Unequivocal Support for Free Speech… but Not Transparency

by Walter Smith

To the tune of “Unforgettable”…

Unequivocal you’re not at all
Unequivocal nowhere this fall
Like an empty phrase that runs from me
How your illusion does things to me
Never before has something been less
Unequivocal in every way

The University of Virginia formed the Free Expression and Free Inquiry Committee in February 2021. In May the Board of Visitors “unequivocally” endorsed the work of the Committee. Personally, I think the statement is a disgrace to Jefferson’s free speech legacy – I was hoping for more than the Chicago Principles and got a lukewarm, turgid, academic, PC jargon, kinda sorta saying UVA believes in free speech..

Does UVa really believe in free speech? We have seen that F— UVA is vigorously protected on the Lawn, but what about in the classrooms and on the Grounds? Are students and professors free to express their beliefs without fear of recrimination? Anecdotally, I don’t think they are. I have heard stories. and I have seen true harassment and shaming and threats for the “crime” of not agreeing with current woke ideology du jour.

Let’s be clear about President Jim Ryan’s Committee. I have studied academia, and Ryan particularly, to know that any committee is stacked to come to the desired conclusion. Personnel is policy. It was so on the Racial Equity Task Force. It was so on this Committee, and it will be so on the Naming and Memorials Committee. Additionally, these committees control the information they “officially” receive (publications cited, witnesses called, etc) so that nothing distracts from the pre-ordained conclusion.

The Free Expression Committee held a “listening session” May 3, 2021. It was not well advertised, nor was much notice given. Nonetheless, I requested and received an audio copy of the testimony. I noticed reference to what I understood to be a Dropbox-type folder. Surmising that the folder contained public input submitted to the Committee, I requested the documents. (Actually, I requested all documents concerning the Committee and when I was told it would cost mucho dinero, I amended my request to just that receptacle.)

UVA’s FOIA officer eventually produced 213 pages of publicly available documents, but withheld the documents I heard referenced (and who knows what else) as “working papers” or as “exempt scholastic information.” As a neophyte (I was a corporate lawyer and avoiding litigation was a big part of my job), I filed in Henrico General District Court to compel production of the withheld documents. UVa responded, and we had an impromptu trial on July 30, where the Judge agreed with UVa.

I am now trying to get this issue resolved in the Circuit Court. The UVa lawyer has been kind enough to tell me where I have failed to comply with the basic procedural rules, and one day soon I may even get the papers properly filed to begin the lawsuit.

“Working papers” are defined as “records prepared by or for a public official (in this case, Ryan) for his personal or deliberative use.” I don’t see how documents submitted to the Free Expression Committee were prepared for Ryan’s “deliberative” use. They were prepared for the Committee’s use. Documents from the Committee to Ryan for the purpose of making decisions are “working papers,” but not these. If so, then every document at every Committee can be shrouded by claiming it was generated to help him make a decision, or even more absurdly by just forwarding the documents to him, thereby clothing them with his deliberative privilege. Similarly, the exempt student information is exempt only if it could lead to the identification of the student. This problem is easily cured by limited redaction.

So, one day, I may get to the Circuit Court on this issue. But Ryan can choose to release “working papers.” He unequivocally believes in free expression and free inquiry, as does the BOV. Why can’t an interested alumnus see these documents? Are they THAT bad?

Walter Smith is an attorney living in Henrico County.

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