Lawsuit: Northwestern’s law school is biased against White men in hiring

The case comes amid a wide-ranging conservative pushback against efforts to ensure that American institutions of all sorts reflect the racial and ethnic makeup of the country. (Getty Images)

A lawsuit filed Tuesday against Northwestern University opened a new front in the battle against affirmative action, alleging that its law school hires less-qualified people of color and women over White men for faculty positions in violation of federal anti-discrimination laws.

The complaint, brought by a group called Faculty, Alumni and Students Opposed to Racial Preferences, targets Northwestern’s law school. But the allegations amount to a sweeping criticism of American universities, alleging that they care more about diversity than merit or compliance with federal law.

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The case, filed by conservative legal activists, is an effort to secure a ruling that will force a change in what they say are widespread discriminatory practices.

“For decades, left-wing faculty and administrators have been thumbing their noses at federal anti-discrimination statutes,” contends the suit, which was filed Tuesday in federal district court in Illinois. “They do this by hiring women and racial minorities with mediocre and undistinguished records over white men who have better credentials, better scholarship, and better teaching ability.”

Jonathan Mitchell, a prominent lawyer behind the suit, promised to challenge similar practices at other universities and invited those with “incriminating evidence” to contact him.

Northwestern University spokesman Jon Yates said the university would “vigorously defend” itself, though he declined to respond to the specific charges.

“Northwestern Pritzker School of Law is among the top law schools in the country, and we are proud of their outstanding faculty,” Yates said in a statement.

During the 2022-23 school year, Northwestern’s law school had 135 full-time faculty members, including 23 people of color and 64 women, according to a report from the American Bar Association.

Former law school dean Daniel Rodriguez, one of the defendants named in the lawsuit, declined to comment. Others named in the suit did not immediately reply to requests for comment.

Among the complaint’s allegations, it claims that faculty members at Northwestern’s law school openly lobbied or even pressured their colleagues to select or reject certain candidates based on race and gender. The suit includes a hiring chart that shows that of 21 job offers made in the last three years, three went to White men.

The suit names three White men it says were not hired despite strong qualifications, and names four Black women and one Black man who it alleges were offered faculty positions because of their race and/or gender, painting several of these academics in harshly unflattering terms.

Most of those named did not respond to requests for comment, but Paul Gowder, one of the Black law professors mentioned in the lawsuit as an example of someone who benefited from racial preferences, strongly pushed back against the allegations.

“This is absolute racist garbage,” he said in an interview, making clear that he was speaking for himself and not the law school or the university. “My record speaks for itself. I would gleefully put it up against the records of any of the people who were supposedly passed over.”

None of the professors mentioned in the complaint were aware of the lawsuit ahead of time or had any role in providing information, Mitchell said.

That includes Eugene Volokh, a prominent scholar now at the Hoover Institution at Stanford, who the suit alleges was denied an interview at Northwestern because he is a White man. In an email, Volokh said he did speak with some people at Northwestern about the possibility of joining the faculty but “nothing ended up coming of it.”

“But that ends up happening often in such situations, for a wide range of reasons, and I don’t know exactly what the actual reasons here were,” he added. “It will be interesting to see what, if anything, this lawsuit uncovers. But on that, I’ll be a spectator just like everyone else.”

The case comes amid a wide-ranging conservative pushback against efforts to ensure that American institutions of all sorts reflect the racial and ethnic makeup of the country. Liberal advocates contend that generations of discrimination have given unfair advantages to White men, and the murder of George Floyd in 2020 brought urgency to efforts to right past wrongs. But others argue that such efforts have gone too far and are harmful and unfair, challenging them with legislation and lawsuits.

Tuesday’s lawsuit was filed on the 60th anniversary of President Lyndon B. Johnson’s signing of the landmark 1964 Civil Rights Act, which prohibits discrimination on the basis of race, color, religion, sex or national origin. Mitchell said the timing was a coincidence.

The new suit follows the Supreme Court decisions a year ago to invalidate race-conscious admissions at Harvard University and the University of North Carolina at Chapel Hill, rulings that upended decades of work by elite schools to mitigate historic discrimination and create more-diverse student bodies. These decisions were centered on the admissions process and did not directly address consideration of race in hiring, but many scholars said at the time that the court had opened the door to a challenge like the one filed Tuesday.

The court’s decisions also prompted colleges across the country to scrutinize ways that race is used as a factor in admissions and other arenas. And it set off a legal onslaught challenging programs intended to diversify public and private institutions, including lawsuits against companies alleging discrimination against White people.

The lawsuit names Northwestern as well as the dean of its law school, a former dean, two other law professors and two editors of the Northwestern University Law Review as defendants. It claims that the school’s law review uses illegal race and sex preferences in selecting its members, editors and articles, rather than choosing based on merit.

It asks the court to order changes in the school’s policies and practices and for a court monitor to oversee faculty hiring, promotion and compensation; law review decisions; and the university’s diversity offices.

The group also sent letters to more than 100 universities on Tuesday, warning them that the plaintiff group intends to sue other schools that deploy “these illegal, discriminatory practices,” and advising anyone currently or formerly affiliated with the university to retain records and communications related to faculty hiring issues and law review decisions.

“We’re just getting started,” said Mitchell, the plaintiff attorney, who has argued multiple cases before the Supreme Court, clerked for the late Justice Antonin Scalia and successfully represented former president Donald Trump in a case to allow him to remain on the ballot in Colorado this year. He also notched a significant victory last month when the high court struck down a ban on bump stocks for semiautomatic weapons.

Some legal experts questioned the case’s prospects. Noah Feldman, a law professor at Harvard University, noted that there is already a legal remedy for allegations of discrimination in hiring - Title VII of the Civil Rights Act, which bars employment discrimination based on race. This case was brought instead under the law that bars universities from racial discrimination generally.

He also questioned whether the plaintiffs will be able to show that they have the right to sue.

“You need to show concrete injury in order to have standing under the Constitution, and I have trouble seeing how they intend to demonstrate that injury,” he said.

While it’s never been lawful for a university to hire less-qualified candidates simply because of their race or gender, Feldman said, universities have been able to take race into consideration.

“It would have been lawful to say X and Y are both strong candidates and we are trying to create diversity in our community, so the diversity this particular faculty member brings in our educational community is something that matters to us,” he said.

Many universities value diversity among their faculty members and work to achieve that goal lawfully, said Peter McDonough, vice president and general counsel at the American Council on Education, which represents colleges and universities. Legal techniques, he said, include casting more widely for applicants.

“The objective of having diverse faculty is perfectly appropriate and many institutions will see it as hugely important,” he said. “So how do you get there? That becomes the challenge.”

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