Faculty v. New York University Law Review
Faculty, Alumni, and Students Opposed to Racial Preferences v. New York University Law Review
- Edgardo Ramos
- 1:18-cv-09184
- U.S. District Court · Southern District of New York
- 15
In FASORP v. New York University Law Review, Judge Ramos granted defendants’ motions to dismiss without prejudice and allowed another amended complaint.
FASORP’s Title VI and Title IX action against the NYU Defendants and Federal Defendants was dismissed without prejudice, with permission to file a second amended complaint.
What happened
Faculty, Alumni, and Students Opposed to Racial Preferences sued New York University Law Review, New York University School of Law, New York University, the United States, and Betsy DeVos. FASORP alleged that race and sex were improperly considered in Law Review membership and article selections, NYU faculty hiring, and federal regulations and funding.
The court held that FASORP had not identified at least one injured member with enough specific facts to establish the organization’s right to sue on its members’ behalf. It also held that the alleged injuries were not concrete enough and that the claimed future harms depended on too many uncertain events. The court further concluded that the complaint did not adequately state claims against the NYU or Federal Defendants.
Judge Ramos granted both sets of defendants’ motions to dismiss without prejudice and dismissed the action without prejudice. FASORP was permitted to file a second amended complaint by April 21, 2020.
The detailed version
- Faculty v. New York University Law Review · No. 1:18-cv-09184
- Edgardo Ramos
- Mar. 31, 2020
Background
Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP), an unincorporated nonprofit membership association, brought claims for declaratory or injunctive relief under Title VI and Title IX. It sued New York University Law Review, New York University School of Law, New York University, the United States, and Betsy DeVos in her official capacity as U.S. Secretary of Education.
FASORP alleged that the NYU Defendants considered race and sex in selecting Law Review members and articles and in hiring faculty. It also alleged that the Federal Defendants enabled discrimination by interpreting Title VI and Title IX to permit certain affirmative-action practices and by continuing to provide federal funding to NYU.
The defendants separately moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint adequately states a legal claim.
Standing
The court first addressed associational standing, meaning an organization’s ability to sue on behalf of its members. To establish standing, FASORP had to allege that at least one identified member suffered or faced a concrete and particularized injury that was traceable to the challenged conduct and likely to be redressed by the requested relief.
The court concluded that FASORP failed to identify at least one injured member with specific allegations. General descriptions of the activities of unnamed faculty members and legal scholars were insufficient. The court stated that this defect alone required dismissal for inadequate pleading of associational standing.
The court also held that FASORP had not alleged a concrete and particularized injury. It rejected the argument that members had a legally protected interest in having their articles reviewed or published by a student-run academic law journal whose membership was selected without the challenged criteria. The court also found no government-created barrier supporting the theory that discriminatory treatment itself established standing, because the challenged policies were implemented by NYU, the Law School, or the Law Review, not governmental entities.
The court further found that the alleged future injuries were too speculative. For example, an alleged injury from submitting an article would depend on multiple future events, including a member writing and submitting an article, the composition and selection of the Law Review, the member providing demographic information, and the Law Review using that information in evaluating the submission. The court held that this chain of possibilities did not establish a real and immediate threat of repeated injury.
Failure to State a Claim
The court alternatively held that, even if FASORP had adequately pleaded standing, the amended complaint still failed to state a claim. Regarding faculty hiring, FASORP did not allege that federal funds received by NYU were primarily intended to provide employment. Regarding article selection, the complaint provided no factual description of the process beyond allegations that the Law Review received author background information and acted discriminatorily.
The court also found that the membership-selection allegations described a process in which applicants could highlight many characteristics, including race, sex, sexual orientation, viewpoint, and socioeconomic background, but did not provide enough facts to show that the process functioned as an unlawful quota or set-aside program. As to the Federal Defendants, FASORP conceded that it had no cause of action under the Administrative Procedure Act, Title VI, or Title IX against them. The court declined to consider an additional claim against DeVos based on a legal theory first raised in FASORP’s opposition brief because a complaint cannot be amended through briefing.
Disposition
The NYU Defendants’ and Federal Defendants’ motions to dismiss were granted without prejudice. The action was dismissed without prejudice, and FASORP was permitted to file a second amended complaint. The deadline stated in the order was April 21, 2020. The court directed the Clerk to terminate the two motions.
Read the full 15-page opinion on CourtListener, the free public archive maintained by the Free Law Project.