UVa Free Speech Committee Could Use Some Transparency

UVa President James Ryan

by Walter Smith

In February of 2021 University of Virginia President Jim Ryan appointed a committee to articulate the university’s commitment to free speech and free inquiry. With great fanfarethe Board of Visitors “unequivocally” endorsed the tepid, politically correct statement on June 4, 2021.

On June 7, 2021, I submitted a Freedom of Information Act request to see all documents used by, or submitted to, the Committee on Free Expression and Free Inquiry. “I would expect this to include, without limitation, submissions from faculty and students, the agendas and minutes from the meetings of the Committee, any submissions from Committee members and any outside groups,” I specified. “Essentially, if any document was before the Committee, from any source, I would like it produced.”

To make a long story short, it is nearly eight months later and I have seen only a fraction of the documents. UVa has withheld them on the grounds that, even though Ryan was not a member of the Committee, they are the president’s “working papers.”

Here is the background. My quest to pry documents loose from UVa began before the Committee even issued its formal statement. As part of its deliberations, the Committee held a “listening session” on May 3, 2021. I asked for a recording of the virtual “meeting” and, in an attempt to narrow the scope of my request, I asked for all documents submitted to a Committee “dropbox.”

The dropbox yielded 213 pages of documents. Those made public were copies of other universities’ free-speech statements plus a pleading from the Bhattacharya lawsuit case (involving a med school student who had committed the offense of questioning “micro-aggressions.”) All others were withheld as the president’s working papers.

“Working papers” are defined as documents created by or for the UVa president for his personal or deliberative use. I thought it self evident that papers produced by a Committee, which held its own meetings (without Ryan present) to craft a statement about free speech issued under its own name, were not for Ryan’s “personal or deliberative” use. I filed a FOIA lawsuit in Henrico General District Court to contest this claim.

UVa’s counsel persuaded the judge that these documents were for Ryan’s deliberative use on the grounds that it was a special, ad hoc committee. The ruling covered even documents third parties submitted to the Committee. I thought this preposterous. In a follow-up FOIA, I asked for the agendas of the meetings and any organizing documents or instructions to the Committee. UVa claimed that these, too, were “working papers.”

Off I went again to Henrico General District Court with a November 8, 2021, filing.

After some procedural delays that UVa engaged in with the sole conceivable purpose of eating up time, a trial date was set for January 13, 2022.

On January 12, 2022, UVa sent me the agendas for five meetings of the Committee. UVa’s lawyers did not concede that I was legally due the agendas. Rather, they maintained that Ryan was waiving his exemption right and was producing the documents voluntarily. You can see the five meeting agendas here: March 10, April 1, April 21, May 5, and May 24. Can anyone seriously maintain that these near-empty pages were retained for Ryan’s deliberative use?

As sparse as they were, the agendas raised new questions. The April 21, 2021, agenda lists the main topic for the meeting: “Discussion of draft statement.” This draft was written before the “listening” session. In other words, the statement was drafted before the committee had heard any testimony! Am I uncharitable to think that the fix was in?

After UVA turned over the agendas, I focused on the instructions for the Committee. Most committees have some kind of a governing document to guide the committee’s purpose. From my corporate world, this would typically be called a charter. UVa filed an answer late to my FOIA on January 12 with affidavits from Ryan, Committee chair Leslie Kendrick and the UVa FOIA officer. They revealed that Leslie Kendrick did revise a first draft of instructions and that Jim Ryan “substantially revised” them. Ryan requested that Kendrick distribute the charge to the Committee with a blind copy to him. He personally delivered his charge at the Committee’s first meeting.

Unfortunately, the judge again ruled for UVA. He did note the irony that the controversy involved a free speech committee. And I will concede that, legally speaking, this was a closer call. We now know that the document containing the instructions was prepared for and by Ryan. But was it prepared for his deliberative use?

I contend that such a claim doesn’t hold water. The instructions couldn’t be for the purpose of deliberation — he’d already deliberated about what he wanted in the instructions, and the document reflected the outcome of those deliberations! Whoever’s interpretation is accepted, some clarification about the nature of the “deliberative use” exemption seems to be in order.

That brings us up to date on the FOIA litigation.

In summary, UVa announced on June 4, 2021, that it unequivocally endorses free speech. Since June 7, 2021, the university has worked assiduously to prevent me from reading and viewing the words of professors and students who were… exercising their right to free speech by testifying to the committee. Why?

I suspect the third-party documents reveal true intolerance of speech that was not Left-endorsed speech. In many quarters of the 21st-century university, “free speech” is equated with hate speech and is vigorously suppressed. I suspect the submissions came from faculty and students and that the Ryan administration doesn’t want parents, donors and alumni to know what is happening at UVa. I suspect that the initial draft of the Committee’s statement contained some disparagement of UVa founder Thomas Jefferson or his legacy, which subsequent drafts toned down so as not to offend those whose money makes the academy go round.

Perhaps I am wrong. The Ryan administration could easily prove me wrong — and demonstrate its commitment to openness and transparency in the bargain — by releasing the documents. Until it does, I adopt the least charitable explanation.

