A federal judge in Texas has issued a nation-wide injunction blocking the Education Department’s new minimum clock-hour rule (Proposed Rule) for career prep programs, which was scheduled to go into effect on July 1, 2024.

Read More >> Federal Judge Blocks Education Department’s New Minimum Clock-Hour Rule

Recent resolution agreements between the U.S. Department of Education’s Office for Civil Rights (OCR) and the University of Michigan (U-M) and the City University of New York (CUNY) offer valuable lessons for colleges and universities nationwide. These agreements, addressing complaints of discrimination based on shared Jewish, Israeli, Palestinian, Arab, Muslim, and/or South Asian ancestry and/or the association with these national origins/ancestries, reflect OCR’s evolving standards for compliance with Title VI of the Civil Rights Act of 1964. Higher education institutions should heed these lessons to avoid and/or neutralize regulatory scrutiny.

Read More >> OCR Resolves Title VI Complaints Against Two High-Profile Universities

On May 30, the U.S. District Court for the Southern District of New York granted New York University’s (NYU) motion to dismiss in a lawsuit[1] from a first-year law student claiming that NYU School of Law’s process for selecting students to serve as editors of its Law Review gives 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. The complaint was dismissed without prejudice on two grounds: 1) lack of subject-matter jurisdiction; and 2) failure to state a claim. This lawsuit is the first legal challenge to a law review diversity policy following the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 600 U.S. 181 (2023), which struck down race-based admission processes at colleges and universities.

Factual Background

The complaint filed in October 2023 notes that prior to the Supreme Court’s decision in SFFA, the NYU Law Review would invite 50 students from the rising second-year class to join the academic journal as editors. Twelve of the 50 spots were filled by the Law Review’s Diversity Committee, which required applicants to submit personal statements and gave them the option to submit resumes. The Diversity Committee selected students in consideration of factors that included (but were not limited to) the applicant’s “race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability, and age.”

According to the plaintiff, a student identified as “John Doe,” NYU Law Review changed its website after the SFFA decision by removing any explicit reference to diversity in the membership-selection process, but it is clear “that ‘diversity’ remains a prime consideration in the selection of members.” Doe alleges that the Law Review currently requires applicants to submit a “statement of interest” for consideration by the academic journal’s Selection Committee and gives students the option to also submit a resume.

Doe claims that as a heterosexual white male, the application process will subject him to race and sex discrimination and deny him “an equal opportunity to compete for membership” when he applies for Law Review in the summer of 2024. Specifically, Doe asserts that the Law Review uses statements of interest and resumes to “give preferential treatment to women, non-Asian racial minorities, homosexuals, and transgender people when selecting its members.”

The Court’s Reasoning

First, U.S. District Judge Vernon S. Broderick determined that Doe lacked the necessary standing to bring his lawsuit. The court explained that Doe’s allegations concerning what information students may share with the Law Review in their applications or how that information may be used are speculative and cannot confer standing upon Doe. The court further stated that the complaint is “devoid of any factual support” for Doe’s arguments, as it “does not plead, in other than a conclusory way, how the Law Review is discriminating now or will discriminate in the future.” Doe’s failure to plead factual allegations of a discriminatory selection process implemented by the Law Review established no injury-in-fact, and therefore no basis for standing or the court’s exercise of subject-matter jurisdiction over the case.

Even if Doe had standing to bring his suit, the court held that the complaint would still be dismissed for failure to state a claim under Title VI and Title IX because Doe’s claim lacked “facts supporting his allegation that NYU is giving and intends to give preferential treatment to certain minority groups.” The court added that the Law Review’s commitment to diversity pre-SFFA, and even post-SFFA, is not unlawful:

"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."

In effect, this SDNY opinion reinforces the holding in the Supreme Court’s decision in SFFA to expressly acknowledge that universities may consider an individual’s lived experiences or socio-economic challenges in its admission processes, as long as it does not do so based on race or any other protected characteristic alone.

As of the date of this memo, it is unclear whether this case will be appealed to a higher court. Bond will continue to closely monitor this and related affirmative action cases for updates and bring them to you in a timely manner.

