Harvard Law Review Suit Opens New Front in Admissions-Bias Fight

(Bloomberg) -- Harvard and New York University were sued by a group that claims their law schools illegally use race and gender as criteria for selecting law students to staff their most elite academic journals.

A Texas group called Faculty, Alumni and Students Opposed to Racial Preferences filed the cases this weekend, saying it sought “to restore meritocracy at American universities by eliminating the use of race and sex preferences.”

The suits come amid growing scrutiny of affirmative action in college admissions and may put the policies at elite graduate schools under a microscope. Next week, a federal judge in Boston is scheduled to hear testimony in a trial over claims that Harvard discriminated against Asian-Americans in undergraduate admissions -- a lawsuit driven by an anti-affirmative action advocate. The U.S. Justice Department is also probing bias in admissions at Harvard and Yale universities.

The suits take issue with the use of race and gender preferences among other criteria, including grades and performance on writing competitions, for inclusion on the staffs of the Harvard Law Review and the NYU Law Review. Membership on the journals, which publish articles by top scholars, is a credential that can boost a student’s prospects for a prestigious judicial clerkship and a high-paying legal job.

“Until recently, membership on the Law Review was an academic honor reserved to students who were selected on account of their first-year grades and their performance on a writing competition,” the group said in its complaint against Harvard. “In recent years, however, the Harvard Law Review has been using race and sex preferences to select its members.”

Article Selection

The group also claims bias in the selection of articles for publication in the journals, giving preference to those written by women and racial minorities. The suits name the universities, law schools and law reviews as defendants, along with U.S. Education Secretary Betsy Devos.

Harvard’s law review selects 48 editors each year from its first-year class. Twenty are picked based solely on their scores on a writing competition, 10 are chosen by weighing a mix of grades and writing-competition scores, and 18 are offered membership “through a holistic but anonymous review” that considers “racial or ethnic identity, physical disability status, gender identity, sexual orientation and socioeconomic status,” according to the review’s website.

NYU’s law review accepts 50 students, weighing scores in a writing competition and grades for 38 of them. “Exactly 12 students will be selected by the Diversity Committee,” according to its website.

"We plan to strongly defend the Law Review and its policies, and have confidence in the outcome," NYU Law School said in an emailed statement.

Calls and emails to Harvard Law School weren’t immediately returned.

Trump Nominee

The complaints don’t identify individuals who were allegedly discriminated against. The domain for the FASORP website, www.fasorp.org, was created two days ago, according to ICANN.

The lawyer filing the cases is Jonathan F. Mitchell, a 2001 graduate of the University of Chicago Law School who is President Donald Trump’s nominee to lead the Administrative Conference of the United States, a federal agency charged with “convening expert representatives from the public and private sectors to recommend improvements to administrative process and procedure,” according to its website.

Mitchell served for five years as the solicitor general of Texas and was identified by the New York Times as the “driving force” behind a set of anti-union lawsuits. He didn’t respond to a voicemail message seeking comment on the suits, which were filed in federal courts in Manhattan and Boston.

Beyond the recruitment policies’ effect on law students and review authors, the group claims that the inclusion of “less capable students” diminishes the prestige of the journals, pulling down the reputation of the other students.

“Law-review membership is supposed to be an academic honor -- and it was always regarded as such until journals started using race and sex preferences to select their members,” the group said. “Now law-review membership at Harvard is part of a politicized spoils system and no longer acts as a reliable signaling device for academic ability or achievement.”

The cases are Faculty, Alumni and Students Opposed to Racial Preferences v. Harvard Law Review, 18-cv-12105, U.S. District Court, District of Massachusetts (Boston), and Faculty, Alumni and Students Opposed to Racial Preferences v. New York University Law Review, 18-cv-9184, U.S. District Court, Southern District of New York (Manhattan).

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