The Supreme Court is considering the overall legality or not of affirmative action in higher education, in cases against Harvard and UNC.
In connection with those cases, Texas lawyer Jonathan Mitchell, who was the author of the Texas abortion law that survived Supreme Court scrutiny pre-Dobbs, submitted an Amicus Brief on behalf of America First Legal Foundation* arguing that the Supreme Court did not need to consider the constitutionality of affirmative action, because racial discrimination is prohibited also by statute:
The language of Title VI makes no allowance for racial considerations in university admissions. It prohibits all forms of racial discrimination at universities that accept federal funds, with no exceptions for “compelling interests,” “diversity,” or “strict scrutiny.” Harvard is indisputably violating this statutory command by using racial considerations in its undergraduate admissions. And the Court must enforce the statute as written and demand that Harvard stop using racial preferences or forgo federal funds.It is not necessary for this Court to resolve the more difficult questions surrounding the constitutionality of affirmative action under the Equal Protection Clause….
Mitchell and America First Legal have now filed a class action lawsuit today in the Northern District of Texas based upon just such a statutory argument, in the case of Steward v. Texas Tech, et al., challenging affirmative action at medical schools in Texas. From the Complaint:
33. Each of the defendant medical schools and universities, along with nearly every medical school and university in the United States,1 discriminates on account of race and sex when admitting students by giving discriminatory preferences to females and non-Asian minorities, and by discriminating against whites, Asians, and men. This practice, popularly known as “affirmative action,” allows applicants with inferior academic credentials to obtain admission at the expense of rejected candidates with betteracademic credentials.34. These race and sex preferences are illegal under the clear and unambiguous text of Title VI and Title IX, which prohibit all forms of race and sex discrimination at medical schools and universities that receive federal funds and make no exception for diversity-based affirmative-action programs.35. They also violate 42 U.S.C. § 1981, which prohibits racial discrimination in contracting and makes no exception for diversity-based affirmative-action programs…48. The data demonstrate that each of the defendant medical schools is providing admissions preferences to female, black, and Hispanic applicants while unlawfully discriminating against whites, Asians, and men in admissions decisions.49. In addition to these data, the John Sealy School of Medicine at the University of Texas Medical Branch at Galveston openly admits that it gives admissions preferences to black and Hispanic applicants….60. Each of the defendants is violating Title VI and Title IX by discriminating in favor of female, black, and Hispanic applicants for admission and against whites, Asians, and men.61. Each of the six medical schools to which Mr. Stewart intends to apply is a “program or activity” that “receives Federal financial assistance” within the meaning of Title VI and Title IX.62. Mr. Stewart therefore seeks declaratory and injunctive relief that prohibits the defendants from considering or discriminating on account of race and sex in any way in student admissions, and that compels the defendants to select applicants for admission in a color-blind and sex-neutral manner.
The Complaint does include an Equal Protection claim as well, but the case is not dependent on it:
78. As public institutions, the six medical schools to which Mr. Stewart intends to apply are subject to the commands of the Equal Protection Clause, which prohibits state universities or their components from denying to any person the equal protection of the laws….81. Even if the medical schools’ affirmative-action programs were consistent with Grutter and Fisher, they would remain illegal under the text of Title VI, Title IX, and 42 U.S.C. § 1981, which categorically prohibit race and sex discrimination with no caveats or allowances for “compelling interests, “student body diversity,” or anything else.
Don’t underestimate Mitchell.
MORE TO FOLLOW
America First Legal issued the following statement:
Today, the America First Legal Foundation’s (AFL) Center for Legal Equality filed a class-action lawsuit against six Texas medical schools for illegally using race and sex preferences in their admissions – a practice that violates Title VI, Title IX, and the Equal Protection Clause of the Fourteenth Amendment. Whites, Asians, and males bear the brunt of this egregious policy granting applicants with lesser academic credentials medical school admission over academically more qualified candidates on the basis of race and sex.AFL’s client, a white male, applied unsuccessfully for admission to six medical schools in Texas in the 2021-2022 cycle. He then filed an open records request and obtained the race, sex, grade-point average, and MCAT score data for every applicant. The data revealed:
- The median and mean grade-point averages and MCAT scores of admitted black and Hispanic students are significantly lower than the grade-point averages and MCAT scores of admitted white and Asian students;
- Admitted female students have lower MCAT scores than admitted male students.
For too long, universities and medical schools across America have been co-opted by woke ideologues pushing the divisive “equity” agenda while never facing lawsuits for their illegal conduct and never facing repercussions from the U.S. Department of Education, which has turned a blind eye. Yet all American citizens are harmed when medical schools illegally discriminate based on race, national origin, and sex – our nation’s future doctors should be chosen on merit, not on immutable characteristics. Racial discrimination is illegal and immoral. America First Legal is proud to lead the charge in the fight to protect every American citizen from unlawful discrimination.
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*Note: Mitchell and America First Legal represented me in my lawsuit against the NY State Health Commissioner.
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