| Author: | Marsha Woodbury University of Illinois |
| Subjects: | Academic freedom United States Freedom of information United States Universities and colleges United States |
| Issue: | Volume 1, Number 4 (December 1994) |
| Category: | Comment |
"When credibility is in doubt, the effort to get at the truth is formalized."
Harry S. Broudy.(1)
INTRODUCTION(2)
Acting in his official capacity, James Holderman, president of the University
of South Carolina, authorized $350,000 in salary and travel costs for
Jihan Sadat, the widow of slain Egyptian President Anwar Sadat. This
expenditure compensated Sadat for a mere part-time teaching post over the
course of three semesters. In 1986,
when controversy over Holderman's lavish spending arose, an attorney
successfully relied on the South Carolina Freedom of Information Act (hereafter the FOIA) to force disclosure
of the expenditure.(3)
Across the Pacific, universities have also been held accountable to freedom
of information laws. Seven years ago
the New Zealand government included universities under its Official
Information Act, mandating that these institutions be as open and
accountable as many other public institutions".(4) At one stroke the
freedom of information law regulated every university and technical
institution in New Zealand.
In the United States, FOIA requests have sometimes resulted in embarrassing
releases of university documents.(5) Reporters working on one story that
drew national attention said, "When we first got onto this story, we
didn't realize that one of the most secretive organizations in America
would be a public university, but that's what we found in Minnesota."(6)
Freedom of information laws create a tension between the public's desire to
be informed and the university's historic autonomy. In 1868, for example, the California Constitution declared
the University of California a public trust to be administered by a
governing board which would have full powers of organization and
government, permitting legislating control only "to insure the
security of the university's funds" and property and physical plant
matters.(7) This autonomy should foster academic freedom, defined by
Justice Frankfurter,(8) as "the right of the university to decide, on
academic grounds, who may teach, what may be taught, how it shall be
taught, and who may be admitted to study."(9)
The critical issues of freedom of information and universities are the balancing
of the needs for privacy, research, academic freedom, and executive
functions on the one hand and, on the other, the people's right to know
what its public bodies and public servants are doing.
Apparently, public trust has eroded, and the freedom of information has had
to be institutionalized, and in so doing, courts and lawmakers are changing
the acknowledged powers and privileges of the university, and thus
redefining these institutions. Each
time a public university loses a freedom of information issue in the
courts, its character changes as regulation is imposed from beyond its
walls, adding to the administrative burden of fulfilling legislative
mandates. Furthermore, hiring and
firing decisions are altered, thus changing the composition of the campus community.
Actions such as disciplinary hearings and presidential searches which
universities formerly kept secret and confidential in time could become as
open as they are for other public bodies.(10) If universities fail to
preserve their special status, they eventually may lose their ability to
foster academic freedom.
This article examines recent court rulings and the dimming of the distinction
between universities and other public institutions whenever decisions
about public access to information are contested.(11) The author postulates
that state and federal legislatures and courts are taking a second look at
what exactly universities are(12) and what these institutions do, and how
they should operate.(13)
The author analyzes the recent decisions which change the stature of a university
and argues for universities becoming more open with operations, such as
presidential/chancellor searches, crime statistics, and peer review, which
is an examination or review of professional or academic efficiency,
competence, etc. by others in the same occupation.(14) The author will
recommend guidelines recently announced by President Clinton and Attorney
General Janet Reno which universities might consider. If openness is not achieved voluntarily, then the author
foresees further court decisions and legislation which will enforce
change.
BACKGROUND
Freedom of Information
The right of broad access to government information is "absolute in theory" but "qualified in practice."(15) The
right of inspection of public records had a measure of recognition which
preceded the adoption of the U. S.
