Editor’s Note: This is a follow-up to an earlier article, “The Politics of an Anti-Woke Campus Op-Ed.” 

I previously wrote about the vitriolically partisan reaction to an open letter to the University of Virginia’s (UVA) interim president that I published in the campus newspaper, the Cavalier Daily. One of the points I made—but far from the only one—was that the interim president needed to make sure UVA complied with anti-discrimination law, which, according to the U.S. Department of Justice, the university’s extensive “diversity, equity, and inclusion” (DEI) apparatus does not do.

I subsequently learned that “5 U.Va. Community Members” published an op-ed in the Cavalier Daily about my open letter. Because their op-ed was both gaslighting and defamatory, I penned a response. The editors refused to publish it, even though the canons of journalism ethics instruct them to do so.

Revealingly, the Cavalier Daily’s editors initially failed to acknowledge my submission, despite their own submission rules stating that they would confirm receipt within 24 hours and apprise the author of next steps within 36 hours. I waited a couple of days, and then requested to learn the status of my submission. I once again received no response. I eventually followed up with the newspaper’s editor-in-chief, who gaslit me: “Thank you for reaching out to me about this and thank you for continuing to engage with our content. I hope the fall weather wherever you are is as beautiful as it is in Charlottesville today … I hope you have a lovely rest of your fall!”

I quickly pointed out to the editor-in-chief that, in my opinion, the newspaper knew that the op-ed about my open letter had defamed me and that the newspaper was therefore liable under the actual malice standard of the U.S. Supreme Court’s New York Times v. Sullivan libel rule. I also mentioned that I recently discovered the Cavalier Daily’s own editorial endorsing DEI, which helps explain why the editors would be willing to defame me: “EDITORIAL: DEI belongs at U.Va.” I further noted that, as far as I could tell, my open letter to UVA’s interim president was the only piece out of dozens that the Cavalier Daily had published to that point about the current civil rights investigation by the Trump administration that was critical of DEI and the former UVA president, Jim Ryan, who seemingly emphasized DEI above all else. The editor-in-chief responded with word salad: she requested “additional factual substantiation to contextualize the initial arguments you laid out.”

As I indicated in a previous article for Minding the Campus, the Cavalier Daily is notoriously left, and not merely about DEI. In fact, the newspaper’s intolerance apparently knows no bounds, as its troubling 2022 editorial calling for the university to rescind a speaking invitation to former Republican Vice President Mike Pence illustrates. That editorial was so contrary to free speech that then-UVA President Ryan and current Interim President Mahoney separately published co-authored op-eds condemning the editorial. Mahoney’s retort that, what “saddens” him the most “about the mindset of the Cavalier Daily editorial is its assumption that the editors should enjoy the freedom to say what they want but others with whom they disagree should not,” is particularly apt.

All of this said, I am pleased to report that, at her request, I eventually had a pleasant telephone conversation with the Cavalier Daily’s editor-in-chief. She insisted that her newspaper had not defamed me because the op-ed it had published by the 5 U.Va. Community Members reflected the authors’ “opinion” and, as such, could not be defamatory. I reminded her that, as bright as she obviously is, she is not a lawyer—this is not the first time the Cavalier Daily has been wrong about the law when defending Ryan’s left-leaning administration—and that a statement of fact is still a statement of fact even when the speaker tries to disguise it as an opinion.

Indeed, the exchange between Will Ferrell’s character Ricky Bobby and his boss, Mr. Dennit, in the classic comedy Talladega Nights: The Ballad of Ricky Bobby, raced through my mind when the editor-in-chief was trying to characterize the statements of fact in question as opinion:

Mr. Dennit: Ricky, your little obscene gesture is going to cost you 100 points. Do you know how much that costs us in sponsorship dollars?

Ricky: With all due respect, Mr. Dennit, I had no idea you’d gotten experimental surgery to have your balls removed.

Mr. Dennit: What did you just say to me?

Ricky: What? I said it with all due respect!

Mr. Dennit: Just because you say that doesn’t mean you get to say whatever you want to me!

Ricky: It sure as hell does!

Mr. Dennit: No, it doesn’t!

Ricky: It’s in the Geneva Conventions, look it up!

The compromise the editor-in-chief and I reached was that the Cavalier Daily would publish the portion of my response to the op-ed about my open letter that addressed gaslighting, but not the part about defamation. In the interest of full disclosure, below is the entire response I originally submitted to the Cavalier Daily—which has not been edited for Minding the Campus style guidelines—including the portion addressing defamation. I think it is necessary to publish my full response because several of the comments to a Bacon’s Rebellion reprinting of the abbreviated response confirm the need to respond to the defamation.

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GASLIGHTING FOR DEI

Community DEI proponents must stop ignoring the law

By Scott Douglas Gerber

The September 4, 2025 op-ed by “5 U.Va. Community Members” about my August 15, 2025 open letter to Interim President Paul Mahoney is a disturbing exercise in gaslighting. It is also defamatory.

