By Jonathan Haynes

Despite the controversy over the University of Virginia’s revisions to its right-to-assemble policies, the Foundation for Individual Rights in Education has awarded the university its highest free speech rating.

FIRE, a group that defends the constitutional rights of students and faculty in higher ed, ranked UVA as a “green-light” university, along with with 42 other universities out of the 466 it monitors around the country, ahead of “yellow light” James Madison University and “red light” Virginia State University.

“We classify schools as red, yellow, green light based on how well the First Amendment is upheld at public schools and how well any school follows its own policies,” says Robert Shibley, the executive director of FIRE. “UVA has generally done a pretty good job.”

UVA alum Bruce Kothmann stirred debate over UVA’s campus speech policies last May, after an officer removed him from grounds for reading a Bible on the steps of the Rotunda without the university’s permission.

A viral video of the stunt shows an officer calmly listing newly prohibited activities to Kothmann, who asks if “reading the Bible aloud” is included. After pausing and flailing his left arm, the officer says, “Apparently.”

The revised “time, place, and manner” policy was written by the Dean’s Working Group, a steering committee established by UVA’s then-president Teresa Sullivan after a crowd of torch-bearing neo-Nazis set upon a small group of protestors surrounding the Jefferson statue on August 11, 2017.

The policy restricts people who wish to exercise their First Amendment rights and are not UVA students, staff, or faculty to one of nine designated areas, among them Nameless Field and the McIntire Amphitheater, where they may assemble with a maximum of 25 to 50 people for no more than two hours. Non-affiliated persons must request permission between one and four weeks in advance. Violators may be banned, but are typically just removed.

Shibley doesn’t foresee any legal challenges because the policy is content-neutral and justified by a safety interest. The policy “passes constitutional muster,” he says. “But I think it’s very disappointing that the university adopted it.” Nonetheless, that didn’t prevent FIRE from giving UVA the green light because its policies don’t interfere with student expression.

UVA modeled its revisions after the University of Maryland’s time, place, and manner restrictions, which were upheld by the 4th U.S. Circuit Court of Appeals.

Kothmann, a professor of mechanical engineering at the University of Pennsylvania was visiting his alma mater last May to see his daughter, who had just completed her second year at UVA. He had read about the policy in the UVA alumni newsletter and, unable to shake it from his mind, decided to test campus enforcement.

The revisions proved controversial before their release, drawing criticism from members of the Faculty Senate Policy Committee Council. And some activists, students, and faculty had been pressuring UVA to ban specific organizations, since alt-right marchers were the perpetrators of on-campus violence August 11.

UVA banned 10 individuals involved in the torch march, but maintained that it is constitutionally forbidden from banning people or groups for ideological reasons.

“Times are changing, context is changing,” says Curry School professor Walt Heinecke. “Maybe it’s time for UVA to start legally pushing to see how far it can move that discussion.”

Critics lament the policy’s chilling effects on protest. Both Heinecke and William Keene, a professor of environmental science at UVA, point out that past on-campus protests against racial injustice, the invasion of Cambodia, and the ouster of Teresa Sullivan would not be permissible under the revised policy.

Shibley agrees that the policy could have negative consequences: “During the civil rights movement, non-students were coming on campus to engage in discussion and protests,” he says, adding that fewer interactions with the community will limit students’ exposure to different perspectives.

The policy has stirred little reaction from students, however, who are still free to protest. Student groups that are officially registered with student council may also invite an unlimited number of non-affiliated persons to grounds, but groups that are not registered, such as UVA Students United and the Living Wage Campaign, could be affected.

When the on-campus protests for the anniversary of August 11 and 12 presented an opportunity to test the policy’s enforceability, UVA ended up enacting security measures that far superseded the policy’s parameters, such as requiring clear bags, installing metal detectors and fencing around campus, and vastly restricting the plaza around the Jefferson statue, where UVA Students United and other activists had planned a protest.

But besides Kothmann, there are few known instances of people being removed for violating the policy.

And Kothmann has violated the policy several times without incident since his removal. In July, he waved a gay pride flag on the Rotunda steps and reported himself to the university counsel. After an hour without a response, he reported himself to a receptionist inside the Rotunda. “I saw you,” she said. “Do you need a drink of water?”

Outside of UVA President Jim Ryan’s inauguration on October 19, Kothmann and his daughter handed out flyers about the restrictions to several administrative officials. Many of them took one, including Ryan. On November 2, Kothmann reported himself for juggling pomegranates in the McIntire Amphitheater. Nobody responded.

Correction January 3: Robert Shibley’s name was misspelled in the original story.

Bruce Kothmann

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