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ACLU willing to sue BOV

23 February 2008 | By Angela Cota, Flat Hat Assoc. News Editor | The Flat Hat » news

The American Civil Liberties Union is willing to help students sue the Board of Visitors because they claim that the board’s actions were a violation of Virginia’s Freedom of Information Act.

In a closed session last week, BOV members decided to make Dean of the Marshall-Wythe School of Law Taylor Reveley the interim president. Virginia law states that motions agreed to in a closed session must also be agreed upon in an open session in order to take effect.

Rector of the Board of Visitors Michael Powell countered that the BOV had to make a decision due to Nichol’s early resignation.
“[Reveley] is president designate and the board will formally appoint him this week,” Powell said. “Counsel has approved of this approach given the vacancy suddenly created by Mr. Nichol’s unexpected resignation.”

The director of Virginia’s branch of the ACLU, Kent Willis, disagrees.

“[The BOV] can go into a closed executive session to discuss personnel decisions, but any vote after that needs to be taken in open session,” he said.

“They had a right to meet in closed session … on Nichol’s job, but they did not vote in the public, and it is clear to us in that regard that they did violate the open vote law,” Willis said.

The ACLU is willing to send out a press release or help with litigation based on the violation of FOIA law.

“The basic rule is in law 2.2-3711, section B,” Staff Attorney for FOIA Alan Gernhardt said. “They can do a straw poll to get a sense of what their general consensus is in closed session and people can say, ‘Hey, I’m going to vote this way,’ but it doesn’t take effect until agreed upon in open session.”

The law reads: “No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion that shall have its substance reasonably identified in the open meeting.”

Based on this law, the ACLU told Student Assembly Senator Matt Beato ’09, who contacted them last week regarding the BOV’s decision, that Reveley is not yet legally president and that the BOV did not have authority to issue a severance package to Nichol.
According to Willis the point of the lawsuit would not be to uncover information but to take corrective action.

“The problem I see with this is that you would want to see who voted which way, but [the BOV] made it clear it was a unanimous vote,” Willis said. However, BOV member Robert Blair ’68 announced this Tuesday that he was resigning from the Board, indicating that the decision may not have been unanimous as Powell had stated.

“Blair is now able to claim that he supported President Nichol and that Michael Powell misrepresented the “unanimous consensus” that he said existed,” Beato said. “If you have an open vote, that can’t happen. I’m frustrated because I fear BOV members might see an outcry from students and then pretend that they supported Nichol all the way, enabling them to curry favor with students and faculty, which they can do if decisions are made in closed sessions.”

Beato sent an e-mail Feb. 14 to other SA representatives to ask what they thought about pursuing the issue.

“I don’t think a lawsuit is a good idea because it would have the effect of removing President Reveley from his office. None of us need that right now,” Beato said. “Nevertheless, I do think that the BOV should have had an open vote. The reason why they did not have an open vote to appoint President Reveley is because they didn’t expect that they would need to appoint him so quickly.”
No other students appear to be pursuing litigation.

“Though some outside organizations have been mentioned at various times over the last week, we are dedicated to focusing our efforts on the future of the College,” said Dave Johnson ’09, SA undersecretary of Public Affairs for Williamsburg and one of those Beato contacted after talking to the ACLU. “This is a time for the students, faculty, staff and alumni of the College to engage in an open conversation about the events of the past weeks and months in order to proceed on solid footing.”

Johnson added that the work to be done regarding this issue will continue for some time.

“I believe that our community still has plenty of concerns that must be addressed, and revisiting the same issues for the next several months is not a productive element of that process,” he said.

Flat Hat News Editor Austin Wright contributed to this report.

