Tim Heaphy, pictured in 2017. Photo credit: The Cavalier Daily.

by James A. Bacon

Attorney General Jason S. Miyares has fired the university counsels of the University of Virginia and George Mason University: Tim Heaphy at UVa and Brian Walther at GMU.

I have no inside knowledge about why Miyares took these actions, but they are, I believe, best understood as the opening salvos in what will be a long-term effort by Miyares and Governor Glenn Youngkin to change the increasingly totalitarian culture of Virginia’s higher-ed system that stifles free speech and free expression.

In Virginia the governor appoints members of the boards of visitors, but the attorney general appoints the university counsels. BoV members serve on a rotating basis, with only a few seats expiring June 30 at the end of every fiscal year. But university counsels serve at the pleasure of the attorney general, as I understand it, and can be replaced at any time. Miyares has lost no time in acting.

AG spokesperson Victoria LaCivita said in a statement to The Washington Post that Heaphy had been a “controversial” hire and that Miyares’ predecessor Mark Herring had “excluded many qualified internal candidates when he brought in this particular university counsel.”

“Our decision was made after reviewing the legal decisions made over the last couple of years,” LaCivita said. “The Attorney General wants the university counsel to return to giving legal advice based on the law, and not the philosophy of a university. We plan to look internally first for the next lead counsel.”

I know nothing about Brian Walther but can provide some context for Heaphy’s cashiering.

An Obama administration appointee as U.S. Attorney for the Western District of Virginia, Heaphy conducted an independent investigation into what went wrong during the infamous 2017 “Unite the Right” rally in Charlottesville. Herring appointed him in 2018 as university counsel at UVa, from which he graduated. At the time of his firing, he had taken a leave of absence to work as the top investigator for the U.S. House of Representatives panel investigating the Jan. 6 riot at the U.S. Capitol. 

Heaphy said in a statement that serving as university counsel has been a “tremendous honor,” and that he had been “privileged to contribute to its aspiration to be both great and good.” That last phrase — “great and good” — echoed President Jim Ryan’s slogan expressing his ambition to strive for academic excellence and build a better world. In practice, being “good” has meant embracing a social-justice orientation and explicitly using Diversity, Equity & Inclusion criteria to recruit, promote and train university faculty and staff.

As university counsel, Heaphy provided legal cover for Ryan’s transformation of the faculty and culture of the university. His high-profile role in the UVa administration came to the attention of conservative alumni in 2019 when Hira Azher, a student living on the Lawn, posted a large sign, stating “F— UVA,” on the door to her room. Alumni immediately criticized the administration for its lax policing of the decorum of the Lawn, which with the Rotunda, form Thomas Jefferson’s architectural gem, the academical village, and is classified as a UNESCO World Heritage Site. Heaphy ruled that ordering Azher to take down the sign would constitute a violation of her right to free speech. Alumni countered that she was free to express her opinions — but not in that particular way, in violation of the terms and conditions she had agreed to when moving to the Lawn.

In contrast to the Azher case, the university counsel’s office backed up the administration’s actions in the Kieran Bhattacharya litigation. Bhattacharya, a medical school student, had publicly questioned the speaker during a seminar on microaggressions and challenged her assumptions. His effrontery offended others in the med school community, leading to a chain of events in which he was served with a “professionalism concern” card, subjected to disciplinary hearings, told to engage in psychiatric counseling, committed to a psychiatric hospital against his will, and then, after a tumultuous breakup with his girlfriend, issued a No Trespass Order. Effectively evicted from school, Bhattacharya has filed a lawsuit, and the university counsel has defended the administration’s actions.

Critics also have questioned Heaphy’s action — or lack of it — regarding the university’s “inclusive excellence” initiative. Job applicants are required to write “diversity statements,” which are given weight in hiring evaluations. Similarly, faculty and staff must submit “diversity statements” as part of their annual reviews. These statements function as ideological litmus tests, weeding out those who fail to display sufficient commitment to the ideals of Diversity, Equity & Inclusion and the social-justice assumptions underpinning them. If Heaphy ever expressed reservations about these practices, he never did so publicly, and implementation has proceeded unimpeded.

I would expect that Heaphy’s replacement, whoever he or she is, will make it a high priority to review the constitutionality of diversity statements in hiring, raises and promotions. If that is so, we can expect similar challenges in other institutions, such as the College of William & Mary, that apply similar litmus tests. The next step then will be for Youngkin to appoint new members to boards of visitors across Virginia who are committed to upholding the principles of free speech, expression and inquiry.

Share this article


(comments below)


(comments below)


16 responses to “Begun, the College Wars Have”

  1. Rob Austin Avatar
    Rob Austin

    At first blush, I would tentatively applaud this action, but will be interested to know of the new appointee’s qualifications. That said, I fear that unless the governor takes a scythe to the BoV, and divine intervention convinces 90% of the faculty to resign, UVa is so far gone down the progressive, cancel culture, social warrior, intolerant rabbit hole that nothing will alter its descent into irrelevance.

    1. vicnicholls Avatar

      I will give Miyares benefit of the doubt. So far he’s doing a lot that I think might put the brakes on some of the problems.

  2. Jake Spivey Avatar
    Jake Spivey

    Good on the AG.

