The Law Review is a student-run academic journal at most law schools across the country. Students who run the Law Review, commonly referred to as editors, select the articles that the Law Review publishes and the students who are invited to join its ranks. Before the Supreme Court’s decision in Students for Fair Admissions, Inc. (SFFA) v. Fellows of Harvard College, the New York University (NYU) Law Review would select fifty new editors each year from the rising second-year class. Of the fifty students, twelve spots were filled by the Law Review’s Diversity Committee.
To select students to fill these twelve spots, the Law Review required applicants to draft personal statements and permitted them to submit anonymized resumes. In evaluating personal statements, the Diversity Committee considered factors that included (but were not limited to) the applicant’s race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability and age.
Following the Supreme Court’s decision in the SFFA case, NYU changed its website in an attempt to obscure the details of its membership-selection process, including removing mention of the Diversity Committee and the diversity set-aside seats. The website still emphasizes the importance diversity plays in selecting members, and requires each applicant to submit a statement of interest that provides a more comprehensive view of the applicant as an individual. Students have the option of submitting a resume, which the Law Review uses to “realize its commitment to staff diversity.”
John Doe, a first-year law student at NYU, who describes himself as a heterosexual white man, is interested in applying for Law Review in the summer of 2024 but claimed that he would be subject to race and sex discrimination and denied an equal opportunity to compete for membership. NYU moved to dismiss the complaint, arguing that Doe did not have standing to bring the claim and that the claim was not ripe for review.
To establish standing, a party must show: (1) that they have suffered an injury that is concrete and particularized, and actual or imminent; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to speculative, that the injury will be redressed by a favorable decision. For a claim to be ripe, the injury must similarly be actual or imminent, rather than conjectural or hypothetical.
Here, the Court found that Doe’s complaint was riddled with contingencies and speculation. The alleged discrimination had not yet occurred and would only occur if (1) Doe applies to the Law Review; (2) students submit statements of interest or resumes that identify their sex, gender, race, or sexuality; (3) the Law Review unlawfully selects students based on sex, gender, race, or sexuality; and (4) Doe fails to gain admission to the Law Review. The Court would be forced to predict the information students may share with the Law Review and how that information may be used in order to make a ruling on the merits of this case.
The Court concluded that the Law Review selection policy was facially lawful and Doe provided no examples or evidence that the editors gave preferential treatment to women, non-Asian racial minorities, homosexuals, or transgender students. Even if the Law Review learns about an applicant’s sex, race, gender identity, or sexual orientation in the selection process, the Court was not willing to jump to the conclusion that the Law Review would use that information unlawfully.
Furthermore, even assuming that Doe had standing to bring his claims and his claims were ripe, the Court stated that it would still dismiss Doe’s complaint on the merits under Title VI and Title IX. The Court concluded that the membership-selection process was facially-neutral and Doe provided no examples where NYU was giving preferential treatment to certain minority groups. Although the Law Review considered sex, race, gender identity, or sexual orientation before the Supreme Court’s decision in SFFA, this was lawful at the time. The Court reasoned that the Law Review’s lawful practices in the past did not give rise to an inference of discrimination today.
The Court also found that a commitment to diversity was not enough to conclude an inference of unlawful conduct. Among the many aspects of diversity are life experience, political ideology, academic interests, and socioeconomic background, which do not relate to any legally protected classification. The Court dismissed Doe’s complaint.
Note: As anticipated, the Supreme Court’s affirmative action ruling last summer has resulted in more cases challenging schools’ and employers’ DEI policies. These cases illustrate how various courts may interpret educational institutions’ DEI efforts. For example, in this case, the judge noted that considering life experience, political ideology, academic interest, and socioeconomic background did not relate to any legally protected classification and therefore was permissible.
Doe v. N.Y. Univ. (S.D.N.Y. May 30, 2024, No. 23-CV-10515 (VSB)) 2024 U.S.Dist.LEXIS 97269.