  1. Send in the clowns.


    — Wow...    Feb 27, 09:43 AM    #

  2. I’m confused.

    Now I’m no lawyer, but my understanding was that what happened behind closed doors was that nobody made a motion to renew his contract. There was no vote because nothing was brought up for a vote. The BOV didn’t really do anything yet – the point is that they DIDN’T act. Nichol would only be employed here next year if they actually acted on a contract that was set to expire. He’s not going to be here precisely because they didn’t vote. How can Willis say: “They had a right to meet in closed session … on Nichol’s job, but they did not vote in the public, and it is clear to us in that regard that they did violate the open vote law”? How could they violate the open vote law if they didn’t do a closed vote? The open vote law simply says that closed votes aren’t valid.

    Nichol is currently out of a job, not because of any vote that took place at the BOV but because he chose to quit.

    The only way the BOV could have violated this law is if they voted behind closed doors – but they don’t have to vote to let a contract that is set to expire actually expire. They have to vote to make a new contract, and my understanding is that that hasn’t happened yet. So what case is there for the ACLU?

    Granted – the ACLU may have a point on the severance package and Revely… like I said I’m no lawyer, but those seem more valid. But I don’t see how they have a case at all with Nichol’s contract when no vote is necessary to just let a contract expire on a predetermined date. Its like when Congress doesn’t reauthorize Bush’s wiretapping. You can’t really accuse them of voting improperly because they didn’t vote! They just let it expire!


    — D Kuehn    Feb 27, 10:17 AM    #

  3. Wow! This is REALLY great news! I’ve long predicted that Nichol (really being an ACLU mole) would sue himself (the College)! This is SO perfect! Nichol sues himself…you just can’t make this stuff up.

    Just like with the cross removal: Nichol “We, that is I, removed the cross so that we, that is the College, would not have to face lawsuits from the ACLU, that is, me. It’d be such a waste of time and money if I had to sue me over this issue that I, your wise and beneficent leader, have decided we should save us from them, or us, speaking, of course, now as myself, your President, and advising you to not confront them…er…us…or me..rats!...whoever, the ACLU. Everyone got that?” The feathers were removed using pretty much the same argument.

    Now the BOV will get to experience first hand the stupidity of ever selecting a former politician/ACLU attorney to be President. As to the legality and all the internal stuff, I admit it’s a mystery to me. I’m sure it’ll drag on for a long, long time. This will be the perfect object lesson for Nichol fans. It’ll also show that Nichol was primarily interested in politics and his ACLU agenda, not the College. Nichol’s legacy is the gift that keep on giving! Will it be an expensive waste of College funds? Yes, but so was Nichol’s tenure and that didn’t deter his supporters. Pay attention, kids, your hero is about to show his true colors! Will he stop the ACLU, join them, or remain mute and let the chips fall where they may? Who knows? To misquote Betty Davis: “Hang on to your seatbelts, it’s going to be a bumpy ride!”


    — robert    Feb 27, 11:00 AM    #

  4. Here’s how it works legally:

    From what I’ve followed of the situation, the problem isn’t the discussion of Nichol or not voting on his issue behind closed doors. It’s the fact that the BOV, during the closed session to discuss Nichol / personnel issues, appointed Reveley as the interim president. The vote the article references is the one taken in closed session to appoint Reveley to interim president. Under VA Freedom of Information Act (FOIA) laws, the BOV can’t do this in closed session; they can discuss the appointment of Reveley and take, as the article states, a “straw poll.” However, appointing Reveley required a motion and vote, which – if motioned and voted on in closed session as the BOV did – requires a vote in an open session afterwards in order for the appointment to take effect. Effectively, this means that Taylor Reveley is not legally the interim president.

    In other words, the procedure by which they did not renew Nichol’s contract was legally sound, and going into a closed session to discuss Nichol and personnel matters was fine as well. However, once they made a motion on and voted for the appointment of Reveley in that closed session, the BOV is legally bound to hold an open-session vote to make the motion/vote effective.

    I would ignore Beato’s statements – his quotes are muddying differing issues and probably creating some of the confusion.

