UVA Board of Visitors Nixes Troubling Policy Draft on ‘Discussion and Dissent’

After receiving harsh criticism from free speech advocates, the Board of Visitors of the University of Virginia (where I attended law school) has revised a draft of its “Statement of Expectations” that would have curtailed open discussion by individual Visitors about Board decisions.

As of the Board’s meeting on July 30, a problematic provision under the header “Discussion and Dissent” read:

After robust discussion of an issue, we strive to reach a consensus on the merits. In the end, each Visitor should vote one’s conscience, confident that minority views will be respected. Once decisions are reached, however, Visitors shall publicly support, or at the very least not openly oppose, the Board’s action as a strong, visible consensus facilitates successful execution of policy and strategy.

The statement also included a provision on the Board’s “Relationship with External Constituencies,” which read, in part:

When asked by the press, media, public officials, or citizens at-large to speak on behalf of the Board or the University or to publicly assess Board decisions … Visitors should always demur unless specifically authorized by the Rector to be a spokesperson.

The Board may certainly regulate statements that are made, or appear to be made, on its behalf. But effectively prohibiting Visitors from commenting in their individual capacities on Board decisions would prevent a wide range of helpful, even necessary, discussion on matters relating to the university. For example, robust discussion was critical during a controversy The Washington Post reviewed in its coverage last week:

How and when board members can speak up has become a sensitive topic at the elite university in Charlottesville since the attempted ouster of U-Va. President Teresa A. Sullivan.

In early June 2012, Sullivan resigned under pressure from board leaders, but the board voted later that month to reinstate her after an uprising among students, faculty members and alumni.

Virginia senators and delegates were quick to speak out against the draft’s speech-restrictive provisions, as the Post reported:

“To me, it’s absurd – it’s a public university,” [State Senator J. Chapman] Petersen said. “The whole point of having a Board of Visitors is to have discussions about the university. The idea that you would have some sort of gag order is ridiculous. This isn’t a private corporation.”

[...]

“People with a business background are used to getting things done quickly and efficiently, but everyone has the right to exercise their freedom of speech, especially in a public institution,” [State Senator R. Creigh Deeds] said.

Happily, a revised draft made public last Wednesday omits the last directive of the “Discussion” section, instead advising more generally:

Once decisions are reached, however, Visitors bear a collective responsibility to ensure, as much as possible, that the Board’s actions and decisions are successfully implemented.

Further, the revised version of the “Relationships with External Constituencies” section no longer contains the above-quoted provision, but instead states:

If Visitors wish to address a board matter outside of the boardroom, they should make clear that they are speaking in their capacity as an individual board member and not on behalf of the Board or the University.

The Student Press Law Center reports that the revised policy will be put to a vote in September.

These changes, if approved, will help ensure that Visitors, who are particularly well-equipped to contribute to university-related discussions, can freely do so as long as they make clear that their opinions are not institutional positions. It is particularly important for “green light” institutions like the University of Virginia to stay strong in their commitments to First Amendment rights so that they can continue to set an example for other universities, and we are happy to see this step forward.