The University entered into a settlement agreement with the U.S. Department of Justice Oct. 22, agreeing to comply with federal guidance after receiving accusations of unlawful discrimination in admissions and hiring. The deal involves no monetary penalties, but it does require the University to submit quarterly compliance reports through 2028 to demonstrate adherence to federal civil rights law.
The agreement is situated in a context of increasing federal involvement in higher education. Increased crack-downs in diversity, equity and inclusion practices, revocations of international student visas, guttings of the U.S. Department of Education’s staff and the Trump administration’s proposed Compact for Academic Excellence in Higher Education are a few key examples of the federal government’s hand in the higher education sphere in the past year.
Many University community members and academics have attributed the ousting of former University President Jim Ryan and the “rushed” appointment of University President Scott Beardsley to overreaching political forces. The Board of Visitors — the University’s governing body with the power to appoint and remove University presidents — is composed of members appointed by the governor, and political donations of Board members in the last few years align, at least in majority, with the sitting governor.
Considering the University’s entwinement with the federal government over the past year, the question arises of what the University, as a public higher education institution, owes the federal government.
Law Prof. Kevin Cope and Law Prof. Josh Bowers weigh in on this debate, with Cope retaining a position of relative support for compromising with the federal government in a Justice Department agreement that, in his view, cedes little academic autonomy and avoids harm. Bowers, conversely, engages the position that the agreement marks capitulation by the University, setting a precedent for illiberal encroachment across higher education. Cope spoke with The Cavalier Daily, and Bowers provided an email response to The Cavalier Daily’s questions.
According to Cope, when it comes to compromising with the federal government, universities and law firms — two groups that encountered increased federal scrutiny over the past year — experience significantly different legal obligations when responding to this federal pressure. The Trump administration accused top law firms of “weaponizing the justice system,” issuing executive orders tied to the firms’ interpreted adversity to the president or the administration’s stance on diversity, equity and inclusion programming.
Whereas the executive orders by the federal government targeting law firms were unlawful threats to their independence, Cope said universities are situated differently in the legal system — they rely on the federal government for funding and are subject to many federal statutes, regardless of which administration is in power.
“[Universities] receive huge chunks of their budget, and especially their research budget, from the federal government, and they are subject to and heavily regulated by a number of federal statutes,” Cope said. “The government has a lot of power over the statutes to take action against the University if it … determines that it is out of compliance.”
Cope said that universities are able to challenge these actions taken by the federal government in court, constituting due process. However, he said that resisting the administration’s power to mandate compliance with federal policy is “simply not the legal or political reality.”
Bowers agreed that universities must abide by constitutional, federal and state law, and universities cannot simply ignore federal politics. However, he said that the current “assault” on higher education by the Trump administration is not following the normal course of federal practice, so universities should not comply with policies that “go well beyond what statutory or constitutional law commands.”
“Anyone who thinks that the current assault of higher education … is the normal course of things — that is to say, politics as usual — isn’t paying attention. What we are witnessing is a full-scale effort to reshape higher education according to the ideological agenda of the Trump administration,” Bowers said. “It is not self-evident that the [Justice Department’s] conception of anti-discrimination law is a sound conception.”
In terms of the power the federal government does wield, Bowers said it may condition spending on a particular project — for example, allocated federal funds for research, financial aid or infrastructure. According to Bowers, the conditions — such as annual performance reports and financial documentation — imposed by the government should be reasonable and aligned with the funded project. Additionally, he said the government cannot legally structure conditional funding offers so that a university’s rejection of the offer would make it worse off than before, such as receiving reduced funding.
“In such circumstances, an ‘offer’ is not an offer,” Bowers said. “It is a threat.”
When asked whether higher education’s significant reliance on federal funding marks a broader structural issue, Cope said it is a hard line to draw. Federal reliance has advantages including support for research regardless of profit outcomes, but Cope said that some areas within the University could benefit from greater independence.
“I am glad that the federal government is involved in funding vital research across all sorts of sciences … if there's no government involvement, only the most profitable innovations will be invested in,” Cope said. “In the case of public universities like U.Va., … complete independence is neither politically feasible nor desirable.”
Regarding the University’s ultimate settlement with the federal government, Cope said that the University’s administration succeeded in negotiating an agreement that “yields very little substantively and adds only one reporting requirement.”
According to Cope, universities nationwide have countless reporting requirements as it stands. While some University stakeholders expressed concern over the agreement’s stipulation of quarterly reports, Cope said the University already reports on issues relating to national security, disability access, crime, civil rights, compliance with federal law and more. Additionally, according to Cope, the agreement is impermanent, preserves institutional autonomy and the University’s core values and does not attach a monetary penalty.
In contrast, Bowers said he believes the University should not have “submitted” to the agreement. Bowers said the University ceded autonomy by selecting certain practices or policies and designating them as lawful over others to minimize external pressure or placate outside entities.
According to Bowers, no findings by the Justice Department suggested that the University had violated anti-discrimination law — if findings did exist, the University would have been obligated to welcome investigations and take steps to comply.
“Rather than leaving to courts the question of whether some disputed policy or practice violated anti-discrimination law, the University — through its agreement with the [Justice Department] — ceded ‘sole discretion’ to the Justice Department to determine whether the University remains in compliance with the agreement's terms,” Bowers said. “This is a recipe for preemptive appeasement.”
The first quarterly compliance report — made public Jan. 29 — outlines changes in hiring, admission and recruiting practices across the University’s 12 schools to comply with federal civil rights policy. Bowers said the report demonstrates changes in University practices that did not initially violate anti-discrimination law, but in his view, mark the impact the agreement has had on University independence.
While Bowers argues that the agreement sets a precedent for capitulation, Cope said the agreement sets a precedent for other universities to make similar, autonomy-retaining deals with the federal government. Whereas many higher education leaders thought, prior to the University’s deal, that monetary payments or sacrifices in core values were mandatory agreement factors, the University’s agreement proves that these stipulations are not required, according to Cope.
Cope argues that the agreement minimizes harm holistically for the majority of University stakeholders and academic ideals — to solely focus on the potential drawbacks of the agreement prevents one from considering the drastic dangers of refusal, he explained. Cope employed the trolley problem to describe this balancing of potential damages.
“If we focus only on the one person who's killed and ignore the five other people, then we end up … [with] more harm than good that's done,” Cope said. “Acknowledging all of the costs … is what universities should do. They need to sometimes be consequentialists and think about the total net benefits and harms.”
While Cope finds that the current agreement best serves to maintain federal funding and comply with federal policy while retaining a healthy academic and institutional freedom, Bowers said he is less sure about a path forward for the University with the settlement agreement in place.
“Simply put, by entering into the agreement, the University has legally shackled itself to the federal government,” Bowers said. “I leave it to University leadership to determine the best way to shake us loose.”
The University’s next compliance report is expected to be released this month. The previous report was published first on UVAToday.
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