Last year, the Supreme Court finished a decades-long project to end affirmative action in higher education admissions. Writing for all six conservative justices, Chief Justice John Roberts reasoned that “eliminating racial discrimination means eliminating all of it,” thus continuing the Court’s time-honored tradition of claiming that remedying a race-based harm is just as bad as inflicting a race-based harm.
Now, conservative activists are using the Supreme Court’s bad decisionmaking as the basis to push for even more. On July 2, they filed a lawsuit purporting to “expose the corrupt faculty and administrators” at Northwestern University School of Law for their putatively unlawful, racially discriminatory hiring practices. According to a recent report published by Northwestern’s Office of Institutional Diversity and Inclusion, the law school’s tenure-track faculty is nearly 80 percent white and over 80 percent male. But according to the complaint, white guys aren’t getting a fair shake: It alleges that Northwestern has a policy of hiring “women and racial minorities with mediocre and undistinguished records over white men who have better credentials, better scholarship, and better teaching ability.”
The rage-bait lawsuit was brought by a group called Faculty, Alumni, & Students Opposed to Racial Preferences. FASORP is represented by Jonathan Mitchell, a Republican attorney who gained notoriety for crafting Texas’s abortion bounty hunter law and suing women who have legal abortions in other states, among other assorted assholery. Also on the briefs with him is the America First Legal Foundation, the far-right litigation shop founded by former Donald Trump advisor and current Megamind lookalike Stephen Miller.
Although the complaint has the requisite trappings of an actual legal document, it reads more like a Breitbart comment section. One well-regarded Black scholar is described as “too lazy to write her own exam question” and “another unqualified black woman.” (The lowercase b is in the original text—you know I don’t play that.)
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The niceties that used to appear in attacks on affirmative action—like feigned concern about stereotyping and diversity, for example—are nowhere to be found this time. The lawsuit instead singles out Northwestern professors by name and claims they undeservedly hold positions that should have gone to unspecified white men. The targeted professors have two important things in common: They are academics of color, and their work—in addition to their simple existence—is a threat to white supremacy and the oppressive status quo.
The complaint names Destiny Peery, who studies how the law intersects with discrimination and biases and how people see and categorize others.
It names Jamelia Morgan, an award-winning scholar who runs Northwestern’s Center for Racial & Disability Justice, where she studies how physical and social disorders are policed.
It names Myriam Gilles, whose work focuses on forced arbitration, class action lawsuits, and the availability of legal resources for the poor to challenge the domination of the rich.
It names Paul Gowder, a former civil rights and legal aid attorney who researches democratic theory and the role of Black liberation movements in developing the American rule of law. Gowder taught at the University of Iowa for nearly a decade before joining Northwestern’s faculty. Yet the complaint treats Gowder’s qualifications as a distraction, and pushes the reader to not lose sight of his race: “Although Gowder had produced scholarship and obtained tenure from Iowa in 2017, he was hired by Northwestern because he is black.” Seemingly unburdened by any compulsion to provide evidence for one’s claims, FASORP boldly asserts, “If Gowder had been white, he would not have been considered for any type of faculty appointment at Northwestern.” He’s Black, your Honor—case closed.
All of the named professors are people of color occupying positions where white power doesn’t want them, and they are doing work that white power doesn’t want done.
Ironically, even though FASORP can’t keep Northwestern’s faculty members’ names out of their mouths, the complaint doesn’t have much to say at all about the complainants’ credentials. It specifies that its unnamed members are white men, they are law professors, and they are “able and ready to apply for a faculty appointment.” The complaint contains virtually no evidence of what, beyond whiteness, entitles the would-be applicants to the faculty appointments at Northwestern. The reader is just supposed to take as a given that the unknown white people are worthy, and the specified people of color are not.
The only legal justification the complaint points to is the Supreme Court’s ruling last year in the Students for Fair Admissions cases, in which the Court struck down the race-conscious admissions programs at Harvard and University of North Carolina. “Faculty hiring decisions are, like college admissions decisions, zero-sum,” says FASORP. “Northwestern considers race and sex positive factors for some faculty applicants and therefore necessarily negative factors for others.”
Just as conservatives were never going to stop with students, they’re not going to stop with faculty, and they’re not going to stop with schools, either. The Supreme Court’s decision in the affirmative action has emboldened people like Jonathan Mitchell and Stephen Miller to go fully hood-off and treat the mere presence of women, people of color, and queer people as legal grounds for suspicion. By working to restore a meritocracy that never existed, these people are reinvigorating white supremacy, and stamping out the law’s ability to do anything about it.
