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University leaders, state representatives, and community organizers remain divided over the agreement signed by the University of Virginia and the U.S. Department of Justice on October 22. Democratic leaders across the country are calling for a reevaluation of the agreement.
In a scathing October 26 letter, Virginia state Senate Majority Leader Scott Surovell and Senate President Pro Tempore L. Louise Lucas voiced concerns with the decision, legality of the agreement, and the implications for other state universities.
“While we understand the tremendous pressure the University has faced—pressure that ultimately led to President Ryan’s resignation—we believe UVA capitulated to legally dubious federal overreach without mounting necessary constitutional challenges,” reads a portion of the letter. “The University has committed to comply with DOJ ‘guidance’ that federal courts have found exceeds the Department’s legal authority. UVA is thus agreeing to do more than federal law requires—indeed, more than federal law allows under proper statutory interpretation. This is a bizarre capitulation that raises serious questions about the motives of all involved.”
Legal concerns voiced by Surovell and Lucas include potential violations of South Dakota v. Dole and the Spending Clause of the U.S. Constitution. In the majority opinion of the 1987 Supreme Court ruling, late Chief Justice William Rehnquist detailed a five-part framework for determining the constitutionality of federal funding conditioned on policy change or implementation.
“UVA should not have to choose between its constitutional rights and its federal funding,” wrote Surovell and Lucas. “That is precisely the choice that Dole and [National Federation of Independent Business v. Sebelius] prohibit. By accepting the agreement without challenge, the University has validated DOJ’s dubious legal theory and made it more difficult for other institutions—including other Virginia colleges and universities—to resist similar pressure.”
Surovell and Lucas further assert that UVA’s agreement to follow the DOJ’s July 29 Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination is in direct conflict with Virginia state law requiring heads of state agencies to “establish and maintain a comprehensive diversity, equity, and inclusion strategic plan in coordination with the Governor’s Director of Diversity, Equity, and Inclusion.”
In an October 31 response, interim UVA President Paul Mahoney did not disagree with the legal arguments presented by Surovell and Lucas, but stood by the agreement as the “best path forward” for the university.
“Your letter provides a detailed analysis of the potential grounds on which the University might have sued the United States to oppose any withdrawal of federal funding based on unreasonable conditions. It does not, however, consider whether initiating a legal confrontation with the federal government would have been necessary or appropriate, particularly before we had exhausted other less costly and risky options,” said Mahoney. He further rebuffed the assertion that the agreement commits UVA to “planned reforms prohibiting DEI at the university.”
While Mahoney is correct that such a policy commitment is not outlined in the agreement itself, what the university agreed to asserts that DEI programming is “potentially discriminatory” and “unlawful.”
The full text of the agreement, Surovell and Lucas’ letter, and Mahoney’s response can be found at c-ville.com.
