In July 2020, just under a month into his tenure as George Mason University’s president, Gregory Washington sought to position the university as a national model of diversity and inclusion in higher education.
He established an Anti-Racism and Inclusive Excellence task force, and by that November, convened its members and other administrators in a virtual forum where they spoke about the university’s goal to increase faculty diversity.
“Let’s examine our systems, policies, practices, and traditions and see if racial bias exists,” Washington said. “And if it does, let’s put together policies and frameworks in place to help eradicate it.”
Now Washington is under fire from the Trump administration for those policies and frameworks. Last week, the Department of Education’s Office for Civil Rights (OCR) concluded that Washington and the university engaged in unlawful race-based hiring and violated Title VI of the Civil Rights Act.
As part of the proposed resolution agreement, the agency asked Washington to personally apologize for “promoting unlawful discriminatory practices.” In a letter from Washington’s lawyer to the Board of Visitors on Monday, Washington made clear he has no intention of doing so.
In addition to OCR, the Department of Justice is investigating George Mason’s hiring and admissions practices. One letter of investigation directly cited the 2020 virtual forum, where administrators referenced Washington’s tenure at the University of California at Irvine, where he helped hire a “record number of diverse faculty.”
The work will be both “difficult and messy,” Washington warned in 2020. “So I’m asking everyone to bring an open mind and get ready for the ride.”
That ride has landed Washington in a predicament: Policies that he advanced or was encouraged to implement are the very reason that his job — and possibly the university’s finances — are in jeopardy. The question underlying the crisis at George Mason, and causing uncertainty across the sector, is whether the university’s policies aimed at hiring a more diverse faculty are in fact illegal.
In a letter last week, OCR said that Washington and the university adopted several race-based hiring practices that discriminated against nonminority faculty. OCR, in its findings, said that Washington engaged in a “surveillance” of academic departments’ hiring decisions and established policies that were recommended by the antiracism task force that considered race in hiring, promotion, and tenure decisions.
OCR is the only agency that has concluded a recent investigation into George Mason University. The Justice Department’s two investigations are ongoing.
Washington has routinely contended that George Mason never ran afoul of federal law, and that the university was following state laws and strategic plans established by the Board of Visitors to diversify the faculty.
In 2022, the board approved “Mason Is All Together Different,” a five-year plan that outlined the university’s goals to increase “faculty and staff demographics that mirror student demographics.” (The Chronicle’s publisher, who does not have a role in journalistic decisions, served on the George Mason board from 2019 to 2023.)
“Our practices and initiatives, including some being questioned by the DOJ, emanated from this framework,” Washington said in a statement responding to the Department of Justice investigation. “They were developed in collaboration with our Board of Visitors, and through shared governance with our students, faculty, and staff. It has never been a ‘one man show’ at Mason.”
OCR claimed that in a 2021 message to the university, Washington said that the university’s “North Star” is hiring faculty that reflect the “rich diversity of the student body,” implying that Washington engaged in a racial-quota system. The agency also claimed that the university posted a policy on its website that allowed departments to bypass steps in the competitive search process — like posting a job opening publicly — if there were an opportunity to hire a candidate who advances the university’s commitment to diversity and inclusion.
Washington’s lawyer, Douglas F. Gansler, stressed in the letter to the George Mason board that Washington’s remarks were “not code for establishing a quota system.” Gansler said the language OCR used to describe the competitive search process policy never existed on any current or deleted university websites, and any language regarding competitive search waivers predate Washington’s arrival at George Mason.
Washington cited the Virginia One plan, a 2021 strategic plan from the governor’s Office of Diversity, Equity, and Inclusion, and an amendment to a 2021 Virginia law that required public colleges to promote diversity and equity in hiring, promotion, and retention as justification for his diversity initiatives. The Virginia law requires public colleges to annually report their diversity goals and infrastructure to the governor’s director of diversity, equity, and inclusion and the General Assembly.
A section of the law calls for public agencies to “maintain equitable opportunities” and to “foster an increasingly diverse workplace,” creating what some legal experts describe as a legal gray area that could be at odds with federal antidiscrimination law.
