by James C. Sherlock, University of Virginia, College of Arts and Sciences, 1966
Hira Azher’s profane sign on the door of her room on the University of Virginia’s Lawn has made headlines, and the ensuing controversy has raised many questions. This article will highlight a new issue. University administrators, I will argue, botched the handling of the incident by turning what should have been a breach-of-contract issue into a constitutional freedom-of-speech case.
After alumni raised objections to the now-infamous sign, which said “F— UVA,” President Jim Ryan sought legal advice from University Counsel Timothy Heaphy. Heaphy concluded that the student’s use of profanity was protected by the First Amendment. Although the resident contract signed by Lawn residents gives the University the right to regulate signage, he argued, the institution’s failure to enforce that particular provision in the past essentially gave Azher a pass.
But my analysis suggests that the contract is clear. The University could have enforced it when Ms. Azher breached it with her door sign, which is prohibited by both the contract and University fire regulations.
Mr. Heaphy serves both the University President and the Board of Visitors. He gave each of them and the rest of us bad information. The public representations of the President, the Board and the Counsel himself on facts of the case do not withstand a fact check of the housing contract that Heaphy’s own lawyers wrote and that Azher signed and continues to violate.
As the story unfolded, we were presented with the description by Bert Ellis, a distinguished alumnus, of being accosted by two Student Ambassadors (a UVa club that supports the Office of Engagement, the fundraising arm of the administration — you could not make that up) while on the lawn. The students threatened the use of forcible restraint to prevent the alumnus from using a razor to excise the sign.
The whole scene Ellis described was recklessly dangerous. The “ambassadors” were lucky the visitor was Mr. Ellis and not someone with a different agenda. Virginians will need to find out who in the employ of the University put the students up to this, or even knew about it, and fire them.
As the story continues to unfold, President Ryan faces a far bigger free-speech challenge than a sign on a door. In the largest free-speech survey of undergraduates ever undertaken, Question 26 in the survey asked: Have you ever personally felt you could not express your opinion on a subject because of how students, a professor or the administration would respond?
Fifty-seven percent of University of Virginia undergraduates answered that they had been intimidated from expressing their opinions; 79% of students self-identifying as conservatives responded that they had been intimidated. It gets worse. This cannot stand. If Dr. Ryan cannot fix it, someone with a stronger hand will need to replace him.
The University is paying for all of this, and not just in reputation. Alumni estimates of donations foregone reach $150 million. Hundreds of alumni like Ellis will never give the University another dollar because of what it has done or failed to do here.
People need to be held accountable, at a minimum for the profoundly dangerous Ellis encounter, for mishandling the legal assessment, and for the Orwellian state of freedom of speech at the University revealed in the recent survey.
So let’s take them one at a time.
University President James Ryan
President Ryan is a very accomplished man. He was really good in school. Summa Cum Laude Yale, first in his class at UVa Law, Law clerk for Supreme Court Justice Rehnquist, Distinguished Professor at the Law School, Dean of the UVa Law School, Dean of the Harvard Graduate School of Education, and now Dean of the University of Virginia.
Normally, he is also really good as a spokesperson for his racial justice agenda.
He is determined, but deliberate. If his 1999 piece, The Influence of Race in School Finance Reform, can be taken as a guide, he takes a moderate, scholarly approach and lets facts guide his findings and recommendations.
He is a social justice warrior focused on race, not class. His strategy is steady incremental change achieved while dampening opposition.
He has gained a place in the commanding heights of the culture. His CV shows he has had a lot of leverage for his agenda for a long time.
We disagree on many things, but I credit him with possessing a powerful intellect combined with a man-of-the people, Boston Marathoner, come-run-with-me personal appeal that is authentic. He has a reputation as a good man to have as a friend and a worthy adversary, friend or not, if you disagree with him.
His halting, nervous performance in the recorded interview with Hira Azher, the occupant of the newly famous Lawn room, is not in keeping with his reputation. I am not a psychologist, so I have no idea why he folded as he did.
The Dangerous Part of the Lawn Room Door Issue
President Ryan responded personally to the opening salvo on the door issue, an early September call from a distinguished alumnus, Bert Ellis, the CEO of Ellis Capital. Ellis holds both a BA in Economics and an MBA from the Darden Graduate School of Business Administration at the University.
Mr. Ellis saw the sign, and others like it, on one of his regular visits to Charlottesville. He called Dr. Ryan and complained. Ryan had told him in a phone call that he was “working on it.” About a week later Mr. Ellis returned to the Lawn.
