Daniel Invokes Honor Code to Clean up UVa’s Lawn

by James A. Bacon

Aubrey M. Daniel III, author of two widely read letters critical of the University of Virginia administration for its handling of the controversial “F— UVA” sign posted on the door of a Lawn resident, has issued a third, which he says will be his last.

Following the advice of university counsel, Rector James B. Murray Jr. and President Jim Ryan said that any move to take down the offending sign would violate the Lawn resident’s right to free speech. Daniel responds in this letter that all signage on Lawn room should come down because all of it violates the contractual terms signed as a condition of residency.

Addressing the letter to Murray, Daniel argues that Ryan and the board have failed to preserve the Lawn in accordance with its status as a UNESCO world heritage site, that Ryan has failed his fiduciary duties to the university, and, most controversially, that the authors of the “F— UVA” sign and other detritus applied to Lawn doors are guilty of honor code violations for their failure to live up to contractual obligations, incurred when they became Lawn residents, to “enhance the general reputation and good name of the University in the eyes of the public.”

Here follows the letter:

Honor calls us to be honorable to each other not merely by not committing
transgressions, but also by doing reverence to the other in our midst.
by Professor Michael Suarez, S.J.
Adopted by the Honor Committee

UVa’s Lawn Scandal — Bad Leadership and Worse Lawyering
by James C. Sherlock

The Jaw Dropping Political Contributions of UVa’s Board of Visitors
by DJ Rippert

Ryan Wilts in Conversation with [his student]
by James A. Bacon

GRIM: President Ryan shouldn’t live in a mansion
By Adam Grim

The reasons I decided to return to this debate are all shown above, as well as my review of your last letter. I am deeply concerned about the health of The Honor Code, headlines which demonstrate the reputation of the University has been tarnished, as well as the financial damage caused by lost donations, all of which will continue unless you fulfill your fiduciary duties to the University and the people of the Commonwealth of Virginia.

The major issues to be addressed are your mismanagement of this issue, President Ryan’s mismanagement of this issue, the misconduct of the students on the Lawn who have breached their contracts, defaced their doors, and damaged the reputation of the University and the Honor Code.

In discussing all of this I want something to be very clear. I know none of you. This is not a political issue for me and indeed politics should play no part in any of this. For me, the key issues are protecting the University, its values as embodied in the Honor Code, and continuing to cherish the legacy of Thomas Jefferson. My love for these has been a constant in my life.

I recognize that asserting you have conflicts of interest is a serious allegation. I came to this conclusion based on the law, the facts, and my four decades of experience as a military and civil trial lawyer.

Many times in my professional career I was called upon to decide whether I had a conflict of interest in my representation of a client or whether my law firm had a conflict of interest which would prevent us from representing someone who sought our legal counsel. My representation of the VSAF was an example of a conflict when the Board was disqualified from evaluating the performance of the President because of personal relationships. As a result, an independent counsel was needed. I had another significant personal experience where I needed to avoid any perceived conflict of interest, the Lt. William Calley My Lai massacre case. I had a social relationship with the judge and therefore had to tell him that we could no longer play golf together or be seen talking to one another outside the courtroom.

Your attempt to place some of the blame on prior Administrations for this disaster by saying it began “Over the course of the past several decades” is highly inappropriate. It is an insult to past administrations and Presidents like John Casteen. He was a great leader whom I knew well and for whom I have the utmost respect. He would never have allowed any student, let alone a Lawn resident, to post big, bold, obscene signs saying FUVA on the Grounds. President Casteen always put The University first. For you to begin your letter by trying to shift the blame to past administrations for this debacle is a low point in this debate.

The issues of honor, respect, honesty, courtesy, and civility are not generational. These virtues are universal and timeless. The Lawn room doors were clean when I was enrolled as a student there in the fall of 2004. Pictures show that the Lawn was beautiful in 2010, when I attended my 50th reunion in 2013, and when I returned to visit my Virginia home in 2016.

What has happened here represents an historic low in the history of the University and in the quality of its management and leadership. The public and the Alumni don’t deserve this. Public servants should be held to higher standards, particularly you who have been given the custody of and the duty to protect one of the most special places in the world. You can’t even perform the most basic duty of keeping “the face of the University clean.”

I am glad that you have finally acknowledged that it is the Board’s “duty” to the University to make decisions to protect it. It is after all included in what you wrote were your legal duties. This fiduciary duty is clearly set forth along with others in the Statement of Visitor Responsibilities Board of Visitors. It states the following:

The Board is the governing body of the University, a Virginia public corporation. Broadly, the Board has oversight responsibility for advancing the University’s mission and goals, for assuring the proper stewardship of the University’s resources and assets, and for monitoring the implementation of institutional strategy and policies. Among the Board’s primary and most important duties are appointing and evaluating the University’s president.

