On Oct. 30, the Fifth Circuit upheld a district court’s dismissal of a class action filed by University of Texas professor Richard Lowery. In the lawsuit, Lowery alleged Texas A&M and its officers, “egged on by woke ideologues,” engaged in pervasive hiring discrimination against white and Asian men. More particularly, Lowery claimed that A&M, “along with nearly every university in the United States, discriminates on account of race and sex when hiring its faculty [by] giving discriminatory preferences to females and non-Asian” minorities. Both the district court and the court of appeals held Lowery — who never actually applied for a position at A&M — lacked standing to bring the case.
For some time, the intersection of race, universities and the law has been a hot-button topic. Just last year, the U.S. Supreme Court issued a landmark decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College. There, the nation’s high court held the use of race as a decisive factor in admissions violated the equal protection clause. Thereafter, the Texas legislature passed legislation that, among other things, banned public universities from forming or maintaining diversity, equity and inclusion offices and prohibited racial preferences in hiring. Accordingly, Lowery’s case implicated issues at the forefront of the American social, political and legal consciousness.
Practically speaking, the decision has implications and reminders for employers in the education sector and beyond.
Lowery’s Allegations
Filed in September 2022, Lowery’s lawsuit contained salacious allegations destined to garner headlines. Lowery, an associate professor of finance at the University of Texas at Austin, alleged that Texas A&M violated both federal antidiscrimination law and the U.S. Constitution by giving hiring preference to women and non-Asian minorities “at the expense of white and Asian men.” Lowery claimed the practice has led universities to “hire and promote inferior faculty candidates” over more credentialed employees and applicants.
Lowery’s complaint also lambasted “woke ideologues” who, he claimed, “populate the so-called diversity, equity, and inclusion offices at public and private universities throughout the United States.” Lowery further alleged that universities’ diversity offices were “subverting meritocracy and encouraging wholesale violations of civil-rights laws” throughout the university system.
In addition to A&M itself, Lowery’s lawsuit named university president Katherine Banks and three other officers as defendants. Lowery claimed Banks was an “enthusiastic proponent of illegal race and sex preferences in faculty hiring” and ordered “subordinates comply with her discriminatory and unlawful hiring tactics.” More specifically, Lowery claimed that in 2021, Banks told a meeting of A&M engineering faculty that any “new tenure-track hires … must be underrepresented minorities”. Lowery claimed Banks echoed this hiring instruction throughout her tenure.
Lowery also cited a July 8, 2022, memo from A&M’s office for diversity to all deans. The memo detailed A&M’s decision to allocate funds for to attract “new mid-career and senior tenure-track hires from underrepresented minority groups” in an effort to move the “structural composition” of university faculty “towards parity” with Texas demographics. The funding program was referred to internally as “ACES Plus.”
The lawsuit also referenced an Aug. 26, 2022, internal email between A&M faculty members. In the email, faculty discussed a hiring line that “was to be “reserved for an underrepresented minority.” Lowery claimed the email evidenced “pervasive race and sex preferences that infect every aspect of faculty hiring” at A&M.
Lowery brought the lawsuit as a class action, purportedly on behalf of himself and “all white and Asian men who stand able and ready to apply for faculty appointments at Texas A&M.” The phrase “able and ready” is of crucial importance to the disposition of the case. To be clear, Lowery never actually applied for a job at A&M. Rather, Lowery claimed he was “interested in applying” for a faculty appointment — particularly because A&M is “one of the few universities in the United States [that] might consider hiring an outspoken conservative.” But, Lowery claimed, A&M’s ongoing use of race and sex preferences prevented him from competing with other applicants.
Ultimately, Lowery’s inability or unwillingness to actually apply for a position at A&M proved fatal to his case.
The District Court Dismisses Lowery’s Suit
A&M moved to dismiss Lowery’s compliant, primarily on the basis he lacked standing. In its motion, A&M argued Lowery’s case existed in the “hypothetical realm.” In short, A&M asserted that — putting aside the validity of his allegations — Lowery was not a victim of any alleged discrimination and could not identify any actual victim of discrimination. Ultimately, A&M averred courts “can decide only concrete cases brought by injured parties.” The district court agreed with A&M.
In a September 2023 opinion, U.S. District Judge Charles Eskridge granted A&M’s motion to dismiss. When doing so, Judge Eskridge found that Lowery’s claims failed to satisfy basic standing, mootness and ripeness requirements required of a plaintiff in any such litigation. Judge Eskridge characterized Lowery’s alleged injury as “a lost opportunity to ‘compete with other applicants … on an equal basis.’” This, Judge Eskridge found, was nothing more than an abstract grievance — especially because Lowery never applied and “disavow[ed] any present intention to apply” to A&M. In short, merely alleging discrimination by a potential employer does not grant standing in an employment discrimination claim.
Judge Eskridge also noted the practical implications of granting someone in Lowery’s position standing to sue. Indeed, if Lowery had legal standing, courts would easily be overrun with speculative claims from people who have not even attempted to apply for opportunities they allege were unlawfully withheld.
In addition, Judge Eskridge held that a significant change in Texas law was fatal to Lowery’s claims. Texas Education Code Section 51.3525, which took effect in January, bans preferential treatment in university hiring “on the basis of race, sex, color, ethnicity, or national origin.” The new law — enacted after Lowery filed suit — rendered any alleged past, violative practices by A&M moot.
Judge Eskridge’s dismissed Lowery’s case without prejudice. When doing so, Judge Eskridge noted Lowery was free to bring a future action against A&M if the university engaged in unlawful conduct and, importantly, Lowery had standing to sue. Lowery appealed to the Fifth Circuit.
The Fifth Circuit Affirms
In a very brief opinion, a unanimous three-judge panel of the Fifth Circuit affirmed the district court’s ruling. Without discussing mootness or ripeness, the court reasoned that Lowery’s failure to apply doomed his case.
The Fifth Circuit was also perplexed by the fact that Lowery had applied for a position at the University of Florida but failed to do so at A&M. The University of Florida, the court noted, had similar ‘diversity’ programs and initiatives to those Lowery complained of at A&M. Lowery’s only explanation was that he expected UF to abolish any discriminatory practices because the state’s governor had “pushed for higher education reform.” The Fifth Circuit was unconvinced — noting that Texas had already passed legislation outlawing A&M’s alleged actions, while Florida had yet to enact a similar law. In other words, Lowery “expects A&M to violate an enacted law, but he expects UF to comply with a hypothetical law.”
Considerations for Employers
The case and its outcome hold lessons for employers in all sectors. It is imperative that employers review their hiring policies and initiatives to ensure compliance with federal and state law. To that end, employers should:
- Examine their hiring policies and practices to ensure compliance with state and federal antidiscrimination statutes.
- Ensure hiring policies and communications — whether internal or external — do not give rise to inferences of racial preferences or discrimination.
- Remain informed of evolving legislation and case law related to hiring practices.
- Understand how a forthcoming Trump administration might enact initiatives at federal agencies, such as the Equal Employment Opportunity Commission, to prioritize so-called ‘reverse discrimination’ cases or to scrutinize employment practices that could be interpreted as using racial preferences.