Fog and Shadows
Decision-making at the University of Virginia is shrouded in secrecy — and leadership is just fine with that.
Last week the University of Virginia Board of Visitors faced a history-making judgment: how to respond to Trump administration demands to dismantle its Diversity, Equity & Inclusion programs. Tensions during the meeting, held in the Rotunda conference room, ran high. The exchange of views got heated. And a momentous decision was reached: to shut down the university’s DEI apparatus. But the discussion was conducted in closed session, and board members are sworn to keep their deliberations confidential. The public has no idea what facts and logic impelled the Board to make one of the most consequential decisions it will ever grapple with.
Virginia’s flagship university has a huge transparency problem — one that goes far beyond Board of Visitors making critical decisions in closed session. Presidential task forces conduct their business in secret. Investigative reports paid for with taxpayer dollars are withheld from the public. And efforts to pry open information using the Freedom of Information Act are routinely blocked.
As culture wars play out nationally, UVA has reached a critical juncture in its storied, 200-year history. The Board of Visitors appointed by Governor Youngkin is seeking to overturn policies and practices that have defined the institution for years. Regardless of where they stand in this controversy, UVA students, employees, alumni, taxpayers, and even the general public have a right to see how these decisions are being made, who is making them, and why they’re making them.
The culture of fog and shadows runs deep. President Jim Ryan is part of the problem. The Board of Visitors is part of the problem. Even the university counsel’s office, which answers to Virginia’s attorney general, is part of the problem. The transparency issues plaguing UVA are likely endemic across Virginia’s system of higher education. But some manifestations of secrecy are unique to UVA, its organizational culture, and decisions made by its leadership.
I have become aware of these issues only because The Jefferson Council, of which I am a founding member, has been digging relentlessly for four years in an effort to understand how power at UVA is distributed and how decisions are made — only to be stymied at every turn.
Transparency is not a partisan issue. UVA, let us not forget, is a government agency. It answers ultimately to the citizens of Virginia. All Virginians have a stake in knowing what’s going on, and all Virginians, regardless of where they might stand on issues like free speech, DEI, or tuition increases, should be able to agree on one thing: Open government is necessary for participatory democracy to work.
President Ryan
The culture of secrecy starts at the top. President Jim Ryan maintains a tight control over what the public — and even the Board of Visitors — sees and doesn’t see. His communications office has 47 employees to churn out press releases, videos, social media posts, web posts, podcasts, student profiles, faculty profiles, and feel-good stories. The university website, UVA Today faithfully reflects the party line. All the while, the communications team burnishes a cult of personality, highlighting Ryan’s personal side such as his charity-raising Boston Marathon runs, his two-mile “Run with Jim” events with students, and his amusing April Fools videos.
The Jefferson Council has asked to interview UVA officials and even to feature them on videocasts so they can explain university policy to our thousands of supporters. The Communications office has so routinely rejected — or ignored outright — our requests for access that we’ve mostly stopped trying.
Perhaps the most vivid demonstration of Ryan’s tight control over messaging has been his suppression for more than a year and a half of the taxpayer-funded report ordered by the Attorney General into the circumstances surrounding the November 2022 mass shooting that killed three students and wounded two. Journalistic reports revealed that there had been multiple red flags alerting the administration to the threat, but officials failed to take timely action.
Shortly after receiving the report, the administration vowed to release it after absorbing the contents. But Ryan initiated an “urgent” meeting with Albemarle County Commonwealth Attorney Jim Hingeley and raised the issue of whether releasing the report would be prejudicial to the criminal proceedings against suspect Christopher Darnell Jones. Hingeley agreed, and the university announced that it would withhold the document until after criminal proceedings.
Jones has since pleaded guilty and Hingeley has withdrawn his objections to distribution of the report. The administration said February 19 that it would release the a redacted version mid-March after families of the bereaved had a chance to read and process it first.
The families now have seen the report. Happy Perry, the mother of one of the slain students told The Daily Progress that there wasn’t much to process. Redactions have blacked out a majority of the text. “There’s nothing in there,” she said. “They’ve taken everything out.”
The administration justifies the redactions on the grounds that federal law prohibits the release of “private student information” as well as “sensitive public safety information.” Whatever the reasoning, more than two years after the massacre, the public still has no way to know if UVA has addressed problems that allowed the shooting to take place.