In the 1980s, the Supreme Court upheld programs setting aspirational hiring goals to tackle racial or gender disparities, but there are caveats. Programs must also be temporary and cannot aim to maintain a certain number of employees of a certain race or sex, such as quotas.
So much hinges on how Washington, and other college presidents in Virginia, interpreted the state law.
“A president could say promoting diversity means I’ve really got to go out there and make some race-conscious decisions. And if that’s true, then the statute is not going to protect you” from federal law, said Michael J. Yelnosky, a law professor at Roger Williams University who focuses on employment discrimination.
Other experts argued that while methods like racial quotas are not legal, having diversity goals, particularly in hiring, are lawful.
“Using race-neutral methods to advance diversity goals is something the U.S. Supreme Court for years now has actually been pushing, not making unconstitutional,” said Brian Soucek, a professor of law at the University of California at Davis.
In George Mason’s diversity, opportunity, and inclusion annual report in 2023, the university said it had “expanded sources of recruiting diverse talent” by training advisers to work with hiring managers to diversify their applicant pools.
Gansler, Washington’s lawyer, said that the Education Department has conflated the university’s definition of “diversity” with “racial diversity.” Adding that the agency has failed to point to any policies at George Mason that prove discrimination against white faculty occurred.
“As the Board knows, in George Mason’s Strategic Plan, diversity is referenced as ‘diversity of origin, identity, circumstance, and thought,’” Gansler wrote. “At Mason, the term ‘diversity’ is never reducible to the set of protected characteristics at issue in OCR’s inquiry.”
The Justice Department also raised concerns about Washington’s decision to assign “equity advisers” in every academic department to ensure that more women and faculty of color were hired. In a now-deleted webpage about the College of Humanities and Social Science’s equity advisers, the university said the positions also “serve as facilitators for connecting CHSS community members to resources regarding antiracism, equity, diversity, inclusion, and civility.”
Some legal experts said the presence of such advisers isn’t illegal, but “if nothing else, it is a point of evidence that the leader was telling decision makers that they should make decisions based on race and national origin,” said Dan Morenoff, an executive director of the American Civil Rights Project.
Morenoff, who is also an adjunct fellow at the Manhattan Institute, a conservative think tank, said that courts have allowed employers to consider race in hiring if there’s strong evidence they would otherwise be violating Title VII. Employers would have to prove a history of intentional discrimination, he said.
If a university wants to review its hiring and recruitment practices because administrators are concerned about discrimination against nontraditional faculty hires, there’s nothing unlawful about that, Yelnosky said. The law may permit race-conscious hiring as a corrective step to avoid continuing that discrimination.
But if a university is using those findings or data to make race-based decisions or consider the race of candidates, that is illegal. What’s challenging, experts said, is proving when a decision is race-based.
Faculty hiring committees are typically a democratic process. If a diversity effort is race-neutral, it can be challenging to prove if a member of a hiring committee acted on the basis of the race of a candidate.
Gansler said that OCR failed to provide evidence or data that such race-based decisions had occurred, and their claims that Washington played a role in department hiring decisions don’t hold up: The president isn’t involved in such decisions, it’s the board that approves promotion and hiring.
“Per OCR’s own findings, no job applicant has been discriminated against by GMU, nor has OCR attempted to name someone who has been discriminated against by GMU in any context,” Gansler wrote. “Therefore, it is a legal fiction for OCR to even assert or claim that there has been a Title VI or Title IX violation here.”
Washington has eradicated nearly all diversity initiatives and offices at George Mason. The university renamed its Office of Diversity, Equity, and Inclusion, ended the Anti-Racism and Inclusive Excellence task force, and closed its Center for Truth, Racial Healing, and Transformation. Among faculty initiatives, the university has prohibited requiring diversity statements on job postings and stopped “promotion of third-party opportunities that involve race-conscious criteria.”
“GMU stands in rarified air when it comes to universities’ responses to changes in law and leadership related to DEI practices,” Gansler wrote. “This important work is completely ignored in the OCR’s recitation of relevant facts.”
