Eric Hall '18
On August 11 and 12, armed white men and women—shrieking, bearing oddly comical garden torches—paraded through our town. They bore assault rifles and riot shields, and they protected themselves with the Constitution we, as lawyers, will swear to uphold. Although only a few of us were literally in the line of fire, the catastrophic weekend affected all of us at the Law School in a unique way. As UVa students, Charlottesville is our adopted home. Heather Heyer was murdered on the same street where, months from now, Uber drivers will deliver students to Barrister’s Ball. Chris Cantwell was filmed skipping past the same restaurants where law firms host receptions. To many, the name of our city is synonymous with the resurfacing of unmasked KKK members and neo-Nazis.
But as future lawyers, our connection to the rally goes deeper than domicile. The rally touched another institution we claim: the U.S. Constitution. When a federal court cited the First Amendment to block the city’s attempt to move the rally, the freedom of speech we defend was in turn used to defend hate groups. The gossamer line between lawful and unlawful assembly was thrust into the hands of an overwhelmed police force. In the lead-up and aftermath, county officials aided by UVa professors continue to tread the murky contours of Equal Protection doctrine. Each headlining event was fraught with uncharted legal issues. More than a month later, debate surrounding the legality of removing the Lee statue, and the interaction between First and Second Amendment law thrives in the national dialogue.
For many in the law school, however, the rally was a more personal assault. Rather than an adopted home or the lofty principles of our profession, the rally assaulted our innate characteristics. Their hatred was directed at the colors of our skin, the ways we feel love, and the faiths we follow. The UVa Law community—especially students and faculty of color—were shoved into the national spotlight to respond to the violence and hatred—at once its victims and its first responders. The burden of leading the response fell to Charlottesvillians, custodians of democracy, and people of all races, sexual orientations, and faiths.
Over the past few weeks, the Virginia Law Weekly heard from nearly a dozen law students and faculty—many of whom were in Charlottesville on August 11 and 12. We scrutinized the Deans Working Group report and the university’s official timeline of the Friday march. We found the burden spread throughout the Law School, on each of its major departments and throughout its student groups. Faculty and students rose to the challenge of either opposing the rally or mitigating its fallout. The admissions office gathered new students and fielded their challenging questions. And Dean Risa Goluboff stepped up to lead the whole university’s response, lighting the way for future towns and universities to avoid mistakes that happened here. Though we never asked for terrorists to come to our town, we dutifully hoisted the mantle of responding to them.
August 11, 2017
Around 8:10 p.m. on August 11, according to the official timeline jointly produced by the University Police Department (UPD) and the Office of University Counsel, details of the surprise torchlight rally started to emerge. Rumors had been swirling since early Friday afternoon, and the UPD was frantic to connect with the organizers of Unite the Right (referred to in official documents as “UTR”). The University and Charlottesville Police Departments established cooperation early in the day which lead to the evening’s first blunder. After making contact with a UTR organizer, the Charlottesville Police Department, failing to understand that “Nameless Field” referred to a location on Grounds, told University Police that UTR refused to give a location for their march. Nearly forty-five minutes passed before the mistake was corrected, leaving both police departments barely a half an hour to prepare for the march.
By the time the rally began, Professor Anne Coughlin and her husband were going to bed early. They had volunteered to help drive vans at 7:00 a.m. the next the morning. No strangers to activism, the Coughlins always participate in marches and protests they believe in, and consciously decided not to be legal observers this time because they couldn’t remain impartial on the issue of racism.
Back on North Grounds, a group of 2Ls split on the same decision. Elizabeth Sines and Leanne Chia, who would later be featured in, among others, The New York Times, decided they couldn’t be impartial legal observers. Courtney Koelbel arrived at the opposite conclusion. “[As law students,] we are in a unique position to do this job,” she tells the Law Weekly, “not everyone can do it.” But watching the protests on Friday night, Koelbel admitted she had second thoughts. “As I watched what Elizabeth and Leanne were posting and what was shown on television, I became very scared. If I hadn’t made the commitment, I might not have gone to either rally.”
Professor Barbara Armacost made the same commitment but had a chance to preview the protestors she would be observing the next day. “I saw a group of men gathering on Nameless Field,” Armacost told the law school’s communications department, “as I watched from the parking lot in front of\Memorial Gymnasium, the group got bigger and bigger, and they began to light torches and march toward the lawn of\my university. It was one of the most terrifying and horrible sights I have ever seen. I called 911.”
