Did the Board of Visitors Illegally Meet in Closed Session?

by James A. Bacon

Last week the University of Virginia leadership dodged and weaved and did everything it could to suppress an open, wide-ranging discussion at the Board of Visitors meeting of how Jewish students are treated at UVA.

Most pointedly, Rector Robert Hardie called a “hard stop” on board member Bert Ellis’ bid to focus on how the administration was allowing Jewish students to be subjected to hostile and discriminatory treatment. Hardie declared that the points raised by Ellis fell under the rubric of “student safety issues,” which the Board would discuss in closed session.

Was “student safety” a legitimate reason to reject Ellis’ call for open debate about one of the most contentious set of issues to afflict UVA in years?

I’m not a legal expert in government transparency, but it looks to me like UVA violated state open-government law in calling the closed session. I’ll make that case below. But I would welcome feedback from anyone with an expertise in this area to guide The Jefferson Council as we ponder whether to escalate our criticism of what was — whether legal or illegal — a grotesque lack of transparency at an institution supposedly committed to open inquiry.

The background. Some board members have been increasingly concerned about the Ryan administration’s double standards in dealing with pro-Israeli Jewish students on the one hand and pro-Palestinian students and faculty members on the other. Pro-Palestinians feel empowered, speak freely, and are alleged to have broken rules of student conduct with impunity. The overwhelming majority of Jewish students, cowed into silence, express themselves anonymously if at all.

Animosity toward Israel and toward Jewish students, while theoretically distinct, have become intertwined at UVA. Student and faculty hostility toward Israel came to a head in a student referendum last week that asked UVIMCO, which manages UVA’s $14 billion endowment, to divest any corporation from its portfolio that does business in Israel. The referendum, in which about 30% of the student body participated, passed by a roughly two-to-one margin. The Ryan administration declined to stake out a position against the referendum (although it also must be said that it has declined so far to follow up with any action to act upon referendum demands).

Declaring the referendum outcome to be “one of the most shameful things to happen in the history of the university,” board member Doug Wetmore said that Jewish students don’t feel safe at UVA. Complaints have been so pervasive that they have triggered a federal civil rights probe, he added. Wetmore’s colleague Stephen Long noted that a university professor had canceled classes so students could vote in that referendum, an act he called “reprehensible.” Then board member Bert Ellis accused divestment advocates of breaking the rules on how the referendum was conducted and said that the administration has failed to tamp down belligerent behavior toward Jewish students.

They were told that a conversation about those topics would have to occur “in a different setting.”

Undeterred, Ellis brought up the issue again the next day. In a widely watched confrontation with Hardie (about 365,ooo impressions on X/Twitter), he cited the “litany” of incidents affecting Jewish students and tried to open up the meeting to address antisemitism at UVA. 

Hardie responded, “That’s a safety issue and will be discussed in close session.”

State law and closed sessions. With Hardie threatening to reprimand Ellis if he didn’t stop insisting on staying in open session, the Board approved a motion to go into closed session to address a variety of matters including (my bold)…

data from the JustReportIt system and efforts and programs for monitoring the well-being of, and improving safety for, members of the University community including students and employees, where discussion in an open meeting could jeopardize those efforts and the security of individuals.

The Board motion cited section § 2.2-3711 A (19) of the state code, which delineates when public bodies are permitted to meet in closed session. Here is the language of sub-section 19 that Hardie presumably was alluding to when he claimed that the closed session was called to discuss “student safety.” State law grants and exemption to the open-meeting requirement for:

Discussion of plans to protect public safety as it relates to terrorist activity or specific cybersecurity threats or vulnerabilities and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such matters or a related threat to public safety; discussion of information subject to the exclusion in subdivision 2 or 14 of § 2.2-3705.2, where discussion in an open meeting would jeopardize the safety of any person or the security of any facility, building, structure, information technology system, or software program; or discussion of reports or plans related to the security of any governmental facility, building or structure.

Applicability of state law to UVA. You don’t have to be a Supreme Court clerk to conclude that this exemption is a stretch, if not outright illegal.

UVA was not subjected to a terrorist threat or a cybersecurity issue. The only conceivable relevance of the exemption in state law lies in the language, “where discussion in an open meeting would jeopardize the safety of any person.”

However, that language occurs in the context of protecting state infrastructure from terror or cybersecurity threats, specifically “information that describes the design, function, operation, or access control features of any security system, whether manual or automated, which is used to control access to or use of any automated data processing or telecommunications system.”

The JustReportIt system cited in the Board resolution conceivably could be construed as such infrastructure, but the system was not under threat. Programs to improve the safety and wellbeing of students were not under threat. Arguably, specific individual students could be said to be under threat (a fact that UVA has yet to concede) but I question whether the safety and security of any individual would have been compromised in open session had UVA officials just handled the information discretely.

The JustReportIt system compiles complaints lodged by students regarding sexual- and gender-based harassment, bias and discrimination, and threats or acts of violence. UVA officials have said they would compile data from JustReportIt to measure how extensive bias and discrimination is against Jews, Muslims and other religious minorities. A UVA spokesman told the Daily Progress that the University had received a total of 19 “reports related to potential antisemitism” between the start of the 2023 fall semester and Jan. 1 of this year.

JustReportIt assures students that their anonymity will be protected, so legitimate privacy issues would arise if individuals’ names were identified in an open meeting. However, there was no necessity to reveal that information in order to discuss the larger issue of whether Jewish students generally feel safe at UVA. University officials easily could have shared JustReportIt data without mentioning individual names and without “jeopardizing the safety of any person.”

I asked Board Secretary Susan Harris and UVA spokesman Brian Coy to explain how “student safety” was grounds for a closed session.” I asked them to “cite the language of the state code that allows such an exemption.” I received no response.

Until I do get a response that makes sense, I’m inclined to think that there is no legitimate explanation for the closed session, and I’m inclined to think that the evocation of “student safety issues” was a dodge to shut down a free and open Board discussion of the University’s policies.