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Lowery v. Texas A&M: The Beginning of the End of ‘Diversity, Equity, and Inclusion’ Discrimination?

Lowery v. Texas A&M: The Beginning of the End of ‘Diversity, Equity, and Inclusion’ Discrimination?

“But just as the law eventually destroyed the Mob’s garbage cartels in the Big Apple, the law may finally be coming for the overt employment discrimination practiced on most campuses today.”

Anyone with even the slightest knowledge of the state of the American academy today knows that employment discrimination runs rampant on campus. Not the old-fashioned kind where women, blacks, Jews, Catholics, Asians, gays, or communists were excluded from employment opportunities, but the modern Kendian variety, in which overt discrimination against white men (and, in many disciplines, Asian men as well) is embraced as official university policy and as a necessary part of being “antiracist.”

As Mark Perry has documented in hundreds of complaints he has filed with the Department of Education’s Office for Civil Rights, such “discrimination for the ‘right’ reasons” is as common on campuses today as empty Red Bull cans. Nor does anyone with any actual knowledge of employment law dispute that such overt and intentional sex and racial discrimination is patently illegal under federal law, and usually state law as well.

Why is this so? If such “no white / Asian guys need apply” practices are clearly illegal, how have they been allowed to not only stand but spread to all corners of campus?

Part of the reason is that under Grutter and Fisher II, the Supreme Court gave universities the benefit of the doubt when using racial and other demographic characteristics in admissions decisions. Rather than use race sparingly in admissions decisions, and in the narrow, surgical method the Supreme Court envisioned, universities instead have taken those decisions as a mandate to do whatever they want in not only admissions, but also employment and other areas.

Indeed, as I have noted before, university administrators often admit to overt discriminatory reasons for their DEI employment initiatives (e.g., the need to provide “role models”), despite the fact that the Supreme Court rejected such reasons as illegal decades ago. (Such abuse of the limited leeway the Supreme Court gave universities in admissions decisions is why many observers are predicting that the Supreme Court will end it in the upcoming term, when it decides cases challenging admissions practices at Harvard and the University of North Carolina.)

However, the main reason for the ubiquity of such practices is that only people who are, in fact, victims of such discriminatory practices have standing to sue to stop them. Leaving aside the serious economic challenges of litigating such a suit against a wealthy university, what would happen if you actually did so? E.g., “I exceed the posted qualifications for a tenure-track position at Enormous State University, but ESU’s official policy is that only BIPOC candidates are eligible for the position. As a white [or Asian] man I am ineligible for the position because of my race, and so I am suing ESU for racial discrimination in employment.”

In the woke monoculture that pervades most campuses today, being known as someone who took legal action to challenge a DEI initiative would render you radioactive and unemployable, not only at ESU but across most of the American academy. And even if you prevail in your lawsuit, you would thereafter be known as the guy who got an “antiracist” affirmative action employment program shut down. Given what the campus cancel culture mobs have done to people like Dorian Abbot who merely question the legality or morality of such programs, what do you think they will do to someone who actually succeeds in having them declared illegal? Ask Allan Bakke.

With universities perceiving no real risk of being sued, and with the Biden administration having about the same interest in neutrally enforcing federal discrimination law as it does in securing the southern border, university administrators know there is no serious risk to giving in to the demands of “antiracist” activists for official, overt discrimination against white and Asian men. That many state officials (including some red-state officials such as Texas Governor Greg Abbott) are too cowardly to do anything to resist the campus wokesters further compounds the problem. Like the days of Mob-controlled garbage collection in New York City, university administrators can say, “Yeah, what we’re doing is illegal. Whaddya gonna do about it?”

But just as the law eventually destroyed the Mob’s garbage cartels in the Big Apple, 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.

The lawsuit was filed in the Houston Division of the Southern District of Texas. As a result, any appeal of the case will go to the United States Court of Appeals for the Fifth Circuit, which, lately, has not been particularly enamored of the woke practices of Texas state universities. Fifth Circuit Judge James Ho has already raised serious questions regarding the legality of DEI initiatives. In short, it looks like a very well-planned test case. (Professor Lowery is being represented by counsel from the America First Legal Foundation, which has an excellent track record in these kinds of test cases.)