    I’m not saying I’m for, against, or neutral towards the events that have transpired, but it seems that the ACLU is right on the money this time, from a legal standpoint. With the way FOIA laws are written, the BOV did violate them by not holding an open-session vote following a closed-session vote. (This doesn’t mean I’m pro-suing them and having Reveley removed, nor does it mean I agree with the ACLU in general. I’m just explaining the legal aspect.)


    — Legal scholar    Feb 27, 11:23 AM    #

  5. Whoops, my first paragraph was a little (technically) inaccurate. Suffice it to say that the BOV CAN make motions and vote in closed session, but to make it legally binding and effective, the BOV has to follow up a closed-session motion/vote with an open-session one, which they did not do.


    — Legal scholar    Feb 27, 11:24 AM    #

  6. Thanks for the legal beagle view. The FOIA – is that the same one Nichol claimed some kind of executive exemption for during the Wren cross and again during the Sullivan email? Just curious…and because I love the irony!

    I feel sorry for the BOV. This was supposed to be a mostly honorary position. I don’t even think they get paid. Now they’re hip-deep in politics, upset students & faculty, upset alumni and now maybe a lawsuit. Maybe Blair was smart to get out while the getting out was good. Or maybe the others are just trying to do their civic duty as best they can and hark upon the gale swirling about them as true heros (that’s my view). First they’re called politically motivated bribers by Nichol, then told they’re liars to their faces by students, and now the SA wants to sue them.

    They may want to hustle over to the Wren mutli-purpose room and see if they can have the cross put back up (temporarily, of course) to pray for a little courage. I think the procedure Nichol established, according to students who’ve tried, is lengthy and designed to discourage. So they better apply now for prayer several weeks in the future. (Or would it be anti-PC for them to do such a thing?) I’ll do some praying at home but I don’t think my standing with the Big Guy will help much. He may still be kinda upset with me about that lottery prayer!


    — robert    Feb 27, 11:59 AM    #

  7. Did I just call the BOV true hero sandwiches (heros)? I meant “heroes”! Not that I don’t love a good sandwich too!


    — robert    Feb 27, 12:14 PM    #

  8. This is the same SA that insisted on using limited resources to have a sex show when anyone with a brain would realize what a precarious position that put Nichol into re: it’s approval ?

    Give me a break –


    — Joe Towney    Feb 27, 01:41 PM    #

  9. Joe – Yep, same SA. But you have to remember that today’s W&M students have been taught that “political correctness” is a new form of democratic (small “d”) politics in which you’re always right and the opposition is not only wrong, but they’re “offensive” and have no right to object in any case. This infantile view of the world is pretty much the same Nichol carried into his Presidency. It’s not unlike the Divine Right of Kings (I’m the King…obey!) or what parents say to toddlers (because I said so, that’s why!). And, of course, the rest of us are supposed to tremble in awe at their incredible intellectual revelation and go along with whatever the PC illumanati come up with like sheep. Thus a removed-on-demand cross becomes “offensive” while strippers and whores cavorting onstage is “art” (and NOBODY is allowed to be offended).

    And you have to remember that those students have been there many semesters, studying hard, so they’ve got tons of savvy, smarts and worldliness the rest of us redneck bumpkins will never acheive. We should respect their efforts and obey with question or even doubts. You know, like Chinese intellectuals submitting to the Red Guards during the Cultural Revolution (kind of a Chinese version of the culture wars, but with more mandatory dunce cap parades, public humiliations and torture).

    I wish I could say it ain’t so Joe, but the College is now an intellectual black hole in which reason has been sucked in and nothing comes out but BS and hubris. Oh, and ACLU lawsuits.


    — owens    Feb 27, 02:09 PM    #

  10. with=without (+ other typos, no doubt)


    — owens    Feb 27, 02:18 PM    #

  11. Not all of the students subscribe to political correctness as a requisite of democracy. Let’s not further widen the gap between alumni and students by making such generalizing claims when there’s no empirical evidence to back it up (and this goes for the students too). The point is to bring together all of the groups who have a vested interest in W&M, not alienate any one of them.


