High court hears arguments on whether UT can bury investigation

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Posted: Jan 11, 2017 8:55 PM
High court hears arguments on whether UT can bury investigation
Part 67 of 67 in the series Trouble in Texas
The Supreme Court of Texas will decide whether Wallace Hall will be granted access to records of the Kroll investigation.

The Supreme Court of Texas will decide whether Wallace Hall will be granted access to records of the Kroll investigation.

AUSTIN – A lawsuit over a cover-up by University of Texas Chancellor Bill McRaven reached the state Supreme Court on Wednesday, with a decision expected to follow soon.

The ex-Navy Seal’s attorney, Wallace Jefferson, opened his presentation with an argument that could have come straight from one of Col. Nathan Jessup’s scenes in “A Few Good Men.” It was a generic appeal to duty, honor, uniform – all meant as a counter to Regent Wallace Hall’s claim that McRaven has broken the law by refusing to provide him access to a disc of records from an investigation into corrupt admissions practices at the university.

There was no “you can’t handle the truth” moment, but there should have been, as UT’s case comes down to a similar premise: surely somebody gets to decide Hall can’t handle the truth.

The state Supreme Court has inflicted a number of rulings on the public in recent years that have favored the government’s right to keep matters to itself, but a ruling for UT here could be the biggest blow to transparency yet.

In a state where the executive branch is largely organized under the authority of independent commissions, it is those commissioners who are responsible for holding government agencies accountable. A decision in favor of UT would empower bureaucracies across the state to stonewall trustees, board members and other overseers with impunity.

Three of the court’s nine justices showed signs of supporting impunity for McRaven.

Chief Justice Nathan Hecht asked one question that suggested he thought McRaven’s possible lawbreaking would enjoy the same sovereign immunity as other routine government lawbreaking.

Justices Debra Lehrmann and Eva Guzman both asked several questions that suggested they thought McRaven had the legal authority to determine whether Hall had the “legitimate educational interests” supposedly necessary to view the records.

This is the key point of McRaven’s argument: if the Family Educational Rights and Privacy Act says that officials should have “legitimate educational interests” in records they review, then somebody must make that determination. And if McRaven has the authority to make the determination, then it doesn’t really matter if his determination is nonsensical – it’s his authority to decide that makes the decision valid.

Indeed, Jefferson didn’t spend a single minute arguing that Hall didn’t actually have an educational interest in the material.

“How could a regent, with statutory oversight duties and specific responsibility for admissions standards, have no legitimate interest in information showing the extent of improper favoritism in the admissions process?” Hall’s attorney, Joseph Knight, asks in a brief. “How could this information be of legitimate concern to admissions officials, the university President and his staff, the General Counsel, and UT’s consultants, but not to the regents who are in charge of all of them? How is it legitimate to expose student information to a legion of staff and temporary workers charged with redacting it to oblivion, but illegitimate to allow a confidential internal assessment by one sworn to oversee the system?”

Justice Jeffrey Boyd made a similar point about the need for access, luring Jefferson into his example.

Surely Jefferson had reviewed all the vast material in this case, he commented, getting an assent, before making his point that, “90 percent of what you’ve read is irrelevant, but how do you know it’s irrelevant until you’ve read it?”

At multiple points, Jefferson lapsed into outright misstatements, claiming that the names of the involved parties were included in the famous Kroll report (they weren’t, which is the main reason this lawsuit exists), and also claiming that Hall’s two allies on the Board of Regents hadn’t supported his access to FERPA-protected material during the one vote the board has ever taken on the issue.

Under the rules at the time, Hall just needed a second to get access to anything he requested, and he got the support of regents Alex Cranberg and Brenda Pejovich in a 6-3 vote. After that vote, chairman Paul Foster, on his own, read something into the record about how the vote shouldn’t be taken as including FERPA material.

When Jefferson told the court that Cranberg and Pejovich had supported the FERPA restriction, Boyd displayed an impressive command of the minutiae of the case in correcting Jefferson and pointing out that those were Foster’s words, not the board’s instructions.

Jefferson also contended that the Kroll records could include sensitive information such as application essays discussing sexual abuse, without making it clear he was speculating.

Actually, Kroll was granted access only to certain narrow categories of information. According to its own report, “Kroll did not request or review any records containing a student’s date of birth, Social Security number or other information that may be considered personally identifiable information.”

Justice Don Willett also displayed a clear sympathy for Hall’s position, asking Jefferson at one point whether the board had the authority to “immunize” an illegal action by McRaven with a vote taken after the fact.

Justices John Devine, Paul Green and Phil Johnson stayed quiet during oral arguments, while Justice Jeff Brown asked two questions that didn’t tip his hand.

RELATED: UT admissions scandal is 10 times bigger than official report

One point lost in the debate is that FERPA doesn’t actually forbid schools from disclosing records to anybody, much less its own officials. In plain language, the law discusses how to deal with universities that have official policies allowing for student records to be shared freely with the public.

A federal appeals court that heard a lawsuit over a similar scandal at the University of Illinois ended up tossing the case for lack of federal jurisdiction, finding that the “Act does not by itself forbid any state to disclose anything.” The case was a matter of state law.

The act does have a reference to “legitimate educational interests,” a bit of boilerplate that has been transmogrified through UT’s lawyering into authority that’s “unreviewable by a court,” according to Jefferson.

But FERPA also states plainly that “Nothing contained in this section shall preclude authorized representatives of …  (s)tate educational authorities from having access to student or other records which may be necessary in connection with the audit and evaluation of Federally-supported education programs …”

That would apparently apply to Hall, but it is unquestionably UT’s position that the clause applies to the Kroll papers. As the Franklin Center for Government and Public Integrity (the parent organization of Watchdog.org) pointed out in a friend-of-the-court brief, “Paragraph 12.25 of the August 5, 2014 Kroll/UT contract states that UT ‘designates’ Kroll as ‘its Authorized Representative to conduct an evaluation of the education program as outlined in Exhibit A.’”

“Exhibit A to the Kroll/UT contract further describes that Kroll is to evaluate ‘conduct of [UT officials] in performing admissions services . . . based on the premise that applicants should only be admitted to a public university based on their individual merit . . ..’

“It being expressly stated by UT that the evaluation of the education program, defined as evaluating the conduct of UT officials in performing admission services, satisfies the definition of ‘legitimate educational interest’ – all parties would appear to be agreed on that point.” The only remaining question is whether a Regent is for some reason less authorized to review the Kroll information than Kroll was in the first place.”

So the university has already taken the official position that the Kroll review of admissions is a legitimate educational interest, but it is now arguing that it has the authority to decide that interest simply vanishes when Hall has the same interest.

As Hall’s attorney Knight put it right at the end of the hearing, “They’re saying, ‘We can call it a ball or a strike no matter where it’s thrown.’”

Contact Jon Cassidy at jon@watchdog.org or @jpcassidy000.