Imagine lawyers going through every single email sent by anyone about job applicants (of any race) and making some of them public(including, probably, critical emails about people who ended up getting hired and now work at GMU with the critical-email-senders). Bad bad bad bad bad for morale.
Imagine how annoying and shitty it would be for non-white faculty members to have themselves AND everyone involved in their hire dragged over the coals by DOJ lawyers asking 50 different ways "was race considered as a factor in your decision to hire this person?" Just really, really unpleasant.
This is all just to say: I don't know anything about GMU's hiring practices / whether they violated Title 7 by considering race in hiring (as the feds claim), but even if they didn't / are exonerated, a lengthy, invasive investigatory process will *itself* be a form of institutional punishment.
I have wondered if this consideration has been a factor in some of the total 'we surrender' behavior of i.e. Brown
My gut is that courts aren't the place where you will win these fights. I think in many cases universities have, actually, broken/defied the law in their pursuit of racially representative faculty bodies. The answer is not to go in a courtroom & say "a diversity postdoc?! whaaat? never heard of it!"
If you think federal non-discrimination laws are wrong(and I think many academics would say flat non-discrimination frameworks are, in their application, not just wrong but white supremacist!), then the answer cannot just be "well let's ignore them" and then act aggrieved/surprised when you get sued
[this has been university strategy for the last 15 years, with institutions banking on the fact that white academics generally support these efforts (or at least see it in their best interests to appear to support them) and are thus unlikely to sue over discrimination. It is now falling apart]
But the only other route is winning hearts/ minds & getting legal/policy change. But this also seems impossible!