A court case against DEI and discriminatory hiring

February 13, 2023 • 9:15 am

Although I’ve always said I’m in favor of some affirmative action in college admissions and hiring (but haven’t figured out exactly it should be implemented), I’ve never been in favor of mandatory DEI (“Diversity, Equity, and Inclusion”) statements as required parts applications for admission to colleges, graduate schools, or especially academic jobs.

It should not be part of a job application to show how you can engage in social engineering. Further, DEI statements constitute compelled speech, similar to the loyalty oaths that California academics used to take, and thus is unconstitutional.

These mandatory statements also change the purpose of a university—normally to teach, to learn, to learn to think, and to do research—into a form of social activism that must adhere to specific tenets of DEI. The statements are judged on how closely they adhere to a school’s construal of Critical Race Theory, and are often read and rated before one’s academic credentials are assessed. If you don’t meet the right “rubric” for your statement, your application can be trashed.  Woe unto the applicant who says they “will treat all students equally” or “will adhere to Dr. King’s view that people should be judged by the content of their character [in this case, their academic achievement] and not the color of their skin”. Such candidates are considered unenlightened, and accrue the lowest ratings.

And if you don’t have a philosophy of DEI, a history of past DEI efforts, and a plan about how you can implement DEI in your university, then you stand little chance of getting a job. (There are usually three aspects to a DEI statement.)

Now not all schools require such statements. The University of Chicago, for instance, explicitly forbids them as per our Shils Report (full document here), which mandates that the criteria for academic appointments and promotion must comprise only research, teaching and training (grad students), contributions to the intellectual community, and service (this includes service to the University and your academic field, like giving seminars, editing academic journals, and so on.) The U of C has mandated that DEI statements are not included in this, and it’s forbidden for academic departments to require them for hiring and promoting faculty. I know of no other school that has such a prohibition, although there may be some.

In contrast, many schools not only require DEI statements, which can be and are used in race-based hiring—an attempt to secure equity among faculty—but even designate certain jobs only for candidates of certain ethnicities. Like DEI statements, hiring on the basis of ethnicity is against the law. But as the article below notes, schools know about this illegality but flout it anyway, because nobody ever penalizes them for doing so.  Lawsuits against such discrimination are nonexistent for three reasons:

a.) They’re bloody expensive.

b.) You have to have “standing” to sue: to prove that discriminatory hiring based on race injured you.  It’s hard to prove that.

c.) As the article below notes, if you sue a school because you were not hired or not considered because, say, you were Asian or white, you become academically radioactive: no liberal school (i.e. nearly all schools) will want to hire such a notorious person.

This is not a conservative point of view but a liberal one, as it is anti-discrimination and anti-compelled speech. The push to get rid of DEI statements is supported by all academic freedom organizations I can think of, including the Foundation for Individual Rights and Expression (FIRE). FIRE notes that while the Constitutional prohibition applies only at public schools and colleges, it should apply more widely than that. As they say:

The First Amendment prohibits public universities from compelling faculty to assent to specific ideological views or to embed those views in academic activities. While private universities are not bound by the First Amendment, they generally make commitments to free speech and academic freedom that similarly preclude enforcement of any political, moral, or ideological dogma. Such colleges and universities educate and employ the overwhelming majority of America’s students and faculty members, and this document is intended to address DEI policies at those institutions.

But one person—Richard Lowery, an associate professor of business and finance at the University of Texas—has filed such a lawsuit against Texas A&M University.  In his case, the “injury” consisted of the fact that (although he apparently has no interest in a job at Texas A&M, which isn’t as good as UT in his field), Lowery wouldn’t even be considered for a job because it was advertised as being open only to members of underrepresented minorities. Texas A&M is a public school, and thus violated the law by advertising a job open only to candidates of certain ethnic backgrounds.

Lowery’s gambit is a clever way to get standing, and apparently it’s worked so far (it also allowed other people to join in on a class action suit). Several law faculty at other schools are quoted as saying this is a pretty solid suit with a good chance of winning.

Click below to read:

Here’s the basis of the case as described above (remember, as a state school, Texas A&M must adhere to the First Amendment):

. . . the law may finally be coming for the overt employment discrimination practiced on most campuses today. The form of the destructor may be a test case filed on September 10: Lowery v. Texas A&M University System.

