A court case against DEI and discriminatory hiring

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.