By Kate McGee, The Texas Tribune
“Federal judge throws out hiring discrimination lawsuit against Texas A&M” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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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.
In a decision published Friday, U.S. District Judge Charles Eskridge said that the passage of Senate Bill 17 — which bans public universities in Texas from considering race or other characteristics beyond merit in hiring — renders the lawsuit brought by Richard Lowery, a white finance professor at the University of Texas at Austin, moot and no longer ripe for a claim.
“In light of substantial change in applicable law, further factual development is plainly required before the scope of injunctive relief —if any — would be fit for judicial review,” the judge wrote. “A challenge to those practices will only be appropriate, if ever, after SB 17 actually takes effect. To that extent, this action is unripe.”
Lowery has not applied to a position at Texas A&M and, according to the lawsuit, “refuses to do so until his application will be considered on what he perceives to be an equal basis.” He said he believed he could be a strong candidate if he were to apply for a job with the university; however, the judge ruled that Lowery cannot assume ongoing discrimination exists if he is not a candidate for a position.
“Otherwise, any putative plaintiff could sue a potential employer without ever applying, simply upon allegation the posited discriminatory practices deterred application,” Eskridge wrote.
Lowery is represented by America First Legal — a group created by Stephen Miller, a policy adviser for former President Donald Trump, and Jonathan Mitchell, a former solicitor general for Texas and the legal architect of the state’s six-week abortion ban.
Neither Lowery nor Mitchell responded to a request for comment Friday. The Texas A&M System sent a press release announcing the court’s decision, but a system spokesperson said the system did not have a comment on the ruling itself.
Lowery filed the lawsuit in 2022 against the Texas A&M University System and its board of regents, as well as some specific administrators at the Texas A&M flagship. In that suit, he claimed that a new fellowship program announced in the summer of 2022 called the Accountability, Climate, Equity and Scholarship Faculty Fellows Program, violates Title VI and Title IX of the federal Civil Rights Act as well as the 14th Amendment’s equal protection clause.
While the ACES program focuses on hiring recently graduated doctoral students who want to enter academia, the separate ACES Plus Program focuses on “mid-career and senior tenure-track hires from underrepresented minority groups, that contribute to moving the structural composition of our faculty towards parity with that of the State of Texas.” It sets aside $2 million over the next two fiscal years to help match a fellow’s base salary and benefits, up to a maximum of $100,000.
According to Texas A&M’s announcement of the new fellowship program in July 2022, the university identified underrepresented groups as African Americans, Hispanic and Latino Americans, Native Americans, Alaskan Natives and Native Hawaiians.
Lowery’s lawsuit also accused Texas A&M of setting aside faculty positions specifically for “underrepresented” racial groups. It points to an August 2022 email sent by an unnamed business professor to the head of the recruiting committee for the department of finance, Shane A. Johnson.
“I heard from someone that one of our lines is reserved for an ‘underrepresented minority.’ Is that correct?” the professor’s email read, according to a copy included as an exhibit in the lawsuit. Johnson replied later that day, “The underrepresented line would potentially be a third position, so yes reserved, but not one of our ‘regular’ positions.”
Earlier this year, Lowery dismissed the claim against the system and filed an amended complaint just against the university, its former president and other administrators. In February, the university filed another motion to dismiss.
Then, in May, the U.S. Supreme Court held that race-conscious admissions at public universities were illegal. Around that time, state lawmakers also passed a law that bans diversity, equity and inclusion offices at public universities and prohibits a university from giving preferential treatment to job candidates based on race, sex color, ethnicity or national origin.
In June, Eskridge requested both Texas A&M and Lowery submit supplemental arguments as to why the case should move forward given the legal developments.
Texas A&M argued that SB 17 already requires the university to change any hiring practices that provide now-unlawful preferences to different groups of people and submitted a memo from the university’s ethics and compliance officer indicating the school has begun to comply with the law.
A Texas A&M spokesperson told The Texas Tribune that the ACES program will be phased out after the 2024-25 academic year and the ACES Plus Program is currently on pause.
Lowery submitted additional evidence to try and prove his claims, including online announcements made by the interim president at Texas A&M regarding the implementation of SB 17. But the judge said these additional submissions did not change the fact that the case is now moot.
“There is certainly time and place enough for Lowery to bring further action if Texas A&M continues what he believes to be unconstitutional hiring practices,” the judge stated. “And nothing here should be construed to preclude later action on future facts.”
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.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/09/29/texas-am-discrimination-lawsuit-dismissed/.
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