As described in the complaint:

8. The Texas A&M University System, along with nearly every university in the United States, discriminates on account of race and sex when hiring its faculty, by giving discriminatory preferences to female or non-Asian minorities at the expense of white and Asian men. This practice, popularly known as “affirmative action,” has led universities to hire and promote inferior faculty candidates over individuals with better scholarship, better credentials, and better teaching ability.

9. These race and sex preferences are patently illegal under Title VI and Title IX, which prohibit all forms of race and sex discrimination at universities that receive federal funds. But university administrators think they can flout these federal statutes with impunity because no one ever sues them over their discriminatory faculty-hiring practices and the Department of Education looks the other way.

10. These discriminatory, illegal, and anti-meritocratic practices have been egged on by woke ideologues who populate the so-called diversity, equity, and inclusion offices at public and private universities throughout the United States. The existence of these offices is subverting meritocracy and encouraging wholesale violations of civil-rights laws throughout our nation’s university system.

Specifically, the complaint avers that in July 2022, Texas A&M’s “office for diversity” announced a program for hiring professors that was limited to members of “underrepresented groups,” which it defined as “African Americans, Hispanic/Latino Americans, Native Americans, Alaskan Natives, and Native Hawaiians.” In other words, like many DEI initiatives that pervade most university campuses today, white and Asian men need not apply for this program. Texas A&M justified the program with the goal of establishing a faculty whose racial composition attains “parity with that of the State of Texas”—despite the fact that even Grutter recognized that such racial balancing was “patently unconstitutional.”

Part of Texas A&M’s efforts to achieve such racial balancing has also been to establish faculty hiring lines open only to members of “underrepresented groups.” One such hiring line was in the Department of Finance, where the head of the recruiting committee confirmed in writing that the position was indeed “reserved” for non-white, non-Asian candidates.

Richard Lowery is a finance professor at the University of Texas and is a vocal critic of DEI programs. (Disclosure: I know Rich and have written about him in the past, but I am not involved in his case and did not know of it until after it was filed.) There should be no serious question that he would be qualified for a teaching position in the finance department at Texas A&M; indeed, his qualifications easily exceed those of many current Texas A&M finance professors. Yet despite being “able and ready” to apply for the position, Texas A&M’s “reserving” the position for non-white, non-Asian candidates means that he is ineligible for it.

Lowery’s lawsuit sues Texas A&M and various officials for violations of Title VI and Title IX, seeking declaratory and injunctive relief prohibiting the university from discriminating on the basis of race and sex in hiring decisions. It also seeks redress for violations of 42 U.S.C. § 1981(a), which guarantees individuals the same right to make and enforce contracts without regard to race, and for violation of the Equal Protection clause of the Fourteenth Amendment.

The lawsuit also has another twist: it seeks certification as a class action, for the benefit of all white and Asian candidates who have been discriminated against by Texas A&M’s DEI employment initiatives.

Lowery is of course an opponent of DEI initiatives; why else would he put himself through the trouble of this lawsuit?

Given that the job was limited only to certain ethnic groups, it seems palpably unconstitutional, and I suspect Lowery’s suit will win—unless he is found not to have standing. But, to be sure, any Asian and white person who could have or would have applied for the job could in principle claim injury. Whether that’s upheld or dismissed solely on the grounds of standing, it’s only a matter of time before some brave soul brings a lawsuit on civil rights grounds and does have standing; and that person will win. That will bring the whole DEI-statement mishigas crashing down, and that’s to the good.

The article quotes three law professors who say Lowery’s case is strong. They may be conservatives (I don’t know), but they’re also at good schools: UC Berkeley, Cornell, and UC San Diego. I’ll give two of the statements, one from someone on the US Commission on Civil rights.

How does the case shape up legally? Asked for comment, University of California, Berkeley law professor John Yoo says:

This seems like a strong case. The Supreme Court’s diversity rationale for the use of race in university admissions for students is a limited exception to the general rule that the Constitution prohibits government from using skin color in its decisions and policies. Here, Texas A&M is flatly using race in considering the hiring and compensation of faculty. It is flatly unconstitutional and the university should lose in court.

