Overview
Last week, Judge Broderick granted NYU’s motion to dismiss a class action complaint brought by a “John Doe” alleging that NYU Law Review gives “preferential treatment to women, non-Asian racial minorities, homosexuals, and transgender people when selecting its members” due, in part, to the journal’s practice of “requir[ing] each applicant to submit a statement of interest that provides ‘a more comprehensive view of [him or her] as an individual.’” John Doe is a first-year law student, who “aspires to join his school’s law review.”
Judge Broderick ruled that Plaintiff lacked standing because the claims were “riddled with contingencies and speculation that impede judicial review.” This speculation included assumed facts that had not yet occurred, such as Plaintiff’s application to Law Review, and unsupported and unspecific allegations regarding Law Review’s actions. Specifically, Judge Broderick stated:
The Complaint does not plead, in other than a conclusory way, how the Law Review is discriminating now or will discriminate in the future. Doe does not assert, for instance, the nature of the ‘preferential treatment’ the Law Review is giving to women, non-Asian racial minorities, homosexuals, and transgender students. Nor does he allege which editors agreed to disregard the Law Review’s announced policy. He also fails to provide any examples of discriminatory acts or statements by the Law Review or its editors. Similarly, Doe never explains the basis for his belief that the facially lawful selection policy is masking an otherwise unlawful selection process.
Acknowledging that Plaintiff had “alleged how the Law Review may come to learn information about the sex, race, gender identity, or sexual orientation of applicants during the editor-selection process,” Judge Broderick explained that this “bald assertion” was insufficient to confer standing:
[T]he fact that the Law Review may ultimately learn an applicant’s sex, race, gender identity, or sexual orientation does not suggest that it will turn around and use that information unlawfully. Doe’s claim of discrimination is based on nothing more than an assertion that such unlawful conduct is occurring, without explaining how he knows that to be true or alleging instances of past discrimination.
Judge Broderick separately held that Plaintiff failed to state a claim under Title VI and IX because his claims were “conclusory and undermined by the plain text of the facially neutral policy.” He stated that Law Review’s current policy regarding diversity did not “give[] rise to a plausible inference of unlawful conduct,” explaining:
[T]he revised selection policy does not identify a particular type of applicant diversity . . . Among the many aspects of diversity, several do not relate to any legally protected classification, such as life experience, political ideology, academic interests, and socioeconomic background. 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.