According to the official timeline, at 9:52 p.m. the marchers mobilized gripping tiki torches and flying drones overhead, presumably to capture video from the air. Despite the University’s “Open Burn and Open Flame” policy that expressly prohibits burning an open flame without prior approval, and a Virginia state law that makes it a felony to burn an object “with the intent of intimidating any person or group of persons,” the University Police made no attempt to extinguish the flames that illuminate the most iconic and terrifying images from that night. They did, however, intervene to ground the drones.
Chia and Sines were there too, keeping their distance but trying to capture video. “We knew very few [counter-protestors] would be there because it was a last -minute, surprise rally,” Chia said. By official estimates, only sixteen minutes passed from the time UTR men arrived at the Rotunda to the time police declared an unlawful assembly, but to Chia and Sines, it felt like an eternity. They watched as the UVa students circling the Jefferson statue were “punched and kicked with no one to defend them.” From their position, they saw noted white supremacist and UVa alumnus Richard Spencer, flanked by a security detail, attempt an unheard rallying cry. When the UPD finally broke up the chaos around 10:30 p.m., Sines and Chia agreed to join the counter-protests the next day. Said Chia, “I wanted to see them in the daylight, maybe I thought something would be different if they couldn’t hide their faces in darkness.”
August 12, 2017
On the morning of the rally, the Coughlins woke up to news of the Friday night march, and saw for the first time the huge numbers of angry white supremacists on their doorstep. Although they were shocked, “staying home was not an option,” said Professor Coughlin.
By 7:30 a.m., the air was already thick with tension and pepper spray. “I thought maybe the protest wouldn’t be so bad because I didn’t see any protestors in the area I was observing. But as I was walking with the group to another park I saw a man get out of his car parked on the street and start loading up an assault rifle,” said Courtney Koelbel, the 2L legal observer and a woman of color. “I was scared to be targeted,” she told the Law Weekly, “I thought maybe the official green ‘legal observer’ hat would protect me. I held onto that thought as I moved through more densely populated areas and saw more and more white supremacists.” Each of the students and faculty we spoke to recognized that their safety was at risk, and for some the police presence offered little comfort. “We were about as afraid of the police reaction as we were the white supremacists,” Professor Coughlin said, “but we were an old white couple, our organizer reminded us that the police wouldn’t use force against us.”
Precedent supported the Coughlins’ fear of a police overreaction. Only a month earlier, when robed Klansmen appeared in Justice Park, police appeared to usher the KKK members out of the crowd, and then returned only to declare an unlawful assembly and tear-gas the counter-protestors. At a recent panel discussion in Caplin Pavilion, Professor Armacost called the earlier rally “terrible optics” for the police. According to her, police insisted that counter-protestors refused to disperse, and counter-protesters insist they were never told to. Regardless of whether they felt their actions were justified, police were aware of the scrutiny they would be under in the latest rally. “That history may have affected August 12,” said Armacost.
Making sure history didn’t repeat itself was part of the reason Koelbel and Armacost were there. “As a legal observer on Market Street, I was there to hold the government accountable,” Armacost told the students at the panel discussion on September 12. “Legal observers were paired into twos, and our job was to mostly observe police, to take down the names of people who [were] arrested, to watch for civil rights violations,” said Koelbel.
After the criticism of their overreaction to the July protests, police arguably underreacted on August 12. By some estimates, 800 UTR protestors and perhaps a thousand counter-protestors arrived downtown. Police lined three sides of Emancipation Park and a side-street adjacent to it, leaving one side of the park open to rally-goers. By Professor Armacost’s account, police stood by passively as the fourth unguarded side was “becoming a tinder box.”
At the First United Methodist Church, less than a block from Emancipation Park, the Coughlins led sorties into the crowd to retrieve injured counter-protestors and shuttle them to medical assistance. Professor Coughlin remembers watching a man in neo-Nazi regalia point a gun at a counter-protestor. “The experience was life-shaking; I had no idea what was going to happen at any moment.” Both Koelbel and Armacost confirm that police only watched. “As people were getting pepper sprayed and tear gassed, the police did nothing. People were pulling guns and the police only held the perimeter,” said Koelbel. At the September 12 panel, Armacost recalled asking over and over, “Why aren’t the police doing anything?”