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.

Cornell University law professor and Legal Insurrection Foundation president William Jacobson agrees:

This is an important case that puts the legal test to what we all know happens throughout higher education, racial and sex discrimination in the name of Diversity, Equity, and Inclusion. Too many schools incorporate the discriminatory philosophy of “antiracism” huckster Ibram Kendi, that current discrimination is the remedy for past discrimination. Such a philosophy is illegal when put into hiring and promotion practices, and thanks to Prof. Lowery for having the courage to say so and to challenge this immoral regime 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.”

The case also sets up some interesting political angles. Like all state universities in Texas, Texas A&M will be defended in the case by the Texas Attorney General’s office. But Texas Attorney General Ken Paxton claims to be against CRT and the adoption of CRT principles as policies in public education. Will Paxton do the honest thing and simply tell Texas A&M to obey the law? Or is he, per the old Texas idiom, “all hat and no cattle” on this issue?

And what of Texas Governor Greg Abbott? While similarly purporting to be against CRT, he has a sorry record of doing nothing to address its spread in higher education. Despite appointing every member of the Texas A&M board of regents (just as he has appointed all of the University of Texas system regents), neither his regents nor Abbott have shown the slightest interest in reining in the wokeism that has overtaken state universities in Texas—even the “conservative bastion” that is Texas A&M. While I have little doubt that a real leader like Florida Governor DeSantis would be all over Texas A&M for this kind of illegal behavior, I have even less doubt that Governor Abbott and his minions will continue to simply look the other way.

If Professor Lowery’s lawsuit succeeds—and a Supreme Court decision this term nuking Grutter and Fisher IIwould give him a tremendous tailwind—it could well end Kendian discrimination in Texas higher education, or at least expose those involved to personal liability once the issue is “clearly settled” and thus free from qualified immunity. It could also be the model for similar challenges, or it may give some honest administrators the courage to stand up against blatantly illegal conduct. Watch Minding the Campus for further reporting on how the case progresses.

Update: In response to a request for comment, Laylan Copelin, vice chancellor of marketing and communications for the Texas A&M University System provided the following statement:

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.


Louis K. Bonham is an intellectual property litigator. He is a graduate of the University of Texas (BA ’83, JD ’86), was an Articles Editor on the Texas Law Review, and served as a law clerk to the Hon. Edith H. Jones of the US Court of Appeals for the Fifth Circuit.

This article originally ran at Minding the Campus and is cross-posted with permission.


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Let’s hope so. Sometimes ‘the beginning’ is very slow in its roll out. Speed is needed before society explodes.

    ConradCA in reply to Whitewall. | September 14, 2022 at 6:57 pm

    The progressive fascists are returning to their racist roots. They use to discriminate against blacks, now their doing it against white and Asian men. If you watch them everything is about race for them.

    This racism hurts blacks just as much as whites because people can reasonably assume that blacks were only hired because of affirmative action ie racism. Who would want an affirmative action doctor operating on them? Only a fool.

“or at least expose those involved to personal liability once the issue is “clearly settled” and thus free from qualified immunity. ”
That would be the surest way to stop this type of behavior by Univ. and other public employees. Currently they have no economic “skin” in the game. They are defended with tax dollars and any judgements are also paid by tax dollars.

Years ago, when I was on Univ. faculty, I was told I would be defended by the Univ. unless malice was involved, I violated policy/procedures or conduct was illegal. Having to pay attys. fees would give many of these Admins. and Deans a wake up.

The core issue is lack of oversight and incrementalism. The Gov appoints his/her cronies to the board. Those cronies are there mostly to have the prestige of serving and not to actually do very much. The boards generally allow the institutions to run themselves until a crisis develops that is unavoidable.

