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A federal judge has dismissed a lawsuit brought against Texas A&M University claiming a faculty fellowship program at the flagship in College Station discriminated against white and Asian male candidates.
U.S. District Judge Charles Eskridge has stated in a decision released on Friday that the lawsuit filed by Richard Lowery, a white finance professor at the University of Texas at Austin, is no longer valid due to the passing of Senate Bill 17. This bill prohibits public universities in Texas from taking race or other factors into account when hiring, making Lowery’s claim irrelevant.
The judge stated that due to significant changes in the relevant law, more factual investigation is necessary before determining whether any injunctive relief is suitable for judicial review. The judge also mentioned that a challenge to these practices will only be appropriate, if at all, once SB 17 is implemented. Therefore, the current legal action is considered premature in this regard.
According to the lawsuit, Lowery has chosen not to submit an application for a position at Texas A&M because he believes his application will not be evaluated fairly. He has expressed confidence in his qualifications for a job at the university. However, the judge determined that Lowery cannot assume there is ongoing discrimination if he has not actually applied for a position.
Eskridge wrote that if not for this provision, it would be possible for any person claiming discrimination to file a lawsuit against a potential employer without even having applied for a job, solely based on the accusation that the employer’s discriminatory practices discouraged them from applying.
America First Legal, a group founded by Stephen Miller, a policy adviser to former President Donald Trump, and Jonathan Mitchell, the legal mastermind behind Texas’ six-week abortion ban, represents Lowery.
On Friday, both Lowery and Mitchell remained unresponsive to a comment request. While the Texas A&M System issued a press release to disclose the court’s decision, a representative from the system clarified that they had no comment specifically regarding the ruling.
In 2022, Lowery initiated a lawsuit against the Texas A&M University System, its board of regents, and certain administrators at the Texas A&M flagship. The lawsuit was filed in response to the introduction of a fellowship program known as the Accountability, Climate, Equity and Scholarship Faculty Fellows Program in the summer of 2022. Lowery alleged that this program violated Title VI and Title IX of the federal Civil Rights Act, along with the equal protection clause of the 14th Amendment.
The ACES program primarily aims to recruit fresh doctoral graduates who aspire to pursue careers in academia. On the other hand, the ACES Plus Program specifically targets mid-career and senior tenure-track professionals from underrepresented minority backgrounds. This program is designed to promote diversity within the faculty and align it with the demographic makeup of the State of Texas. To support this initiative, a budget of $2 million has been allocated for the next two fiscal years. The funds will be utilized to supplement a fellow’s salary and benefits, with a cap of $100,000.
In July 2022, Texas A&M University introduced a new fellowship program, wherein the university recognized African Americans, Hispanic and Latino Americans, Native Americans, Alaskan Natives, and Native Hawaiians as underrepresented groups.
In addition to Lowery’s lawsuit, Texas A&M was accused of reserving faculty positions exclusively for racial groups that are considered “underrepresented”. This claim is supported by an email sent in August 2022 by an unidentified business professor to Shane A. Johnson, the head of the recruiting committee for the finance department.
The professor’s email included in the lawsuit stated, “I was informed by someone that one of our lines is specifically allocated for an ‘underrepresented minority.’ Can you confirm if this information is accurate?” Johnson responded later that day, clarifying, “The underrepresented line could potentially be a third position, meaning it is reserved but not counted as one of our ‘regular’ positions.”
In the beginning of this year, Lowery decided to drop the claim against the system and instead filed a revised complaint solely targeting the university, its former president, and other administrators. Subsequently, in February, the university submitted another motion seeking to dismiss the case.
In May, the U.S. Supreme Court made a ruling declaring race-conscious admissions in public universities as unlawful. Concurrently, state legislators passed a law prohibiting diversity, equity, and inclusion offices in public universities. Additionally, the law prohibits universities from providing preferential treatment to job candidates based on their race, sex, color, ethnicity, or national origin.
In June, Eskridge asked both Texas A&M and Lowery to provide additional arguments explaining why the case should proceed considering the recent legal developments.
The university of Texas A&M has contended that SB 17 necessitates altering existing hiring practices that grant unlawful preferences to various groups. They have provided a memo from the school’s ethics and compliance officer as evidence that the university has already initiated compliance with the law.
According to a spokesperson from Texas A&M, the ACES program will be gradually discontinued after the academic year 2024-2025, while the ACES Plus Program is currently on hold.
Despite Lowery’s submission of additional evidence, including online announcements made by the interim president at Texas A&M regarding the implementation of SB 17, the judge concluded that these additional submissions failed to alter the fact that the case is now considered moot.
The judge emphasized that Lowery has ample opportunity to take additional action if he perceives Texas A&M’s hiring practices as unconstitutional. It should be clear that this ruling does not prevent any future legal action based on new circumstances.
America First Legal also represents a student who filed a lawsuit against six Texas medical schools, claiming the schools illegally considered race and sex during the admissions process. That lawsuit is ongoing.
Disclosure: Texas A&M University, Texas A&M University System and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
