The first university has admitted to race-based hiring

The University of Virginia’s interim president and Board of Visitors have been widely criticized by the left for their standstill agreement with the Justice Department, in which the university agreed, most notably, not to take race into account in admissions and employment decisions. In exchange the Justice Department is suspending a handful of civil rights investigations of the university.

For example, Virginia’s notoriously left-leaning student newspaper, the Cavalier Daily, published an editorial faulting Interim President Paul Mahoney for signing an agreement that binds the university to “the Justice Department’s controversial interpretation of existing civil rights legislation.” In a prior editorial, “DEI belongs at U.Va.,” the campus newspaper rebuked the board for shuttering the university’s diversity, equity and inclusion office and demonstrating, the editors insisted, that the board “placed politics over academic values, tangibly harming the university community.”

Virginia’s similarly left-leaning faculty shamed the interim president and board for “trading [the university’s] independence for federal favor,” for signing a deal that would “increase the likelihood that there’s a climate of fear” on campus, for “confus[ing] compliance with truth,” and, most important for present purposes, for agreeing to color-blind decision-making at the university.

Virginia’s Democratic state Senate leadership went further still. In a letter to Interim President Mahoney and Rector Rachel Sheridan last month, Majority Leader Scott Surovell (D) and President Pro Tempore Louise Lucas (D) urged the university “to reconsider this agreement.” In particular, the Senate leaders chastised the school’s leadership for agreeing to forbid “any consideration of race in hiring, admissions, or other programs, even when such consideration would be permissible” under the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard. 

Previously, former President Jim Ryan had allegedly stonewalled the Justice Department investigations and was forced to resign as the university’s president because of it. Yet by far the most significant recent development in this saga is Interim President Paul Mahoney’s admission just days ago that the university had in fact been engaged in race-based employment practices for years. 

After Students for Fair Admissions was decided, he wrote, the university had received new guidance that “commits us to cease using race as a criterion for employment.” Of course, the university cannot “cease” using race in employment decisions unless it was previously using race in employment decisions. In short, UVA has finally admitted what the Justice Department suspected all along — making Virginia the first major college or university to proffer such an admission. (Predictably, the standstill agreement includes the standard boilerplate language that the university “expressly denies liability.”)

Not surprisingly, the political left seems unwilling to accept that it was and is illegal to consider race or other protected traits in employment decisions before and after the Students for Fair Admissions decision — even if the left thinks it would make Virginia more “just” to do so.

As Andrea Lucas, the chair of the U.S. Equal Employment Opportunity Commission, has explained numerous times since the Students for Fair Admissions case was decided, “Unlike the old rules for university admissions … race or sex cannot be even a plus factor, a tiebreaker, or a tipping point in the employment context.”

This year, when Justice Ketanji Brown Jackson penned the Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services, she quoted the text of Title VII that makes it illegal to take an adverse employment action against “any individual” based on protected characteristics. She further quoted a 2020 Supreme Court employment discrimination decision, Bostock v. Clayton County, that held that the “law’s focus on individuals rather than groups [is] anything but academic.” She added: “By establishing the same protections for every ‘individual’ — without regard to that individual’s membership in a minority or majority group — Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”

I received my doctorate and my law degree from the University of Virginia. It saddened me to learn that it took multiple federal investigations by the Justice Department for the university to finally admit what was hiding in plain sight: It had long been engaged in race-based hiring practices in violation of federal law. What kind of example is that to set for the students Virginia is responsible for educating?

Scott Douglas Gerber is the author of, most recently, “Law and Religion in Colonial America: The Dissenting Colonies.” His novel “The Trafficker” will be published next month.