Another Free Speech Fiasco

Charlottesville attorney Charles L. Weber Jr., represented University of Virginia student Morgan Bettinger in legal proceedings involving the University Judiciary Committee, which condemned her for words that allegedly constituted a "risk" to other students. This incident is a case study in how leftist, "anti-racist" students at UVa wield processes and procedures, with the complicity of the administration, to repress free speech and chastise those who offend them. I republish here a letter from Weber to UVa President Jim Ryan asking for redress. We'll soon find out how sincere Ryan is in his commitment to free speech and expression. -- JABDear President Ryan,I am writing to urge you to correct a grave injustice perpetrated bythe University of Virginia (the University) against a student during thispast academic year.Morgan Bettinger was unfairly punished by the UniversityJudiciary Committee (UJC) for speaking words protected by theConstitution. However, because UJC appeals are limited to process, notsubstance, the Judicial Review Board (JRB) concluded that the UJCdecision whether erroneous or not was unreviewable.The UJC decision was inconsistent with the findings of a parallelinvestigation by the Office of Equal Opportunity and Civil Rights(EOCR) on the same material facts, the same witnesses and the samedocumented evidence. EOCR exonerated Morgan of any wrongdoing.The University granted Morgan her undergraduate degree in May2021. But going forward, Morgan must disclose this UJC sanction formisconduct on her record in graduate or law school applications andpossibly on employment applications as well.For reasons stated below, Morgan specifically asks that youexpunge the UJC conviction and sanction from her senior year record.Factual BackgroundIn July 2020, Morgan Bettinger, a rising fourth year student,unexpectedly found her route home from work blocked by an illegalgathering of people occupying a public right of way in downtownCharlottesville. No uniformed law enforcement officers were anywherein sight.Unable to proceed, she parked her car and spoke briefly to a citydump truck driver blocking the road. She commented to him, “it’s goodthat you are here or they could become speed bumps.” Two of theprotesters overheard fragments of the conversation and spread the wordthat she had said “the protesters would make good speed bumps.”Many of the protesters surrounded her car and threatened her withviolence.Zyahna Bryant, a rising second year student and one of theorganizers of the street demonstration, created a false narrative onsocial media claiming that Morgan had intentionally driven around twopolice barricades and threatened the protesters by saying that theywould make good speed bumps. She labeled Morgan a racist and urgedher followers to demand Morgan’s expulsion from the University.The Office of the Dean of Students was inundated with angrymessages demanding action against Morgan.Bryant filed charges with the University Judiciary Committee(UJC) alleging conduct which threatened the protesters.She also filed charges with the Office of Equal Opportunity andCivil Rights (EOCR) alleging harassment on the basis of race.Institutional Response - Dean of StudentsMorgan cooperated with a threat assessment investigationconducted by the Dean of Students (Alan Groves), denied any conductthreatening the protesters and argued that no reasonable person couldhave construed her words to the truck driver as a true threat. Dean Groves concluded that Morgan did not pose an ongoing threat but referred charges to the University Judiciary Committee (UJC) against Morgan for threatening the protesters. The sole issue was whether her words, in context, constituted a true threat within the meaning of the law.Morgan expressed grave concerns that Dean Groves’ legal analysiswas wrong as a matter of law and that his intervention into the caseagainst her was unfairly prejudicial.Institutional Response - UJC/JRBMorgan admitted her statement to the driver but explained thatshe had intended it as a compliment to him for protecting theprotesters. As the daughter of a career police officer, she expecteduniformed police officers to be fulfilling that role.Nonetheless, the UJC, composed of five undergraduate students,found her guilty and imposed sanctions. The verbatim findings of theUJC panel follow:

“We the judges of this trial panel find that your actions on July 17th were shameful and put members of the community at risk. You yourself acknowledged saying "it's a good thing you are here because,otherwise, these people would have been speed bumps." Given the tragic events of August 12 and the context in which you uttered these words, you disregarded Charlottesville's violent history. A history you should have been cognizant of as a UVA student and resident of Charlottesville. During these proceedings you have shown no understanding of the risk this statement posed.”

In short, the UJC credited her with speaking to the driver butnevertheless found that her “statement” posed a “risk” because it wasuttered in Charlottesville.Morgan appealed. However, the Judicial Review Board (JRB)held that the judgement of the UJC was unreviewable on appeal,specifically holding as follows:

Third, she argues that “no reasonable person could construe my words, when considering the appropriate context, as a true threat.” Bettinger Opening Brief 23. This argument goes, however, to the sufficiency of the evidence, where we have no authority to tread.

Morgan was required to complete her sanctions before graduation.She did so and has received her degree.Institutional Response - EOCRThe investigation by EOCR proceeded independently of the UJCproceedings and was not completed until after graduation. The finalreport is most important to this request for two reasons:First, EOCR concluded, as Morgan has consistently asserted, thather comment to the truck driver was not clearly threatening on its face,specifically finding as follows:

EOCR concluded that a reasonable person in the same circumstances as Bryant would not view your single comment directed to the city dump truck driver to be sufficiently severe to create a hostileenvironment. Your comment was not clearly threatening on its face.

This finding alone undermines the legal judgment of the UJCpanel and raises a serious First Amendment question for theUniversity.Second, every one of Bryant’s allegations against Morgan werefound to be demonstrably false, inconsistent with other documentedevidence, including her own, or uncorroborated by other crediblewitnesses.As a result of Bryant’s unfounded allegations, Morgan lost her job,had her life threatened by anonymous sources, feared retaliation byother students and experienced episodic declines in her own mentalhealth. Her ability to participate freely in her academic endeavors wasseverely curtailed. Moreover, her undergraduate degree was heldhostage by her requirement to complete the entire set of UJC sanctions.In short, Bryant lied and Morgan suffered the consequences.ConclusionThe question of whether Morgan’s words to the truck driverconstituted a true threat presented a mixed question of law and factthat should never have been delegated to inexperienced students for aresolution.On this Constitutional issue and on the same set of material facts,the judgment of the students on the UJC was totally inconsistent withthat of the adults at EOCR.As a double Hoo (A&S ‘68, Law ‘98) and former Professor of NavalScience (1993-95), I appreciate the unique role and value of student selfgovernment in preparing students to become responsible citizens in ourself-governing republic. However, the University can never delegate theresponsibility for ensuring that the UJC students, in exercising theirdelegated authority, comply with the law of the land.The United States Supreme Court has recently held that schoolshave an interest in protecting even unpopular speech, especially whenthe expression takes place off campus. See Mahanoy Area SchoolDistrict V. B. L., a minor, by and through her father, Levy, et al., SlipOp. No. 20-255, decided June 23, 2021.In this case, the University, by and through the UJC, punishedMorgan for words spoken off-grounds in violation of her right to freespeech as protected by the Constitution.Although Morgan completed her UJC sanctions and has receivedher degree, her conviction for misconduct remains a permanent part ofher academic record at the University. Such a record will undoubtedlyhave a deleterious impact on future employment or educationalopportunities.Prayer for reliefFor the forgoing reasons, Morgan Bettinger respectfully prays thatyou, as the President of the University, order the expungement of allrecords related to her UJC proceedings including but not limited to herconviction and sanctions.Thank you for your consideration of this important matter.