As the Board of the University, we are committed to effective governance accomplished through a Board culture characterized by dedication, diligence, collaboration, teamwork, candor, transparency, and accountability.

Among the Boards responsibilities are:

Visitors understand and act consistently with the principle that they serve the University as a whole and not any… constituent [a political organization, a movement, or a particular student].

Visitors understand that they owe a fiduciary obligation to act in the best interests of the University. Visitors respect the concept of student self-governance and the University’s Honor System.

Visitors actively safeguard principles of academic freedom for the University and its faculty and endeavor to protect the University from outside influences seeking improperly to shape it.

Uphold the Integrity of the Board.

Visitors adhere to the highest standards of personal and professional integrity, including avoiding real or perceived conflicts of interests.

The same admonitions are found in the University Code of Ethics and Mission Statement.

In your statement on September 29, you said “The Board of Visitors of the University commends President Ryan for his handling of the offensive paper signs posted on the doors of rooms on the Lawn.” When I replied, I said if you were involved in the decision making that evaluation could be questioned because it might have been biased and not an objective evaluation. Given your reply and the admission of so many mistakes, it is now obvious that that evaluation has been retracted. In your reply, President Ryan is only being commended for his handling of the COVID problem. Doing one thing well is not a defense for doing something else badly. You have a conflict of interest in evaluating President Ryan’s performance. You have included him in your mistakes when you say we were responsible.

With respect to the handling of the Covid problem, the Dean of Students, Allen W. Groves, sent an e-mail not long ago to all Undergraduate Students. The message was described as “blunt.” I read it and that is correct.

The message was sent because he had received reports of students not wearing masks and not social distancing. He wrote that he had seen photos of this behavior. In response to some students who wanted to defend the behavior, he said: “To be clear, such an argument should be seen by each of us as repugnant to any idea of fundamental decency towards our fellow citizens.” He said this behavior was “– to be blunt — selfish and ignorant.”

He said that failing to follow basic rules about health could have serious consequences. Such a blunt letter should have been sent to the students on the Lawn reminding them of the written contracts they signed to obtain their rooms on the Lawn. These students have dishonored the honor they were given when they were accepted by the University and have dishonored the high honor they have received to live on the Lawn. The health of the University has also suffered from the damage to its reputation and in the massive loss of donations. This is one more mistake to be added to your existing list.

It makes no sense to me and it hasn’t since the beginning why you have not cleaned the doors on the Lawn. Your own regulations state, “Lawn Residents should respect their living space as a place of historic value and as the public face of the University.” You have made a damning admission when you state, “We have allowed our own rules to be stretched beyond sense….”

Since I received your letter, I have spent a lot of time analyzing it and questioning whether I should reply. I could have interpreted your letter as an invitation not to reply for, as you say, “You have accomplished your expressed purpose of ‘preserving history and bringing decorum to the public debate.’” Indeed, that could have been a good time for me to decide not to return to the public debate. However, as you know, I have wanted to accomplish more, a pristine Lawn on this unique UNESCO site with all the doors clean and beautiful. This debate has reached a level that I find incomprehensible.

Do owners of any property want to keep their property clean? In this case, you had a duty as public servants to make sure that this UNESCO World Heritage Site was kept clean and beautiful. With respect to the specific doors on the Lawn you state, “Unfortunately, they do all look the same; at present they are harmoniously littered with signs.” So now the response to that which should be taken and can be taken is to clean all the doors. You no longer have the defense of singling out a solitary door.

“UVa’s Lawn Scandal — Bad Leadership and Worse Lawyering”

I appreciate your candor and honesty in admitting your breaches of your fiduciary duties. It is very rare for a Board and a President to admit breaches of fiduciary duties because it is an admission of liability to the corporation they serve, in this case, the University.

The breaches you have admitted are these:

  1. “It was a mistake to allow students to plaster their doors with unsightly junk.”
  2. “This situation could have been avoided.”
  3. “We have allowed our own rules to be stretched beyond sense, increment by increment, relying upon little more than the good judgement of our accomplished Lawn residents regarding content.”
  4. “We have been too lax in interpreting the contract with each resident which includes a Code of Conduct.”
  5. “Could we have done better? Yes, we can always say that.”

Unfortunately for the University, you have continued to allow it to be damaged.

