Only a few days after rejecting the Trump Administration’s “Compact for Academic Excellence in Higher Education,” Interim University President Paul Mahoney announced Oct. 22 that a deal had been reached with the Department of Justice to suspend remaining civil rights investigations into the University. While both the rejected Compact and the Justice Department agreement faced resistance from the University community and have several similarities, the agreement provides firmer protection for academic freedom.
The Department of Education and senior White House officials sent the Compact Oct. 1 to the University and eight other institutions. The Justice Department agreement suspends five civil rights investigations dating back to April 11 and provides a set of terms to be followed in order for the investigations to be completely closed after the conclusion of the agreement Dec. 31, 2028.
The Compact was subdivided into 10 points — eight of which laid out values and conditions that universities would have to meet for preferential access to federal funds and partnerships.
Term seven of the Justice Department agreement affirms the University’s commitment to apply Civil Rights law in accordance with guidance from United States Attorney General Pam Bondi. The July 29 guidance, titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination,” provides many of the specific policies that the University is expected to implement under the Justice Department agreement.
Enforcement of Terms
Point 10 of the Compact required senior leadership at signatory universities to certify compliance with the document’s principles. Unlike the Justice Department agreement, the rejected Compact required provosts and heads of admissions, in addition to university presidents, to certify.
“Adherence to this agreement shall be subject to review by the Department of Justice. Universities found to have willfully or negligently violated this agreement shall lose access to the benefits of this agreement for a period of no less than 1 year,” the Compact said. “Subsequent violations of this agreement shall result in a loss of access to the benefits of this agreement for no less than 2 years.”
The Compact also included provisions requiring annual public surveys of faculty, students and staff to rate university performance and allowing the Federal Government and private donors to recoup investments made in universities found to be in violation of the Compact’s principles.
Enforcement of the most recent DOJ agreement requires the University’s president to personally certify compliance with the terms of the agreement, including those outlined in the July 29 guidance. Furthermore, the agreement may be terminated by the Government for alleged civil rights violations by the University.
“If at any time after the Effective Date, the United States in its sole discretion determines that U.Va. is making insufficient progress toward compliance with the Civil Rights Iaws, it will so notify U.Va. and provide U.Va. with a period of 15 days to make appropriate progress,” the agreement wrote. “If the United States determines in its sole discretion after that time that UVA has not made adequate progress, the United States may terminate this Agreement.”
Admissions Policies
The Compact asked universities to evaluate applicants using publicly available criteria, including specific score requirements on standardized tests such as the SAT and ACT as well as GPA. It also asked universities to publish anonymized admissions data for each application cycle, separated by race, national origin and sex.
The Justice Department agreement itself does not specify an admissions policy that the University must adopt. However, the July 29 guidance prohibits the use of “unlawful proxies” and “unlawful use of protected characteristics” in admissions, which the guidance defines.
The July 29 guidance lists cultural competence requirements, geographic or institutional targeting and diversity statements as examples of unlawful proxies.
Although the use of “diversity statements” and “overcoming obstacles narratives” is explicitly prohibited under the Justice Department’s July 29 guidance, Deputy University Spokesperson Bethanie Glover, in a statement to The Cavalier Daily, denied that the University’s decision to remove supplemental essay prompts is related to the now-suspended investigations.
The July 29 guidance lists diversity quotas and admission based on race or sex as examples of the unlawful use of protected characteristics.
Glover also claimed that the Justice Department agreement will not have any impact on the University’s undergraduate admissions practices.
“We believe that our undergraduate admission practices comply with current federal civil rights law,” Glover wrote. “As such, we are not planning to make any changes to those practices based on the agreement.”
Non-Discrimination Policies
Point three of the Compact broadly called on universities to engage in non-discriminatory hiring practices, considering only merit. Specifically, point three cited Title VII of the Civil Rights Act, which bars employment discrimination based on race, religion, sex, ethnicity, disability or national origin.
“No factor such as sex, ethnicity, race, national origin, disability, or religion shall be considered in any decision related to the appointment, advancement, or reappointment of academic, administrative, or support staff at any level,” the Compact read.
The July 29 guidance also prohibits preferential treatment based on protected characteristics, including preferential hiring or promotion and race- and sex-restricted hiring pools. The guidance’s prohibition of unlawful proxies and unlawful use of protected characteristics extends to hiring, in addition to admissions.
“Federal antidiscrimination laws prohibit discrimination on the basis of protected characteristics, including race, color, religion, sex, and national origin. The U.S. Supreme Court has consistently held that policies or practices based upon protected characteristics are subject to rigorous judicial scrutiny,” the agreement read.
The Justice Department agreement explicitly maintains the right of the Equal Employment Opportunity Commission to “bring, process, investigate, litigate or otherwise seek relief” against the University. The Commission exists to investigate charges of discrimination against employers. The University’s Office for Equal Opportunity and Civil Rights is responsible for ensuring compliance with the Commission.
Sex-Separated Spaces
While the Justice Department agreement makes no mention of sex-separated spaces, the Compact and July 29 guidance align on the issue. Point six of the Compact, titled “Student Equality,” required universities to maintain single-sex intimate spaces and to conduct single-sex athletic competitions.
The guidance permits universities to segregate spaces by sex by “affirm[ing] sex-based boundaries rooted in biological differences.” The Compact required universities to adopt a similar biological definition of sex.
The language of the Justice Department agreement also means that the University will not be required to alter its policies on sex-separated spaces, for now. Specifically, the wording in term seven allows “relevant judicial decisions” to override the July 29 guidance.
The Court of Appeals for the Fourth Circuit’s ruling in Grimm v. Gloucester County School Board affirms that transgender students can use bathrooms that align with their gender identity — not biological sex. As a “relevant judicial decision,” the Grimm ruling thus overrides the July 29 guidance, according to a statement by Brie Gertler, interim provost and executive vice president, at a recent Faculty Senate meeting.
Student and Faculty Speech
One of the most controversial elements of the Compact was term two, titled “Marketplace of Ideas & Civil Discourse.” The Compact proposed that universities consider eliminating departments and punishing faculty who “purposefully punish, belittle and even spark violence against conservative ideas.”
“Signatories commit to rigorous, good faith, empirical assessment of a broad spectrum of viewpoints among faculty, students, and staff at all levels and to sharing the results of such assessments with the public; and to seek such a broad spectrum of viewpoints not just in the university as a whole, but within every field, department, school, and teaching unit,” the Compact read.
The Compact also requested that universities conduct surveys on the political leanings of students and faculty, to be used to seek a broad spectrum of viewpoints across all areas of the institutions.
The Justice Department agreement differs from the Compact on regulating academic speech and course content and does not require the University to regulate viewpoints at the University in any capacity. Term six of the agreement affirms the University’s obligations, as a public institution, to uphold the First Amendment rights of students and employees. The July 29 guidance focuses on anti-discrimination policies rather than free speech.
“No provision of this Agreement, individually or taken together, shall be construed as giving the United States authority to dictate the content of academic speech or curricula,” the agreement reads. “U.Va. acknowledges its obligation … to maintain admissions, employment, discipline, and speech policies and practices that prevent the suppression of speech and discrimination based on political viewpoint.”
International Students
Another area of difference between the Compact and the Justice Department agreement concerns the pressure put on international students. Point eight of the Compact required that universities limit their undergraduate international student population to 15 percent of the overall student body. The Compact also asked universities to, upon request, share “all known information about foreign students” with the Department of Homeland Security and the Department of State.
Neither the Justice Department agreement nor the adjoining July 29 guidance mentions international students, their enrollment or scrutiny of their activities.
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