Then came the dangerous part.
Mr. Ellis later wrote in a letter to Ryan a story about a subsequent visit that read in part like a crime novel, complete with “University Ambassadors,” who told Mr. Ellis that the University had determined that the sign was the occupant’s first amendment right and any action to remove the sign would be met with force. In the crime novel, someone would have died.
The story is presumptively true in so far as Mr. Ellis related it. He would simply not have made it up. But it is so troubling in every other respect that Dr. Ryan needs to ask the Virginia State Police to conduct an investigation, if he has not already.
What was said and by whom, while important, is not the primary issue, which is whether the students were there in a confrontational role with University knowledge of their actions.
The “Ambassadors” presumably were student members of the group called “Student Ambassadors.” That club’s mission is defined as follows:
“The University of Virginia’s Office of Engagement established the Student Ambassadors program in 2010 to connect UVA alumni, parents, and friends to the University through interactions with current students. The group’s student leaders are responsible for developing and implementing the program in collaboration with the Office of Engagement and UVA Club volunteers.”
If the University wanted to confront persons approaching the room, the job was one for the University Police, not students in a club.
Had Mr. Ellis not been a distinguished alumnus but rather a man a little more edgy than Mr. Ellis and armed, the issue could have taken another turn. Cops encounter these types of dangerous situations every day in this nation.
If an investigation reveals that these “ambassadors” were indeed students and that someone in the employ of the University had anything to do with, or knowledge of, students acting in that manner prior to this incident, any and all of them must be fired.
No excuse is acceptable for reckless endangerment of students.
The More Famous Lawn Room Door Issue
In response to Mr. Ellis’s letter, Dr. Ryan provided a very legalized reply on October 2, in which he put the Lawn-room issue in a “broader context.” He certainly did, at great length and with his usual skill.
When he arrived at the sign controversy, he wrote a paragraph the last sentence of which was:
“Were we to remove the signs, we would be violating the Constitution. In this clash of values, the Constitution and its protection of speech must prevail.”
In the case of Mr. Ryan, a UVa Law graduate, former clerk for a Supreme Court Justice, 15 years as a professor at and then Dean of the UVa Law School, a leap to a constitutional issue was perhaps inevitable. When you go to a baker, expect bread.
In his statement, entitled “Good and Great Revisited,” Ryan argued that it is the university’s obligation to stand firm in defense of free speech. That is indisputably a good thing to do.
But it is an argument he offered in defense of a constitutional case he constructed, internally adjudicated, and ruled in favor of the Lawn resident, effectively pleading her case and deciding its outcome.
He failed to inform the University community of the occupant’s clear violation of her housing contract, or that the violation in question had nothing to do with what was on the Lawn door, but rather the fact than anything at all was on the door.
Dr. Ryan continued:
“Going forward, we can and will consider whether additional regulations are needed for the Lawn, which is a UNESCO World Heritage Site and attracts visitors locally and from around the globe. Time, place, and manner restrictions would be legally permissible if they are narrowly tailored to protecting that environment, apply neutrally to all opinions and points of view, and preexist any particular controversy.”
He failed to mention that the University’s current Lawn occupancy contract meets those tests.
Dr. Ryan’s message drew a response from Aubrey M. Daniel III, an alumnus of the University of Virginia and the University of Richmond law school.
Mr. Daniel made his name as a young Judge Advocate General captain who successfully prosecuted the court-martial of Lt. William L. Calley Jr. for his role in the infamous My Lai Massacre. Daniel went on, after his military career, to become a top litigator with the Williams & Connolly LLP law firm. He is retired living in Italy, but he was not amused.
Mr. Daniel attacked the defense of the Lawn door sign that Dr. Ryan had offered and later posted a letter to University Rector James. B. Murray Jr., who had mounted his own defense of Ryan. Mr. Daniel wrote an extensive opinion worthy of reading. I will quote just one sentence:
“The facts have shown that this matter could have been resolved with good judgment and common sense or by enforcing the Va. Code section 18.2-138. Therefore, the First Amendment argument is irrelevant, as you have admitted.”
It could also have been resolved at the University housing office as a breach-of- contract issue. That office must deal with those cases every week.
Dr. Ryan is an honorable man, so I believe, until he says differently, that he did not have accurate information on the terms of the Lawn housing contract when he published his October 2 assessment.