The University President is focused on fundraising not on rocking the boat or creating conflict but actively suppressing or ignoring potential internal conflict; it’s bad for fundraising. The admissions folks know this as do the dept chairs. They take advantage of the weak oversight. Over time one step becomes a hundred which becomes a thousand until we arrive at our current location.

It’s a simple problem to solve but the change would be so dramatic as to upset the apple cart. The outrage from academia would consist basically of ‘why should these philistines be allowed to tell us what or how to do anything’. The level of arrogance and detachment from real consequences by the academic left is vast.

Even a slight tug on the reins would result in astonishment on their part. Unless we are prepared to beat them like the proverbial rented mule they won’t reform. The question then is are we or more accurately is our political leadership prepared to do so? I fear not.

    Colonel Travis in reply to CommoChief. | September 13, 2022 at 10:55 am

    I think a lot of our country’s problems started the same way you described. A few people screwing everything up (on purpose) for the masses. Most everyone in charge of everything is OK with this.

    Louis K. Bonham in reply to CommoChief. | September 13, 2022 at 11:16 am

    At UT Austin, it’s far worse. A slight tug on the reins? The wokesters go nuts if you even offer another horse to take a different path.

    Recently, a group of concerned (and extremely wealthy) alumni proposed endowing a version of the Hoover Institute at UT, which would operate autonomously and focus on free market / free expression scholarship. Nothing would be taken from other departments — it would just offering alternative viewpoints on campus, set up to insulate the program from the campus bureaucracy.

    Of course, when the wokesters at UT found out about it, they went ape: how dare UT even think about offering such an “ideological” program, that would not be subject to DEI hiring rules supervised by the UT DEI commissars? UT President Hartzell promptly folded like a taco, lobotomized the program, and sidelined the academics behind it. And, as usual, Gov. Abbott went completely AWOL, despite being an initial supporter of the effort.

    Rich Lowery — the plaintiff in the instant test case — tells the sad story here:

    Litigation is thus probably the only way to force any sort of change at Texas public universities.

I would like to think the beginning of the end is at hand, but it seems to me that things like DEI and ESG are all picking up speed.

    Morning Sunshine in reply to ee76. | September 13, 2022 at 10:42 am

    what is this ESG? I have seen it referenced a few times in comments here, but a web search yields HEAPS of options.

      Dolce Far Niente in reply to Morning Sunshine. | September 13, 2022 at 11:50 am

      It means Environmental, Social and Governance practices. Its a way of scoring how a entity checks off the leftist boxes of green nonsense, racialism and acquiescence to American Marxism.

      It is VERY dangerous

      henrybowman in reply to Morning Sunshine. | September 13, 2022 at 4:46 pm

      It’s a “social credit score” for businesses. Measures how committed they are to keeping greenies and wokesters happy to the detriment of their own shareholders and customers.

    henrybowman in reply to ee76. | September 13, 2022 at 5:54 pm

    “I would like to think the beginning of the end is at hand, but it seems to me that things like DEI and ESG are all picking up speed.”

    History is funny that way. Often what looks like heightened vitality is actually a death convulsion. The Soviet Union’s space defense posturing got scarier and scarier and scarier, then they just collapsed. And you can’t distinguish between the two until they play out.

Could someone educate me on why a private university is receiving federal funding? I thought after the “mandatory” K-12 indoctrination, err I mean education, that for-profit higher education schools were businesses? It seems to me that the federal government, IE the “administrative state” has permeated so much of our societal fabric that one has to think how to buy new clothes to get rid of the rot.

    CommoChief in reply to Mt. Fuji. | September 13, 2022 at 11:56 am

    Can you narrow your question?

    Universities public and private all receive federal $; except Hillsdale who voluntarily forgo all of it. This $ comes in many forms. Just a few examples:
    1. Subsidized Student loans
    2. Pell grants
    3. GI Bill
    4. Research grants

    Taking the $ binds the University to the dictates of the Federal govt. IOW who pays the piper calls the tune. These Universities couldn’t survive in their current form without the Federal $. They won’t reform because they are addicted to the $.