I am also perplexed by the following paragraph in your letter:

“If we act out of indignation will we encourage national civil liberties and civil rights organizations to drag the University (without support from the attorney general) into a prolonged, multi-year public fight over constitutional rights of free speech? If so, who wins? The University? The attention seeker?” No one has said that you should act out of “indignation.” You just have to do your legal duty.

It is incomprehensible why this speculative and totally unrealistic scenario is trotted out now as a reason not to act. The University does not have to be afraid of this ever becoming a reality. Who would be the plaintiff? Whose right to freedom of speech has been denied or would be denied by your fundamental duty to protect the Lawn doors? Are you talking about the student being the victim? Really? Lawyers who file frivolous lawsuits can be subject to sanctions.

I have evaluated a lot of cases to determine if they were worthy of being filed in Court. When evaluating any plaintiff’s case in the initial interview, I look at the potential client and decide if he or she is credible and sympathetic as well as whether the facts give me a legal basis to file a complaint, and recover some damages. I also evaluate the likelihood of success in front of a jury or a judge.

We all know who we are talking about here. The plaintiff victim would be a totally unsympathetic person. I am confident that the student wouldn’t be able to find a lawyer or an organization who would take her case after all the doors on the Lawn have been cleaned and she has been given another place to exercise her free speech. The idea that this student has been denied anything up to this point is preposterous. She has exercised her right of Freedom of Speech using the door, using a TV appearance, using the Cavalier Daily, and using the conversation with the President which she secretly recorded and posted on the Internet. She has not been victimized in anyway but the University has suffered enormous losses.

When I did the internal investigation for the VSAF, there was real litigation and John Casteen was served with suit papers as he walked into the Rotunda to report to the Board. My recollection is that the University was named as a defendant. The University is no stranger to litigation; you have had a variety of cases, e.g., Title IX. In this litigious world, it is common for public and private institutions to get sued. If you are weak, you are more likely to get sued.

It is shocking that you seem to be inviting a lawsuit when you say that you would not have the support of the Attorney General to protect the institution against a frivolous claim The Attorney General’s office has a civil trial section which defends institutions in Virginia. Who told you they would not defend you in any litigation related to this matter? Did you mean something else when you used the words “support”?

Rather than this imaginary lawsuit, you should be more concerned about your personal liability in a lawsuit brought by an organization for your breach of fiduciary duty to the University. In the real world, when boards of directors or officers do not do their duty to the corporation they serve, they are subject to a stockholders’ derivative action brought in the name of the corporation which in this case is the University.

There are three elements for bringing such a lawsuit:

1. The existence of a fiduciary duty.
2. A breach of that duty.
3. Damages.

All three elements are satisfied on the facts of this case.

In such actions, the Board of Directors may rely upon the “business judgement rule.” For example, relying on the advice of counsel. However, that defense is no longer available to you since you have acknowledged that the First Amendment defense is no longer a defense. Moreover, that defense was not valid from the beginning because you were charged with the knowledge of knowing the
contractual rights and obligations of the University and its standards. This defense appears to be created to protect the student and not the University.

“Ryan Wilts in Conversation with [his student].”
James A. Bacon

I knew very little about President Ryan when I wrote my first letter to him. When I saw his “no doubt” legal defense and his description of his meeting with the student to exchange points of view, I was skeptical of both. My experience as a trial lawyer and in life has taught me to be skeptical of everything I can’t verify.

I have great faith in following the instincts of my skepticism. I have cross examined scores of so-called expert opinions and exposed them to be in some cases totally false and flawed and in other cases not accepted by the jury.

My skepticism of the “no doubt” opinion has proved to be justified. It has been shown to be anything but “no doubt,” in fact it has been destroyed as a defense. I thought it was inconsistent with President Ryan’s statement that predicting legal outcomes was “impossible” even in a case he argued before the Supreme Court.

When the Board admitted my UNESCO argument was correct, you inexplicably went back to arguments that were not relevant. The First Amendment Argument should have been over and my argument on Va. Code section 18.2-138 as well.

Then President Ryan wrote a defense claiming he could not act using the Va. Code section 18.2-138 because there was “no property damage.” My response to that was he had no legal authority to delete the word “defacing” from the statute. I analyzed the statute in detail word for word. His effort to justify no action was more than creative, it was a dishonest reading of the statute. No judge would ever have allowed him to do that in a legal debate on the meaning of this simple law. Describing the Lawn in the student’s contract as “the face of the University” is particularly ironic since President Ryan tried to eliminate the word “defacing” from the statute.

