Attorneys for University of Texas Regent Wallace Hall say a decision by the state Supreme Court on Chancellor Bill McRaven’s handling of records involved in the UT admissions scandal will have “massive implications for state governance.”
Just 13 days after an appellate court ruled in favor of McRaven, creating a new rule that would have dangerous implications for transparency at boards and commissions across the state, Hall has filed an appeal to the state’s high court asking for a quick final decision.
Hall leaves office Feb. 1, at which point the issue is moot.
With a simple timeline, Hall’s attorneys demonstrate an obvious flaw in the appeals court’s decision to deny Hall access to records related to the probe of former UT President Bill Powers’ interference with the university’s admissions operation.
The appeals court ruled that “it is the Board — not McRaven — who denied Hall access to the documents in unredacted form.” So Hall should have sued the board, not McRaven, the court concluded.
However, McRaven denied Hall access to the records, known as the Kroll papers, throughout April and May 2015, prompting Hall to sue him in June. It wasn’t until the following month that UT’s board voted to “endorse” McRaven’s decision.
Hall’s attorneys contend that vote was legally meaningless, that the board has no authority to restrict Hall’s access to information, and that it can’t turn a lawless decision by McRaven into a lawful one by a show of hands months after the fact.
“According to the court of appeals, a majority of the Board conferred upon McRaven unreviewable authority to hide UT information from individual regents,” Hall’s attorney Joseph Knight writes. “Under the opinion, a state official can now violate state law with impunity, so long as he gets the backing of a majority of the agency’s governing board. This dangerous holding is especially inappropriate here, because Kroll found that members of the Board of Regents were complicit in the secret admissions program to which the withheld information relates.”
The decision could have far-reaching consequences, as Texas, unlike most states, is primarily governed by boards and commissions independent of the governor’s authority. If the ruling holds, boards and city councils would be able to hide their activities not just from the public, but from their fellow elected officials.
For decades, Knight writes, the Attorney General has “consistently advised that a governing board cannot validly adopt rules that restrict an individual member’s right of access to agency information.” For example, he cited a ruling on the Texas Board of Medical Examiners, in which the AG ruled that any member “has an inherent right of access to agency personnel and investigative files. A majority of the board by rule may not restrict a member’s right of access to these records absent express statutory authority to do so.’”
With this new interpretation, city councils could remain secretly corrupt even after reformers get a candidate elected. The majority could keep the reform-minded official in the dark, and that official wouldn’t even be able to get a court order to see the body’s records.
“This Court should reject the indefensible principle that a board majority can strip the judiciary of jurisdiction to determine whether or not a governed entity is unlawfully withholding information from an independent member of its governing board,” Knight writes.
In April 2015, McRaven said publicly that his intent was to keep Hall from undermining his authority to shut down further inquiry into a matter he had “adjudicated,” but three months later, UT settled on a different rationale it could better argue in court: that it was actually protecting student privacy.
What that means in effect is that UT redacted every single page of one 25,000-page investigatory record, and stripped another key database of backdoor admissions of almost all its information.
“McRaven has completely redacted all grade information, all test scores, and even such benign information as the applicants’ high schools and requested college majors,” Knight writes. “The redacted file is utterly meaningless.”
Well, it’s not utterly meaningless. Even that redacted information was enough for Watchdog to demonstrate that Powers’ backdoor system had gotten at least 764 undeserving applicants admitted over six years, not the 73 applicants cited in the Kroll report.
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But without names, it is impossible to tell from the record who is corrupt, even among board members and university officials still in place.
McRaven contends that Hall has no “legitimate education interest” in the material. Left unanswered by that contention are a couple of questions: If board members have no interest in admissions corruption, then who would? Why was an investigation conducted in the first place, only to be placed under wraps before anyone saw it?
McRaven takes that position because if he has the discretion to decide that question in general, then no matter how ridiculous his exercise of discretion, the court cannot find that he failed to obey the law.
Hall argues that McRaven has no discretion, that a regent’s interest in admissions and other university functions is created by state law, which assigns regents the duty to “set campus admission standards consistent with the institution’s role and mission.”
So, Knight writes: “No Board rule or vote can trump the legislature’s judgments.”
“This Court should not allow a nonsensical assertion by UT’s leadership — that a regent has no legitimate interest in information regarding favoritism in UT’s admission standards — to defeat regents’ right and responsibility to understand the issues entrusted to their oversight.”
The state Supreme Court has a mixed record on transparency issues.
But if the court decides that even the highest-ranking official of an institution can be locked out on any pretext, then Texas government could come to resemble Diocletian’s court, where inner room led onto inner room, and real power was forever exercised in mystery, somewhere beyond the next draped threshold.
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