    — Legal scholar    Feb 27, 02:18 PM    #

  12. If the ACLU wanted to do something purposeful, it could take up the cause of the philosophy department. The bogus charges against this department were a weak attempt to attack certain philosophy professors for exercising their First Amendment rights during the Nichol administration.


    — '06 Alum    Feb 27, 02:50 PM    #

  13. Thanks for explaining things, Legal Scholar – that’s incredibly helpful and about what I expected.

    Still, it seems like a strange lawsuit. Did they do anything wrong that they can be punished for, or is it just a technicality that invalidates the interim presidency until they take a public vote (which I’m sure nobody on the BOV would oppose doing).

    I mean – this just seems silly. Whatever you think about how the BOV respected or didn’t respect your rights, this particular instance seems to be more a case of a technical mistake. After all – nobody is seriously accusing the BOV underhandedness in the interim presidential appointment, right?

    Am I right – they didn’t really do something wrong here – its just a proceedural thing that needs to be corrected. Suing them over it seems petty to me, although I agree with you completely that legally the ACLU is on solid ground on the interim president thing.

    thanks again


    — D Kuehn    Feb 27, 04:01 PM    #

  14. Owens,

    “And you have to remember that those students have been there many semesters”

    Emphasis on “those” and “there”...clearly you are not on OUR campus or are part of OUR Tribe.

    I’m glad that so many people not at all a part of the College community seem to think this is their battle.


    — Dave J    Feb 27, 04:54 PM    #

  15. I believe I read that the BOV did make the vote official on Friday morning before they met with the staff, faculty and students. I could be wrong though.


    — chris    Feb 27, 05:38 PM    #

  16. I tend to think this is a fairly petty matter to pursue a lawsuit over as well – the reasonable expectation is that a judge would likely order the BOV to take a vote in open session and that Reveley would lose his interim presidency for the time between, which would just further the damage to the College and its community. I wouldn’t pursue it – it didn’t seem like an intentional, underhanded move on the BOV’s part, just a rushed reaction to the speed with which Nichol’s resignation took place.

    chris, I’m not sure if the BOV did make it official. Their statements in the article seem to imply otherwise, but I don’t have all the facts.


    — Legal scholar    Feb 27, 08:06 PM    #

  17. Legal scholar, I am not sure either. Here is the article I read that leads me to believe they have already made it official.

    http://www.dogstreetjournal.com/story/4098

    My thinking is that the quote from Powell where he states they will “formally appoint him this week” in this Flat Hat article was obtained before Feb. 22 when the BOV met.


    — chris    Feb 28, 12:07 AM    #

  18. I did see that quote. I just wasn’t sure if Powell was referring to formally appointing him in the sense of making it an official statement on record and going through whatever administrative / contractual procedures are necessary to appoint him, or if Powell was speaking in the sense of taking an open-session vote to enforce the closed-session appointment.


    — Legal scholar    Feb 28, 12:35 AM    #

  19. robert,

    All of your comments are offensive and unproductive.


    — Devan Barber    Feb 28, 08:45 AM    #

  20. “All of your comments are offensive and unproductive.” She Who Must Be Obeyed has spoken!

    Whereas appearing before the BOV and calling them liars was like roses petals strewn in their path. I’ll bet each and every one went home that night, looked in the mirror and said, “Damn, I’ve got to stop all that lying…just like they nice young lady told us.” I’m sure you produced loads of introspection and goodwill on the BOV. If any of them have an excess of the former you should borrow a scoop or two, cause believe me, your cup does not runneth over in that department.

    If you want to be a political “activist” you’ll have to get used to not having everyone impressed by your little temper tantrums and guerilla theater ambush tactics. Opposition comes with the job description. You’re certainly no stranger to deliberately offending people. Physician, heal thyself.


    — owens    Feb 28, 07:51 PM    #

  21. “and now the SA wants to sue them” – robert

    “I don’t think a lawsuit is a good idea” – me, from the article. Neither did anyone else in the SA. Therefore, the SA did not want to sue them.