  3. Stephen Haner Avatar
    Stephen Haner

    Those university counsel jobs are all “at the pleasure” and are plum gigs, highly sought after. At a school like UVa, the administration will have plenty of other lawyers employed or retained and may not heed the AG’s new appointee. Note, so far no changes except at those two schools. It doesn’t seem Heaphy intended to make that a lifetime job and he will land firmly on his feet.

    As the Director of Admin for four years, I made sure every new hire understood that a new AG could replace anybody or everybody from the first day of their term. Then lo and behold it happened to me. No whining.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      Your point is well taken. The schools all have staff attorneys that they can turn to. In fact, in language that probably goes back to Thomas Jefferson, the Code of Virginia authorizes the UVa Board of Visitors to “appoint a comptroller and proctor and employ any other agent or servant.”

      If a university is sued or otherwise goes to court, the AG’s will provide legal representation. Otherwise, as you say, they can ignore the AG’s new appointee.

      This is not just true for higher education. I know of at least one state agency which has an attorney in a staff position. One of that individual’s functions is to conduct contract negotiations and provide “unofficial” legal advice to the Director. The AG represents the agency in court proceedings.

      This action is largely symbolic.

      1. Stephen Haner Avatar
        Stephen Haner

        Well, no, actually, the law gives the AG quite a bit of legal control. It is not symbolic. But I predict they will seek to ignore the new counsel if they dislike the advice. The dance was the same 20 years ago, this is not new….

  4. Donald Smith Avatar
    Donald Smith

    “I can think of few things less respectable than unthinkingly going into debt to spend half a decade drinking and begrudgingly completing meaningless assignments for professors detached from the world all so you can emerge with a piece of paper that does nothing to help you start a career and mindsets that make success harder.”

    And Virginia has so many four-year colleges, which cost (counting room and board) on average over $30,000 a year to attend.

    Four years of steadily diminishing the “prestige” of our current university system, by highliting its flaws, excesses and corruption might be one of the most useful things a Youngkin administration could do.


  5. tmtfairfax Avatar

    It strikes me that being counsel to UVA and being lead counsel to a House special committee at the same time is pretty inconsistent. One cannot do both jobs at the same time.

    1. M. Purdy Avatar

      He was on a leave of absence.

      1. Stephen Haner Avatar
        Stephen Haner

        Now he can concentrate on the side gig.

  6. VaNavVet Avatar

    Like all politicians Miyares needed to take quick action on something in order to thank his base. Perhaps he did feel that he could get two birds with one stone. Pretty sure that we will never know all the actual facts.

    1. Stephen Haner Avatar
      Stephen Haner

      A Republican moved a Democrat out of a plum patronage job. He will appoint his own choice. That is the story. Everything else is just an effort to gin up The Usual Outrage, left or right.

      In my case 20 years ago, I had the only plum job in the AG’s office for a non-lawyer and the person who ran the new guy’s campaign wanted it for herself. End of story. No reflection on my service (and being followed by her didn’t damage my reputation any.)

  7. The Amazing Criswell Avatar
    The Amazing Criswell

    Remember, Herring fired VCU counsel David Johnson (now circuit judge) over the protest of Drs. Rao and Trani.

    It was entirely politics.

    1. Stephen Haner Avatar
      Stephen Haner

      Yep. David who was my colleague inside the Office of the AG for four years. Totally political. I lose no sleep over Heaphy.

  8. Cathis398 Avatar

    Title VI of the Civil Rights Act of 1964 states:

    No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

    Real Critical Race Theorists (the legal scholars) explicitly reject this as a basis for achieving racial justice. They are absolutely entitled to develop this theory. But in recent years, many in the public and especially at universities (and to a lesser extent K12 schools) have moved from this theoretical argument to acting as if the law supports that theory. It does not. This remains the law of the land. I have seen many examples of universities winking, evading, or outright disputing the applicability of this law when they want to break it. They have relied on a singular unwillingness of many in the legal world to challenge their actions.

    I suspect we are now going to see the chickens come home to roost. The language of Title VI does not distinguish between “oppressed” and “oppressor.” Neither does the jurisprudence that elaborates it, even under liberal judicial regimes. Especially given the announcement that the Supreme Court is going to rehear two affirmative action cases, I think we are on the verge of a reckoning that university legal counsels should have been warning about for a long time.

    Unlike most visitors to this site, I support some of the analyses of CRT scholars and the spirit of many of the actions taken by people who follow its philosophy in universities. But people thinking that universities can and should break absolutely fundamental laws while claiming they rely on them at the same time was never going to work, and these people deserve the backlash they may well get.

    Especially given that at some vague level, these same people are relying on Title VI (and the whole Civil Rights Act) at the same time they insist we should break it, and given the fact that many of these same folks rely on an incredibly elaborated reading of Title IX to support other parts of their agenda, it is really talking out of both sides of their mouths to choose to reject this very fundamental part of law.

    You should see what it’s like to hire people at universities now if you haven’t: due to Title VI, you are expressly charged with not hiring based on race, except (*wink*) you are implicitly and constantly (*wink*) told that you must (*wink*) hire based on race. This can’t stand.

  9. Ruckweiler Avatar

    I find the lefties consternation at this amazing. When Slick Willy fired ALL the US Attorneys to put his chosen candidates in I don’t rightly remember the leftists being upset.

Leave a Reply