. . . University of San Diego law professor Gail Heriot, who is also a commissioner on the United States Commission on Civil Rights, observes:

For a long time, faculty members and aspiring faculty members who have been discriminated against have been reluctant to sue—mainly out of fear that they will be ostracized. As a result, college and universities have gotten bolder and bolder in the ways they flout the law. But the tide appears to be turning. There will likely be more lawsuits of this type in the near future.”

I’m sure there will be. It’s only a matter of time.

21 thoughts on “A court case against DEI and discriminatory hiring

  1. It is not possible to make a rational argument for compelled speech or any kind of loyalty oath within the academic system, yet there are far too few with the courage to address this issue. The current cultural hegemony of “wokeness” and the excessively bloated and extremely costly collegiate DEI bureaucracy supporting it render difficult indeed the overcoming of this very troubling trend.

    1. “Too few with the courage to address this issue.” The problem is not courage. The most important expression of this problem in my university work is that the major scientific grant agencies in Canada absolutely require DEI statements in grant proposals, including promises to increase diversity among trainees, and demonstrations of past contributions to inclusive practices and equitable representation. If one wants to get grant money to support graduate students (pay them an income, fund their research, send them to do field work and go to conferences), one must comply. Failing to comply means getting a zero in the DEI part of the grant review score, and this is fatal. I and others know this from bitter experience.It’s not courageous to lose your grant and tell your current grad students they can’t be paid an income any longer (or tell prospective grad students to go elsewhere). Because the grant agencies have been fully captured, most of us feel we have no choice but to go along to get along. I don’t know what others would do.

      1. I am glad I got out of the research side of academia before this stuff happened. The courage needed to reverse this would be some sort of strike against your granting agencies. But that would require lasting and broad commitment with no promise that it would work.

      2. When applying for the grant could you simply point to the UofT’s DEI statement? You, personally, are not applying for the grant, you are doing it on behalf of the students, department and university.

        1. Well I’m not at the UofT but yes my university has such pablum on their website as well. Unfortunately, no it doesn’t work that way on the ground. At the grant review stage it’s considered *my* grant and the DEI compliance is my responsibility. At the handing-over-and-spending-money stage, yes it’s the university’s grant and they might let me spend the money.

      3. Mike — I don’t envy your position, and I don’t fully know how I would respond in similar circumstances if I bore the burden of a decision. I do wonder, however, about whether the issue is just one of lacking power. (It surely might be at the individual level.) If the funding agencies in Canada were to demand that all grant proposals must show how the grantees would entrench the power of the white, native-born population, or how they would increase the representation of underrepresented religious groups in academia (to include Christian and fundamentalist), then I somehow doubt that those in academia would simply shrug or fret and say “we have no choice but to go along”. But perhaps there wouldn’t be any mass resistance. Almost nothing would surprise me today. Do you sense that even behind closed doors the support to overturn DEI excess is lacking?

        Extreme examples, for sure. But I never thought we would see job postings in the States that read, essentially, “whites and Asians need not apply”.

        1. Thanks Doug. It’s shocking to me too. Yes I think that support to overturn DEI excess is lacking but hard to say how weak that support is – it’s unsafe to ask, except of those one knows well. The solution is to attack the grant agencies. This requires political power and a different federal Minister of Innovation, Science & Industry. Our current Liberal government is just to the left of Jacinda Ardern 🙁

  2. I value the detail of these DEI in academia posts. It would be useful to know how the principles learned from them relate to employment elsewhere – Google, McDonalds, my local gas station – to see how DEI works in different scenarios. I am not criticizing our host, but perhaps making a plea for readers, if they know similarly good writers to check out.

  3. In Canada this approach to rectifying past discrimination with new discrimination has been scaled up and nationalized. We call it the Scarborough Charter. Coming soon to a STEM department near you.


    Of course Canada doesn’t have hundreds of highly qualified black PhDs to hire into those jobs. As has been noted here, this will mean lowering standards or hiring those faculty members from elsewhere. American universities are one obvious source (so heads up y’all). African universities are another (and that would be pretty ironic – improving Canadian diversity by raiding the intellectual pantry of Africa).