Moreover, it is another example of President Ryan breaching his fiduciary duty to the University. The legislature intended to provide broad protection to public buildings. By eliminating the word “defacing,” he lessened the amount of protection the University is entitled to.

When President Ryan spoke about his conversation with the student, I asked a number of reasonable questions about that conversation. He has never answered those questions, which increased my skepticism and raised the concern whether or not President Ryan was being candid with the public.

I also asked how it was possible that someone with his incredible resume and the power of his office could not persuade the student to take the sign down. The student who secretly recorded her conversation with President Ryan is very lucky that it happened in Virginia where secretly recording a conversation is not a crime. In many other states, it is.

It is very ironic that the Cavalier Daily was asking for access to meetings behind closed doors because now we have been able to hear exactly what was said in a very important discussion behind closed doors.

At first, I thought what she had done was very deceitful. However, President Ryan is a public official and the people should be able know the truth behind his decision to leave her sign on the door. We now have enough information from that conversation to know that his decision was politically motivated.

I first learned about this taped conversation when I was referred to Mr. Bacon’s article, “Ryan Wilts in Conversation with [his student].” Before actually listening to the conversation, I read Mr. Bacon’s article and his conclusions. I agree with those conclusions. He states, “UVa’s leaders are conflicted, therefore, they are weak.” President Ryan is characterized as being supplicant and meek. Another of his observations that I agree with, “While it is part of Ryan’s job to ‘listen’ to the University’s stakeholders, it is also his job to stand up for the University.”

One particular part of the conversation I found personally insulting is this:

Ryan: You know, I’m sure you’re receiving a lot of emails. I’m receiving a lot of emails. Um, a lot of the reaction is to just “fuck UVA” and the, just the profanity. Um, and I think that precludes a lot of people from actually thinking about what the rest of it is. I also think the KKK Cops, um, stops a lot of people in their tracks who think it’s basically an epithet. Um, so I’m curious, like how, how do you respond to that, right? That is completely fine to raise complaints about these issues, um, and, and, and, um, and, and concerns about them, many of which I share, but, but a lot of the reaction I’m seeing anyway, it’s just as a visceral reaction to the headline, a subsidiary reaction to, wow, are you saying all cops are members of the KKK? And I think that, that stops a lot of people from thinking about the valid points that you’re raising. And I, I’m just curious, like, how do you think about that? And if you were me, how would you think about that?
The Student: So, the first thing is like for which people? First of all, which are the
people who are most offended?

Jim Ryan: Oh yeah. It’s all, it’s all alums. …

Nothing that I have written or other alumni have written can be characterized as simply “visceral.” Visceral means the opposite of intellectual. In contrast to his receiving visceral reactions he has received elegant, reasoned, well thought out and thoughtful arguments from all alumni who have written, all of whom are justifiably concerned about their University.

In this conversation, President Ryan knows that “KKKOPs” is a lie about the University’s police yet he does not even ask her to delete that portion of the message. He never debated her over FUVA with a response DON’T FUVA. He made no effort or argument to persuade her to take down this abominable sign. It is clear that the reason for that was that he agreed with her stated grievances but did not believe that this was the optimal messaging to get others to concur with her like he did. In this conversation, there is absolutely nothing to suggest that he was upset or angered. Indeed, he was laughing. I ask no one to agree with my personal observations but form your own by listening to the conversation which can be found in Mr. Bacon’s article.

The Students Without Honor

You said, “The First Amendment right to make a political statement is personal to the speaker. Once the speakers are gone, any rights go with them. The administration has a “do the right thing” strategy, not a “do nothing strategy.”

I would argue that your “do the right thing” strategy is not doing the right thing. The right thing to do is clean all the doors now. You seem to suggest that your hands are tied because those students are still in those rooms that are defacing the University daily to the public. WHY should they be allowed to continue to have one of the highest honors at the University, a room on the Lawn? Their conduct clearly violates the terms of their lease agreement with the University. They are, after all, only tenants who are violating the standards of decency and civil discourse with profanity.

When I analyzed Mr. Heaphy’s legal opinion, I did not have a copy of that contract. In fact, I asked for but was not given one.

In your letter, you state with respect to that contract,

“We have a contract with each resident [tenant]. It includes a Code of Conduct. In my view, we have been too lax in interpreting that contract regarding signs. In doing so we have established a regrettable norm that now must be revised.”

I assume you meant to say enforcing rather than interpreting. The contract is clear. Not enforcing a code of conduct at the University of Virginia is a very serious matter. It surprises me that you don’t specifically include the words in that Code of Conduct in your letter for the public to read.

