Harvard Law School. Photo: Chitose Suzuki/AP.

Nonprofit organizations in a lawsuit against the fellows of Harvard College and the Harvard Law School Review received a lesson on civil action Friday, when U.S. District Judge Leo T. Sorokin of the District of Massachusetts dismissed their lawsuit challenging how race and gender are considered in student applications, faculty hiring and articles for publication.

The two plaintiffs—Faculty, Alumni and Students Opposed to Racial Preferences and the Coalition for Meritocracy at Universities—alleged that using race and gender-based affirmative-action policies when selecting students violates Titles VI and IX of the Education Amendments of 1972, which govern discrimination. The October 2018 lawsuit claimed those policies meant white men were pulling the short straws, as more consideration went to women and minorities.

But Sorokin found that the “sparse allegations” in the complaint weren’t enough to prove standing because the plaintiffs hadn’t established actual harm, or identified anyone in particular who’d been injured by the practice.

It’s been a bumpy ride for the plaintiffs, who in “astonishing” fashion, appeared not to have done their homework, the judge said.

“The plaintiffs have urged the court to apply a different standard, insisting that ‘conclusory pleading is entirely acceptable in federal court,’ … and citing Form 11 to the Federal Rules of Civil Procedure in support of the astonishing proposition that a one-sentence complaint identifying only the date and location a civil claim arose should survive a motion to dismiss,” the judge wrote in a footnote. “They zealously adhered to this view even after Harvard pointed out, on the very first page of its reply brief, that Form 11 was ‘eliminated years ago.’ … The plaintiffs ceased to champion Form 11 only after Harvard’s counsel reiterated during the motion hearing that the form had been abrogated, and the court offered plaintiffs’ counsel a current copy of the Federal Rule book.”

Counsel to the plaintiffs, Alexander K. Parachini and George W. Vien of Donnelly, Conroy & Gelhaar in Boston and Jonathan F. Mitchell of Mitchell Law in Austin, did not respond to a request for comment by deadline.

Defense counsel Felicia H. Ellsworth declined to comment. Ellsworth, of Wilmer Cutler Pickering Hale and Dorr in Boston, represented the president and fellows of Harvard College, with Seth P. Waxman and Paul R.Q. Wolfson.

The lawsuit included examples of faculty and scholars who’d had articles rejected, and some claimed they’d had their articles judged and edited “by less capable students.” But Sorokin said he needed more detail about the alleged injuries and how they violated federal law.

The Harvard Law Review accepts 48 students every year. Of those, 20 are selected based on their performance in a writing test, while 10 are picked based on both their writing test scores and their first-year grades.

The plaintiffs took issue with the remaining 18 people, who are chosen “through a holistic but anonymous review.” That includes looking at race, ethnic identity, physical disability, gender identity, sexual orientation and socioeconomic status, according to the ruling.

Sorokin also found that claims against U.S. Secretary of Education Betsy DeVos and the government couldn’t stand, unless evidence showed federal funding to the defendants.

But the lawsuit, dismissed without prejudice, isn’t dead yet.

Plaintiffs can file an amended complaint by Sept. 9, but based on Sorokin’s ruling, they would have to pack in a lot more information for their suit to survive.

“Their failure to supply even the slightest description of any member who might satisfy the prerequisites for Article III standing—including concrete and particularized, actual or imminent injury redressable by a favorable decision in this case—requires dismissal of the amended complaint in its entirety,” the ruling said.

Read the ruling:

Related stories:  Harvard Law Review Hits Back Against Discrimination Claims

Suits Against Harvard and NYU Law Reviews Claim Racial, Gender Preferences