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Faculty, Alumni, and Students Opposed to Racial Preferences v. Harvard Law Review Association

United States District Court, D. Massachusetts

August 8, 2019




         The 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.

         I. BACKGROUND

         The Court recounts the facts as they are alleged in the Amended Complaint and reflected in the exhibits attached to it.

         A. The Parties

         The plaintiffs are two “unincorporated nonprofit membership association[s] organized under the laws of Texas.”[1] 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. ¶ 42.

         The record contains no other facts about the associations, how they operate, or any of their members.

         The 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).[2] 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.

         B. The Allegations

         HLRA “is a student-run organization” that “is formally independent of [HLS].” Doc. No. 33-1 at 1.[3] 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. No. 33-3.

         HLRA's 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.

         The 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.

         HLS 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. ¶ 23.

         The 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, [4] 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.

         The 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.

         The 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.

         C. Procedural History

         FASORP 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.

         The 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.

         The 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.

         The 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. No. 62.


         A. Pleading

         To 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.

         First, 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).

         Second, “[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). ‚ÄúDetermining whether a complaint ...

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