What Colleges Can Learn From the Affirmative-Action Lawsuit Against Texas A&M


When Texas A&M University announced a new faculty hiring program in July, officials said it would help move “the structural composition of our faculty toward parity with that of the State of Texas.” It’s a goal touted by diversity programs across the country. But it landed Texas A&M a lawsuit over racial discrimination.

Legal experts told The Chronicle that, while the suit against Texas A&M is unlikely to succeed, the university’s use of the word “parity” to describe an affirmative-action program is most likely what got it into legal trouble.

Richard Lowery, an associate professor of finance at the McCombs School of Business at the University of Texas at Austin, filed the lawsuit against the university, its board, and several administrators, on September 10, accusing the faculty hiring program of discrimination against white and Asian men, and of violating Title VI, Title IX, and the equal-protection clause of the 14th Amendment.

The program, ACES Plus, is a new version of an existing project called Accountability, Climate, Equity, and Scholarship fellows program, or ACES, which focuses on hiring “early career scholars who embrace the belief that diversity is an indispensable component of academic excellence.” Previous cohorts of the ACES program have included both white and Asian fellows.

ACES Plus targets “new midcareer and senior tenure-track hires from underrepresented minority groups,” and sets aside $2 million to match new hires’ base salaries and benefits for the next two fiscal years.

In a letter to deans in July, Annie S. McGowan, the university’s vice president and associate provost for diversity, and N.K. Anand, the vice president for faculty affairs, mention that “underrepresented minority groups” is defined by the National Institutes of Health as African Americans, Hispanic/Latino Americans, Native Americans, Alaskan Natives, Native Hawaiians, and other Pacific Islanders.

ACES Plus has not been publicly announced, but the letter to deans somehow ended up in Lowery’s hands.

Texas A&M is hiring — and excluding — professors solely due to the physical appearance of their skin.

Lowery is represented by Gene P. Hamilton, who served as counselor in the U.S. attorney general’s office under former President Trump. He’s also part of America First Legal, a group that says its mission is to oppose “big tech titans, the fake news media, and liberal Washington politicians.” The nonprofit was founded by Stephen Miller, a former senior White House adviser to Trump.

In a press release, Miller said that “Texas A&M is hiring — and excluding — professors solely due to the physical appearance of their skin or the ancestry of their family tree. This is vile and outrageous. We must extract the poison of bigotry coursing deep through the leadership of Texas A&M and restore civil rights and equality for all.”

“There’s a lot of programs across the country that are very similar to this one that are equally unlawful and egregious. And we hope to challenge those over time,” Hamilton said. He is not seeking monetary damages for his client. “Instead, we’re seeking for the court to declare that the hiring practices employed by Texas A&M University are illegal, and to issue an injunction that prohibits Texas A&M from engaging in this kind of hiring practice,” Hamilton told The Chronicle.

He is also asking for the appointment of a court monitor to oversee all Texas A&M’s decisions related to faculty hiring, promotion, and compensation, as well as those of the university’s diversity office “to make sure that the decisions are free from race and sex discrimination of any kind,” Hamilton said.

In a statement to The Chronicle, Laylan Copelin, a Texas A&M spokesman, said, “Granted, it’s an unusual job application when Mr. Lowery says in the lawsuit he is ‘able and ready’ to apply for a faculty appointment at Texas A&M. But our lawyers will review the lawsuit, confer with Texas A&M, and take appropriate action as warranted.”

The suit comes as the U.S. Supreme Court prepares to hear two cases challenging the use of affirmative action in college admissions, one against Harvard College, and the other against the University of North Carolina at Chapel Hill.

Joshua W.B. Richards, a higher-education lawyer at the law firm Saul Ewing Arnstein & Lehr, said that “groups that are ideologically opposed to diversity efforts and well-funded have been stepping up litigation attacks against universities in recent years. The most prominent examples are the admissions lawsuits against Harvard and UNC, but less high-profile cases like this one have become increasingly common.”

Joseph A. Seiner, a law professor at the University of South Carolina School of Law, said that the legal standing of Lowery, who didn’t apply for a job at A&M, is one of the biggest hurdles for this case. “He did not actually apply, but there are arguments from both sides,” Seiner said. “They could argue that if you put up a sign that reads, ‘Irish need not apply,’ do you need to apply to then bring a case?”

Seiner also said that many public universities operate under affirmative-action policies with holistic approaches to hiring.

“You cannot have a quota-based system. That would be in violation of the law,” Seiner said. “However, you can show that in the past you have discriminated and you adopt a policy that tries to remedy that past discrimination. It has to be limited in time and still give everyone an opportunity to apply.”

Texas A&M’s affirmative-action policy applies to racial and ethnic minorities, women, veterans, and people with disabilities. The State of Texas’ labor code states that “an employer does not commit an unlawful employment practice by developing and implementing personnel policies that incorporate work-force diversity programs.”

Liliana Zaragoza, an associate clinical professor of law at the University of Minnesota-Twin Cities, said that Texas A&M’s use of the word “parity” is construed as a quota in the lawsuit. “Working ‘toward parity’ is not the same as a percentage or a quota,” she said. She said many institutions have this goal. “Quotas are unlawful. But holistic reviews have been lawful for over 40 years.”

She also said that just because the letter to deans included a definition of underrepresented races and ethnicities, that doesn’t mean the program will not accept applications from all candidates and conduct holistic reviews.

“Institutions should continue to focus on seeing whole people and relying on what underrepresented people bring in terms of experience. They should be focusing on people, not on numbers,” she said.

Working ‘toward parity’ is not the same as a percentage or a quota.

Dana N. Thompson Dorsey, an associate professor of educational leadership and policy studies at the University of South Florida, said the word “parity” is probably not the best to describe diversity programs. “Parity does sound like you’re looking for a specific percentage.”

“Where we are in today’s society, it’s best that these aren’t written in policy, even if the intention is to hire or admit underrepresented minorities,” said Thompson Dorsey, who also has a law degree. She advises institutions to seek candidates whose qualities, teaching, and research serve the values of the university, which can include serving underrepresented minorities.

“Affirmative action, when it was created, was based on issues of past discrimination that existed in employment and education. People of color didn’t have access to the same educational and employment opportunities as white people simply because of their race,” Thompson Dorsey said. “There have been advances since the Civil Rights Act passed, but racism still exists.” What Texas A&M is doing “makes perfect sense. They are admitting it, recognizing it, and trying to do something about it.”

Texas A&M is a Hispanic-serving institution, a federal designation available to nonprofit colleges. Zaragoza and Thompson Dorsey say there’s nothing wrong with the university seeking qualified faculty members who look like the student population.

According to the National Center for Education Statistics, 74 percent of college faculty members in the United States are white.

Regardless of how universities phrase policy and programs intended to increase diversity, vocal critics of such programs, such as Lowery and Hamilton, will continue to advocate for what they believe is right.

This is not the first time that Lowery has spoken out against diversity efforts. In August, he wrote an opinion piece criticizing the University of Texas at Austin for requiring a diversity statement as part of job applications. This month, in a tweet that was later deleted, he criticized his employer’s suggestion to add a land acknowledgment to class syllabi. Instead, Lowery shared his own version of a land acknowledgment, which read “I fully accept the legitimacy of the government of the State of Texas, and its sovereignty over all lands between the Rio Grande and the north bank of the Red River, along with all impoundments and crossings thereof.”

Now, it’s up to the southern district court in the state of Texas to decide whether Lowery’s discrimination case has legal standing.

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