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Harvard and Law Review Reiterate Arguments Opposing Anti-Affirmative Action Lawsuit

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Harvard Law Review
Gannett House has been the home of the Harvard Law Review since the 1920s.

Harvard University, Harvard Law Review, and United States Secretary of Education Betsy D. DeVos continued to argue in a set of filings Thursday that an anti-affirmative action group, which has alleged the Law Review has discriminatory member selection policies, has not sufficiently proved it has standing to bring the case.

The group — Faculty, Alumni, and Students Opposed to Racial Preferences — initially brought the complaint to Massachusetts District Court in October 2018. They have since amended their complaint to include the Coalition for Meritocracy at Universities as co-plaintiffs. The groups claim they have members who are Harvard Law School students impacted by the member selection policies.

The lawsuit also includes allegations that members of FASORP and CMU are applicants for faculty positions at the Law School and face illegal discrimination resulting from affirmative action in Harvard’s hiring processes. The groups most recently filed in late March, reiterating their standing in the case, along with their claims that Harvard and the Law Review are subject to federal laws and have violated them. They argue that DeVos has violated the law by not withdrawing federal funding from Harvard as a result of its alleged discrimination

Throughout the case, Harvard and the Law Review have independently argued the plaintiffs have not demonstrated they have standing to bring the case. In their January amended complaint, FASORP and CMU claimed that they had current Harvard affiliates who would be affected by the University’s and Law Review’s policies, but did not provide names.

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In Thursday’s reply briefs, Harvard, the Law Review, and DeVos reiterated that the plaintiffs’ failure to explicitly identify members affected by the affirmative action policies after the defendants’ repeated requests prevents them from qualifying for standing.

“Plaintiffs’ continued failure to identify any injured member by name—even after two bites at the apple—is fatal to their Amended Complaint,” the Law Review’s brief reads. Harvard and the Law Review filed separate briefs.

DeVos’s response claims that even if Harvard or the Law Review were to be found guilty of discrimination, they would be unable to use that outcome to disqualify affirmative action policies across the country. Her lawyers argued in their brief that if Harvard and the Law review were indeed guilty, they would be obligated to redress only the specific alleged injuries.

“Thus, while Plaintiffs would prefer this lawsuit to impact ‘the use of race and sex preferences at every University in [the] United States,’ a ruling against the Harvard defendants would adequately remedy the only injury that Plaintiffs allege: that their members will encounter discrimination when they are subjected to the Harvard defendants’ policies,” the brief reads.

Harvard and the Law Review also reiterated their argument that the University cannot be held responsible for the Law Review’s policies because it is not directly controlled by Harvard.

“Allegations suggest the Law Review and Harvard interact or cooperate in certain ways, but that does not show the Law Review is ‘operated by’ Harvard, as is necessary for it to be a ‘program or activity’ of Harvard,” the reply brief for the University reads.

Harvard also responded to the most recent allegations that the Law School violates Title VI and Title IX — federal anti-discrimination laws — in its faculty hiring processes. The University claimed that Title VI cannot be applied here because Harvard does not use federal funds primarily to provide employment, a stipulation of the law.

“Plaintiffs’ claim of race discrimination in faculty hiring also fails because Title VI does not cover hiring practices except where ‘a primary objective of the Federal financial assistance is to provide employment,’ … which is undisputedly not the case here,” the brief reads.

This lawsuit proceeds as a separate, high-profile lawsuit against Harvard’s undergraduate admissions policies draws to a close. A decision is expected in Mass. District Court in the coming weeks in the Students for Fair Admissions anti-affirmative action suit against the College. SFFA alleges the College has unfairly discriminated against Asian American applicants.

—Staff writer Connor W. K. Brown can be reached at connor.brown@thecrimson.com. Follow him on Twitter @ConnorWKBrown.

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