But suppression of the mass-shooting report is only the most publicized coverup. The Ryan administration also has shown a proclivity for attaching non-disclosure agreements to its lawsuit settlement agreements. For instance, the lawsuit filed by Morgan Bettinger, whose abuse at the hands of militant students and administrative inquisitors we have amply documented, was settled to Bettinger’s satisfaction. But a non-disclosure agreement prohibited release of the dollar amount or any admission of wrongdoing that might have been wrung from the UVA. Similarly, when the administration settled with Matan Goldstein, a Jewish student who sued UVA for creating a hostile environment, terms were withheld under a non-disclosure agreement. Rather than acknowledge that wrongs were committed, UVA attorneys swept the lawsuits under the rug.
Perhaps the most egregious assault on transparency was Ryan’s failure for years to notify the Board of Visitors about allegations of widespread abuses at the UVA Medical Center. Physicians had notified the university president of turmoil as early as 2020. As conditions worsened, they repeatedly appealed to Ryan and Provost Ian Baucom to get involved. Medical mismanagement, doctors alleged, resulted in “patients going blind, suffering strokes, and other catastrophic health failures.”
Around this time, state auditors identified material weaknesses in UVA Health System finances and the health system CFO resigned under odd circumstances. Yet the Board of Visitors never learned of the depth of the problems until 128 doctors went public with an open letter detailing charges against CEO Craig Kent and Medical School Dean Melina Kibbe. Ryan responded initially by criticizing the signatories and defending Kent and Kibbe.
The Board of Visitors launched its own investigation, hired the Williams & Connolly law firm to conduct interviews and review documents, and released the results internally. Kent submitted his resignation last month. How board members view Ryan’s failure to keep them informed is unknown. But in the eyes of many Madison Hall watchers, Ryan’s penchant to hide uncomfortable developments from the Board of Visitors allowed the situation to fester far longer than it should have.
Board of Visitors
Ryan’s lack of transparency has created significant credibility deficit for him with some members of the Board of Visitors. But the Board has its own issues, starting with the fact that it has declined to release the Williams & Connolly report — not even a redacted version or an executive summary. The allegations have been widely aired in local media, and the public has no ability to gauge the veracity of the accusations or assess the Board’s oversight.
The phenomenon of university presidents dominating their governing boards is widespread across higher ed. UVA is hardly unique. But Ryan has proved to be a master, and for years the UVA Board played a role that can be charitably described as cheerleading — or, uncharitably, as sycophantic. Only now that 13 board members appointed by Governor Glenn Youngkin have been confirmed by the General Assembly did the Board of Visitors begin aggressively asserting itself in a series of meetings this past month.
President Ryan works with the rector (akin to a board chairman) and the board secretary to set the agenda and control the flow of information. Board meetings are organized around presentations by the various board committees, each of which is allotted roughly an hour and a half. The president/rector/secretary triumvirate decides which topics are addressed, who will make presentations, which information is contained in the presentations, and how much time, if any, is allowed for free-ranging discussion. Usually, free time is limited and spirited debate is cut off in order to maintain the schedule. Meetings rarely run over. Bottom line: Ryan controls the discourse. Board members know what he wants them to know.
When board members have asked for financial information not provided by the administration, they have been turned down flatly on the grounds that UVA’s employees are overloaded and don’t have time to engage in busy work. (Rector Robert Hardie has defended the administration’s unresponsiveness in the past, but in the March meeting, he shifted tone for the first time: If board members would combine similar requests and submit them together, he said, the administration would be more accommodating.)
But Ryan is only part of the problem. Increasingly over the past year, the Board has been making major decisions in closed session.
The state code permits government boards to meet in closed session to discuss a variety of sensitive topics: personnel matters such as employment, performance, or disciplinary actions; student records; real estate transactions; and competitive or proprietary business information.
These exceptions are being stretched to cover an ever-broader range of topics. The meeting to dismantle DEI, for example, was justified on the grounds that University Counsel Cliff Iler would present “legal advice,” presumably on how UVA should respond to the Trump administration diktat to shut down DEI or suffer the loss of hundreds of millions of dollars in federal funds. The recourse to closed session has become so routine now that board members — even those not sympathetic to the Ryan administration — have become inured to them.
Would Iler’s legal advice regarding DEI, if shared with the public, have put the University’s legal or litigation strategy in jeopardy? I wasn’t privy to the discussion so I can’t say exactly what the advice was, but I strongly suspect it did not touch upon confidential legal strategy. In all likelihood, Iler told the Board that UVA had to follow Trump’s order or suffer the consequences. But no one objected to the closed session. As a result, the public was deprived of the opportunity to hear a discussion of one of the most fraught political issues of our time.
