Jaded and Confused:
FASORP’s Title VI and Title IX Lawsuits Against Harvard Law Review

Elizabeth Grindell

On October 6, 2018, a Texas law firm filed a lawsuit on behalf of the group, Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP)[1] against Harvard Law Review, alleging violations of Title VI and Title IX. FASORP claims that the Law Review commits illegal race and sex discrimination when selecting articles for publication by giving preference to articles written by women or racial minorities. The practice of considering race and sex for opportunities in the field of higher education was established based on long-standing, historic evidence of invidious discrimination against women and minorities; yet FASORP seems to overlook the benefit that Harvard’s Law Review gains from such diversity. Selecting authors with varied backgrounds and life experiences directly caters to the Law Review’s vital goals of introducing original and nuanced perspectives into legal academia by encouraging unique topic selection and creative avenues of investigation into modern theories and issues of the law.

The Harvard Law Review chooses 18 of its 48 new editors through a holistic evaluation in which applicants can indicate their race, ethnicity, gender, sexual orientation, socioeconomic status, and any physical disabilities. Compl. ¶¶ 14–16. FASORP alleges that“this ‘holistic’ evaluation gives preferential treatment to women, ‘underrepresented’ racial minorities, homosexuals, and transgendered people . . . at the expense of articles written by FASORP members who are white or male.” Compl. ¶ 17. FASORP goes even further, however, calling the Law Review’s members and editors “less capable students” due to this selection based on diversity criteria as opposed to solely merit-based considerations.[2] FASORP additionally claims that alumni of the Harvard Law Review also face injuries because of these practices, in that “race and sex preferences [] diminish the prestige of the law review credential,”citing a 1995 article by Richard A. Posner which cautioned that Harvard’s “epicycles of affirmative action” would make it a “laughingstock” in the future. Compl. ¶ 28.

FASORP’s mission creates tension between the class of students and alumni accustomed to privilege that sees diversity practices as a detraction from their own successes, and the class of current students and editors who are receiving the benefits of these programs in a way that prior generations have been historically denied. In an effort to mitigate the former class’ jaded assessment of holistic evaluations, FASORP resorts to the overused motif of women- and minority-protective arguments to bolster its position. For example, FASORP asserts that Harvard’s holistic evaluations injure women and minorities as well because “it is difficult or impossible for them to prove that they earned their law-review membership because of academic merit rather than the Law Review’s diversity set-asides.” Compl. ¶ 29. According to FASORP, because of this practice “their law-review membership [is] tainted . . .” Compl. ¶ 31. To interpret these allegations in any way other than demeaning and irresponsible is to reaffirm the necessity of women’s and minorities’ participation in academic discourse of the very kind Law Reviews and Journals seek to instigate; for without their perspectives and voice, attitudes like FASORP’s become pervasive and malignant. I think what this lawsuit truly comes down to is this well-known progressive expression: When you are accustomed to privilege, true equality feels a lot like oppression.

[1] According to Bloomberg, FASORP’s website domain was created on October 6^th of this year—the same day that the Harvard suit was filed. Bob Van Voris, Harvard Law Review Suit Opens New Front in Admissions-Bias Fight, Bloomberg (Oct. 8, 2018), https://www.bloomberg.com/news/articles/2018-10-08/harvard-law-review-suit-opens-new-front-in-admissions-bias-fight. On FASORP’s site, fasorp.org, the group expresses its “opposition to the corrupt and discriminatory practices that subordinate academic merit to diversity considerations.” It features a submission box giving visitors to the site, including non-members and anonymous users, an opportunity to submit “evidence” or “anecdotes” including “incriminating e-mails, audio recordings, and documents that expose race or sex preferences.”

[2] Compl. ¶ 26 (“Because the Harvard Law Review has subordinated academic merit to diversity considerations when selecting its members and editors, the articles that FASORP members submit to the Law Review are judged by less capable students—and these are the students who will ultimately make the career-altering decision of whether a professor’s article gets accepted for publication or rejected.”).