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. — JAB

Dear President Ryan,

I am writing to urge you to correct a grave injustice perpetrated by
the University of Virginia (the University) against a student during this
past academic year.

Morgan Bettinger was unfairly punished by the University
Judiciary Committee (UJC) for speaking words protected by the
Constitution. However, because UJC appeals are limited to process, not
substance, the Judicial Review Board (JRB) concluded that the UJC
decision whether erroneous or not was unreviewable.
The UJC decision was inconsistent with the findings of a parallel
investigation by the Office of Equal Opportunity and Civil Rights
(EOCR) on the same material facts, the same witnesses and the same
documented evidence. EOCR exonerated Morgan of any wrongdoing.
The University granted Morgan her undergraduate degree in May
2021. But going forward, Morgan must disclose this UJC sanction for
misconduct on her record in graduate or law school applications and
possibly on employment applications as well.

For reasons stated below, Morgan specifically asks that you
expunge the UJC conviction and sanction from her senior year record.

Factual Background

In July 2020, Morgan Bettinger, a rising fourth year student,
unexpectedly found her route home from work blocked by an illegal
gathering of people occupying a public right of way in downtown
Charlottesville. No uniformed law enforcement officers were anywhere
in sight.

Unable to proceed, she parked her car and spoke briefly to a city
dump truck driver blocking the road. She commented to him, “it’s good
that you are here or they could become speed bumps.” Two of the
protesters overheard fragments of the conversation and spread the word
that she had said “the protesters would make good speed bumps.”
Many of the protesters surrounded her car and threatened her with
violence.

Zyahna Bryant, a rising second year student and one of the
organizers of the street demonstration, created a false narrative on
social media claiming that Morgan had intentionally driven around two
police barricades and threatened the protesters by saying that they
would make good speed bumps. She labeled Morgan a racist and urged
her followers to demand Morgan’s expulsion from the University.

The Office of the Dean of Students was inundated with angry
messages 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 and
Civil Rights (EOCR) alleging harassment on the basis of race.

Institutional Response – Dean of Students

Morgan cooperated with a threat assessment investigation
conducted by the Dean of Students (Alan Groves), denied any conduct
threatening the protesters and argued that no reasonable person could
have 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 analysis
was wrong as a matter of law and that his intervention into the case
against her was unfairly prejudicial.

Institutional Response – UJC/JRB

Morgan admitted her statement to the driver but explained that
she had intended it as a compliment to him for protecting the
protesters. As the daughter of a career police officer, she expected
uniformed 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 the
UJC 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 but
nevertheless found that her “statement” posed a “risk” because it was
uttered 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 – EOCR

The investigation by EOCR proceeded independently of the UJC
proceedings and was not completed until after graduation. The final
report is most important to this request for two reasons:

First, EOCR concluded, as Morgan has consistently asserted, that
her 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 hostile
environment. Your comment was not clearly threatening on its face.

This finding alone undermines the legal judgment of the UJC
panel and raises a serious First Amendment question for the
University.

Second, every one of Bryant’s allegations against Morgan were
found to be demonstrably false, inconsistent with other documented
evidence, including her own, or uncorroborated by other credible
witnesses.

As a result of Bryant’s unfounded allegations, Morgan lost her job,
had her life threatened by anonymous sources, feared retaliation by
other students and experienced episodic declines in her own mental
health. Her ability to participate freely in her academic endeavors was
severely curtailed. Moreover, her undergraduate degree was held
hostage by her requirement to complete the entire set of UJC sanctions.

In short, Bryant lied and Morgan suffered the consequences.

Conclusion

The question of whether Morgan’s words to the truck driver
constituted a true threat presented a mixed question of law and fact
that should never have been delegated to inexperienced students for a
resolution.

On this Constitutional issue and on the same set of material facts,
the judgment of the students on the UJC was totally inconsistent with
that of the adults at EOCR.

As a double Hoo (A&S ‘68, Law ‘98) and former Professor of Naval
Science (1993-95), I appreciate the unique role and value of student self
government in preparing students to become responsible citizens in our
self-governing republic. However, the University can never delegate the
responsibility for ensuring that the UJC students, in exercising their
delegated authority, comply with the law of the land.

The United States Supreme Court has recently held that schools
have an interest in protecting even unpopular speech, especially when
the expression takes place off campus. See Mahanoy Area School
District V. B. L., a minor, by and through her father, Levy, et al., Slip
Op. No. 20-255, decided June 23, 2021.

In this case, the University, by and through the UJC, punished
Morgan for words spoken off-grounds in violation of her right to free
speech as protected by the Constitution.

Although Morgan completed her UJC sanctions and has received
her degree, her conviction for misconduct remains a permanent part of
her academic record at the University. Such a record will undoubtedly
have a deleterious impact on future employment or educational
opportunities.

Prayer for relief

For the forgoing reasons, Morgan Bettinger respectfully prays that
you, as the President of the University, order the expungement of all
records related to her UJC proceedings including but not limited to her
conviction and sanctions.

Thank you for your consideration of this important matter.