A federal judge in Manhattan has just dismissed a lawsuit against NYU for its alleged discrimination against non-minorities and its practices of diversity, equity, and inclusion (DEI) to select applicants onto its law school’s journal. The suit was brought by conservative nonprofit America First Legal, which has been known to bring similar lawsuits in the past. While it’s not necessarily a win for DEI, the dismissal is at least setting higher standards for those aiming to sue against inclusive practices.

AFL’s ‘Anti-Woke’ Mission

America First Legal (AFL) was founded in 2021 by Stephen Miller, a former advisor to President Trump. It describes itself as a right-of-center legal group that uses litigation to challenge left-wing policies. It partners with state attorneys general to file lawsuits, including against the Biden administration.

They have stated goals of defending “true equality under law, national borders and sovereignty, freedom of speech and religion, classical values and virtues, the sanctity of life and centrality of family, and our timeless legal and constitutional heritage.” Although they say that they “are committed to fighting for all Americans–regardless of race, color, religion, or creed,” Miller has been described as a white nationalist who is anti-immigration and far-right.

Several of the lawsuits that AFL has brought in the past do make race a central issue. For example, two years ago, it filed a lawsuit in federal court on behalf of a Pennsylvania father who was concerned with Critical Race Theory being taught in his child’s school. Miller wrote, “Our innocent children are being viciously indoctrinated with CRT by marxist [sic] radicals. This lawless, extremist, poisonous bigotry must be defeated.”

AFL has also filed complaints with the EEOC against at least 33 different “woke companies,” as it calls them, including Starbucks, Disney, Kellogg’s, Nike, and several major airlines. It accuses them of illegal race- or sex-based discrimination, such as awarding jobs, benefits, or bonuses to minorities over straight white males. Then, last December, AFL launched an investigation into the Equal Employment Opportunity Commission (EEOC). They were concerned that corporations that used DEI practices were unlawful and violated Title VII, and that the EEOC wasn’t doing anything about it.  

AFL Sues NYU for DEI

So it wasn’t entirely surprising when, last October, AFL sued New York University (NYU) for something similar. Specifically, AFL brought a class action complaint against the university on behalf of one of its then-law students. A federal judge allowed the represented plaintiff to remain anonymous (listed as “John Doe”), but we know he was white, heterosexual, and male.  

“John Doe” was in his first year of law school when he applied for the NYU Law Review, the flagship journal of NYU’s law school and a very prestigious organization. For any of our readers that have applied to law journals at their alma maters, you’ll know just how competitive the selection process can be. NYU Law Review’s website says that it seeks a “diverse staff of editors” and invites student applicants to submit a resume that “will be used by the Law Review to realize its commitment to staff diversity.”

AFL and “John Doe” claim that the law review’s selection practices “flout” federal law by openly using race and sex preferences to select its members and editors. Specifically, they point to Title VI and Title IX, which prohibit universities that accept federal funds from discriminating on account of race or sex. These laws have been in place for half a century, but a Supreme Court decision from almost exactly a year ago shook things up, potentially strengthening the plaintiff’s position even further.

AFL Leans on New SCOTUS Precedent

That case was Students for Fair Admissions v. President and Fellows of Harvard College, which had a huge impact in walking back affirmative action precedent. In that case, SCOTUS ruled that the race-conscious affirmative action admissions process used by Harvard (and the University of North Carolina, which was decided in the same case) violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. This decision overturned decades of legal precedent upholding affirmative action in college admissions.

The plaintiffs and AFL pointed to this case as support for their claim that the law review’s practices violated established law. They wrote in their complaint: “Even after Students for Fair Admission, the NYU Law Review continues to give unlawful and discriminatory preferences to women, non-Asian racial minorities, and homosexual and transgender individuals when selecting its members and editors. And it intends to continue these unlawful and discriminatory practices until it is enjoined from doing so.”

Gene Hamilton, AFL’s Vice President and General Counsel, meant to make an example of NYU, saying in a statement: “Law review editors take heed. Any subordination of academic merit to ‘diversity’ considerations when selecting members or articles will be met with a lawsuit.” He also put out a call to action for those in law schools to report similar practices, saying, “Any student or faculty member who has evidence of these illegal and discriminatory practices should reach out to us. We will sue any law school that continues to employ these odious and anti-meritocratic practices or thinks that it can evade the commands of federal anti-discrimination law.” 

Judge Finds Many Reasons to Dismiss

But when John Doe and AFL took the matter to federal court in the Southern District of New York, Judge Vernon S. Broderick dismissed the complaint in about six months. Last week, he issued an order saying that he was obligated to grant NYU’s motion to dismiss the suit for several procedural reasons.

The judge essentially held that the plaintiffs did not do their job to sufficiently state a valid legal claim in their complaint. Specifically, the plaintiffs failed to show that John Doe had standing to sue and that his claim was “ripe.” In other words, even with the court drawing all inferences in the plaintiff’s favor, the court saw only hypothetical and future harm to John Doe from NYU’s practices. This was partly because John Doe, at the time of bringing the lawsuit, had not even applied to the law review. The harm would only possibly occur if he did apply and was not accepted, and even then he would have to show that he was denied based on diversity grounds rather than the merits of his application.

Perhaps more significantly, Judge Broderick also reasoned that the law review’s policy is “facially neutral,” and John Doe doesn’t point to any evidence that the organization is using statements of interest and résumés to give preferential treatment to select minority groups. For one, the selection policy does not identify a particular type of applicant diversity or demonstrate a preference for students of a protected class. Rather, John Doe is merely speculating and stating “naked allegations,” which are not enough for a legal complaint to survive.

“Although the Law Review considered sex, race, gender identity, or sexual orientation before the Supreme Court’s decision in SFFA, nothing about this practice was unlawful.” Judge Broderick wrote. “The Law Review’s ongoing commitment to diversity does not alter my conclusion. As an initial matter, the revised selection policy does not identify a particular type of applicant diversity.”

There were a number of other procedural reasons that the complaint didn’t hold water, such as issues with jurisdiction and the fact that NYU as an institution does not seem to have a part in the selection criteria of the law review, making Title VI and IX claims inapplicable. The judge’s dismissal means that, for now, the lawsuit will not go forward. However, the plaintiffs are allowed to correct all of the shortcomings of their complaint and re-file it in the future, so the matter is not necessarily over for good.

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