THE UNIVERSITY OF VIRGINIA FINALLY EMBRACES THE REALITY OF EQUAL PROTECTION OF THE LAWS—IT IS ABOUT TIME
INTRODUCTION
Last week, and apparently as the result of President Trump’s Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (which bans DEI from not only the federal government but from any entity, private or not, receiving federal funding or engaging in contracting with the federal government), the University of Virginia finally resolved to follow the law. The resolution can be viewed here. “DEI”—Diversity, Equity, and Inclusion—became a massive fraud on the American people as the left seized upon the George Floyd death in police custody and forced a new bureaucracy on both state and non-state actors. Suddenly, whole departments were created in universities and colleges, which institutionalized discrimination based upon race in everything. Billions in payroll, passed on to students, became layered on to an already high tuition burden. The University of Virginia is an agency of the Commonwealth of Virginia. It receives massive state and federal funding. For the years of the Biden administration and well before, the Equal Protection Clause of the Fourteenth Amendment was, and is, the supreme law of the land. Section 1 of the Fourteenth Amendment states in relevant part:
“No State shall make or enforce any law that shall abridge the privileges or immunities of citizens of the United States;
Nor shall any state deprive any person of life, liberty, or property without due process of law;
Nor deny any person within its jurisdiction the equal protection of the laws”
One wonders why an Executive Order, properly based upon a President’s obligation to faithfully execute the laws and not to give life to unconstitutional ones, prompted this when the whole nonsense was plainly wrong from Job One?
IN 2023 THE UNITED STATES SUPREME COURT IN STUDENTS FOR FAIR ADMISSIONS V. PRESIDENT AND FELLOWS OF HARVARD COLLEGE HELD THAT RACE-BASED ADMISSIONS PROGRAMS AT TWO COLLEGES VIOLATED THE EQUAL PROTECTION CLAUSE
One might give cover to the Commonwealth’s tolerance for, and even funding of, plainly unconstitutional doctrines like DEI due to the Supreme Court’s long-standing inconsistency in dealing with race-based admissions and educational opportunities. It may be stated that until the 2023 Harvard case (also the University of North Carolina), clarity was lacking. However, the issue of DEI and its virulent takeover of all aspects of higher education was not limited to just admissions programs. The Resolution passed by the Board of Visitors requires an examination of the legality of ALL programs, including scholarships, financial aid, housing, and many aspects of student life. “Safe spaces” became a code word for housing and student activities that were segregated based upon race and religion. Yes, the overwhelming presence of the left in both faculty and administration promulgated policies that were clearly in violation of both the Fourteenth Amendment and Title VI of the Civil Rights Act, which prohibits discrimination based on race, color, and national origin in programs and activities receiving federal financial assistance, and had its genesis in the Kennedy administration before becoming law in 1964.
The analysis of the Supreme Court in the Harvard case should have provided the basis for a re-examination of the policies of the University of Virginia well before Trump’s election and the promulgation of a common sense and constitutionally sound attack on all DEI stands for and sought to destroy. Yet these policies were funded. The Supreme Court was very clear in its holding;
“In the wake of the Civil War, Congress proposed and the States ratified the Fourteenth Amendment, providing that no State shall ‘deny to any person… the equal protection of the laws.’ Amdt. 14, §1. To its proponents, the Equal Protection Clause represented a foundational principle—the absolute equality of all citizens of the United States politically and civilly before their own laws.
The Constitution, they were determined, should not permit any distinctions of law based on race or color.
The conclusion reached by the Supreme Court in Brown v. Board of Education was thus unmistakably clear: the right to public education must be made available to all on equal terms. No State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens. The time for making distinctions based on race had passed. The Court in Brown declared the fundamental principle that racial discrimination in public education is unconstitutional.
Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies without regard to any differences of race, of color, or of nationality—it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”
The key words here are “educational opportunities,” which goes beyond mere admissions decisions that favored certain persons over others based upon race, national origin, or religion.
CONCLUSION
The action of the Board of Visitors in passing this resolution was hailed as a political milestone by Governor Youngkin. His outstanding stewardship of the Commonwealth cannot be denied. However, the law was clear, and the injustices were glaring, well before President Trump was elected. Federalism is a key component of the Republic, and the Commonwealth, with its inherent authority, could have eliminated these clear inequities in one of its agencies well before it became politically expedient to do so. Armed with the Harvard decision and clear well-settled law, Youngkin and our Attorney General would have had more than enough cover to challenge any decision by the Biden Administration to saber rattle by threatening funding. It should have happened sooner.
Mike Imprevento
March 10th, 2025
