“An evolutionary biologist filed a lawsuit against Cornell University this week that alleges the Ivy League school used unlawful race-based hiring practices and intentionally discriminated against qualified candidates by refusing to consider White people,” reports The Washington Post:
The lawsuit, filed Monday in federal district court in New York, claims the university violated federal law when it sought to fill a faculty position several years ago. It cites emails from the ecology and evolutionary biology department in December 2020 that allegedly said that to make a “diversity hire” the department would invite candidates from a list of “underrepresented minority scholars” and avoid having the candidate compete with others.
Colin Wright, the plaintiff, was a postdoctoral researcher in that field at Pennsylvania State University at the time. He said he was seeking an academic job and was well qualified for the tenure-track position that Cornell allegedly filled without ever posting the job publicly, as was required by university policy…Emails allegedly indicated that the department intentionally avoided a competitive search and planned to approach candidates one at a time until one accepted.
Wright said he was applying for similar roles in that field between 2018 and 2021. But he did not learn of the Cornell opening until last year, when whistleblowers released emails and AFPI filed a federal civil rights complaint….
Title VII of the Civil Rights Act bars hiring or declining to hire someone based on their race, among other factors. However, in the 1970s, the Supreme Court carved out an exception for affirmative action programs that seek to remedy past discrimination. Some experts said this exception was narrow, while others said it was broad enough to cover most of what universities have done in the name of diversity.
In 2023, the Supreme Court ruled that race-conscious college admissions amounted to unconstitutional discrimination…
Leigh Ann O’Neill, AFPI chief legal affairs officer, noted that in the Harvard case, the court said racial discrimination in admissions was not justified even to correct historical wrongs and that Chief Justice John G. Roberts Jr. wrote, “Eliminating racial discrimination means eliminating all of it.”
“In this case, we’re asking the court to uphold that same principle when making hiring decisions,” she said.
Wright, now a fellow at the conservative think tank the Manhattan Institute, said he is seeking to ensure the university complies with federal and state employment laws as well as compensatory damages for “emotional suffering from discrimination, reputational harm, loss of employment, back pay, front pay, and lost future wages,” and punitive damages. The complaint claims he was more qualified than the person who was hired and that he lost at least $700,000 in salary.
Cornell could have considered race in hiring for two purposes, but neither seems applicable this position it was hiring for. First, it could legally prefer minorities in hiring, if that were needed to remedy the effects of recent past discrimination by it against minorities. But Cornell seems to have practiced affirmative action since the late 1960s, rather than discriminating against minorities. An institution can’t have racial preferences for minorities based on discrimination it practiced against them half a century or more ago. That’s just too long ago, as three appeals courts have said, in decisions barring the use of race in selection to remedy discrimination that occurred 14 years, 17 years, or 30 years earlier. (See Hammon v. Barry (1987); Brunet v. City of Columbus (1993); Hopwood v. State of Texas (1996)).
So Cornell can’t hire based on race for any position, under that “remedy discrimination” rationale.
Second, under a 1979 Supreme Court decision, Cornell can consider race in hiring if it has a “manifest imbalance” racially in its workforce. But that imbalance has to be compared to the qualified labor pool, not just the general population of Americans. If biologists in the relevant job market are mostly white, then the fact that Cornell biologists are mostly white is not a sign of “manifest imbalance.” Looking at Cornell’s web site, it is much less white than the area it is located in, and not disproportionately white compared to the biology sector, either. It looks like Cornell has made an effort to hire minorities over the years, and doesn’t have an imbalanced workforce in the relevant legal sense. Moreover, that “manifest imbalance” reason for using race is only a defense for using race in response to a lawsuit filed under Title VII of the Civil Rights Act. It isn’t an excuse for using race under the Constitution, which apparently places tighter limits on using race in hiring than Title VII does. So even if Cornell could show it has a “manifest imbalance,” that would merely be relevant to whether the plaintiff could seek certain damages against the University itself (the university can be sued under Title VII, but a constitutional lawsuit would have to be brought against individual university officials, not the university, due to 11th amendment immunity, which applies to the university, but not its officials), not whether the plaintiff could bring a lawsuit against Cornell officials under the Constitution.
