Equal Protection for Me But Not for Thee

Marina Ziemnick

CounterCurrent: Week of 9/18

“White and Asian men need not apply.”

If you’ve spent any time on the academic job market lately, you know that this statement might as well have been plastered at the top of most faculty job postings for the last decade. Inspired by the Supreme Court’s limited authorization of racial preferences in college admissions, colleges and universities across the country have long prioritized the applications of minority applicants in a not-so-subtle attempt to achieve racial balance in their student bodies, faculty, and staff.

Over the past two years, some university administrators have begun to say the quiet part out loud, swapping their quiet emphasis on “diversity skills” for blatant declarations that particular positions are reserved for applicants from “underrepresented groups”—in other words, non-white, non-Asian applicants.

There’s only one problem: discrimination on the basis of race or sex in hiring decisions is flat-out illegal. Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972 prohibit all forms of race and sex discrimination, respectively, at federally-funded universities. Contrary to popular belief, these laws don’t just protect underrepresented minorities—they protect all Americans, regardless of their race, sex, or membership in a “preferred” identity group.

Why, then, do universities continue to engage in such blatant malfeasance? Because they assume that no one will take on the burden of challenging them in court for fear of facing the campus cancel culture mobs. Even if one of the victims of an administrator’s overt discrimination were to accept both the social and the financial risk of fighting back, the universities assume (usually rightly) that no authority will actually intervene to enforce the law.

As attorney Louis K. Bonham explains in an article for Minding the Campus,

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 the tide may be changing. The Supreme Court stands poised to overturn the use of racial preferences in college admissions—and now, thanks to the bold actions of National Association of Scholars affiliate head and University of Texas finance professor Richard Lowery, the system of hiring discrimination that undergirds American higher education may collapse as well.

On September 10, Lowery filed a lawsuit against the Texas A&M University System for its blatant disregard of Title VI and Title IX. The lawsuit references a program initiated in July 2022 by Texas A&M’s “Office for Diversity” that offers bonuses for faculty hires from “underrepresented minority groups,” which it defined as “African Americans, Hispanic/Latino Americans, Native Americans, Alaskan Natives, and Native Hawaiians.” The initiative also reserves certain faculty positions for these non-white, non-Asian applicants—including one in the Department of Finance, which Professor Lowery would be eligible to apply for if not for his skin color.

Lowery’s lawsuit will serve as a test case. Will U.S. courts enforce existing anti-discrimination law—or will they eschew equality under the law in favor of a Kendian anti-racism agenda? Bonham spoke to several legal experts who agree that Lowery’s case is strong. If he wins in court, it will likely be the first in a flood of lawsuits challenging universities’ illegal use of racial preferences.

Whatever the outcome, the case will be one to watch.

Until next week.

CounterCurrent is the National Association of Scholars’ weekly newsletter, written by Communications Associate Marina Ziemnick. To subscribe, update your email preferences here.

Image: Wikimedia Commons, Public Domain

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