Takeaways from the Fifth Circuit's Opinion in a Professor’s Reverse-Discrimination Case
On October 30, in an unpublished per curiam opinion, a three-judge panel of the Fifth Circuit unanimously affirmed a decision by the U.S. District Court for the Southern District of Texas that a white male professor who never applied for a position at Texas A&M University lacked standing to bring a reverse-discrimination case against the school.
Richard Lowery, a finance professor at the University of Texas at Austin, filed a lawsuit in September 2022, alleging that Texas A&M's hiring practices favored women and non-Asian candidates, and disadvantaged white and Asian men. Despite his interest in a position at Texas A&M, Lowery never actually applied for the job. Lowery claimed he was discouraged from applying because he did not believe he would be considered due to the university’s alleged sex and race discrimination.
U.S. District Judge Charles Eskridge dismissed Lowery’s case in September 2023, finding that Lowery’s failure to apply for a position meant that he lacked standing, and a new Texas law (S.B. 17) that prohibited public universities from giving preference based on race, sex, color, ethnicity, or national origin, made Lowery’s case moot, since the law now barred the exact behavior Lowery complained of.
The Fifth Circuit agreed that Lowery’s failure to apply for a position at Texas A&M was “fatal” to his case. The court also highlighted doubts about Lowery's readiness to apply to Texas A&M, noting that he had applied to the University of Florida despite its similar hiring practices. Lowery believed Florida would change its policies due to Governor Ron DeSantis' education reform efforts, whereas Texas had already enacted a law addressing these concerns. The court found this reasoning inconsistent and unconvincing, stating “Lowery fails to explain the discrepancy: He expects A&M to violate an enacted law, but he expects UF to comply with a hypothetical law.”
The Fifth Circuit echoed the district court's view that Lowery could refile his lawsuit if he believed Texas A&M continued unconstitutional hiring practices. Since the court focused on the standing issue, it did not address the mootness argument.
The ruling highlights the importance of alleging an injury in discriminatory hiring suits and illustrates how post-filing legislative changes to public university diversity, equity, and inclusion practices might affect such claims.
Please contact Camille Broussard, Rebecca Sha or any member of the Phelps Labor and Employment or Education teams if you have questions or need advice or guidance.
