University of Texas System Regent Wallace Hall Jr. has lost in court a second time, and perhaps for good, in his effort to gain access to confidential student information from an investigation of admissions irregularities.
A three-judge panel of the state 3rd Court of Appeals ruled unanimously that Chancellor Bill McRaven didn’t act outside the scope of his authority when he refused to turn over unredacted records to Hall, a Dallas businessman. The UT System-commissioned investigation by Kroll Associates Inc. found that then-UT-Austin President Bill Powers sometimes ordered students admitted, despite subpar academic records, at the urging of legislators, regents, donors and other influential people.
Justice Cindy Olson Bourland, writing for the court, said it was the UT System Board of Regents, not McRaven, “who denied Hall access to the documents in unredacted form, having implicitly determined that Hall does not have a legitimate educational interest in the information and that it may be protected by other privacy laws. Whether the Board’s determination in this regard is correct is not before us, and we take no position on whether that decision would be reviewable by this Court.” Bourland added that McRaven “must comply” with board directives.
“We’re pleased with the court’s opinion,” said Karen Adler, a spokeswoman for the system, which oversees 14 UT campuses.
“I think it’s troubling for UT, and really for all state agencies, that the Court of Appeals has ruled that a majority of the governing board can withhold relevant information from an individual board member,” said Hall’s lawyer, Joe Knight. “That rule seems to invite cover-ups and defeat the kind of oversight the Legislature intended, especially here, given that Kroll specifically found that members of the Board of Regents were complicit in the improper secret admissions program.”
Knight said he and his client haven’t decided their next steps. Hall could appeal to the Texas Supreme Court, but his prospects for success would appear to be slim. His six-year term ends Feb. 1, and if the case dragged out past then a court might well consider it moot. Hall was appointed to the UT board by then-Gov. Rick Perry, and Gov. Greg Abbott isn’t expected to renew his appointment.
The 3rd Court’s ruling, filed Friday, upholds a decision by state District Judge Scott Jenkins of Travis County, who dismissed the case in December. The appeals court said McRaven enjoys sovereign or governmental immunity that deprives Texas courts of jurisdiction unless an official acted without legal authority.
Bourland, whose ruling was joined by Chief Justice Jeff Rose and Justice Bob Pemberton, said Hall declined to avail himself of a board-approved process that might have given him access to some confidential records. She also detailed how the board changed its tune on addressing such disputes.
During an April 2015 board meeting, Hall’s request to review all Kroll materials, including information protected by a federal student privacy law, passed with a minority vote, as permitted under board rules at the time.
The board revised that rule the following month to require a majority vote and voted in July against Hall, but with a caveat: He could review redacted materials and then make his case to board Chairman Paul Foster, who could decide, in consultation with the board’s two vice chairmen and general counsel, to let Hall see some information otherwise protected by the student privacy law and other laws.
Hall didn’t accept the offer, instead arguing “that he is entitled to see all personally identifiable student information in the Kroll file with no redactions because the information related to the Board’s duty to set appropriate admissions standards,” Bourland wrote.
The Kroll investigation might never have been done if not for questions raised by Hall.
In August 2015, the UT board approved a new policy that permits a campus president to order the admission of a “qualified student” who might otherwise be rejected, but only on “very rare” occasions and only in situations of “highest institutional importance.”
Hall has said the new policy “memorializes bad acts from a hidden admissions program.”