    — Matt Beato    Feb 28, 07:59 PM    #

  22. legal scholar’s quotes above are quite good. I do not, and never have, supported suing the BOV over this. chris et al, you are right, the BOV took steps on Friday to comply with the Freedom of Information Act regarding President Reveley’s appointment. I am glad they did so. This means that President Reveley was not technically president for 10 days, which at this point is interesting but not an actionable item and will end up as nothing more than a historical sidenote.

    I do apologize if my quotes muddied the issue. Here is what happened/my views:

    - the BOV took a straw poll in closed session. This was 15-3. Seeing the consensus, Michael Powell asked if anyone would object to describing the decision as unanimous. No one did. I do believe they should have taken an open vote, for the simple reason that it prevents confusion about who actually voted which way and whether the decision was actually unanimous or not. – in the closed session, the BOV agreed to appoint Reveley as president if Nichol abruptly resigned. They did not expect this and thus had no desire to take an open vote before they told Nichol about his contract. Technically, they had no authority to appoint him as president before last Friday’s meeting, which is why Rector Powell called Reveley “president designate” in this article, written before Reveley was formally appointed. Had the BOV referred to Reveley as “president designate” during this time period before this article, I probably wouldn’t have even thought of any of this.


    — Matt Beato    Feb 28, 08:09 PM    #

  23. “Therefore, the SA did not want to sue them” -Beato

    Too bad. It would have been like Christmas in March. Headline: “Nichol’s Clones Join ACLU in Lawsuit!” or“Goose-stepping to the Beato of an ACLU Drum, the SA Sues!”. Oh, well… we can dream, can’t we?

    Healing is so boring. I like that Devan girl. She knows how to pick at the scabs. Your just too damn reasonable to be any fun Beato! Even when I’m unproductive and offensive you give straight-forward answers. Booo!


    — robert    Feb 28, 09:23 PM    #

  24. “If the ACLU wanted to do something purposeful, it could take up the cause of the philosophy department. The bogus charges against this department were a weak attempt to attack certain philosophy professors for exercising their First Amendment rights during the Nichol administration.” – 06 Alum

    Beato, Legal Scholar, Barbery Pirate Girl – what say you? They’re liberal and atheist, so your not helping Nazi conservatives, right? It’d be a nice healing step to give those guys a fair hearing. How’d you like to take the drubbing they’ve suffered all due to anonymous complaints? I believe all you guys were against the anoymous denunciations part of the Bias Reporting System. As for me, I like the idea of three professors being flattened by Nichol’s juggernaut. It’s more grist for the gristmill as far as I’m concerned. The fact that they’re liberal and atheist is icing on the cake.


    — robert    Feb 28, 11:12 PM    #

  25. I would have no problem (and would encourage it, in fact) to have the Philosophy Dept have a fair hearing (seeing as how I’m a graduate of that department and still know many of the professors, including Noah Lemos). :)

    That being said, I do know first-hand that the department had its problems – problems other departments didn’t seem to be experiencing to such great degrees, such as lack of organization, ineffective leadership, and a bitter division – but who knows, it could just be the nature of us philosophers…

    I do agree with the outcome of the Philosophy department scandal (I don’t think Lemos should have been Chair in the first place – there were many problems that arose during his tenure as Chair that didn’t occur before, and I believe they were a result of his managerial style). BUT, the way in which it was carried out is very, very questionable, and those professors deserve a FAIR procedure.


    — Legal scholar    Feb 29, 06:58 AM    #

  26. Here are some quotes from a Flat Hat article of Sept 7, 2007:
    “Carl Strikwerda, the dean of Arts and Sciences and the administrator in administration may have consciously bypassed or ignored the established procedures for handling the external review, including disenfranchising the department.”

