Inspired By Kavanaugh, Harvard Law Review Sued For Discriminating Against White Men

Kavanaugh has emboldened conservatives to try their most ridiculous legal claims.

The unassuming home of the Harvard Law Review.

Brett Kavanaugh’s ability to promote the policies of white supremacy will not be limited to his opinions and his votes on the Supreme Court. His mere presence, and the consolidation of a hard-right majority on the Supreme Court, will inspire all sorts of speculative lawsuits and legal theories aimed at attacking minorities and women.

Most of these lawsuits will fail. But a few will percolate forward through the lower federal courts that are already being stacked by Trump nominees whose main qualifications are a distaste for minority rights.

It’s only taken a couple of days for Kavanaugh’s elevation to bear this kind of supremacist fruit.

On Saturday, a group from Texas sued the Harvard Law Review for discriminating against white men. They argue that the Law Review gives preferential treatment to articles written by women and minorities. It also alleges that the Law Review illegally uses “race and sex preferences” to select its members.

A similar lawsuit was filed against NYU on Saturday as well.

The lawsuit is trash. Straight aggrieved white man trash. The complaint offers only racist tropes about how the Law Review selects its members, and offers no arguments for how the Law Review’s selection of articles represents discrimination against anybody. You can see the complaint’s contempt for non-whites, here:

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15. After these 30 students are selected on the basis of merit, the remaining 18 students are selected “through a holistic but anonymous review that takes into account all available information.” Id. The Law Review’s website is cagey on exactly how this “holistic” evaluation is conducted, but it provides assurances that it “remains strongly committed to a diverse and inclusive membership.” Id

16. To facilitate its “holistic” evaluations, the Law Review invites all applicants to “make aspects of their identity available through the Law Review’s holistic consideration process,” and promises that they “will have the opportunity to indicate their racial or ethnic identity, physical disability status, gender identity, sexual orientation, and socioeconomic status.” Id. It also offers “the option of submitting an expository statement of no more than 150 words that identifies and describes aspects of their background not fully captured by the categories provided on the form.” Id.

The implication, which is not subtle, is that everybody who gets in through the academic review process is a non-white male, and that all the non-white males who are on the Law Review are their because of “illegal” race and gender discrimination.

As for the article selection process, here’s all the complaint has to offer.

18. The Harvard Law Review also discriminates on account of race and sex when selecting articles for publication, by giving preferential treatment to articles written by women or racial minorities.

Again, they’re saying that anybody who has been published in the Harvard Law Review, who is not a white man, was probably the beneficiary of preferential treatment.

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It’s unlikely that a court will ever get to the racist, trash “merits” of this complaint, because it’s not at all clear how a group in Texas has standing to sue a student publication in Boston (well… not in Boston, near Boston).

The group suing Harvard and NYU is calling themselves Faculty, Alumni and Students Opposed to Racial Preferences. Their lead lawyer is Jonathan F. Mitchell, who has been nominated by Trump (of course he has) to lead the Administrative Conference of the United States. How does a Texas group of randos have standing to sue? Here’s their argument:

26. Members of FASORP who submit articles to the Harvard Law Review suffer a separate and distinct “injury in fact” from the journal’s membership-selection policies. 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. This inflicts “injury in fact.” This injury is caused by the Harvard Law Review’s use of race and sex preferences, and it will be redressed by an injunction that bars the Harvard Law Review from considering race or sex when selecting its members and editors.

27. There is a yet another “injury in fact” inflicted on FASORP members who submit articles to the Harvard Law Review: Those who have their articles accepted by the journal must submit to a student-run editing process, and the Law Review’s use of race and sex preferences dilutes the quality of the students who edit an author’s manuscript. This “injury in fact” is caused by the Harvard Law Review’s use of race and sex preferences, and it will be redressed by an injunction that bars the Harvard Law Review from considering race or sex when selecting its members and editors.

Pure bunk. Their argument that they are harmed because a student organization is run by “less capable students,” — a distinction of their making based solely on the color of the skin and gender of those students — should be offensive. It is wrong. This argument is a racial slur, made in the language of a legal compliant.

But, here’s the thing, FASORP filed for their domain name last week. They filed these lawsuits on Saturday, just as Susan Collins was making her laughable argument that Brett Kavanaugh respects precedent.

This lawsuit, dumb as it is, would not exist without Brett Kavanaugh. These people, racist as they are, would not have even bothered to try it without courts stacked with Trump appointees.

They should lose this one. But this is only the first shot across the bow. The forces of white supremacy are emboldened by their successes in reshaping the courts. This is the crap they now feel safe to bring. Even if this one fails, there will be other attempts, and eventually they’ll catch the right Trump judge with the right racist argument. They will never stop trying.

The night is dark and full of terrors. Vote on November 6th.

FASORP v. Harvard Law Review (complaint)


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.