Harvard, Law Review Look to Dismiss Anti-Affirmative Action Lawsuit Against the Publication

Lawyers for Harvard, Harvard Law School, and the Harvard Law Review filed motions Monday to dismiss a lawsuit brought against them by a Texas-based anti-affirmative action group alleging the Law Review’s editor selection process illegally uses “race and sex preferences.”

The group — Faculty, Alumni, and Students Opposed to Racial Preferences — filed the original complaint with the U.S. District Court of Massachusetts in early October, alleging the Law Review’s selection process violates Title VI and Title IX, two federal anti-discrimination laws.

FASORP also named the University, the Law School, and U.S. Secretary of Education Betsy DeVos as defendants, writing that “federal law prohibits universities that accept federal funds from discriminating on account of race or sex.” The suit names DeVos because FASORP argues Harvard should not receive federal funding if it violates these laws.

The University and Law School jointly filed their motion for dismissal while the Law Review submitted its filing separately. Both motions argue the University should not lose federal funding for the alleged violation of Title VI and Title IX because the Law Review is independent from the Law School.

“First, FASORP fails to allege that the Law Review receives federal funding. Second, FASORP fails to allege that the Law Review is a “program or activity” of Harvard University or any other educational institution,” the Law Review wrote in its motion for dismissal.

The University and Law School also state in their motion for dismissal that the Law Review is “a separately incorporated and separately governed entity” that Harvard does not operate.

The Law Review’s motion also defends its admissions practices as being in compliance with affirmative action policy laid out by the United States Supreme Court.

“Supreme Court and First Circuit precedent establish that affirmative action policies are permissible under the civil rights statutes when they take into account race or gender as part of a holistic process,” the Law Review’s lawyers wrote in the filing.

“FASORP merely describes the Law Review as having an ‘affirmative action policy’ and fails to allege how that policy impermissibly takes into account race or gender,” they added.

FASORP did not respond to a request for comment.

The University and Law School motion also defended the publication’s admissions policies.

“The Complaint pleads no facts from which the Court could infer that Harvard is violating Title VI...or Title IX,” Harvard’s lawyers wrote.

The University and Law School argue FASORP does not have standing to file the federal suit because the group’s complaint did not name any individual that has directly “suffered or will suffer any legally cognizable injury caused by the challenged practices”, according to the joint motion for dismissal.

Harvard Law Review President Michael L. Thomas Jr. declined to answer specific questions about the lawsuit, and instead pointed to the publication’s motion filed in court.

“Our response to the lawsuit can be found in our motion to dismiss filed earlier this week in Massachusetts federal court,” Thomas wrote in an email.

University spokesperson Melodie L. Jackson similarly directed The Crimson to the joint motion to dismiss that Harvard’s lawyers filed in court Monday.

FASORP filed its lawsuit against the Law Review just before Harvard went to trial over the College’s admissions process. In that case, Students for Fair Admissions — the anti-affirmative action group suing the University — alleges the undergraduate admissions process discriminates against Asian-American applicants.

The trial, which lasted for three weeks starting in mid-October, featured testimony from prominent Harvard officials and garnered national media coverage. The trial revealed once highly secretive admissions practices, and experts have said the case could reach the U.S. Supreme Court.

Two of Harvard’s lawyers in the SFFA case, Seth P. Waxman ’73 and Felicia H. Ellsworth, are representing the University and Law School in the FASORP suit. Waxman, a former U.S. Solicitor General, is serving as lead attorney for Harvard.

The Law Review also chose a former U.S. Solicitor General for its legal team — Donald B. Verrilli Jr. — who will lead the publication’s legal team alongside Ryan P. McManus, who has appeared before the U.S. Supreme Court.

The Department of Education did not immediately respond to a request for comment Thursday.

—Staff writer Connor W. K. Brown can be reached at connor.brown@thecrimson.com.

—Staff writer Aidan F. Ryan can be reached at aidan.ryan@thecrimson.com. Follow him on Twitter @AidanRyanNH.