Hours passed before police finally declared an “unlawful assembly” and the governor declared a state of emergency. Dean Kevin Donovan was just wrapping up the annual callback session that happens right before the start of callback season. “My phone started buzzing with people calling to tell me to wrap it up and get people home,” Donovan told the Law Weekly. Back at Emancipation Park, police were attempting to wrap up the rally. They closed in on the UTR protestors pushing them out of the park. “For a brief shining moment, the counter-protesters moved into the park,” said Armacost, shedding her impartiality for a moment.
Sines and Chia described the feeling of victory in an interview with the Law Weekly. “We both had tears in our eyes; I had never felt such an outpouring of love and raw emotion. We truly did feel like we had won. There were no white supremacists in sight, and it felt like we had reclaimed our town,” said Sines. Watching from the sidelines, however, Professor Armacost retained some trepidation. With the white supremacists gone, she listened for the order to disperse that would herald a repeat tear-gassing of the counter-protestors. When no order came, Armacost literally took off her legal observer hat and approached the police line. “I wanted to confirm their decision to stand down,” she said. Although they held their position, police left counter-protestors alone.
The victory was fleeting. When police declared an unlawful assembly, they forced UTR protestors into the streets near Emancipation Park where a young malice-filled Ohio man would fire up his black Dodge Challenger. “We were at the front of the crowd, about halfway up Water Street, when we began to hear screams,” said Sines. “[W]e both leapt to the side of the street just as a Dodge [Challenger] came barreling through the crowd. People were hit in front of us; they laid in the middle of the street. We were three feet away from being hit.”
Sines and Chia would talk about their experience later. They agreed that, while terrifying, neither had any regrets about being there. In a joint statement they released to the press, they summarized with a quotation frequently attributed to Edmund Burke: “The only thing necessary for the triumph of evil is for good people to do nothing.”
One Administration Cowers; Another Springs into Action
On Saturday the 12th, President Trump—usually a bottomless reservoir of bile spewed freely at Kaepernicks or Khans—was dry-heaving at Klansmen. As the Trump administration’s limp statements failed to denounce neo-Nazis, our own law school administration took action. In interviews with the Law Weekly, Deans Faulk, Donovan, and Goluboff each said their first concern was the safety of their students in Charlottesville. “As the dean of the law school, my first priority has to be to the people who are, in a sense, under my care are safe,” said Dean Goluboff. “My first instincts were towards my own law school community, making sure that people who were fearful, or vulnerable, or new or in town and felt like targets—which they were in a collective sense, if not an individual sense—were as safe as they could be and felt supported.”
Senior Assistant Dean of Career Services Kevin Donovan was returning home from a callback training session with students when news broke that the protests had turned violent. “We . . . reached out to a few student groups to let them know that if people felt unsafe, they were welcome to come out to our house for as long as things were unstable” said Donovan, whose first concern was for students in physical danger.an offer he also extended to 2Ls gathered at the callback session. “My secondary concern was for students who experienced a loss of a sense of personal safety because of the events.\ Concern for OGI was really third.” Thankfully, OGI appeared to carry on successfully. Although Donovan offered to call firms on behalf of students who felt they couldn’t go through with callbacks, no students asked him to. “The students showed extraordinary resiliency and strength in being able to move forward and do what had to be done,” Donovan said.
Because the rally happened on the weekend after OGI and nearly two weeks before the start of 1L classes, many students and faculty were either out of town or leaving. The ones who remained, however, may have been the most vulnerable. On that Saturday, most of the LLM students—many of whom had never having been to the United States before—“arrived in the midst of hate and violence much of which is xenophobic in addition to being racist and intolerant,” said Goluboff. According to Assistant Dean of Admissions Cordel Faulk, there was also a contingent of incoming 1Ls in town who, without a network of friends yet, “were just kind of sitting in their apartments watching, and they didn’t know anybody so they didn’t have anyone to process this with.” Although both deans were out of town, Dean Faulk recalls getting a phone call from Dean Goluboff on Saturday and putting into action a plan to support some of the new 1Ls.
