Diversity efforts are not synonymous with discrimination.
A first-year law student at New York University, identified as Plaintiff John Doe, sued the institution in October 2023, challenging the selection process for NYU’s Law Review. Specifically, Doe claimed the Law Review gave preference to women and minorities in violation of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. On May 30th, the U.S. District Court for the Southern District of New York granted NYU’s motion to dismiss on two grounds: (1) lack of subject-matter jurisdiction; and (2) failure to state a claim. The lawsuit is the first legal challenge to a law review diversity policy following the monumental U.S. Supreme Court decision in Students for Fair Admission v. President and Fellows of Harvard College.
According to Doe’s Complaint, after the SFFA decision, the Law Review purportedly modified its selection policy that set aside a certain number of spots for selections by a diversity committee. However, Doe alleges that the Law Review’s website still “makes clear that ‘diversity’ remains a prime consideration in the selection of members” and that applicants can submit resumes and personal statements of interest to further support diversity efforts. Because of its efforts to increase diversity, Doe argues that the Law Review discriminates on the basis of race and gender, which results in Doe (a straight white male) being denied an equal opportunity to compete for membership in the Law Review.
In dismissing the Complaint, District Judge Broderick found that “considerable speculation” drives Doe’s belief that he will be denied an equal opportunity to compete for membership in the Law Review. Doe failed to allege how the application process would prompt applicants to discuss characteristics such as sex, race, gender identity, or sexual orientation. Further, Doe failed to allege how information regarding protected characteristics would be collected by the Law Review. Because Doe failed to offer any support for his allegations that the Law Review gives preferential treatment to minority groups and intends to continue doing so, his claim was dismissed.
Significantly, the court noted that diversity exceeds the boundaries of protected classifications. For example, Judge Broderick noted that many instances of diversity — such as life experiences, political ideology, academic interest, and socioeconomic background — do not relate to any legally protected classification. The court summarized:
Considering the lack of any language in the selection policy demonstrating a preference for students of a protected class and the absence of any allegations supporting the inference that the selection policy would result in preferential treatment of such students, I cannot conclude that the Law Review’s continued commitment to diversity gives rise to a plausible inference of unlawful conduct.
The Court’s findings are a reminder to employers, academic institutions, and other organizations that diversity is not just about race and gender. Although it is a complex legal issue, increasing diversity can still be done without violating the law. But employers should tread carefully before implementing selection policies that reference diversity. For guidance or assistance in this area, please contact a member of our DEI Practice Group.
Also on Sharpen Your FOCUS: Perspectives on Workplace Diversity
Sharpen Your FOCUS offers timely insights into the legal and practical dimensions of DEI, accessibility, and belonging in the workplace. Drawing from both employer and employee perspectives, we explore emerging topics, shifting legal interpretations, and the real-world impact of inclusive leadership. Thanks for joining the conversation.
