc.
Nos. 49, 50, 51, and the defendants replied, Doc. Nos. 56,
57, 58. The Court heard oral argument on June 20, 2019. Doc.
survive a motion to dismiss pursuant to Rule 12(b)(6), a
complaint “must provide fair notice to the defendants
and state a facially plausible legal claim.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
(1st Cir. 2011). The pleader must “‘show' an
entitlement to relief” by including in the complaint
“enough factual material ‘to raise a right to
relief above the speculative level'” if the facts
alleged are accepted as true. Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007));
accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Fed.R.Civ.P. 8(a). In assessing whether a complaint
withstands a Rule 12(b)(6) challenge, courts “employ a
two-pronged approach.” Ocasio-Hernandez, 640
F.3d at 12.
statements in the complaint that amount to “threadbare
recitals of the elements of a cause of action” are
identified and disregarded. Id. (quotation marks and
brackets omitted). So, too, are “bald assertions,
subjective characterizations and legal conclusions.”
DM Research, Inc. v. Coll. Of Am. Pathologists, 170
F.3d 53, 55 (1st Cir. 1999) (quotation marks omitted). As the
First Circuit has warned, such statements “are a danger
sign that the plaintiff is engaged in a fishing
expedition.” Id. “[T]he price of entry,
even to discovery, is for the plaintiff to allege a
factual predicate concrete enough to warrant further
proceedings, which may be costly and burdensome.”
Id. (emphasis in original).
“[n]on-conclusory factual allegations” are
“treated as true, even if seemingly incredible.”
Id. If such allegations “allow the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged, ” and thereby “state
a plausible, not a merely conceivable, case for relief,
” then the motion to dismiss must be denied.
Id. (quotation marks omitted); accord
Iqbal, 556 U.S. at 678. “The plausibility standard
is not akin to a ‘probability requirement,' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678
(citation omitted). “Determining whether a complaint