By Walter Smith
Published by arrangement with Bacon’s Rebellion
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 fanfare, the 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.