By Tamara Shamir
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On my last night as a student at Harvard Law School, I got an email from a classmate announcing that a group of students and faculty were suing the Harvard Law Review journal for discrimination against white men. The email claimed that the law school’s prestigious student-run journal—whose alumni include Barack and Michelle Obama, as well as several Supreme Court justices—was violating federal law “by awarding discriminatory preferences to women, non-Asian racial minorities, and homosexual or transgender students.” The email, which had been forwarded to almost the entire student body by a classmate with a brief note (“this went to my spam folder, but it seems important, so I’m forwarding it”), was signed by FASORP: Faculty, Alumni, and Students Opposed to Racial Preferences. It was not clear if the student was himself a member of FASORP.
At the time the email was sent—a little after 10:30 p.m. on the night of Friday, April 25—most of the Harvard Law School class of 2025 was on the rooftop of a local burrito joint and bar, celebrating the end of classes. Minutes later, the student forwarded a second message from FASORP so startlingly vicious that the rooftop party stilled, and students clustered over phone screens. The email provided “advice” to first-year law students hoping to be selected as members of the Law Review, a process which requires a weeklong writing competition and a personal statement. To buff up the personal statement, FASORP counseled, a Harvard Law Review hopeful could claim “African-American” heritage based on the origination of all homo sapiens in Africa; “take a DNA test and claim racial-minority status” like Elizabeth Warren; transition gender—just “shave your legs” or “cut your hair short”; or invent experiences “as a closeted homosexual” while “complain[ing] about homophobia.”
The somewhat intoxicated crowd debated whether the email was genuine or a practical joke parodying white male entitlement—although in the context of President Donald Trump’s sustained attacks on Harvard, including funding cuts inspired by allegations of “race discrimination” and aggressive efforts to expel international students, it didn’t seem particularly funny. The responses trickled in. Several people remarked on the sender’s choice to forward the class mocking emails rather than attending the end-of-year celebration. Others invited him to come to the rooftop and hash it out. One incisive answer from third-year law student Jason Chukwuma—delivered several hours later, at around 3:30 a.m.—called the email “an act of cruelty: against your own peers, against the histories that brought us here, against the very truth we are called to serve as future lawyers and leaders.”
“You treated the profound reality of being Black, of being queer, of being trans, as mere technicalities to be gamed, as if they were costumes someone could slip on for advantage rather than realities that have cost people their lives, their safety, their dignity, and their futures,” Chukwuma, who opines regularly on race and politics, wrote.
Harvard Law Review’s beloved dean of students, Stephen Ball, who was present at the rooftop, assured students in an email that the litigation is “not legitimate” and apologized for the “disturbance.” He apologized that “you, our students, were not permitted to celebrate the last day of classes free from further difficulties.”
But FASORP has already shown that the threat is far from idle. Harvard Law Review is poised to become the next victim of FASORP’s campaign to putatively root out anti-white-man discrimination, but it’s not the first. Indeed, the group sued the Harvard Law Review journal in 2018, alleging, in a complaint far milder and more succinct than its recent suits, that the Harvard Law Review’s affirmative action program injures both rejected white applicants and applicants selected based on affirmative action, whose success is “tainted.”
Seven years later, the group has returned with sharper tools and a crueler edge, armed with a transformed legal and cultural landscape. In March, FASORP sent a similar email to law students at the University of Michigan; on June 18, the group sued the school’s law review. Back in February, the group also filed suit against Northwestern University and Northwestern University Law Review.
Through these lawsuits, FASORP established a dangerous legal strategy: using equality doctrine and civil rights law as a vessel in which to present the alleged shortcomings of specific students and scholars of color while contrasting them with the accomplishments of rejected white men.
In the claim against Northwestern, FASORP claimed that the anonymous plaintiffs in the suit faced academic rejection—from both Northwestern’s faculty and Northwestern’s Law Review—in favor of “mediocre” candidates with “preferred” racial and gender identities. The 80-page complaint offers a barrage of accusations and personal attacks against existing Black faculty members, including the unsubstantiated claim that a Black female professor was “groomed” by colleagues (without distinguishing the alleged misconduct from the mentorship integral to academia) and rigged Northwestern’s blind grading system while she was a student. For around 20 pages, it reproduces and derides scholarship produced by Black female faculty at the school.