Walter Smith, a University of Virginia alumnus, is an attorney living in Henrico County.

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Dave Mitchell
Dave Mitchell
3 months ago

When it was announced, UVA joining the Alumni Free Speech Alliance gave me some hope that the University would take free speech, censorship and retaliation seriously. I really appreciate the efforts that the author and others have made to participate in and communicate the process. However, it is becoming apparent that UVA is not serious and the Alliance membership is just a smoke screen to continue their actions to stifle unapproved speech. Unfortunately, Dr. Ryan is leading this charge. I am not encouraged that UVA will be anything other than a woke university totally contrary to my experience in the ’70s. I am sure the administration, faculty and students would be overjoyed that I no longer participate in the alumni or other relationships.

walter smith
walter smith
3 months ago
Reply to  Dave Mitchell

Mr. Mitchell – UVA did not join the Alumni Free Speech Alliance – The Jefferson Council did. TJC is one of the founding dissident alumni groups quite displeased with what is going on on our campuses (Grounds!). If you have not joined, please join at thejeffersoncouncil.com
I think my travails reveal that the “free speech” committee was a fig leaf and UVA is not serious about free speech, in betrayal of its Jeffersonian heritage.
UVA knew what it was going to say before it even formed the Committee – I offer this article from UVA Lawyer magazine in Spring 2020 – https://www.law.virginia.edu/uvalawyer/article/lies-have-it – Would you be surprised to discover the authors were on the free speech committee and Leslie Kendrick chaired it?

Lorna gladstone
Lorna gladstone
3 months ago
Reply to  walter smith

I a, Rey surprised that everything being what it is that thenUniversity has not repudiated Jefferson himself. I have a horrible feeling that, this too, will be coming in the near future.

Wahoo74
Wahoo74
3 months ago
Reply to  Dave Mitchell

Dave, yes, please note what Walter said. I am also one of the founders of The Jefferson Council. We are one of the first 5 colleges to form AFSA. UVA has nothing to do with AFSA, nor does Princeton, W&L, Cornell, Yale or the other colleges. It is the alternative alumni groups like The Jefferson Council who are members of AFSA. Join our group. We get it and are fighting back: https://thejeffersoncouncil.com/join/.

Last edited 3 months ago by Wahoo74
Anonymous
Anonymous
3 months ago

As parents, donors and alums, we appreciate your efforts and hope you keep fighting to bring all of the the sordid details out in the open. Early on, we wrote to President Ryan expressing our dismay with emerging University policies regarding “free speech” and said we would limit donations. Granted, we are not huge donors, but my husband and I have been steady, long term (30 + years) supporters of all things UVA. Recent actions regarding race, social justice, free speech and Covid policies have made us cease all funds heading to Uva (thankfully we have finished paying tuition, as well). Jefferson Council is doing good work and they are getting our donations now…Thank you.

Last edited 3 months ago by Anonymous
Wahoo74
Wahoo74
3 months ago
Reply to  Anonymous

As one of The Jefferson Council’s founders, I thank you very much for your support. Please come to our annual meeting April 5 @ Alumni Hall. If you’re not on our mailing list send a message to Jim Bacon and we’ll get you on it.

Bruce Broulik
Bruce Broulik
3 months ago
Reply to  Wahoo74

Will there be a link so that one can participate offsite?

UVA Foursquare Male
UVA Foursquare Male
3 months ago
Reply to  Anonymous

Bravo for you folks! (:

Wahoo74
Wahoo74
3 months ago

UVA Foursquare Male, please join The Jefferson Council: https://thejeffersoncouncil.com/join/. We need your support. Thanks

UVA Foursquare Male
UVA Foursquare Male
3 months ago
Reply to  Wahoo74

Hey! I did join and donated to TJC!

Wahoo74
Wahoo74
3 months ago

Great article, Walter. Tough to argue against truth and logic, and your article is full of both.

I bet the English Department now bans Orwell’s “1984” from the reading list since it would be like looking in the mirror for the Administration.

UVA Foursquare Male
UVA Foursquare Male
3 months ago

Insightful article and legal perspectives! What are the next steps to legally challenge Ryan’s “executive privileges”?

walter smith
walter smith
3 months ago

I have 3 cases pending in Henrico Circuit Court. Two pertain to free speech, and one pertains to the “Climate Survey” which the Board approved in 2018 and never got released, until a few days ago. https://ira.dev.uvaits.virginia.edu/sites/ias.virginia.edu/files/UVA%20Climate%20Survey%20Results.pdf
Because the survey got released, that lawsuit will be dismissed eventually by agreement between me and UVA counsel.
Ultimately, rather than litigation, which is not my normal world – I was a corporate lawyer – I would hope UVA and new University Counsel take a more open view of transparency and releases all the contested documents.
We’ll see. But isn’t it suspicious that a school that says it “unequivocally” supports free speech and free inquiry won’t release the documents of the free speech committee?

UVA Foursquare Male
UVA Foursquare Male
3 months ago
Reply to  walter smith

Splendid! Thanks for your advocacy and very busy work!