FIX EXCLUSIVES
Law review employs affirmative action through its entire publication, lawsuit alleges
The University of Michigan and its Michigan Law Review Association are facing a federal civil rights lawsuit filed by Faculty, Alumni, and Students Opposed to Racial Preferences over alleged racial and sexual discrimination in the law review’s selection process.
The lawsuit accuses the law review of engaging in “corrupt and illegal scheme of race and sex preferences” with the permission of the school.
The pending lawsuit, filed by America First Legal Foundation, alleges the Michigan Law Review considers race and sex in selecting student editors and articles, which violates the Equal Protection Clause and Title VI of the Civil Rights Act. Michigan law also prohibits discrimination on the basis of race in higher education.
The plaintiffs are three tenured law professors who are all white, heterosexual men and thus not members of the groups allegedly favored by the law review.
According to the complaint, the review employs two different review tracks for choosing new members: 40 percent of applicants are chosen solely based on application exercise scores, while the other 60 percent go through a “holistic review” that includes personal statements and other writing samples.
FASORP argues there is no fixed weighting system to account for each aspect of the holistic review process. This not only affects applicant review but also story selection. Stories authored by preferred groups are favored over objectively stronger submissions from heterosexual, non-transgender, white men.
The complaint names both the University of Michigan and the Michigan Law Review as defendants, listing that the Review maintains editorial policies and standards that give preference to women and/or racial minorities through essay prompts that encourage revealing these characteristics. In July, both parties agreed to remove university regents and individual members of the law review from the lawsuit “without prejudice,” meaning they could be added later.
FASORP also alleged the University unlawfully delegates authority to the Michigan Law Review, a supposedly independent student organization, while still providing financial support and being a prerequisite for joining.
The University of Michigan denies any wrongdoing.
“The University remains steadfast in its commitment to following the law,” Kay Jarvis, director of public affairs, told The College Fix via an emailed statement. “We will vigorously defend against these allegations.”
The defendants have until mid-October to respond to the initial lawsuit.
The Michigan Law Review did not respond to multiple requests for information via email in the past several weeks. The Fix asked for a response to the lawsuit, its editorial criteria, how it approaches diversity of thought, and whether it has engaged with any of FASORP’s concerns outside of litigation.
The lawsuit cites Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the landmark 2023 Supreme Court that ruled that race-conscious admissions policies at Harvard and UNC violated the Constitution.
FASORP’s complaint echoes that sentiment, arguing that the law review’s race-conscious selection process violates constitutional and statutory civil rights protections.
The plaintiffs further claim that Michigan’s practices harm both those that are and are not chosen, the former because their work may have been judged through a diversity lens instead of by merit.
Faculty, Alumni, and Students Opposed to Racial Preferences did not respond to multiple requests for information via email in the past several weeks. The Fix asked for motivations behind the lawsuit, any challenges encountered, key concerns with the review’s selection process, potential implications for campus publications, and the current status of the case.
The Foundation Against Intolerance and Racism, a nonpartisan civil rights group, weighed in on the apparent tension between “well-intentioned diversity initiatives and the fundamental principle of equal treatment under the law.”
“Selection processes for prestigious opportunities like law review should focus on demonstrated skills, academic achievement, and potential contributions rather than using race as a determining factor,” Monica Harris, FAIR’s executive director, told The Fix via email.
FAIR sees this as a chance for student organizations to implement “more thoughtful, merit-based selection processes that still achieve diverse participation through race-neutral means.”
“Publications that select editors based on [writing ability, analytical skills, work ethic, and commitment] will likely maintain or even strengthen their editorial independence while complying with civil rights laws,” Harris said.
“Ideally, student publications would voluntarily adopt fair, merit-based selection processes that naturally result in diverse perspectives without using racial classifications.”
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IMAGE CAPTION AND CREDIT: Lawyers discuss a lawsuit; Kanchanachitkhamma