University Counsel Timothy Heaphy
Now, let’s look at the work of University Counsel Timothy Heaphy, who
“represents the Rector and Visitors of the University of Virginia in all legal and regulatory matters and provides advice and counsel to the Board of Visitors, the President, executive officers and other administrators, faculty, and staff in their official capacities. The University Counsel (is) appointed by the Attorney General of Virginia.”
Like Dr. Ryan, Mr. Heaphy made a soaring assessment based on assertions of facts not only not in evidence, but which a reading of the actual text of the Lawn resident contract directly contradict.
You will note that throughout the controversy Mr. Heaphy by implication has accused of bad work the lawyers who drafted the Lawn occupancy contract for UVa Housing and Residence Life (HRL). The University Counsel’s office would have either conducted or overseen the contract drafting effort. He is criticizing his own work.
HRL manages over two million square feet of residential building space, so if true, that would be a problem. The facts show the contract lawyers did a good job.
Conversely, in the sign on the Lawn room door case, the University Counsel dropped the ball multiple times.
Mr. Heaphy in the opening paragraph of his September 29 letter to the Board of Visitors stated his conclusion.
“I write today to clarify the law that governs this issue, which makes clear that the lawn resident’s speech is protected by the First Amendment and cannot be forcibly removed.”
Later in that letter, Mr. Heaphy wrote that the signs:
- are protected under the First Amendment; and
- do not violate University policy or any provision of the housing contract signed by Lawn residents.
From my research he was wrong factually on both issues.
He wrote, based on his assessment that this is a First Amendment case, that:
“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).”
The facts show that the lawyer that constructed the HRL contract did exactly what Mr. Heaphy requires to pass constitutional tests of whether freedom of speech was violated in such a contract.
The core problem with this case is that the University Counsel materially misrepresented the text of the Lawn housing contract to the Board, and presumably to President Ryan. Mr. Heaphy works for Dr. Ryan in the University chain of authority, in addition to being a Virginia Senior Assistant Attorney General appointed by Attorney General Herring.
Mr. Heaphy did not quote the Lawn Housing contract provisions directly in his letter. When he summarized them, he got the most material details wrong.
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.”
Mr. Heaphy summarized those two provisions as:
“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.”
As you read above, the limitation was 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.”
Come to think of it, that is a Fire Marshal regulation. I wonder if UVA Fire Marshal Drumheller was consulted on any of this.
Mr. Heaphy further wrote:
“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 pinboard for the purpose of unregulated speech outside the room. It was clear to the resident as well. Ms. Azher posted political speech on her pinboard. She could have posted Huey Newton’s Ten-Point Program or anything else there.
Ms. Azher 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.
One more issue with Mr Heaphy’s letter. He offered as a defense of Ms. Azher’s sign:
“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. “
Thus, the lawyers that wrote that language took care in the words of the contract to preclude the “I am not the only one that does it” argument that as University Counsel Mr. Heaphey preemptively made for Ms. Azher.
That is not an assessment of Mr. Heaphy’s legal opinion, but his failure to make the appropriate facts available when he offered the “frequently affix” comment.
I believe the University Counsel misread or failed to read the contract text in each of these instances. He got everything he said about the contract wrong. I have no idea why. But, as we often hear in politics, he is not entitled to his own facts.
Dr. Ryan, the Rector and the University community including the alumni had a right to rely on the Mr. Heaphy, and he let us down.
The Real Free Speech Issue at UVa
Dr. Ryan appears to be honest about his respect for free speech, so I hope he is conducting an investigation into the results at UVa of a national higher education free speech survey and will share the results when he is done. When going to the link, click “see the rankings” then click “University of Virginia.”
The survey was commissioned by the Foundation for Individual Rights in Education (FIRE), in partnership with RealClearEducation. They commissioned College Pulse to conduct a survey of undergraduates at 55 colleges and universities about students’ experiences with free speech on their campuses.
Fielded from April 1 to May 28, 2020 via the College Pulse mobile app and web portal, the survey included nearly 20,000 student respondents who were currently enrolled in four-year degree programs. This was the largest survey ever conducted of college students about free speech on their campuses.
College Pulse got survey responses from 429 undergraduates at the University of Virginia. With that sample size, the margin of error is calculated by College Pulse to be =/- 4%. Partial results:
- Question 26 in the survey asked: Have you ever personally felt you could not express your opinion on a subject because of how students, a professor or the administration would respond? 57% of University of Virginia undergraduates overall answered that they had been intimidated from expressing their opinions. 79% of those students self-identifying as conservatives responded that they had been intimidated.