    Valerie in reply to Mt. Fuji. | September 16, 2022 at 9:05 pm

    Texas A&M is not a private university. It is a Texas Land Grant College.

As long as the Court does not strike down race preferences completely and continue find any tenuous benefit to discrimination, no matter how narrow in scope, universities will find a loophole in that scope and continue discriminating.

As I have said many times on this blog and been attacked for it, Abbott is a coward, loser RINO

“And, as usual, Gov. Abbott went completely AWOL, despite being an initial supporter of the effort”.

“Will Paxton do the honest thing and simply tell Texas A&M to obey the law? Or is he, per the old Texas idiom, “all hat and no cattle” on this issue?”

It would be best to fight & lose then go to appeals and lose then go the Supreme Court and lose. Rolling over now in a settlement would not do the rest of the country any good. Destroying DIE discrimination would be a boon for all peoples.

    Louis K. Bonham in reply to MosesZD. | September 13, 2022 at 3:41 pm

    Or he could take a page from the Obama administration playbook on the Defense of Marriage Act and just take a dive. E.g., plaintiff moves for summary judgment. Defendant does not oppose or mounts only a token defense. SJ for plaintiff; res judicata and collateral estoppel effects apply.

    gonzotx in reply to MosesZD. | September 13, 2022 at 4:57 pm

    Yes. Paxton is all hat and no cattle!

    I did t think so but he is. He refuses to declare the illegals at Texas border as invaders because….

    Yes this is true

    “They aren’t wearing uniforms “

    I’m sorry, oh they are wearing uniforms sir, the uniforms of the illegals that they have always worn

“Affirmative Action,” was grossly unconstitutional from the moment it was invented. It is the core issue of the blatant discrimination being employed by the left to re-shape society to meet their dogma.

Remember ‘apartheid’? Treating people differently under the law based on race? How is this different?.

Diversity [dogma] (i.e. color judgment, class-based bigotry), Inequity, and Exclusion (DIE). That said, there is a not so fine line separating affirmative action and affirmative discrimination. #HateLovesAbortion

Case dismissed for lack of standing. Lowery never applied and thus was enever denied employment on account of the policy and has sufffered no redressable injur with a causal nexus to the policy. A fatal mistake on the Plaintiff’s part.

    Louis K. Bonham in reply to Juris Doctor. | September 13, 2022 at 3:37 pm

    Bzzzzz! Sorry, thanks for playing.

    Being “able and ready” to apply for the position is sufficient to establish standing. See Carney v. Adams, 208 L. Ed. 2d 305, 141 S. Ct. 493, 500 (2020); Gratz v. Bollinger, 539 U.S. 244, 262, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993).

    The law does not require a person to perform a useless act. The policy here makes any attempt by a white man to apply, useless.

“But just as the law eventually destroyed the Mob’s garbage cartels in the Big Apple, the law may finally be coming for the overt employment discrimination practiced on most campuses today.”

Yeah, only if the judicial system is unbiased, unbought, and on the side of actual constitutional principles.

How many judges did the NYC mob own?
The Woke Mob owns orders of magnitude more.

Where do we find men like this?

kudos to lowery–one of their own is taking them to court–and a white, qualified guy at that–good for him–and at a&m of all places–regardless of what the politicians do or don’t do, believe he’ll take them all the way–wish him every bit of luck and success

when he prevails, the consequences will reverberate nation-wide

good luck to you sir and thank you

Why is it that nobody ever mentions age when talking about discrimination?
It happens all the time. Even if your resume doesn’t indicate how old you are, once you show up for an interview, it’s all over. And employers and employment agencies make sure they know how old you are by checking your drivers license. This has been going on for decades.

Aggie alumni should have a whole lot to say about this suit. I would love to hear what that might be.

    Valerie in reply to Valerie. | September 16, 2022 at 9:15 pm

    PS. See this? “Richard Lowery is a finance professor at the University of Texas” A professor from UT is suing A&M for discrimination. I would think this would muddy the waters, as far as the Aggie alumni are concerned.