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Appeals court backs NYU law review in challenge to diversity policy

3 minute read

New York University graduates pose together under the Washington Square Arch in Washington Square Park in New York City, U.S., May 13, 2021. REUTERS/Brendan McDermid

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  • A 2nd Circuit panel ruled plaintiffs lack standing
  • Plaintiffs lost a similar suit against Harvard Law Review

(Reuters) - New York University School of Law's flagship law review can claim another court win over a group of academics challenging the journal’s diversity policies.

A three-judge panel from the 2nd U.S. Circuit Court of Appeals on Wednesday unanimously affirmed a lower court’s dismissal of the group’s 2018 lawsuit against the NYU Law Review. The appeals court agreed that Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP)lacked standing.

FASORP did not show that its members had suffered injury-in-fact and therefore did not demonstrate standing, according to the opinion from Circuit Judges Jose Cabranes, Pierre Leval and Steven Menashi, who wrote a separate concurrence. Cabranes wrote the opinion.

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FASORP attorney Jonathan Mitchell of Austin-based Mitchell Law did not immediately respond to requests for comment on Wednesday.

FASORP sued the NYU Law Review in 2018, alleging that its diversity policies violate "Title VI and Title IX by using race and sex preferences when selecting its members, editors, and articles." It also sued the Harvard Law Review in federal court in Boston on nearly identical grounds in a suit that was dismissed in 2019, which it did not appeal.

U.S. District Judge Edgardo Ramos in Manhattan dismissed FASORP's lawsuit in March 2020 in large part because it lacked specifics on individual claims.

The NYU Law Review sets aside 12 of its 50 new member positions to be appointed by its diversity committee – which FASORP claimed diminishes the editing capabilities and prestige of the law review and harms academics who seek to get published in the journal. FASORP also alleged that the law review’s policy of considering sex and race in the article selection process violates the law.

FASORP claimed its members include faculty who have submitted articles to the NYU Law Review or attempted to get hired by the law school, but it failed to provide information about specific individuals who had done so. Mitchell argued during a March hearing that such details were unnecessary at this stage of the litigation, but the 2nd Circuit judges wrote that FASORP could have done more to establish standing.

“It is possible to be more specific — even if ‘naming names’ and submitting individual affidavits is not required,” the opinion said. “For example: When did FASORP’s members submit articles or apply for jobs at NYU? Have those members drafted articles they intend to submit? If so, when do they plan to submit?”

The case is Faculty, Alumni, and Students Opposed to Racial Preferences v. New York University in the 2nd U.S. Circuit Court of Appeals No. 20-1508

For FASORP: Jonathan Mitchell of Mitchell Law

For New York University: Tamar Lusztig of Susman Godfrey

Read More:

NYU defeats race bias lawsuit over law review

Lawyer challenging NYU Law Review diversity criteria faces 2nd Circuit grilling

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Karen Sloan reports on law firms, law schools, and the business of law. Reach her at karen.sloan@thomsonreuters.com

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