The students occupying these rooms have been accepted into the University of Virginia which is in and of itself an honor. Many, many students apply and are never chosen for that honor. When they became students, they were obligated to comply with all Codes of Conduct including the Student’s Standards and Responsibilities. If they were not happy with the history of the University they should have gone to another university.

I read a recent article by Whitelaw Reid, How Lawnies Are Made, It’s a lot harder than it used to be. In it he wrote, “Living on the Lawn is one of the University of Virginia’s greatest honors and most enriching experiences for undergraduates.” He described the selection process as a “rigorous competition.” The selection process covers forty-seven of the Lawn’s fifty-four rooms. He describes the process and those factors which are involved, e.g., GPAs, the writing of four short essays to describe their significant extra-curricular activities, summarizing their academic achievements, and detailing the ways they would uphold their responsibilities of living on the Lawn.”

The number of students applying has been rising, from two-hundred and ninety-one to three-hundred this year. One-hundred and fifteen advanced to the second round and from there a list of forty-seven was determined. I would like to see what the FUVA students wrote detailing the ways they would “uphold their responsibilities of living on the Lawn.”

Before submitting their applications students are advised of its purpose and provided with other information. They read in part, “These degree applicants in their final year of study are expected to continue to work for the furtherance of the Ideals and traditions of the University and to build a strong community while residing on the Lawn.” They also add, “Once chosen for the Lawn, they assume an obligation to so manage their living as to enhance the general reputation and good name of the University in the eyes of the public, since Lawn rooms are constantly in the public eye. Details of these special obligations include continued involvement in the University community, adherence to University policies in the historic public space….

One FAQ question asked and answered about living on the Lawn is this, “Can I accept my Lawn Room and still have a room or apartment off grounds at the same time? No… there are many highly qualified applicants on the wait list who are willing to commit fully to immersing themselves in the Lawn community.”

All the students who have put FUVA and other outrageous and profane language have broken their contracts.

Frank Sonnenberg, a well-known advocate for moral character, has written:

The truth is, our world may have changed, but the importance of integrity has not. Every time you give your word, you’re putting your honor on the line. You’re implying that others can place their trust in you because you value integrity and would never let them down. It goes without saying that if you don’t live up to your word, you may end up tarnishing your credibility, damaging your relationships, and defaming your reputation. Most importantly, you’ll be letting yourself down.

But . . . when you operate with complete integrity, what you say will be taken at face value, your intentions will be assumed honorable, and your handshake will be as good as a contract.”

Breaking a contract is not an act of honor. They have deprived other honorable, well qualified students who participated in the selection process of the opportunity to live on the Lawn. I am sure that there are many students on the waiting list who would be happy to move into one of those rooms and live up to the responsibilities of living on the Lawn.

It is inconceivable to me given this dishonorable conduct how these students are entitled to remain in those rooms until their May 2021 graduation on the Lawn and receive degrees from the University.

Thanks to alumnus James C. Sherlock and his article, UVa’s Lawn Scandal – Bad Leadership and Worse Lawyering, we now have a complete picture of this contractual relationship. The University can terminate the offending students and has the obligation to do so. The University could have enforced the contract when the first student breached it with her door sign, which is prohibited by both the contract and University fire regulations.

The housing contract for Lawn students includes a list of special provisions called Addendum to the Terms & Conditions for Lawn and Range Residents. Two of them applicable here are:

No personal belongings, trash, furniture or other items are permitted outside of Lawn and Range rooms. The four exceptions are as follows: firewood distributed by the University-approved vendor, one 18″ hibachi grill with a small bag of charcoal kept beside it, a 1.5ft x 2ft pin board for displaying paper materials and the ash bucket accompanying your fireplace.”

“Residents are prohibited from suspending combustible materials of any type within their living areas (which include the doorway, shutters and the brick area outside the room) except one standard poster-sized area (900 in2) of unframed, non-fabric material per wall inside your room.”

“The “housing addendum” signed by lawn residents includes a provision limiting the size of signs that may be posted in “living areas” of the lawn, including doors.”

The limitation is for signs on walls inside the room. For good measure, Mr. Heaphy could have referenced the Fire Prevention regulation (under “Doors and Egress”) that “combustible material on doors or hallways walls is prohibited.”

“The University is entitled to remove speech in impermissible places — such as graffiti, vandalism of other residents’ doors, or signs posted in prohibited spaces — on content-neutral, time, place, and manner grounds. Regulation of speech for aesthetic purposes will be assessed for whether restrictions are “justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781 (1989). If the aesthetic reason is grounded in the content of the speech, this application of the regulation is content-based and presumptively unconstitutional. See Reed v. Town of Gilbert, 576 U.S. 155 (2015)”

The University’s Lawn resident regulations are content neutral in their plain language and effect.

