by James A. Bacon

So much to blog about today. Let’s start with transparency — which is so pathetic that we should start referring to opacity — at the University of Virginia. (For readers who are fatigued by my UVA reporting, get over it. The following observations are relevant to all of Virginia’s public universities.)

Yesterday I lamented that the Board of Visitors met in closed session to discuss one of the most important and contentious issues facing UVA and higher education generally: Diversity, Equity & Inclusion. This was a matter of intense interest to the public across the ideological spectrum.

The excuse given for shutting out the public was that the Board needed to consult with legal counsel regarding “…compliance by the University with civil rights laws and regulations and presidential executive orders, and potential and actual litigation and investigations involving governmental agencies.…”

Discussing litigation is a legitimate exemption from the public-meeting requirement if the purpose is to avoid revealing sensitive legal information that would compromise negotiations or litigation. But it is not a legitimate reason for closeting a wide-ranging discussion that goes way beyond the litigation. And the resolution adopted by the Board of Visitors was very wide-ranging. Indeed, that document, crafted in closed session, never addresses litigation, and brushes only briefly against legal issues at all.

The resolution reaffirms the University’s commitment to being inclusive and welcoming; to creating a campus climate conducive to free inquiry, constructive discussion and diverse political views; and to setting up mechanisms to ensure that the Board’s mandates are carried out.

Please tell me, what sensitive legal issues were involved with any of that?

Citing a need to be “consistent with the law,” the Board resolution did rescind a 2020 Board action that had adopted numerical goals for the demographic composition of students and faculty. One could argue that such a conversation touched upon “legal” or constitutional issues.

I would argue that in matters of such all-consuming interest and import, the Board could be briefed on sensitive legal issues in closed session but return to open session to hash out the policy issues. Instead of pursuing that approach, the Board used the “legal matters” loophole to hide all discussions from the public.

A Bacon’s Rebellion correspondent, a former attorney, pushes the case for openness even further.

The Freedom of Information Act, he contends, does not require discussions of legal matters to go into closed session; it simply authorizes such meetings. (§ 2.2-3712.) In other words, by voting to go into closed session, the Board — my correspondent refers to it as “that feckless Board” — effectively “conspired with Ryan to keep their deliberations secret.” 

Fair point. Board members have never pushed back on closed sessions. They meekly vote unanimously to go into closed session, then they meekly vote to affirm that they didn’t discuss anything improper.

By my count, seven attorneys serve on the Board. Shame on them for their passivity. Shame on them.

In a related point, President Jim Ryan’s working papers used for his personal deliberation are protected but may be disclosed. (§ 2.2-3705.7.2.) Ryan has chosen to reveal nothing. Absolutely nothing. And the office of the University Counsel has defended his prerogatives in court against the dogged efforts of my Jefferson Council colleague Walter Smith to pry loose documents that have been shared widely within the University administration.

And one more thing: where is Attorney General Jason Miyares in all this? University Counsel Cliff Iler reports ultimately to the Attorney General. “The AG,” my correspondent suggests, “needs to be going public for the proposition that eliminating discrimination based on race/sex/etc. (i.e., DEI) is illegal and his advice needs to be public.”

He concludes: “Comply with the law, dammit!”

I don’t particularly fault President Jim Ryan here. He has a seven-year legacy of imbuing UVA with his social-justice ideology, which he knows is unpopular with the general public. Transparency ill serves his interest in preserving that legacy. He will delay, hide, and obfuscate as much as he can. Dogs gonna bark; birds gonna fly.

My frustration is with those who have been appointed to hold him accountable. They’re just not doing their jobs. Oh, sure, they tightened the screws on him yesterday and made some progress toward eliminating racial preferences (which is what the DEI debate is really all about). But they’re not moving nearly as aggressively as they could, and time is running out. The Republican ticket in the elections for statewide office this fall is in potentially catastrophic turmoil. The political dynamic at UVA will look very different with Abigail Spanberger, a UVA grad, in the Governor’s Mansion.

James A. Bacon serves on the executive board of The Jefferson Council.