Tuesday, August 31, 2021

Conservative group has no standing to challenge law review membership and article policies

Law review is a prestigious assignment for law students, as they get to edit and publish scholarly articles written by law professors. This case challenges the selection process for law review, as a conservative organization claims the law review's racial and gender preferences violate Title VI and Title IX of the Civil Rights Act, which prohibits gender and racial discrimination in education. The organization loses because it lacks standing to sue.

The case is Faculty, Alumni, and Students Opposed to Racial Preferences v. New York University, issued on August 25. The law review at NYU has 50 student editor positions, 12 of them chosen by a committee that considers in part race, ethnicity, gender, and sexual orientation, along with ideological viewpoint, age, socio-economic background and other factors, including a resume that does not identify them by name. Plaintiffs say this will favor women, racial minorities and LGBT applicants. The law review also includes race and sex considerations in its article-selection process. 

The plaintiff organization claims its members have submitted articles to the law review and will do so in the future, and that the law review's membership and article-selection process will discriminate against white or male authors. Plaintiff also says the diversity requirements will result in having their submissions judged by less-capable editors "who made law review because of diversity criteria, and who leapfrogged students with better grades and writing-competition scores," a process that will hurt the authors who require law review publication to advance their academic careers. 

A threshold issue in cases like this is whether the organization has standing to bring the case. But there is no associational standing to bring this lawsuit, the Court of Appeals (Cabranes, Menashi, and Leval) writes, because the organization does not allege factors that suggest its members will be adversely affected by the law review's practices. The organization will not identify its members for purposes of this lawsuit, and the complaint does not state if and when its members submitted articles. There is no concrete way to know if the organization's members will be affected by the race and gender rules. Moreover, the possible harm is too attenuated for a lawsuit, as the complaint alleges that its members intend to continue submitting articles and intend to apply for law school jobs. The court writes that "some day intentions" are not enough to prove "actual or imminent injury," necessary requirements for standing to sue. So, no standing, no lawsuit.

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