What can colleges learn from the affirmative action against Texas A&M?

When Texas A&M University announced a new faculty recruitment program in July, officials said it would help “bring the structural makeup of our faculty toward parity with that of the state of Texas.” It’s a goal promoted by diversity programs across the country. But it did lead to a racial discrimination lawsuit against Texas A&M.

Legal experts said Chronicle that while the lawsuit against Texas A&M is unlikely to succeed, the university’s use of the word “parity” to describe its affirmative action program is likely what landed it in legal trouble.

Richard Lowery, an associate professor of finance at the McCombs School of Business at the University of Texas at Austin, filed a lawsuit on Sept. 10 against the university, its board and several administrators, accusing the faculty hiring program of discriminating against whites and whites. Asian Men and Title VI for violating Title IX and the Equal Protection Clause of the 14th Amendment.

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

ACES Plus is aimed at “new mid- and senior-tenure hiring from underrepresented minority groups” and provides $2 million to match new hires’ base salaries and benefits over the next two fiscal years.

In a July letter to deans, University Vice President and Vice Provost for Diversity Annie S. McGowan and Vice President for Faculty Affairs NK Anand mention that the National Institutes of Health defines “underrepresented minority groups” as African Americans, Hispanic/Latino Americans, Native Americans, Alaska Natives, Native Hawaiians and other Pacific Islanders. residents.

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

Texas A&M hires—and expels—professors based solely on the physical appearance of their skin.

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

In a press release, Miller said that “Texas A&M hires and excludes professors based solely on the appearance of their skin or their family ancestry. This is despicable and outrageous. We must draw out the poison of bigotry through the leadership of Texas A&M and restore civil rights and equality for all.”

“There are many programs across the country that are very similar to this program that are equally illegal and brutal. And we hope to challenge them over time,” Hamilton said. He is not seeking monetary damages for his client. “Instead, we are asking the court to recognize , that Texas A&M University’s recruiting practices are illegal, and would issue an injunction prohibiting Texas A&M from engaging in such recruiting,” Hamilton said. Chronicle.

He’s also asking for a judicial monitor to be appointed to oversee all Texas A&M decisions related to faculty hiring, promotion and compensation, as well as the decisions of the university’s diversity office, “to ensure that decisions do not involve racial or gender discrimination of any kind,” Hamilton said.

In the statement that ChronicleLaylan Copelin, a Texas A&M spokeswoman, said: “It is an unusual job application for Mr. Lowery to say in the lawsuit that he is able and willing to apply for a faculty position at Texas A&M. But our attorneys will review the lawsuit, consult with Texas A&M, and take appropriate action.”

The lawsuit 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 WB Richards, a graduate attorney at the law firm Saul Ewing Arnstein & Lehr, said that “groups that are ideologically opposed to diversity efforts and are well-funded have stepped up litigation against universities in recent years. The most prominent examples are the admissions lawsuits against Harvard and UNC, but such less high-profile cases have become increasingly common.

Joseph A. Seiner, a law professor at the University of South Carolina School of Law, said the legal status of Lowery, who did not apply for a job at A&M, is one of the biggest obstacles in the case. “He didn’t actually run, but there are arguments on both sides,” Seiner said. “They can argue that if you put up a sign that says ‘Irish need not apply’ do you have to apply to then sue?”

Seiner also said many public universities operate under affirmative action policies that take a holistic approach to recruiting.

“There cannot be a quota-based system. It would be against the law,” said Seiner. “But you can show that you’ve discriminated in the past and you’re putting policies in place that try to remedy that past discrimination. It must be limited in time and still give everyone the opportunity to apply.

Texas A&M’s affirmative action policy applies to racial and ethnic minorities, women, veterans, and people with disabilities. The Texas State Labor Code states that “an employer shall not engage in unlawful employment by developing and implementing personnel policies that include workforce diversity programs.”

Liliana Zaragoza, an associate professor of law at the University of Minnesota-Twin Cities, said Texas A&M’s use of the word “parity” is interpreted as a quota in the lawsuit. “Working towards parity is not the same as a percentage or a quota,” he said. Many institutions have that goal, he said. “Quotas are illegal. But comprehensive reviews have been legal for over 40 years.

He also said that just because the letter to deans included a definition of underrepresented races and ethnicities doesn’t mean the program won’t accept applications from all applicants or conduct comprehensive reviews.

“Institutions should continue to focus on seeing healthy people and build on what underrepresented people bring in terms of experience. They should focus on people, not numbers,” he said.

Working towards parity is not the same as a percentage or quota.

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

“Where we are in today’s society, it’s better if they’re not written into policy, even if the goal is to hire or hire underrepresented minorities,” said Thompson Dorsey, who also has a law degree. He advises institutions to seek candidates whose qualities, teaching, and research serve the university’s values, which may include serving underrepresented minorities.

“Affirmative action was founded on past discrimination issues in employment and education. People of color did not have access to the same educational and employment opportunities as white people simply because of their race,” Thompson Dorsey said. “Progress has been made since the passage of the Civil Rights Act, but racism still exists.” What Texas A&M is doing makes perfect sense. They acknowledge it, acknowledge it, and try to do something about it.

Texas A&M is a Hispanic-serving institution, a federal designation available to not-for-profit colleges. According to Zaragoza and Thompson Dorsey, there’s nothing wrong with a university looking for qualified faculty who look like students.

According to the National Center for Education Statistics, 74 percent of US college faculty are white.

Regardless of how universities formulate policies and programs designed to increase diversity, vocal critics of such programs, such as Lowery and Hamilton, continue to stand up for what they believe is right.

This isn’t the first time Lowery has spoken out against diversity efforts. In August, he wrote an op-ed criticizing the University of Texas at Austin for requiring a diversity statement as part of job applications. This month, in a tweet that has since been deleted, he criticized his employer’s proposal to add land appreciation to class syllabi. Instead, Lowery shared his version of the land affidavit, which read: “I fully accept the legitimacy and sovereignty of the government of the State of Texas over all lands between the Rio Grande and the north bank of the Red River, including all levees and crossings.”

Now it’s up to the Southern District of Texas to decide whether Lowery’s discrimination case has standing.

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