With respect to gaslighting, the 5 never say a word about what anti-discrimination law actually is. The first point I made in my open letter, and the only point I made about DEI, was that “Unfortunately, as almost everyone probably knows, the University likely violated anti-discrimination law and stonewalled the Department of Justice during former University President Jim Ryan’s DEI-fueled presidency. Ryan resigned because of it.”

To his credit, Interim President Mahoney reminded U.Va.’s Faculty Senate on September 5, 2025 that “Compliance with federal law is a condition of research grants.”

I know that many members of the U.Va. community do not want to hear it, but the “federal law” that both Mahoney and I are referencing is this: except for a few narrow exceptions that do not apply to today’s U.Va. (for example, taking race into account in a remedy for adjudged discrimination against people of color by the defendant in a lawsuit), it is illegal to consider race, gender, ethnicity, or other protected traits in employment and admissions decisions—even a little bit, and even if people think it would make U.Va. “better,” to quote my recent critics, to do so. See Students for Fair Admissions v. Harvard University & the University of North Carolina, 600 U.S. 181 (2023) (companion cases); 42 U. S. C. §2000d, et seq. (Title VI) & 42 U.S.C. §2000e(2), et seq. (Title VII). Indeed, because U.Va. is a public university, U.Va. is constitutionally barred from doing so. Frankly, given that 4 or the 5 “U.Va. Community Members” are lawyers, it is astonishing that their op-ed about my op-ed does not say a word about the law.

The 5 likewise fail to say anything about the 2025 U.S. Supreme Court decision Ames v. Ohio Department of Youth Services that signals that proponents of DEI should stop pretending they are complying with the law. After all, one of the most liberal members of the Supreme Court, Justice Ketanji Brown Jackson, wrote in an opinion for a unanimous (yes, unanimous) Court that the “background circumstances” rule imposed by several lower courts of appeal requiring members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII discrimination claim is inconsistent with the text of Title VII and the Court’s anti-discrimination precedents.

Justice Jackson quoted the text of Title VII that makes it illegal to take an adverse employment action against “any individual.” She further quoted a 2020 Supreme Court 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.”

Turning to the defamation by the 5 U.Va. Community Members, they predictably default to the Left’s favorite trope that anyone who opposes DEI must be a racist and a sexist. For example, they say that “The argument being made for a return to the past in hiring or admissions seems to be an argument for a return to affirmative action for white men.” They also say that “He seems to be saying, without factual support, that women and minorities cannot possibly be qualified to teach at the School of Law.”

Of course, I said nothing of the sort. All I said, as I explained above, was that the law forbids taking race, gender, and other protected traits into account in employment and admissions decisions.

The 5 also misrepresent other parts of my August 15 open letter to Interim President Mahoney. For example, they insist that the “only evidence” I cite for my opinion that U.Va.’s law school has likely violated hiring law are the “pictures” in the law school’s alumni magazine during Ryan’s presidency. That is false. The alumni magazine provides more information than “pictures,” and I reviewed the qualifications of the newly hired faculty. The editors of the Cavalier Daily also added a brief discussion of, and a link to, the interview U.S. Assistant Attorney General for Civil Rights Harmeet Dhillon (like me, a U.Va. Law grad) did with CNN’s Jake Tapper in which she explained that the Trump administration is investigating U.Va. because of the evidence it has received documenting civil rights violations during Ryan’s presidency.

Most troubling for me is that, although the 5 U.Va. Community Members probably do not know it, my original submission included the following sentence: “A current UVA law faculty member confirmed my concerns.” The editors deleted that sentence without my permission, either because they have never heard of “anonymous sources” of the sort Bob Woodward has been employing ever since he wrote about Watergate during Richard Nixon’s days in the White House, or they are pro-DEI. I strongly suspect it is the latter. Indeed, as far as I can tell, my open letter is the only piece critical of Ryan and DEI that the Cavalier Daily has published.

I will close with one additional point: The 5 U.Va. Community Members ignore the three non-DEI subjects I asked Interim President Mahoney to address: (1) U.Va.’s apparent violations of the private inurement prohibition of the Internal Revenue Code, especially with respect to the astronomical salary Ryan will receive when he returns to the faculty, (2) the need to hire more conservatives and libertarians for the faculty so students are educated rather than indoctrinated, and (3) the importance of holding accountable the U.Va. decision-makers who put U.Va. in the extreme legal peril it currently faces. The tax law issue (yes, I again mention law) is especially time sensitive because it threatens U.Va.’s tax-exempt status at a time when the Trump administration is vigorously investigating the university. I mention this because I, too, love U.Va.

Scott Douglas Gerber received his Ph.D. and J.D. from the University. He can be reached at [email protected].

The opinions expressed in this guest column are not necessarily those of The Cavalier Daily. Guest columns represent the views of the authors alone. 

Image: “Lawn UVa” by Karen Blaha on Wikimedia Commons