  4. I hope that Lowery’s suit gains traction. It’s good that his attorneys are seeking certification for a class action. (I mentioned in one of my comments that a class action suit might be warranted.)

    It’s an interesting case. Remember the cases relating to creationism in the public schools? The creationists tried to call creationism “creation science” in order to get around the establishment clause. It took some time, but the Supreme Court in 1982 struck down the creation science laws because the *purpose* of those laws was clearly to enable the teaching of biblical creation in the public schools. This was an illegal purpose. Lowery’s DEI case is analogous. The *purpose* of the DEI statements is to violate Title XI and Title IX under the rubric of achieving diversity. Once this case goes to court, I hope and expect that the judge will rule that the DEI statements have an illegal *purpose* and will be deemed unconstitutional.

    1. The irony may have been mentioned before, but the Supremes could rule in favor of breaking current laws a little when it comes to teaching Creationism in public schools, while likely being quite protective of the laws when it comes to discriminatory hiring practices.

    2. … the Supreme Court in 1982 struck down the creation science laws …

      FWIW, Norman, the SCOTUS case you allude to — Edwards v. Aguillard — was decided in 1987. The Louisiana law the Court struck down as unconstitutional — the “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction” statute — was enacted in 1982. It took five years for the case to wend its way to final decision by the Supremes.

  5. Finally! — and good luck to Richard Lowery and his case. However, I’m not sure if, or how, any judgment in this case could read across to the problem of DEI statements and compelled speech. The Texas case seems to be based purely on the ethnic restriction on applicants, an entirely separate question from statements of belief required of those applicants.

    1. I think one quite easy way to extrapolate from the explicit ethnic/racial restriction in the Lowery case to the broader issue of DEI statements is to keep it in the Equal Protection/Civil Rights Act grounding, as the DEI statements of “underrepresented minorities” tend to be read much more favorably, because the mere fact that you are URM is diversity/equity/inclusion itself. As in “I will improve diversity by being a black female disabled scholar” vs. “Coming from a privileged background as a middle-class white male, I have so much to learn and will dedicate my entire scholarship to diversity and social justice.”

      The free speech angle is sadly much more difficult, because universities, even public ones, are permitted to have mission statements and to require writings on how you will align with the university’s mission(s).

      1. I’ve always thought the strongest constitutional grounds for challenge to using DEI statements as a job application filter is Article VI: “…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”. Courts, especially the SC, have been repeatedly willing to construe this as applying not just to religious tests but to all matters of belief and conscience. The University of California recruitment system, it seems to me, is applying a religious test of applicants just as much as Oxford and Cambridge universities were until the 19th century when undergraduates were required to assent to the 39 Articles of the Church of England (which, incidentally, is an example Madison and the other constitution-writers would have been familiar with and had in mind when writing Article VI, and also in Amendment I).

  6. So what if he wins? The school (just as with NFL teams and black coaches) will “interview” an inclusive list of candidates and then hire whomever they please. It will just waste the time of sham interviewees and others.

  7. DIE (Diversity, Inclusion, Equity) statements aren’t “like” loyalty oaths from the 1950s when there was a concern that Communists were hiding under every bed, they ARE loyalty oaths now that there is a concern that there are nazis hiding under every bed. If this case is won, the best outcome would be a ban on DIE statements which would solve the problem since the only criteria for choosing candidate which can be interrogated will be based on suitability for the job. Ideally, just as in double blind trials of new medicines, those deciding on whom to hire should be blind to the ethnicity, gender, and politics of the candidates.

  8. I’ll read this in full later, but any cheer we have that the DEI cult will decline must be weighed against the power of Money in pushing a billion dollar enterprise which feels itself (and sells itself) as having the moral high ground, with thousands of DEI officers whose careers depend on it. Professional witchfinders WILL find witches.
    Keep up the good and appreciated work in cataloguing all this, PCC(E), your efforts are amplified by the frequent tweets of your articles by many widely respected public intellectuals.
    Sane voices from the left are more helpful than the likes of Fox News or Jordan Peterson.

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