FASORP’s argument is simple but fraught: that the “boosts” given to marginalized groups and especially to Black women violate Title VI and Title VII of the 1964 Civil Rights Act and section 1981 of the 1866 Civil Rights Act—the seminal legislation of the Reconstruction and the Civil Rights Movement of the late 20th century. It claims that the “unambiguous textual mandates” of these laws is “colorblind and sex-neutral” selection of faculty, law review editors, and law review articles. That interpretation of civil rights law has recently gained favor with the conservative majority of the Supreme Court, but it is far from a natural interpretation of either the texts or the histories of these statutes.
Title VI and Title VII were both part of the Civil Rights Act of 1964, signed by Lyndon Johnson to dismantle Jim Crow laws throughout the United States. Title VI mandated that federal funds were withheld from hospitals, schools, and other critical institutions that still excluded Black Americans or other racial minorities; Title VII prohibited discrimination in employment decisions and created the Equal Employment Opportunity Commission to enforce its anti-discrimination protections. Section 1981 of the 1866 Civil Rights Act was passed with the explicit purpose of eliminating the legal impediments that had systematically barred newly freed Black men during Reconstruction from exercising fundamental rights—such as entering into contracts, acquiring property, and receiving equal protection of the laws. The statute’s text in and of itself resists the fiction of racial neutrality: the section guarantees “all persons …the same right … to make and enforce contracts … as is enjoyed by white citizens.” (Italics mine.) The work of the law is clear: It’s not neutralizing race, it’s undoing white supremacy. Despite the statute’s explicit aim at racial subjugation, FASORP characterizes section 1981 in its lawsuit as “guarantee[ing] individuals the same right to make and enforce contracts without regard to race.”
FASORP isn’t blazing a trail by stripping equality doctrine of its anti-racism roots. It’s building on an ahistorical equality doctrine recently sanctioned by the Supreme Court itself. In Students for Fair Admissions v. Harvard, the Supreme Court held in June 2023 that the affirmative action admissions programs at Harvard violated the equal protection clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. The court stated that diversity no longer provided a compelling interest to justify considering race in admission. The work of undoing slavery and centuries of racial exclusion and systemic inequality had to end at some point, the Supreme Court explained, and the time had come to call it. As Justice Clarence Thomas announced in his concurrence, the Constitution—which only half a century earlier was a tool for scrutinizing and eradicating segregation—could no longer see race. The Constitution would now be “colorblind.”
In declaring a Constitution blind to race, the court erased the historical origins of the 14th Amendment, which was never intended as a neutral or colorblind mandate. The amendment, passed only a year after the 13th Amendment abolished slavery, was part of a broader “color-conscious” effort by Reconstruction-era lawmakers to dismantle the steep racial hierarchy and racial violence entrenched by slavery. The Supreme Court’s denial of the history and the original meaning of the 14th Amendment was made all the more ironic by the court’s loud embrace of history in other contexts—most infamously, perhaps, in its new conceptualization of substantive due process rights, and the constitutional protections for deeply personal decisions about family and bodily autonomy. The right to abortion was struck down in Dobbs, for example, because it was not part of the “history and tradition” of the country.
This uneven invocation of history gives the court license to carry out exactly what originalism purports to eradicate: the constitutionalization of ideology. The conservative majority’s cherry-picking of “history and tradition” allows it to invoke tradition to undermine progress it dislikes—like reproductive justice, gun control, or voting rights—while discarding the histories that don’t align with its ideology, like our nation’s fraught and noble tradition of fighting against the legacy of slavery and racial exclusion.
Two years ago, in Students for Fair Admissions v. Harvard, a different group of aggrieved students and conservative legal strategists successfully ended affirmative action in Harvard’s admissions program using an ahistorical approach to equality doctrine. Now, FASORP is trying to expand that victory by using this new colorblind reading of the Constitution to attack the diversity efforts of Harvard’s flagship journal. Its lawsuits show a new and dangerous endpoint to the project of tearing equality doctrine away from the histories that formed it. FASORP’s supposed legal complaints provide a forum with which to baselessly assert the superiority of white male candidates while launching sweeping, often personal attacks on Black female scholars—juxtaposing their alleged deficiencies with reverent depictions of white men. In this way, FASORP transforms the foundational anti-racism legislation of the Civil Rights Movement and the Reconstruction eras into tools with which to harass minority faculty and students.
It seems inevitable that FASORP will bring its dangerous form of racial harassment to the battered doors of Harvard Law School. Putting aside the tangled normative arguments around affirmative action programs, courts cannot permit civil rights law as a vehicle of racial harassment under the guise of “injuries” to white men. Even a colorblind reading of the Constitution, which shows no particular solicitude to the victims of racism, should not be used to empower its perpetrators.