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legal Battle over Affirmative Action at Northwestern University

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.

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.

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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.

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.

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.”

Challenging Discriminatory Hiring Practices

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.

Potential Implications of the Lawsuit

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.

legal Experts Weigh In

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.

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.

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