The University provides a pin board for the purpose of unregulated speech outside the room. It was clear to the resident as well. She posted political speech on her pin board. She violated a rule which she acknowledged when she signed a contract. That contract not only did not limit speech, it made provisions for it. It limits students from trashing up the outside of their rooms. It is about appearance, not opinions.

A defense that has been asserted, “Lawn residents frequently affix signs of various sizes to their door without consequence.”

The sanction available to the University under the contract is:

“The University retains the unilateral right to terminate this License at any time. Failure of either party to insist upon strict performance of any of the Terms or Conditions herein shall not be deemed a waiver of any rights or remedies of either party, and shall not be deemed a waiver of any subsequent breach or default in any of the Terms or Conditions herein.”

The lawyers that wrote that language were careful to preclude the “I am not the only one that does it.” If you did not know the terms of the contract before and your right to terminate now you do. You have a fiduciary duty to terminate their contracts.

The Honor Code

“The University of Virginia’s Honor Code is at once an injunction and an aspiration. The injunction is simple: students pledge never to lie, cheat, or steal, and accept that the consequence for breaking this pledge is permanent dismissal from the University. It is for its aspirational quality, however, that the Honor Code is so cherished: in leading lives of honor, students have  continuously renewed that unique spirit of compassion and interconnectedness that has come to be called the Community of Trust.

The “Community of Trust” does not exist on the Lawn today because of the dishonorable conduct of the students who are using the obscene signs.

The Honor Committee system on paper is impressive and provides a sound and fair system for the adjudication of violations. The Threshold for initiating an inquiry is very low. “As a member of the University community, if you have knowledge of a possible Honor Offense, you should contact an Honor Advisor immediately.”

Normally if one were reporting evidence of a crime, the standard would be probable cause to believe that a crime has been committed. Having “knowledge of a possible Honor Offense” is much, much lower because “Honor, of course, is a complex and multi-dimensional principle — a moral aspiration that defies simple characterizations.”

“Lying” shall mean the misrepresentation of one or more facts in order to gain a benefit or harm another person, where the actor knows or should know that the misrepresentation will be relied upon by another person.

“Cheating” shall mean a violation of any standards, conditions, or rules for which a student may receive benefit, credit, or acknowledgment, academic or otherwise. Cheating includes, but is not limited to, performance of any of the following acts, or abetting a fellow student in the performance of any of the following acts: using unauthorized materials in the completion of work, copying from a fellow student, plagiarism, multiple submission, false citation, false data submission, and/or unauthorized acquisition of advance knowledge of the contents of an exam or assignment.

Professor Suarez’s effort to define honor at the University of Virginia is an excellent definition. I’ll repeat it here, “Honor calls us to be honorable to each other not merely by not committing “transgressions,” but also by doing reverence to the other in our midst.” Honor is also defined as personal integrity and uprightness of character. A transgression is defined as a violation of law, principle or duty. Another word to be defined is “reverence,” a deep respect for someone or something. Finally, another word that has been referred to in this debate is “decorum,” behavior that people consider to be correct, polite, and respectable. When judging the conduct of the students in the coveted rooms on the Lawn, that conduct should be judged by these standards.

With specific reference to the first student to post an obscene sign, and the definitions of “lying” and “cheating,” there is more than a possible violation of the Honor Code. She obviously “gained a benefit” and “acknowledgment” in making her promise to live on the Lawn, respect the agreed upon standards, and accept the residents’ stated responsibility to the University.

She has acknowledged in what she said in her interview with the Cavalier Daily that she has never felt accepted there because the Lawn has “always been and continues to function as a space for whiteness in which I will never be welcomed.”

Since the history of the University is well known, why did she enroll here and not go to a different school? Her claim that the University functions to uphold “white supremacist ideals” is not true. She goes on to say “that one of my greatest mistakes at U.Va. was my decision to live on the Lawn. Although I was given visibility through a platform….” This statement strongly suggests that it was her intent to use the Lawn for her “platform” when she applied for her room and signed the contract. Thus, it would mean that she misrepresented her intention to comply with the standards for living on the Lawn when she applied for residency and entered the competition. It would mean she cheated the other students in the competition thereby depriving another student from receiving the honor of having a room on the Lawn.

Since she hates living on the Lawn, the decision to terminate her lease and give it to the next student on the waiting list is absolutely in her best interest, as well as the best interest of the University and the people of the Commonwealth of Virginia.

