UVa Free Speech Committee Could Use Some Transparency
By Walter Smith
Published by arrangement with Bacon’s Rebellion
In February 2021, University of Virginia President Jim Ryan appointed a committee to articulate the university’s commitment to free speech and free inquiry. With great fanfare, the Board of Visitors “unequivocally” endorsed the lukewarm and politically correct statement of June 4, 2021.
On June 7, 2021, I submitted a request under the Freedom of Information Act to see all documents used or submitted to the Committee on Free Speech and Free Inquiry. “I would expect this to include, but is not limited to, faculty and student submissions, committee meeting agendas and minutes, all committee member submissions and any group outdoors,” I said. “Essentially, if a document was before the Committee, regardless of the source, I would like it to be produced.”
Long story short, it’s almost eight months later and I’ve only seen a fraction of the documents. UVa withheld them on the grounds that, although Ryan was not a member of the committee, they are the president’s “working papers”.
Here is the context. My quest to snatch documents from UVa began even before the Committee issued its official statement. As part of its deliberations, the Committee held a “listening session” on May 3, 2021. I requested a recording of the virtual “meeting” and, in an effort to narrow the scope of my request, I asked for all submitted documents. to a committee “drop box”.
The drop box produced 213 pages of documents. Those made public were copies of freedom of speech statements from other universities as well as a closing argument from the Bhattacharya trial case (involving a medical student who had committed the offense of interrogating “microaggressions” .) All others were withheld as Chair’s Working Papers. .
“Working Papers” are defined as documents created by or for the UVa President for personal or deliberative use. I thought it was obvious that the materials produced by a committee, which held its own meetings (without Ryan present) to draft a free speech statement released under its own name, were not intended for the public. Ryan’s “personal or deliberative” use. I have filed a FOIA complaint in the Henrico General District Court to dispute this claim.
UVa’s lawyer persuaded the judge that these documents were for Ryan’s deliberative use on the grounds that it was a special ad hoc committee. The decision even covered documents submitted by third parties to the Committee. I found that absurd. In a FOIA follow-up, I requested meeting agendas and any organizational documents or instructions to the Committee. UVa claimed that these were also “working papers”.
I returned to the Henrico General District Court with a case from November 8, 2021.
After some procedural delays that the UVa incurred for the only conceivable purpose of wasting time, a trial date has been set for January 13, 2022.
On January 12, 2022, UVa sent me the agendas of five Committee meetings. UVa’s lawyers did not concede that I was legally responsible for the diaries. Instead, they argued that Ryan was waiving his right to exemption and producing the documents voluntarily. You can see the agendas for the five meetings here: March 10, April 1, April 21, May 5, and May 24. Can anyone seriously claim that these nearly empty pages were kept for Ryan’s deliberative use?
Rare as they are, agendas raise new questions. The agenda for April 21, 2021 lists the main topic of the meeting: “Discussion of the draft declaration”. 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 for thinking the fix was in there?
After the AVU handed out the agendas, I focused on the instructions for the Committee. Most committees have some sort of governing document to guide the purpose of the committee. In my corporate world, this is usually called a charter. UVa filed a belated response to my FOIA on January 12 with affidavits from Ryan, committee chair Leslie Kendrick, and UVa FOIA officer. They revealed that Leslie Kendrick had revised an early draft of the instructions and that Jim Ryan had “substantially revised” them. Ryan requested that Kendrick distribute the indictment to the Committee with a hidden copy for him. He personally delivered his charge at the Committee’s first meeting.
Unfortunately, the judge again ruled for UVA. He noted the irony that the controversy involved a free speech committee. And I will concede that, legally speaking, it was a closer call. We now know that the document containing the instructions was prepared for and by Ryan. But was it prepared for its deliberative use?
I submit that such an assertion does not hold water. The instructions could not be for deliberation – he had already deliberated what he wanted in the instructions, and the document reflected the outcome of those deliberations! Whichever interpretation is adopted, some clarification on the nature of the “deliberate use” exemption seems necessary.
This updates us on the FOIA dispute.
In summary, UVa announced on June 4, 2021 that it unequivocally endorses free speech. Since June 7, 2021, the university has been working diligently to prevent me from reading and viewing the words of professors and students who… were exercising their right to freedom of expression by testifying before the committee. Why?
I suspect that the third-party documents reveal a genuine intolerance of speech that was not left-sanctioned speech. In many parts of the 21st century university, “free speech” is equated with hate speech and is vigorously suppressed. I suspect the submissions come from faculty and students and that the Ryan administration doesn’t want parents, donors and alumni to know what’s going on at UVa. I suspect the original draft of the Committee statement contained some disparagement of UVa founder Thomas Jefferson or his legacy, which later drafts have toned down so as not to offend those whose money keeps the academy running.
Maybe I’m wrong. The Ryan administration could easily prove me wrong – and demonstrate its commitment to openness and transparency in the marketplace – by releasing the documents. In the meantime, I adopt the less charitable explanation.
Walter Smith, an alumnus of the University of Virginia, is an attorney living in Henrico County.