Virginia senators seek injunction against seating 8 rejected BOV appointees

Nine Democratic state senators are asking a Fairfax County circuit judge to fast-track a preliminary injunction that would prevent three Virginia universities from installing rejected board of visitor appointees, the latest salvo in the senators’ war with the Republican Youngkin administration.

On Tuesday, attorneys representing Virginia state senators filed a motion for a preliminary injunction against George Mason University Rector Charles Stimson, University of Virginia Rector Rachel W. Sheridan and Thomas E. Gottwald, who was previously president of Virginia Military Institute‘s board, from recognizing eight people whom Republican Gov. Glenn Youngkin appointed to the three schools’ boards but were rejected in June by a Senate committee.

On June 24, the senators — eight of whom voted not to confirm the appointees, as well as Senate President Pro Tempore L. Louise Lucas — sued the three universities’ board leaders over what they called Youngkin’s attempted “nullification” of the committee’s vote.

The governor and the executive branch, the lawsuit says, “have refused to recognize the rejection of those appointments by a coequal branch of government, in open defiance of the Constitution of Virginia and 50 years of tradition in the Commonwealth.” Youngkin dismissed the lawsuit as “meritless” last week in a Q&A period with reporters.

Tuesday’s filings by Mark T. Stancil of Willkie Farr & Gallagher for the plaintiffs include a letter to Judge David A. Oblon to request a hearing on July 18 “or as soon as possible thereafter prior to July 31” to address the preliminary injunction. The letter notes that George Mason’s board plans to meet for its annual planning conference July 31, with its annual board of visitors meeting scheduled the following day, Aug. 1.

The injunction calls for Stimson, Gottwald and Sheridan to be prohibited from recognizing the appointments of the eight people rejected by the Senate committee.

They include former Virginia Attorney General Kenneth Cuccinelli, who was named to U.Va.’s board, and former Virginia Secretary of Commerce and Trade Caren Merrick, appointed this spring to George Mason’s board. The others include VMI appointees Jonathan Hartsock, Stephen Reardon and José J. Suárez; and Mason appointees Charles J. Cooper, William D. Hansen and Maureen Ohlhausen.

Sheridan replaced former U.Va. rector Robert Hardie in Tuesday’s filings, as she succeeded Hardie as the head of the university’s board July 1. According to a VMI spokesperson, Gottwald’s term as the head of VMI’s board was set to end June 30, and retired Col. James P. “Jamie” Inman was set to succeed him as board president July 1, so it is likely that Gottwald will be replaced by Inman in the lawsuit.

Stancil’s letter to the judge requesting a July 18 hearing notes that the defendants have not yet filed a response to the lawsuit, but the plaintiffs expect the three rectors to be represented by Virginia Attorney General Jason Miyares, who has already weighed in on the matter.

Miyares and Senate Majority Leader Scott Surovell, D-Fairfax, sent dueling letters to the three universities’ rectors following the 8-4 party line Senate committee vote, with Miyares arguing that the rejection of the appointees was not valid because the entire General Assembly had not voted on the appointments. Thus, the eight appointees remain board members “with the rights and responsibilities conferred upon a member of a board of visitors,” Miyares wrote.

Surovell, also an attorney, wrote that the rejected appointees are no longer members of their boards following the June 9 vote, and if the boards’ rectors were to recognize them as board of visitors members, “such conduct would constitute ‘malfeasance and incompetence’ … and would provide grounds for removal.”

The power of universities’ boards of visitors and the governor, who can make appointments and remove board members for cause, was in plain view last week as U.Va. President Jim Ryan resigned under pressure from the U.S. Department of Justice over diversity, equity and inclusion programs at the university.

Many of Ryan’s supporters, including elected state Democrats, criticized the Trump administration and Youngkin for what they viewed as overreach and an attempt to control Virginia’s public universities, with federal funding threatened. Some went further, saying that Youngkin’s appointees to the U.Va. board did not defend Ryan while he faced demands from DOJ officials to step down.

Democratic gubernatorial nominee Abigail Spanberger said in a statement Friday that if elected, she would “take decisive steps to ensure that all of our commonwealth’s boards of visitors are composed of individuals committed to the mission of serving and strengthening our public colleges and universities.”

As of Tuesday, U.Va.’s board is entirely made up of Youngkin appointees, who are expected to name an interim president shortly.

On Monday, outgoing U.Va. rector Hardie and incoming rector Sheridan announced that Jennifer “J.J.” Wagner Davis, the university’s executive vice president and chief operating officer, will be U.Va.’s acting president until the board names a longer-term interim president to serve until a permanent hire is made following a national search.

VMI’s board, meanwhile, is leading a national search for the replacement for former superintendent and retired Army Gen. Cedric T. Wins, whose ousting as the school’s first Black superintendent in February has been met with controversy as well.

Virginia’s public university boards have the primary duties of hiring and firing presidents and setting tuition, although they have significant influence over architectural decisions and capital spending, as well as university-based health systems’ operations.