Dean Goluboff was particularly concerned for minority students. On the Saturday of the rally, Dean Goluboff took a phone call with the mother of an incoming woman of color. Her daughter had arrived in Charlottesville early as part of the Law School’s Community Fellows program only to find violence and white supremacy. “She said, ‘I’m inclined to just fly her home and have her go to a different law school. Why shouldn’t I do that?’” In talking to the Law Weekly, Goluboff paraphrased her reply, “I can’t guarantee her safety, I wish I could. And, as a mother, I understand why you might want to bring her back, but, I said, let me tell you why I think she chose us and who we are. Who we are today is just as much who we were yesterday, and maybe even more so.”
The administration’s response was not limited to comforting words, however. After her calls with the student’s mother and Dean Faulk, Dean Goluboff recruited 2L Toccara Nelson to pick up the new student. Within a half an hour the two law students were together hanging out. Nelson, hesitant to take credit for her own heroics, credited Dean Goluboff for her “amazing” leadership. “I’m very encouraged” she said. “They’re meeting with us to get our perspectives and that’s a start.”
One of those meetings happened Sunday after the rally. Dean Faulk returned to Charlottesville where he and Senior Director of Law Firm Recruiting Patrice Hayden immediately set to work reaching out to a larger group of 1Ls. “Dean Goluboff and I decided to do something to try to get them together as a group so they [could] at least talk to each other and ask us questions,” said Faulk in an interview last week. Under different circumstances, planning a large last-minute dinner might have been a challenge. “By the time I had the guest count back it was probably four o’clock in the afternoon and we were going to dinner at six-thirty.” Faulk said. “So, I called Burton’s, and I talked to one of the managers there and told them what we were trying to do. And they gave us their private room, no charge, on two hours’ notice. They were amazing.”
To plan the dinner, Faulk drew on his experience from past national moments including the discredited 2014 Rolling Stone article, and the violent arrest of Martese Johnson that happened just before the open house for the class of 2018. “Unfortunately, we’re reusing lessons the lessons that we’ve learned from those terrible incidents”,” Faulk said. During the admissions cycle, the admissions team fans out across the country to “bring admits together in small groups and let them ask any questions that they have regardless of how tough they are, and then answer with utter honesty,” Faulk said, “and then invite them to come to Charlottesville to look for themselves.”
The questions at Burton’s that Sunday were, by Faulk’s own description, “really tough.” Although Faulk was unwilling to repeat them to maintain the askers’ confidentiality, he went on record to say, “The thing that impressed me most was that the 1Ls had such mature questions about what had happened, what the university had done, what the university was going to do moving forward . . . these are 1Ls who just moved to town, had not had a day of classes, and they were asking questions you would want a lawyer to ask.”
Miles away, Dean Goluboff also drew on a pool of experience supplied by tragic incidents. “There’s a listserv for everything, and it’s not something you think about as a student, but there’s a listserv for law school deans,” Goluboff revealed. Her comments, reprinted here verbatim, are a reminder that UVa is not alone:
Law schools now have joint resources to share for responding to major civil unrest, and responding to stark racial inequalities, and violence. It wasn’t that the events were the same as ours but it’s both a sad thing and a gratifying thing that there are so many places that have had to respond to these kinds of things in recent years to know that we have been gathering these resources and they’re not going to waste, that we’re sharing them each other and helping each other cope and improve.
In the days following the rally, Dean Goluboff relied on her counterparts at other law schools for their support and ideas. She shared with them her Monday email to the law school community, and read the messages they were sending to their own students. “That was when I really felt like this was a national moment,” said Goluboff. “Most of the deans felt like they had to say something to their communities who were not even in school yet. You could imagine university presidents doing that, but the law school deans felt like this was something they had to address.” Goluboff hypothesized that their special interest stemmed from the event’s unique relationship to the law and to law schools as engines of social change.
As much as she relied on her peers at other schools, Dean Goluboff also relied on her administrators here. When she heard that Faulk and Hayden had taken a group of students to dinner, and that Donovan had opened his home, she was heartened. By her own account, she teared up when thanking them at the annual faculty luncheon. “I wrote in my email that we have to live our values of diversity and humanity and belonging,” Goluboff said, “and we did in the response to that moment. People really went above and beyond.”
