The lawsuit, brought by conservative legal activists, is an effort to win a ruling that will force change to widespread discriminatory practices.
“For decades, left-wing faculty and administrators have ignored federal anti-discrimination laws,” alleges the lawsuit, filed Tuesday in U.S. District Court in Illinois. “They do this by hiring women and racial minorities with mediocre and unremarkable records over white men with better qualifications, better scholarship and greater teaching ability.”
Jonathan Mitchell The prominent lawyers behind the lawsuit have promised to challenge similar practices at other universities and have called for anyone with “incriminating evidence” to get in touch.
Northwestern spokesman John Yates said the university would “vigorously defend itself” but declined to comment on the specific charges.
“Northwestern Pritzker School of Law is one of the top law schools in the nation, and we are proud of our outstanding faculty,” Yates said in a statement.
One of the defendants in the lawsuit, former law school dean Daniel Rodriguez, declined to comment. The other defendants named in the suit did not immediately respond to requests for comment.
Among the allegations in the lawsuit are that Northwestern Law School faculty members openly lobbied and pressured their colleagues to select or reject certain candidates based on race and gender. The lawsuit also includes a hiring chart showing that three of 21 job offers made over the past three years were given to white men.
The lawsuit names three white men who were allegedly not hired despite their strong qualifications, and four black women and one black man who were allegedly offered faculty positions because of their race or gender, and describes several of these scholars in harsh and stigmatizing terms.
Most of the people named did not respond to requests for comment, but Paul Gouder, a Black law professor cited in the lawsuit as an example of someone who benefited from racial preferential treatment, strongly disputed the allegations.
“This is total racist bullshit,” he said in an interview, making it clear he was expressing his own opinion, not that of the law school or university. “My record speaks for itself, and I’ll happily contrast my record with the records of those who were allegedly passed over.”
Mitchell said none of the faculty members named in the complaint had prior knowledge of the lawsuit or were involved in providing any information about it.
Among them is Eugene Volokh, a prominent scholar now at Stanford University’s Hoover Institution. The lawsuit alleges that Volokh was denied an interview at Northwestern because he is white. In an email, Volokh said he had discussed the possibility of joining the faculty with several people at Northwestern but “never came to any fruition.”
“But for a variety of reasons, as is common in these situations, I’m not sure what the actual reasons were in this case,” he added. “It will be interesting to see what this lawsuit reveals, if anything at all. But on that point, I’m just a bystander like everyone else.”
The lawsuit comes amid a broad conservative backlash against efforts to ensure that American institutions reflect the country’s racial and ethnic makeup. Liberal advocates argue that generations of discrimination have given white men an unfair advantage, and the killing of George Floyd in 2020 has brought urgency to efforts to right past wrongs. But others argue such efforts go too far, are harmful and unfair, and are fighting back with legislation and lawsuits.
Tuesday’s lawsuit was filed on the 60th anniversary of President Lyndon B. Johnson signing the landmark Civil Rights Act of 1964, which banned discrimination based on race, color, religion, sex and national origin. Mitchell said the timing is coincidental.
The new lawsuit follows Supreme Court decisions a year ago that struck down race-based admissions policies at Harvard University and the University of North Carolina at Chapel Hill, upending decades of efforts by elite schools to mitigate historic discrimination and create a more diverse student body. While those decisions focused on admissions processes and did not directly address the consideration of race in hiring, many scholars said at the time that the court opened the door to lawsuits like the one filed Tuesday.
The court’s decision also prompted colleges and universities across the country to scrutinize how race is considered in admissions and other aspects of the program, and set off legal battles challenging diversification programs at public and private institutions, including lawsuits against companies that allegedly discriminate against white students.
The lawsuit names as defendants Northwestern University, the dean of the law school, a former dean, two other law professors, and two editors of the Northwestern Law Review, alleging that the law review uses unlawful race and sex preferences in selecting members, editors, and articles rather than merit-based selection.
The lawsuit asks the court to order changes to university policies and practices and to establish a court monitor to oversee faculty hiring, promotions, compensation, legal review decisions and the university’s diversity office.
The group also sent letters to more than 100 universities on Tuesday warning them that the plaintiffs intend to sue other institutions that engage in “these unlawful and discriminatory practices” and urged all current or former faculty members of the university to preserve records and communications related to faculty hiring issues and law review decisions.
“We’re just getting started,” said Mitchell, the plaintiffs’ lawyer who has argued cases before the Supreme Court, clerked for the late Justice Antonin Scalia and argued in former President Donald Trump’s case this year that upheld voting rights in Colorado. He also won a key victory last month when the Supreme Court struck down a ban on bump stocks on semi-automatic rifles.
Some legal experts have questioned the suit’s prospects. Harvard Law Professor Noah Feldman noted that there is already a legal remedy for employment discrimination claims: Title VII of the Civil Rights Act, which bans employment discrimination on the basis of race. The suit was brought under a law that generally prohibits racial discrimination by universities.
He also questioned whether the plaintiffs could prove they had the right to sue.
“Under the Constitution, you have to show a specific injury to be a party to a lawsuit, and I don’t understand how they plan to prove that injury,” he said.
Feldman said it has not previously been legal for a university to hire a less qualified candidate solely because of their race or gender, but that universities can take race into consideration.
“Mr. X and Mr. Y are both strong candidates and we can legitimately say we’re trying to create diversity in our community, and therefore the diversity that this particular faculty member brings to our teaching community is important to us,” he said.
Many colleges and universities value diversity among their faculty and staff and are working to achieve that goal legally, said Peter McDonough, vice president and general counsel of the American Council on Education, which represents colleges and universities. Legal approaches, he said, include narrowing the applicant pool more broadly.
“Having a diverse faculty is an entirely appropriate goal, and many institutions will place great importance on it,” he said. “So how do you get there? That’s the challenge.”