These students failed to honor the Students Guidelines and Responsibilities. In breaching their contracts the way they did, they committed a transgression and clearly did not do reverence to anyone in our midst.

There is nothing in their behavior which shows reverence for anyone, let alone the University of Virginia. No one can say that these students have behaved in a way that is correct, polite, and respectable. Their behavior has been the total opposite of these ideals and standards.

As for respecting others, the student who secretly recorded her conversation with President Ryan and then posted it on the Internet has shown a particular lack of respect for the President of the University. Whether this conduct rises to the level of an Honor Code violation is clearly not for me to decide. However, the lack of enforcement of so many rules with respect to decorum and civility
raises a serious question. Has the Honor System at the University been devalued along the with all the other regulations? Some have suggested it is broken.

These questions should be answered.

1. Was it honorable for them to put the FUVA signs up when it was not consistent with the Student’s Responsibility Guidelines?
2. Was it honorable for them to breach their contracts with the University?
3. Was it honorable for the student to secretly record her conversation with President Ryan and post it on the internet?
4. In the Lawn selection process, did any of them make any misrepresentations in order to win the competition to have a room on the Lawn?

The Honor System as we all know is perhaps the most foundational principle for providing students with a “world class education.” If it does not produce people with integrity it has failed.

Although this issue comes at the end of this letter it should have been more than an afterthought for me and certainly for the Board, the President, and the student. It must be the standard by which conduct is judged at the University. It has been that way since it was adopted over one hundred and seventy years ago.

Accountability

In my last letter, I asked you about the mistakes made by the Administration and the Board of Visitors. You have answered in detail what those mistakes were.  however, you have not answered how the public officials who made these mistakes should be held accountable.

It is not clear to me when you use the term “we” who you are referring to. Obviously, it includes the entire Board, but does it also include President Ryan and Mr. Heaphy? Normally it is the Board’s function to determine policy and the Executive’s responsibility to implement policy and enforce the standards and rules of the corporation.

It seems that accountability for violating the standards of the University is missing in a lot of areas. When you don’t enforce standards, as you have already overtly admitted, there is no accountability.

I have provided you with sound legal advice from the beginning on how to remove the signs immediately. All you had to do was follow the University’s existing standards and the contracts the students signed. The specific standard from the University was that University facilities must “preserve the integrity and aesthetics of the University.”

You have offered no legal excuses for not doing your fiduciary duty to enforce the standards of the University and its contracts. There are none. A fiduciary cannot stop doing his fiduciary duty as long as he represents his client, in this case the University. You are public servants being paid by the people to do your job.

The holiday season is approaching and the face of the University will be on full display for the public’s enjoyment. The first event is scheduled for Thursday November 19, 7 P.M. — the 20th edition of one of UVA’s special traditions — The Lighting of the Lawn! The theme is “Finding Our Light.”

You have an absolute obligation to make sure the face of the University is beautiful and that the aesthetics of the Lawn are fully protected for this special occasion. You must also follow up by making sure that in the future there will be no further defacement of the Lawn by any Lawn resident.

Finally, you must terminate the leases of the Lawn students whose abominable, dishonorable behavior has caused this disaster for the University. When the next semester starts in 2021, those rooms should be occupied by the qualified students on the waiting list who are committed to complying with their contractual obligations.

By your inaction and admitted mistakes you have already breached your fiduciary duties. If you want to regain any credibility confirming that you are sincere about positive change at the University, these are necessary first steps. The choice is yours. Who wins, the University or the dishonorable students?

In conclusion, I have a number of people that I want to thank for their support in this debate for maintaining the beauty of the Lawn and the time honored standards embodied in The Honor Code.

I want to thank the Students who live on the Lawn who have honored their commitment to The University. For those of you who have been cleaning your doors in what has been described as a silent protest, I admire you for your courage.

There are those who say that the concerns expressed by me and other alumni are generational. They are not, as is evidenced by the actions of the honorable students living in the Lawn Community who have expressed their love for the University.

A beautiful letter written to you by Hooper Neale’17 has received a lot of support from other recent graduates which further confirms that this effort to maintain the standards of the University is not generational.

I also have to thank Britt Hume. He has supported both of my previous letters as well as the efforts of all alumni/ae who want to preserve Thomas Jefferson’s legacy and our University’s honorable traditions.

I have received wonderful support from former classmates, and so many other people, many of whom are not even UVA graduates. This has been especially touching and meaningful. I can’t say enough about the leadership of Tom Neale, Burt Ellis, and Joel Gardner. They have galvanized so many alumni to participate in this movement, which is truly “Good and Great,” to protect the University from the kind of mismanagement and politicization that we are witnessing.

