The justices of the Texas Supreme Court heard arguments Wednesday for and against releasing confidential records of an admissions investigation to a university regent, but no clear signal of how the court might rule emerged.
University of Texas System Regent Wallace L. Hall Jr. is seeking access to several hundred thousand pages of emails, interview notes and other records, including private student information as well as the names of elected officials, donors, alumni, regents and other people whose influence helped some applicants get admitted despite subpar academic records.
Hall contends that, as a member of UT-Austin’s governing board charged with setting admissions policies, he should be permitted to see the material.
UT System Chancellor Bill McRaven, the defendant in Hall’s lawsuit, counters that Hall does not meet the “legitimate educational interest” standard that would justify access to private student information under the federal Family Educational Rights and Privacy Act, often referred to as FERPA. The chancellor also argues, as a lower court concluded, that Hall sued the wrong party — that the regent’s beef is actually with the Board of Regents, which voted to back the chancellor’s restrictions on access to confidential information.
Justice Don Willett, seeming to support Hall, wondered why university staff members are entitled to see confidential information that regents, as “the ultimate decision-makers” are barred from seeing? How can one discern whether favoritism was dispensed without access to the records? he asked. Justice Jeffrey Boyd, taking a similar tack, suggested that a regent might have to look at everything to know that he is missing nothing.
In contrast, Justice Debra Lehrmann seemed skeptical of Hall’s quest, suggesting that an unfettered right to demand documents might grind some university operations to a halt. Justice Eva Guzman questioned whether McRaven could disregard a UT board directive to withhold private records. And Chief Justice Nathan Hecht expressed skepticism of Hall’s right to sue in the first place.
Wallace Jefferson, a former chief justice of the court representing McRaven, said that FERPA sets a high standard for access to private material and that a university’s decision to withhold personally identifiable information is “unreviewable.” Unlike an admissions officer, he said, a regent has no right to see, for example, the personally identifiable information in an essay that described a student’s struggle with mental illness.
In response to justices who questioned whether the case was postured correctly, Jefferson echoed a lower court’s ruling. “The wrong party was sued,” he said, asserting that Hall should have named the Board of Regents. “The case is moot.”
Joe Knight, the lawyer representing Hall, said state law grants a regent wide access to records, limited only in this case by an outright prohibition in FERPA. And since FERPA does not specifically bar access, state law is controlling, he said.
“That right is an inherent right,” Knight said, adding that Hall’s access poses no undue burden to the university because all of the information is on a single electronic disk.
McRaven is an appropriate defendant because he acted outside his authority in refusing to turn over unredacted records, regardless of how the UT board felt the matter should be handled, he said.
“How could it be that a regent … has no legitimate interest in a file that exists solely to evaluate whether those (admission) standards have been corrupted by undue influence?” Knight said.
Wednesday morning’s court session didn’t delve into the years-long background of Hall’s frosty relations with the Austin flagship.
A Travis County grand jury condemned Hall in 2015 but didn’t indict him for what it called “abusive excess” in demanding information. Hall, with the backing of UT System officials, ordered the university to deliver him multiple years’ worth of its responses to open-records requests, a trove that involved many file boxes. A state House panel, following a year-long investigation, censured him in 2014 for what it described as misconduct and incompetence, stopping short of recommending the harsher sanction of impeachment.
Hall says he was simply exercising his oversight duties. Critics say he was on a witch hunt to oust former UT President Bill Powers.
Higher educational scholars say it’s not unusual, at public and private universities alike, for a president to occasionally put his or her hand on the admissions scale. Powers said he acted always in the best interests of the university.
The investigation by Kroll Associates Inc., hired by the UT System, revealed previously unknown details, including a system of letter-coded “holds” operated by Powers — his were labeled “Q” — in which a “select handful” of applicants were enrolled each year despite subpar academic credentials, and over the objections of the admissions office.
The UT board, which oversees 14 academic and health campuses, tightened its policy on admissions in August 2015, permitting a president to order acceptance of a “qualified student” who might otherwise be rejected, but only on “very rare” occasions and only in situations of “highest institutional importance.”
Hall was appointed to the UT board in 2011 by then-Gov. Rick Perry. His term ends Feb. 1, and he is not expected to be reappointed by Gov. Greg Abbott. But under state law he will continue to serve on the board until his replacement is nominated, confirmed by the Senate and sworn in.
After the oral arguments, McRaven said: “The court was very active and prepared, and we are confident it will come to a reasoned decision.”
Hall said, “I’m going to wait for the court. Then I’ll have something” to say.
The court is expected to rule soon in Hall v. McRaven.