The Deans Working Group
In her message to the Law School community and her interview with the Law Weekly, Dean Goluboff applauded her school’s response to the violence and hatred. Mere days after the rally, however, her focus broadened from praising the Law School’s response to evaluating the entire University’s. Around August 18, University of Virginia President Teresa Sullivan appointed Goluboff to chair the Deans Working Group, a congregation of deans from each of the university’s schools and departments charged with evaluating and guiding the university’s response. The group’s composition was unique because, as Goluboff explained, university decision-making doesn’t usually involve the deans directly. With the working group, however, President Sullivan wanted information from sources closer to the students and faculty. The deans were also eager to open lines of communication between schools so they could better coordinate their own responses. “Just as I was fortunate to get resources from the deans of other law schools, [we wanted] to share resources from all the other schools at UVa,” said Goluboff. Sullivan charged the working group with scrutinizing the events on three levels that, broadly summarized, are (1) safety and security; (2) self-examination; and (3) academic mission.
“We spent the most time on safety and security,” Goluboff told the Law Weekly in an interview that took place several days after the working group released its first official report on the Friday protests. Pursuant to this directive, the working group coordinated with consulting firm Margolis Healy, the University Police Department (UPD), the Office of University Counsel and others to evaluate the risk to student safety on August 11, and generate a timeline of events.
The report, which posted on September 11, is limited in scope to the August 11 unannounced march through Main Grounds.1 Goluboff declined to discuss any of the fact-finding used to generate the timeline and report, but it is clear that university officials, including UPD officers, were interviewed for their recollections of the evening. Their subjective beliefs about how the rally was going to play out color the report’s modest proposals. For example, the report prefaces its recommendations with the assertion that “University officials’ frame of mind was shaped by a decades-long history of non-violent protests on Grounds that led them to approach the march with the assumption that it was constitutionally protected and should be accommodated with minimal police intrusion.” Statements like these appear to justify the UPD’s passive reaction to violent torch-bearing white supremacists. Furthermore, they fail to explain why the UPD allegedly remained passive even after their assumption proved false. Taken together, they reflect a cautious working group, eager to enact concrete change without pointing fingers.
Goluboff was willing to comment on one of the reports’ more startling findings. According to the reports, University Police had two independent opportunities to extinguish the white supremacist march long before any violence occurred. They failed to take either. The report states:
The University’s “Open Burn and Open Flame Operations at the University of Virginia” policy, prohibits open flame devices (which includes but is not limited to candles and tiki torches) on University property and facilities unless that use has been approved by the Office of Environmental Health and Safety (EHS) or the University of Virginia Medical Center Fire Protection Inspector’s Office, as appropriate, and is conducted in accordance with the Virginia State, County and City codes and regulations.
Obviously, no office in the university approved UTR’s use of torches on Grounds, but the UPD did not think to (and was not required to) check with the proper university officials, and university officials were not required to notify UPD of approvals. Goluboff backed up the report: “We’ve long had a policy that you have to apply for an approval, but those approvals were never communicated to the police so they were never in the business of enforcing those.” Therefore, the failure to use the university’s “Open Burn and Open Flame” policy to obstruct the UTR march might be seen as a mere lapse in communication. But the report leaves open the possibility that UPD knew about the policy but mistakenly believed the protestors had a permit for their torches.
The official timeline shows that University police weren’t the only law enforcement present Friday night. Local Charlottesville Police (CPD) were also on hand. Neither police department attempted to enforce Virginia Code section 18.2-423.01, a state law enacted in 2002 that makes it a felony to intimidate others by burning objects in a public space. The legislative history of the act makes it clear that the law was meant to target precisely the sort of race-based intimidation the marchers sought to evince. The report cites a “lack of any recent incidents of intimidation by fire” to explain the UPD’s ignorance of it. In a certain light, that explanation is cause for celebration, but its non-enforcement surely led to violence on the steps of the Rotunda.
Though these missteps might appear egregious, they are essentially self-correcting. Now that police are aware that these rules exist, police stand a better chance of enforcing them. Dean Goluboff agreed that some of the working group’s achievements would come from merely enforcing the laws that are already on the books, but she also told the Law Weekly about a few other changes the working group had to seek proactively. For example, the Office of Environmental Health and Safety is now required to notify the University Police about open flame approvals and the Lawn is now a designated “facility” so firearms are no longer permitted there.