Another indication that Ryan is not the only one addicted to secrecy is the Board’s decision not to release the Williams & Connolly report detailing its findings in the Health System/Medical School controversy.
To be sure, the Williams & Connolly report likely contains copious details of personnel performance and disciplinary actions, so there is some gray area here. But we must remember: People are said to have died and suffered crippling outcomes. The public interest is compelling. The accusers raised systemic issues that may or may not be resolved by the resignation of CEO Kent. Indeed, a law firm representing 36 of the interviewees has released its own damning report that names names. Does it tell the whole story? Does the Williams & Connolly report contain testimony and context that might change the way the public understands what went on? Nobody knows.
Freedom of Information Act
In theory, the Office of University Counsel is independent. On paper, Cliff Iler answers to the education division of the Office of the Attorney General. As a practical matter, he and his staff, including the attorneys who respond to FOIA requests, are embedded in UVA’s bureaucracy. The Office’s “academic” staff is located in Madison Hall (the president’s office building) and the “health affairs” group is in McKim Hall (the School of Medicine administrative office building). The AG’s education division in Richmond is far away. Day to day, University Counsel functions as part of the UVA administration.
Ryan considered the office important enough to exercise his clout during the Northam administration to bring in his law school friend Tim Heaphy to run it. Taking issue with some of Heaphy’s legal guidance (details of which were never revealed), AG Jason Miyares replaced him with Iler. Known about town as a moderate Republican, Iler appears to be non-political and nonpartisan. He is better described as an institutionalist. He sees his job as upholding the interests of UVA as an ongoing enterprise rather than owing his loyalty to a particular president or rector.
Upholding UVA’s institutional prerogatives, however, has not heretofore included putting a premium on openness and transparency.
One of Iler’s key roles is determining when Board of Visitors deliberations should be held in closed session. Another is overseeing the FOIA staff. Despite the Jefferson Council’s extensive interaction with the FOIA office — through the submission of scores of document requests and the filing of numerous lawsuits — we have been unable to determine the level of Iler’s level of engagement with FOIA decisions.
Whoever is calling the shots, it appears to us that the priority of FOIA staff is protecting presidential prerogatives — not Ryan’s necessarily, but those of the office of UVA president — as opposed to serving the needs of the public.
Throughout his tenure as president, Ryan has set up special task forces to tackle complex issues facing the university, such as a racial-equity task force, a free-speech committee, and a religious-diversity committee. State law allows universities to withhold presidential “working papers” from Freedom of Information Act requests on the reasonable grounds that exposing confidential communications between the president and those advising him would discourage candid exchanges of views.
However, the attorneys responding to Freedom of Information Act requests have refused to release any documents that can be remotely construed as a “working paper.” In effect, almost any communication or document shared with Ryan is off limits. In an ironical twist, that interpretation extended even to testimony of faculty and students addressing the free-speech committee.
Another example: UVA has released a copy of Ryan’s employment contract with the university. That contract provides for payment of a performance bonus of up to $100,000 a year. States the contract: “The president’s performance shall be conducted annually by the Rector after consulting with the Board of Visitors. The evaluation shall be based on the achievement of mutually agreed upon performance objectives determined by the Board of Visitors and Mr. Ryan.”
The performance objectives tell us two very important things about the governance of UVA: (1) the Board of Visitors’ priorities for the university, and (2) what the president is financially incentivized to achieve. The public has every right to know this. The public doesn’t necessarily have the right to see the Rector’s evaluation of Ryan — a personnel matter that is kept confidential on reasonable grounds — but it does have a right to see the criteria used to evaluate him.
The FOIA staff did not agree, and refused to release the information.
Another way the University Counsel’s office thwarts transparency is to charge outrageous fees to cover the administrative cost of search fees. The search methodology might be suitable for identifying documents in a major litigation case, but it is overkill for routine FOIA requests. It’s like using a jackhammer where a chisel would do. But the effect — the desired effect, we believe — is to discourage FOIA requests. We know of one employee who sought documents relating to his own dispute with management who tried to obtain them through FOIA but gave up rather than pay a charge of thousands of dollars.
Conclusion
Winston Churchill once described Russia as a “riddle wrapped in a mystery, inside an enigma.” My colleagues often feel the same way about the University of Virginia. UVA is not as secretive as the Stalinist state, but it falls far short of what we expect from an academic institution dedicated to the pursuit of open inquiry.
Patrick Henry doesn’t have a major research university named after him, but he said it as well as Thomas Jefferson could have: “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”
James A. Bacon is the founder of Bacon’s Rebellion and a contributing editor with The Jefferson Council.