Constitution and the First Amendment.(16) Mention of the right to
inspect public records existed in the law centuries ago.(17) However, the
English courts declared the primary rule that there was no general common
law right to inspect public records or documents.(18) The current American
understanding of the public's "right to know" is based on the First
Amendment.(19) The U.S. Constitution doesn't explicitly set out "the right
to know,"(20) thus statutory and common law define it.(21) Because of
the federal form of governance in the United States, the freedom of information
is regulated at the national, state, and even city levels.(22)
"The right to know" appeared in statutory law around the turn of this century,
first in a 1898 Utah statute and soon thereafter in 1909 in Florida.(23)
By 1959, 20 states had some form of Open Meeting Act, commonly called
"sunshine law" as part of a widespread attempt to combat the
effects of secret actions upon public decision making. An Open Meeting Act (OMA) guarantees
public observation of the meetings of its representatives. These laws are not within the scope of this
article, but it is worth mentioning two cases. In Pope v. Parkinson,(24) the Illinois Court of Appeals
determined that the University of Illinois administrator of a public
facility (the Assembly Hall) was free to consult with an informal advisory
committee regarding use of that facility, making it an internal university
affair not subject to openness requirements. This ruling helps to explain
the proliferation of "advisory committees" on the Illinois and
other campuses: "In public institutions where open records and open
meetings laws have made it impossible for the president to have an
effective interaction with the board of regents, the development boards
can serve the president well as a kind of shadow governing
board."(25) Also in Illinois, in People ex re. Byron v. Board of
Trustees of Southern Illinois University,(26) the Court of Appeals ruled
that meetings of the Board of Trustees of Southern Illinois University
must be open.
For decades, requesters had to give their reasons for asking for documents from
federal and state governments, but in the 1960s, Congress changed the standard
to a qualified principle of open government.(26) In 1966, President Lyndon
Johnson signed the federal FOIA,(27) which took effect on July 4,
1967. With the passage of the federal
FOIA, the burden of proof shifted from the individual to the government,
in that those seeking information no longer were required to show a need
for the information; the "need to know" standard changed into a "right to
know" doctrine--the government had to justify any need for
secrecy.(28) Under the federal FOIA the requester has the right to ask for
records, to receive a response to the request, to be told why the
information is being denied (if it is), to appeal the denial, and to
challenge it in court.(29)
In all 50 states, the schools are the responsibility of their state governments.(30)
Although the federal FOIA applies directly only to the Executive Branch of
the government, and not to the nation's schools, the federal government
does set standards for university records through its laws, including the Privacy
Act of 1974,(31) the Occupational Safety and Health Act of 1970,(32) and
the Family Educational Rights and Privacy Act, of 1974, (the Buckley
Amendment) commonly referred to by its acronym, FERPA.(33) Under FERPA,
the U.S. Department of Education may withhold federal funding to schools
"under any applicable program."(34) The legislators intended
that FERPA would protect students' academic and financial information. An unanticipated outcome of FERPA occurred
when schools did not limit the definition of "education records"
to grade transcripts, teacher evaluations, standardized test scores, and
the like.(35) When Congress believed that school officials had used the federal
Buckley Amendment as an excuse for denying access to campus crime records,
the legislators parried with another set of rules, the Federal Student
Right to Know and Campus Security Act of 1990.(36) Journalists report that
access to crime information is still not assured, and many schools do not
summarize their crime statistics.(37)
Freedom of information laws generally emphasize ad hoc balancing of competing
values.(38) Cleveland defined the balancing as a "Trilema," encompassing
the public's right to know, the individual's right to privacy, and the
public institution's mandate to serve "the public interest."(39)
Universities balance these interests when they decide which information to
release and which to withhold. University Structure and Function
Universities in the United States swim in a sea of information policy, buffeted
by a multitude of laws and regulations.
To understand the rulings in freedom of information cases and to
appreciate the tension of freedom of information law, it is essential to
examine the structure and function of the institution of higher learning. The public university is a
complicated organization, a hybrid, part corporation and part collegium.
Major public universities are enormous, with police departments,
hospitals, and large staffs.(40) Within an academic campus are boundaries,
and formal channels of communication which must be respected, and dynamic
processes which are unique.(41) The purpose of universities is to develop
society's human resources, and to generate, transmit, and disseminate
knowledge.(42) Historically universities have had considerable autonomy
from regulation because they are supposed to foster academic freedom and
protect it from outside interference.(43)
In the United States of the 1990s, universities have both public and private
aspects. Because of their increased
funding dependency on both state and federal sources, most universities
have had to relinquish much of their institutional autonomy.(44)
Ironically, although the difference between public and private
universities has eroded, legislatures continue to exclude private
universities from state freedom of information statutes,(45) even though
most "private" colleges receive governmental research grants and
have students whose financial support comes partly from state and federal
sources.(46) For example, Illinois provides funds for a consortium of
private colleges.(47) However, when constitutional rights come into question,
private schools are not immune from judicial intervention.(48) In the last few decades, universities
may have lost some of the trust invested in them. There have been scandals about the misuse of
funds,(49) and the government has had to push, drag, or cajole some
schools to be equitable in their dealings with citizens. For example, during the Civil Rights
movement, the African American student James Meredith needed the protection
of soldiers in order to register for school in Alabama, a clear example of
the government's need to intervene in the internal governance of a
university.(50) Authors argue that unethical practices are as common inside
academia as outside.(51) The Wingspread Report, prepared by a prestigious
panel of scholars, also called upon universities to renew themselves, or
they would be forced to change from without.(52) The pressure for change
has shifted from inside to outside educational organizations; the incentives have shifted from voluntary
improvements to mandatory requirements.(53) The warnings are clear that
universities ought to take the lead in their transformation, or have their
character dictated from without.