- Only 28% of students said it is never acceptable to shout down a speaker on campus.
- Only 60% responded that they perceived that they could have difficult conversations on campus.
- Only 61% thought the administration will defend a speaker’s free speech rights in a free speech controversy.
- In the tolerance category, less that 49% of students felt the university should allow controversial speakers on campus. That total included 64% of conservative students who were tolerant of controversial speakers and only 44% of liberal students.
- 30% believed the administration does not support free speech.
- Students are most uncomfortable expressing an unpopular opinion on a social media account tied to one’s name.
- Race is the topic most frequently identified by students as difficult to have an open and honest conversation about on campus.
- 21% of students say it is acceptable to use violent protest to stop a speech on campus.
Free speech is indeed an issue at UVa, but it is not about a sign on a Lawn-room door.
We await Dr. Ryan’s message about what steps the University will take to address the major issues identified in this largest-ever survey of undergraduates about free speech at their universities.
He might hire College Pulse to expand the survey participation by UVa students, but it is a near certainty that kind of a spotlight would negatively impact the quality of the results.
What Next?
I love the University, but it needs to be fixed. Dr. Ryan needs to prove he is the man to fix it. It is time for Dr. Ryan to get someone to serve as (dare I say) bad cop in the University Administration.
Or we need to hire someone else as President.
Updates
Update 6:59 PM 15 October:
At 5:56 PM, I communicated to the University spokesman the following:
“Confirm for me that you are saying that the University’s failure to enforce its contracts or its fire regulations makes this a freedom of speech issue and I will publish that immediately.”
At 6:16 PM, I received the following reply:
Historically, the University has not enforced limits on signs on Lawn doors. Doing so selectively in this case in reaction to concerns about content would constitute a violation of the First Amendment.
So the University’s official position is that it has failed to enforce either its contracts (University Counsel’s Office) or its fire regulations (Fire Marshal), and that is what made this a First Amendment issue.
Mr. Heaphy discussed the problem in his letter to the Board of Visitors and thus the public.
However, the University has not enforced that size restriction and has historically allowed students to post all manner of signs on lawn room doors. An attempt to enforce the size limitation in the housing addendum with respect to current residents would constitute an impermissible content-based restriction, as it would be motivated by our desire to restrict this offensive speech.
Fair enough, but he also wrote:
Looking ahead, we could choose to enact a new policy banning all signs on lawn room doors. Enforcement of this new policy would be a permissible time, place, and manner restriction on speech and clearly content neutral if applied prospectively. It would be justified as a protection of health and safety, both with respect to fire protection and the desire to prevent conflict stemming from controversial posters like those at issue here. A new policy banning signs would also maintain the historic character of the Lawn, consistent with its status as a UNESCO World Heritage Site. Students would have ample other opportunities to exercise free speech even if they could not post signs on their doors. Of course, a blanket rule against all posters would be overinclusive, as it would remove the ability of any lawn resident to use his or her prominent residence as a forum to promote events, highlight activities, or show support for particular perspectives or ideas.
That means “we didn’t enforce existing rules, so we’ll write new ones for a fresh start.” Won’t be hard. They could emulate the current ones that neither Mr. Heaphy nor the Fire Marshal enforced.
I’ll let the attorneys sort that one out.
We’ll let Dr. Ryan get a new Fire Marshal. A Fire Marshal has only two jobs, enforcing fire regulations and investigating fires. There are plenty of great candidates out there.
I’ll let the Attorney General consider Mr. Heaphy.
Update from 5:50 PM 15 October:
I just received a response from the University to the pre-publication review and comment period that I gave them:
The UVA housing addendum you reference does not limit “living area” to the inside of a Lawn room. It explicitly applies to “doors,” not limited to the inside of the door or other interior portions of the Lawn room. Accordingly, the housing addendum gives students the right to post signs on their doors, though limited in size. The plain language of the addendum would give us the right to order the signs removed because they are larger than the size limitation contained in the addendum, IF we had enforced the size restriction on a content-neutral basis historically. The reality is that we have not. Students routinely post large signs like this on Lawn room doors without consequence. Accordingly, application of the size limitation to these offensive signs would be content-based and unconstitutional.
I dealt with the contract issue below to the extent of my abilities. I will leave the rest to attorneys. This message did not address fire regulations.
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