Speaking about safety more broadly, Dean Goluboff showed empathy for the police and university officials who were caught off guard by the violence. She told the Law Weekly:
The mindset was that this was going to be a non-violent demonstration, and that is not what it turned out to be at all. It turned out to be intimidation and violence and threats. It blew up conventions that we had become accustomed to. And it’s not that these conventions were never blown up before, but it did so in such a dramatic fashion. And it came on the heels of other demonstrations that happened that looked a lot different. UVa is not alone in not having thought out the First Amendment and Second Amendment relationship, and in not having tailored the way we think about free speech to make sure we equip our police officers with the information and authority they need to stop violence and intimidation from happening when it comes under the guise of non-violent demonstration. The articulated stance of these groups is that they are coming to “speak,” and it is true that you have to be content neutral in responding to threats, but when speech is violent threats, well, then you might have justification. I think you’re going to see a real turning point. That is not to say that we should develop rules that quash free speech. The goal is to continue to make the effort that it takes to make a robust free speech community. And so I have asked a number of faculty members who are First Amendment experts to think about how to come up with time, place, and manner policies that continue to foster demonstrations that are not violent.
The working group has made progress on President Sullivan’s other two directives too. Dean Goluboff described the second piece, self-examination, as a process of “continuing to ask questions about how we are doing and what we can do better,” and reaffirming our values of diversity, inclusion, belonging, and equity. Already the University has drafted a “pan-university survey” to identify which students feel most targeted and, although the working group wasn’t directly involved, the Board of Visitors voted to remove the plaques honoring Confederate soldiers that were displayed on the face of the Rotunda. “Living those values isn’t something we say or do once, we have to keep recommitting to them.”
There were, however, some positions to which Dean Goluboff could not commit. One of the working group’s initiatives was to assemble an advisory group to help answer questions about the university’s “historical landscape.” The advisory group comprises, among others, historians and architects whose expertise should help the University identify what else needs to be done in conjunction with the president’s Commission on Slavery and the university. Dean Goluboff declined to say whether the Black Student Association’s demand to “re-contextualize” Thomas Jefferson’s statue with a plaque about white supremacy would be on the agenda.
Finally, President Sullivan’s third agenda item, to examine the events through the university’s academic mission, was already under way before UTR set foot on Grounds. “We, as an academic community, will and should respond to these events by asking scholarly questions,” Goluboff said. “The relationship between the First Amendment and the Second Amendment might be [a question we] thought about before, but not nearly as much as when white supremacists and neo- Nazis arrived in Charlottesville armed to the hilt.” Indeed, the panel discussion on September 12 was planned long before the UTR rally, but it took on much greater significance afterward.
At the event, Professor Leslie Kendrick discussed the First Amendment status of hate speech and clarified for many that the Constitution does protect it. Professor Armacost shared her observations as a legal observer during the protests. Professor John Mason from the UVa History Department described the racist origins of the Lee statue and called for its removal saying it “is no longer separable from the blood of Heather Heyer.” He and Professor Kim Forde-Mazrui disagreed subtly on the fate of our own Thomas Jefferson statue.
Though the instruction was to generate scholarly questions throughout the university, many of the most important answers will need to come from us, the lawyers, the Bill of Rights interpreters, and law journal editors. Coming from UVa, the town where armed Nazis marched, our voices carry distinct authority. And on the question of how to treat our Founders’ legacies, our opinions, as the modern custodians of Thomas Jefferson’s legacy, are even weightier.
There is another striking quality to the working group report that, in our interview, Dean Goluboff confirmed was intentional. The report seems written for an outside audience, as if it were a guide for future towns and campuses who witness the modern face of hatred. “People are looking at us, and they are watching to see what we do and that means recommitting to our values and recommitting to our mission in ways that look different after these events,” Goluboff said. The incoming 1Ls seemed to already understand this when they had dinner with Dean Faulk and Director Hayden. We asked Dean Faulk if he sensed any fear or regret in the new students; he was categorical in his reply: “No. No, I sensed law student. I sensed resolve. They were strong. And they were glad they were here at this time. The sense I had from them is that they had a mission here, this was the right place for them.”