Another facet of university/FOIA tension is the logic of confidence.(54) Parties
bring to each other an assumption of good faith that each is carrying out
their defined activity--the community to the chancellor, the deans to
department heads, professors to teaching assistants. All along the chain there is a trust which goes into maintaining
the plausibility and legitimacy of the whole organization.(55) Some
authors hold that openness breeds confidence, brings trust, public
awareness of decision making, and some measure of protection against
corruption.(56) For example, in presidential searches, women and
minorities feel suspicious about the fairness of the process when it is
hidden from them.
On the other hand, parties seeking to limit disclosure of university-generated
information cite the institution's operational needs.(57) Specifically,
they argue that openness constrains the nature of discourse, alters the
decision-making process, adds costs, interferes with searches for and
evaluations of personnel, encourages mediocrity, and results in a loss of
candor. Former university president
Peter Flawn wrote, "The public expects its institutions to be managed
effectively and efficiently but at the same time supports laws demanding
openness and democratic procedures, guaranteeing that business is
conducted inefficiently and laboriously, making effective and efficient
management impossible."(58)
ANALYSIS
Recent caselaw places universities within the same disclosure requirements that
apply to any other public institution.
For example, in Beacon Journal Publishing Co. v. Kent State
University, 1993, a publishing company and reporter Thrity Umrigar filed a
complaint against Kent State University (KSU), its police chief, and its
director of marketing and communications seeking documents relating to
reports that KSU admissions office employees had received threatening
letters. The newspaper also sought
documents related to reported misconduct by the former KSU Director of the
Department of Admissions. The Ohio
Supreme Court(59) held that releasing the information would do no harm,
once the names had been redacted.(60) The Court stated that the state
Freedom of Information Law "...was intended by the General Assembly
to be liberally construed to ensure that governmental records be open and
made available to the public...subject only to a few very limited and
narrow exceptions."(61)
In the late 1980s a controversy erupted at several universities, including Harvard,
related to low admission rates for Asian Americans. The Harvard Crimson used the Massachusetts FOIA(62) to
obtain a report by the U. S. Department of Education's investigation of
this matter.(63) Public relations might have been better served by a
voluntary release of the report.
Also, Harvard admissions officers were forced to reveal the comments
they wrote about Harvard applicants who were being considered for admissions. The summary sheets contained comments such
as "alum" or "recruited
athlete" written by officers who reviewed each file. Joshua Gerstein, a 1991 graduate of
Harvard University, appealed to the U. S. Department of Education to
intervene when Harvard refused to release the sheets.(64) The department
ruled that Harvard had violated FERPA.(65)
Another scenario where freedom of information is used to force universities
to disclose information is in the area of personnel recruitment. While in
many universities, during a search for a top official, the prospective
candidates expect secrecy, courts have been frequently ruling that this
information should be made public.(66) Courts have asked for legislatures
to state which policy should prevail.(67) As recently as 1994, the Nevada
courts ruled that the chancellor of the University and Community College
System is a public officer, and interviews for the job must be open to the
public.(68) However, not all universities maintain a posture of
confidentiality in this area. A less covert
process should be taking place in Alaska,(69) Kentucky,(70) Tennessee,(71)
and Florida,(72) where university searches are held to be open to the
public. Charles Reed, Chancellor of
Florida's State University System, has filed amicus briefs for plaintiffs
who sued for FOIA access to university information in other states.(73)
To avoid the state control of donated funds, many universities create entities
called "foundations." The
Ohio Supreme Court recently ruled that the University of Toledo
Foundation, a fundraising body which is separate and distinct from the
public university, is nonetheless a public body which must make its donor
lists public.(74) The Court rejected various privacy rationales put forth
by the Foundation in the suit filed by the Toledo Blade.(75) Instead, the
Court found that non-disclosure by the Foundation would obscure the
sometimes significant link between a gift and its eventual use.(76)
For years, judicial practices on college campuses have been closed to the public. In a pivotal case at Southwest Missouri
State University, Traci Bauer went to court and won disciplinary records
denied under the Buckley Amendment.(77) The Supreme Court of Georgia has
also ruled that the records of campus judicial bodies are open to the ?