If you have any questions about the implications this case may have for your institution, please contact any attorney in Bond’s higher education practice or the attorney at the firm with whom you are in regular contact.

*Special thanks to Associate Trainee Camisha Parkins for her assistance in the preparation of this memo. Camisha is not yet admitted to practice law.

[1] John Doe v. New York University, 1:23CV10515-VSB-SN (S.D.N.Y. 2023).

We previously reported here that institutions of higher education (IHE) located in New York State are required to submit a copy of all written rules and procedures necessary to demonstrate compliance with Article 129-A and Article 129-B of the New York State Education Law to the New York State Education Department (NYSED or Department) for review. As promised, NYSED has provided more detailed information on how to submit these materials. All materials must be submitted by July 1, 2024.

Read More >> New Submission Details for Articles 129-A and 129-B Decennial Reporting

In the midst of antiwar protests and a rise in antisemitic incidents at institutions of higher education (IHE) across the country, the Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) on May 7, 2024 reiterating its commitment to enforcing Title VI of the Civil Rights Act of 1964.

Read More >> Navigating Compliance with OCR’s New Guidance on Title VI

After an extensive period of public commentary and deliberation, the U.S. Department of Education (ED) announced significant updates to its Title IX regulations on April 18, 2023. The changes are largely designed to overhaul how institutions of higher education (IHE) consider and address cases of sexual harassment, sexual assault, LGBTQI+ discrimination, and other forms of sex-based mistreatment, with the goal of ensuring gender equity in education.

Read More >> Here We Go: ED Releases Reworked Title IX Regulations

In a decision affecting the ever-shifting legal and regulatory dynamics of Borrower Defense to Repayment (BDR) claims, the Fifth Circuit postponed the effective date of a Biden administration plan to expand student debt relief to more borrowers who claim they were misled by institutions of higher education (IHE).

Read More >> The Fifth Circuit Extends Injunction of the Biden Administration’s Borrower Defense to Repayment Rules

The U.S. Department of Education’s recent Financial Value Transparency and Gainful Employment (FVT/GE) rules reflect an attempt to focus the federal regulatory apparatus on financial accountability and transparency. Slated for implementation on July 1, 2024, these regulations aim to enhance the informational paradigm available to students and their families regarding the financial aspects and potential outcomes of educational programs. This initiative, announced on October 10, 2023, signifies a comprehensive effort to enhance decision-making processes and protect the financial interests of both students and the U.S. fisc that underwrites the student financial aid system.

Read More >> Financial Value Transparency and Gainful Employment Regulations: What We Know Now

By July 1, 2024, New York’s colleges and universities must submit a copy of all written rules and procedures necessary to demonstrate compliance with Article 129-A and Article 129-B of the New York State Education Law.

Read More >> Article 129-A and 129-B Full Compliance Reporting Deadline: DUE July 1, 2024

Only about .007% of athletes who complete in NCAA sports are transgender. However, this group has attracted an outsized amount of social, media, regulatory and now litigant, attention. Under National Collegiate Athletic Association (NCAA) rules dating to January 2022, transgender female athletes may compete in women’s events if the national governing body for the specific sport allows transgender athletes to compete.

Read More >> Past and Present College Athletes Sue NCAA Over Transgender Participation Rules

The Second Circuit Court of Appeals released a new decision in the NYLAG v. Cardona et al. case that may have implications for the everchanging legal and regulatory environment of Borrower Defense to Repayment (BDR) claims. Here are the key takeaways from this latest ruling:

Read More >> Second Circuit Litigation Threatens to Further Confuse Regulatory Standards Applied to Borrower Defense Applications

The U.S. Department of Education (ED) released a statement on Nov. 8, 2023, saying that the scores of borrower defense to repayment (BDR) application notifications that institutions of higher education (IHE) have received in recent months are part of its response to the Sweet v. Cardona litigation. This statement confirms much of our prior understanding regarding the causes of recent BDR activity by ED, but also provides some additional insights.

Read More >> ED Statement Clarifies Cause of Recent Borrower Defense Activity