If changing the course on which the University is headed is going to happen, it will have to be achieved from outside pressure. By your not enforcing the standards, it has become evident that the University of Virginia needs an organization that is solely dedicated to being an advocate for the positive traditions of The University and extraordinary legacy of Thomas Jefferson.

I have tried to be an advocate, much like a Special Counsel would for a corporation which has been and still is being mismanaged by the public officials who are its trustees. This effort has been successful in the sense it has exposed how bad the degree of this mismanagement is. In the real world, this would not end the investigation.

My efforts have been more akin to an interim report to the public. None of the internal documents have been produced, and none of the actors have been interviewed in depth with the benefit of the documents the public is entitled to see. This investigation needs to continue with the public exercising its rights under the Freedom of Information Act.

The unique facts of this situation raise an important question. Why should private corporations have more protection from corporate mismanagement than public corporations in the form of derivative actions? Shouldn’t the public be able to recover damages caused by breach of fiduciary duty by public servants the same as stockholders? The damages here are over $150 million in lost donations, most probably more. This issue is worthy of legal and legislative debate given the fact that the Board of Visitors (Directors) have admitted breaches of fiduciary duty to the corporation. Someone should be held accountable to ensure that the University and the people of the Commonwealth of Virginia receive the justice they deserve. Perhaps the organization which is being formed will be able to file an action to enforce the rights of the University and recover the damages it has sustained.

As Thomas Jefferson said, “We ought not to die before we have explained ourselves.” At this point, I have fully explained myself. Now I will return to my retirement, tending to my affairs in a place not far from a little hill called Monticello.

God bless America. God bless the University of Virginia and the legacy of Thomas Jefferson.

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3 responses to “Daniel Invokes Honor Code to Clean up UVa’s Lawn

  1. A profile in sincerity and honesty? Would you buy as used car from this man? Really?

    “From: “Ian Baucom, UVA Arts & Sciences

    To: Mr. Reed Marquette Fawell III

    Dear Reed,

    As I reflect on this past year and the upcoming Thanksgiving holiday, I am filled with gratitude for so many things. I am grateful for the health of our students, faculty, and staff in the College of Arts & Sciences and that our students have been able to safely learn and grow on Grounds this semester.

    But above all, I am profoundly grateful for the support of our alumni community.

    You may not realize it, but it’s thanks to our alumni donors that the College has been able to welcome bright, promising students and attract and retain expert faculty all while navigating life during a pandemic.

    Now, as the College launches our Year-End Giving Campaign, I ask you to consider joining the alumni donor community by making a gift by December 31.

    When you do, you’ll strengthen innovative programs like the Democracy Initiative that prepare students to lead and serve for the common good. Alumni giving also ensures that the College’s academic programs remain competitive and cutting-edge.

    Reed, I’d be so grateful for your support so that we may count you among the College’s alumni donors. Thank you in advance for taking this opportunity to give back.

    Sincerely,

    Ian Baucom
    Buckner W. Clay Dean of Arts & Sciences

    P.S. Thanks to the CARES Act, you are eligible to deduct up to $300 in charitable giving from your 2020 federal taxes, even if you take the standard deduction!”

  2. Jim,
    As you know, Aubrey Daniel is a true American hero. He was the Army JAG officer who successfully prosecuted Lt. William Calley for his complicity in the Vietnam War My Lai massacre. Here’s a Stars and Strips link to an article describing an honor the General who runs the JAG School at UVA gave him in 2018: https://www.stripes.com/news/army-s-top-lawyer-honors-prosecutor-in-1971-my-lai-court-martial-1.543723.

    Aubrey’s prior two letters were outstanding. This may be his best. The first two were superb legal critiques that eviscerated the University counsel Tim Heaphy’s lame “First Amendment Rights” logic for not taking down the Hira Azher profane Lawn signs, and the other 6 that have now popped up in woke solidarity with her extreme viewpoints. In this article Aubrey invokes the most historically precious tradition at the University: The Honor System. His logic is flawless, his conclusions irrefutable.

    If the BOV and President Ryan blow this off, they are implicitly telling all alumni/ae and the world that the Honor System has no efficacy, therefore no meaning.

    I anxiously await their reply to Aubrey’s final shot over the bow.

    • Wahoo74 says:

      “Aubrey’s prior two letters were outstanding. This may be his best.”

      I agree. I’ll have more to say here on subject of Aubry’s letter tomorrow.

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