The Supreme Court slammed the door on diversity efforts in higher education admissions in the ironically captioned Students for Fair Admissions case last Term. While an assault on affirmative action and similar policies, the white folks bankrolling the cynical lawsuit wisely couched it in terms of protecting Asian-American students who — they argued — get crowded out because after elite schools let in other students of color and then a corps of mostly white legacy admissions, there aren’t enough slots left for students of Asian descent. It put a sympathetic face on the piecemeal effort to make it legal to discriminate against those same Asian-American students when they hit the job market, but hey it was a sympathetic plaintiff in context.
A new lawsuit against the Northwestern University School of Law eschewed this clever tactic and said the quiet part very much out loud:
They do this by hiring women and racial minorities with mediocre and undistinguished records over white men who have better credentials, better scholarship, and better teaching ability.
It should come as little surprise that this effort is quarterbacked by Jonathan Mitchell — the attorney behind the Texas vigilante abortion law authorizing randos to sue anyone suspected of having an abortion and who begged the Supreme Court to use Dobbs to strike down gay rights while they were at it — and America First Legal — non-lawyer and wokeness ambulance chaser Stephen Miller’s outfit who sues Pop-Tarts for making kids gay and recently lost a bid to make NYU Law Review take an anonymous white guy. Quite the braintrust.
The plaintiff is the Faculty, Alumni, and Students Opposed to Racial Preferences or “FASORP,” which describes itself as “a voluntary, unincorporated, non-profit membership organization.” Cool, so “not a real thing.” If that hasn’t set off your Civ Pro sense yet, consider the next admission, “FASORP has members who are ready and able to apply for entry-level and lateral faculty positions at Northwestern University’s law school.” As in, “they have no one who has, in fact, applied for any faculty positions.” Because discrimination suits get more difficult when there’s an actual plaintiff that the defendants can actually point to and say, “yeah, here’s why we didn’t hire this doofus.”
It’s curious that the FASORP — this is the best name they could come up with? — chose Northwestern as their first target. In its ABA filing, Northwestern notes that during the 2022-23 school year, the school had 135 full-time faculty members of which 23 were people of color and 64 were women. Overlapping demographics prevent us from declaring how many white dudes specifically are on the faculty, but we can confidently say that makes the faculty 83 percent white and 53 percent men. The country as a whole is only about 58 percent white so it’s pretty fucking rich to complain about an institution being statistically 26 percent tilted in the other direction.
If, as the complaint asserts, the school is in the midst of a 12 year campaign to hire non-white and non-male faculty, you’d think they’d be further along.
As a result of the mandate, Northwestern University School of Law refuses to even consider hiring white male faculty candidates with stellar credentials, while it eagerly hires candidates with mediocre and undistinguished records who check the proper diversity boxes.
Oh? Like who? Because, as the complaint has already pointed out, none of their members have ever actually applied. Well, FASORP has some examples of spurned white candidates but notes that none of them initiated this suit or have helped the plaintiffs in any way. Which seems like a problem, but the complaint continues undeterred.
First up is Eugene Volokh, who has gone on record to confirm that he is not working with the plaintiffs. According to the compaint, during the 2022-23 academic year, Volokh “contacted North- western Law School to express his interest in working there.” That doesn’t seem like an application, but whatever.
[Dean Dan] Rodriguez’s opposition to Professor Volokh had nothing to do with Volokh’s merit as a scholar or teacher. Rodriguez opposed Professor Volokh and blocked consideration of his candidacy because Professor Volokh is a white man, and Rodriguez wants to appoint women, racial minorities, homosexuals, or transgender people to the Northwestern faculty—even when they are far less capable and far less accomplished than a white male candidate such as Professor Volokh.
Nothing to do with his merit as a scholar or teacher? We don’t think the fact that he loves dropping the n-word in class might have something to do with a school souring on his “merit as a teacher”? Because UCLA may have to suck that up based on tenure, but why would any other law school want to invite that performative nonsense into its house?
Law schools don’t earn their reputation just by getting footnoted all the time.
The complaint cites Ernie Young of Duke, though without any indication that the professor had even an informal conversation with the school. Instead, the complaint says that “Many on Northwestern’s faculty wanted to hire Professor Young,” which is not the same as saying he’d tried to join the faculty.
Perhaps unintentionally, the complaint head-snappingly cites the school’s failure to hire Professor Ilan Wurman out of ASU with the hiring of Professor Jamelia Morgan “from a low-ranked school (UC-Irvine).” As an eagle-eyed observer pointed out, because of ties there’s only ONE school between ASU and UC-Irvine in the rankings. This is not to disparage Wurman’s candidacy, but to point out how wild it is to hold up that example ONE PARAGRAPH before calling UC-Irvine “low-ranked.”
FASORP cites three professors anonymously as aggrieved academics who are “ready and able to apply” to Northwestern. Each is identified as either tenured or tenure-track professors at “an ABA-accredited law school.” Not “T14 law school” or even “top 50 law school.” For a complaint predicated on nitpicking individual places in the U.S. News rankings, isn’t it a little suspect that the complaint’s animating academics are described only as “ABA-accredited law school” faculty? Methinks these candidates aren’t getting a job at Northwestern no matter what.
When the hiring data don’t work in their favor, the plaintiffs handwave:
The 2021–22 hiring cycle was unusual because two white men received of- fers to join the faculty. But the offer that Northwestern extended to Jacob Goldin was a sham. Goldin was already a tenured professor at Stanford Law School and had received a lateral offer from the University of Chicago.
Didn’t we just hear a lament about not extending an offer to a Duke professor? Duke outranks Northwestern by the same metrics.
The only other white man to even receive an offer from Northwestern in the last three hiring cycles was Kyle Rozema…. Rozema also co-authored a study claiming that race and sex preferences on student- run law reviews increase citations, which delighted the affirmative-action devotees and leftist ideologues on Northwestern’s faculty and enabled him to earn their support despite his status as a white man.
It’s this level of crackpottery that makes this lawsuit feel like a lot of Stephen Miller’s cases: a filing designed more to generate headlines than a final judgment. Maybe the attention delivers a potential plaintiff willing to go on the record and provide a better case. Maybe it just whips up donations.
In the meantime, the complaint besmirches Northwestern as a law school and, more importantly, its faculty.
You know… the faculty that successfully keeps that school “higher ranked” than all those ABA-accredited schools that the cowardly trio of anonymous “members” of FASORP.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