    “ ‘By callously releasing a report with unsubstantiated charges without prior opportunity for rebuttal by those accused, the administration, particularly the dean of Arts and Sciences and the Provost, have not only put in jeopardy the careers and reputations of several distinguished faculty but also the honorable reputation of this College,’ Davies and Harris said in their letter to the BOV.”

    “However, a letter from Strikwerda to Meyers dated Aug. 20 reveals that the administration was not going to allow any departmental response whatsoever. ‘I believe that the first priority for you as the chair and for the department as a whole is to address the issues of governance and mentoring,’ Strikwerda said. ‘Consequently, with the approval of the provost, I am suspending the department’s requirement to respond to the external reviewers’ reports.’ “

    Is this REALLY the kind of due process the College now favors? It gets worse: Professor Lemos, former chair of the Philosophy Department, was replaced by English professor Terry Meyers. Meyers originated a petition of support for Nichol during the Wren cross scandal. Lemos was one of only two department heads who refused to sign that petition. Strikwerda, incredibly, claims he was unaware of this! This reeks of the appearance of cronyism. This is another example of failure of leadership during the Nichol administration. Davies and Harris also object to the anonymous nature of the charges against them. How could Nichol, the ultimate authority, have been expected to show any kind of impartiality when he used anonymous complaints during the Wren cross issue?

    William and Mary should be ashamed of this tawdry business. Is this now what passes for justice on campus? This whole thing lacks transparency and stinks of pork-barrel, back room politics. Was there no other qualified candidate on campus to replace Lemos other than Meyers? Could neither the Dean nor the President see the gross conflict in their choice? Do they not have a duty to protect the College from even the appearance of impropriety? I see Barber and others going nuts over the BOV workings. Compared to this fiasco the BOV were veritable Solomons! Where’s the outrage? Where are the calls for justice and due process (all of it – not just the parts Strikwerda feels the need to apply)? Apparently, their ox is not being gored, which says a lot about their political motivation with regard to the BOV. Their attitude is “screw the three philosophy professors…they weren’t onboard during our PC campaign”. Why am I not surprised?


    — robert    Feb 29, 11:43 AM    #

  27. The philosophy department was investigated and placed in receivership. It was soon determined that the charges against the department were without merit. Here’s a question any ACLU poobah could answer: if someone is charged with misconduct and the charges are found to be false, shouldn’t the accused be fully restored to his/her previous position? The philosophy department was exonerated MONTHS AGO. Why is it STILL in receivership? The answer is that the entire process was political: the investigation was a retaliation against professors who criticized the Wren Cross decision. It’s that simple. I am disgusted that this circus is continuing at the College. Taylor Reveley needs to do the right thing and put an end to this farce.


    — '06 Alum    Feb 29, 01:08 PM    #

  28. 06’ – I don’t think they weren’t exonerated of all the charges, just most of the more serious ones. Still, the process was far from transparent and has a heavy odor of politics.

    I’d love to see Devan Barber confront Dean Strikwerda, preferably during a large meeting: “Dean Strikwerda, may I read you the honor code definition of “lying” [reads it in school-marmish voice, dripping with disdain]. Now, can you please tell us if you were misrepresenting yourself [snickers & makes quote marks in the air with her fingers]when you CLAIMED [tone of oozing sacrasm] to be unaware of anyone’s position on the Wren cross when you replaced Lemos with Meyers?”

    That’ll happen, of course, when pigs fly. Yes, yes Devan… I know you didn’t do it EXACTLY that way to the BOV. But if you do it that way to the Dean it’d be great fun! You don’t really believe he was asleep in his office during the Wren cross turmoil, now do you? Actually, nobody does.


    — robert    Feb 29, 01:43 PM    #

  29. And if he was in his office asleep, is he REALLY the right guy to be short-cutting established procedures of due process? He’s clueless on one topic, omniscient on the other. Wow, are regular Jekyll and Hyde. You don’t see that too often. I’m sure his answer will be very politician-like, starting “I have no recollection….” IF you get an answer.


    — robert    Feb 29, 02:53 PM    #