for inspection.(78) One of the most intransigent areas
for openness, the tenure(79) and promotion process, illustrates the
tension between a justifiable need for confidentiality and the FOIA. Tenure is "Guaranteed tenure of office,
as a right granted to the holder of a position (usually a university or a school)
after a probationary period, and protecting him against dismissal under
most circumstances." With the
expansion of civil rights such as in Title VII,(80) equal employment
opportunity is guaranteed for all workers, including those in
universities. In academia, the secrecy
of peer review leaves a suspicion that colleagues might vote against a
candidate unfairly, because of his/her race or gender,(81) or that a
prejudicial letter from outside the institution might influence some part
of the process. Traditionally, the
university held the position that its peer review materials were
privileged information under the aegis of academic freedom and the First
Amendment.(82) However, courts have ruled that Title VII outweighs
confidentiality, and if doubt is raised about civil rights violations,
relevant documents must be made public.(83) The following two cases
illustrate the far-reach of this Equal Employment Opportunity Commission
(EEOC) activity.
In EEOC v. University of Notre Dame du Lac,(84) the EEOC issued a subpoena for
the personnel files of a professor who claimed he had been the subject of
racial discrimination.(85) The EEOC also sought the personnel files of all
the teachers in the Economics Department.(86) The Seventh Circuit Court of
Appeals found that confidentiality was essential to the proper functioning
of the faculty tenure review process, and ordered that names and other
identifying material be redacted in all released documents.(87)
A decade later, the EEOC won a similar case for a female Asian professor who
was denied tenure at the University of Pennsylvania.(88) Finding that the
public has the right to "every man's evidence,"(89) the U.S. Supreme Court
rejected the University of Pennsylvania's claim that confidential peer
review files were protected from disclosure to the EEOC.
The Court noted that in creating Title VII, Congress had not exempted educational
institutions, and, even after debate on the subject, created no exceptions
for peer review documents.(90) The Court's decision provided generous
disclosure conditions for plaintiffs and the EEOC. Blackmun wrote for the Court that he believed "not all
academics will hesitate to stand up and be counted when they evaluate
their peers."(91)
The Court defined academic freedom as dealing with content, such as of ideas
expressed on campus, rejecting the argument that oversight of possibly
prejudicial hiring and retention practices interfered with academic
freedom, and the Court rejected the argument that "quality will decline"
with more openness.(92)
RESOLUTION
Universities are centers of learning and open exchange, founded and funded in
a spirit of trust. By withholding very
little information, and readily complying with FOIA requests, they honor
that trust. If truth should reign
anywhere, it is in the academy.(93) The task for universities is to maintain
credibility by making FOIA decisions which are ethical and responsible and
which don't invite further intervention by the legislatures and courts.
The university administration must have clear goals in mind and exemplary
standards of conduct to follow. To have impact
on decisions, goals must provide criteria for what should be done or be
bound to traditional standards of conduct.(94)
Public trust could be violated if university officers were to use state FOIAs
to withhold rather than disclose information by charging high fees for
searching and copying, or claiming the documents are lost, or ignoring the
time limit, or redacting indiscriminately, or interpreting the exemptions
overly broadly, or improperly classifying documents as private. Universities
should not "go underground" and use E-mail or complicated databases
as devices for avoiding public view.(95) Proper planning for the new
technology can ease public access.(96)
Possible solutions to unnecessary withholding of information include changing
the state FOIAs or creating new public policy, such as re-writing university
charters or penalizing universities that do not comply. The author urges universities to take
the initiative in opening up access before the courts and legislatures
enact legislation to force more compliance, which would at the very least
add to the administrative load.
As for peer review, an academic should be willing to express her/himself openly
and honestly, making judgments on some identifiable criteria, and be
willing stand by those judgments.(97) "If there is a smoking gun to be found
that demonstrates discrimination in tenure decisions, it is likely to be
tucked away in peer review files."(98) Some have argued that all a university
needs to do is to establish procedures for evaluating candidates for
tenure and that unsuccessful candidates should be given a meaningful
statement about the university's decision.(99) Unfortunately, the exactness
of "meaningful" is not universally understood.
When President Clinton took office, he inherited a federal government with an
enormous backlog of FOIA requests.(100) He set a new tone,(101) and Attorney
General Janet Reno rescinded a 1981 rule which encouraged federal agencies
to withhold information requested under the FOIA whenever there was
"a substantial legal basis" for doing so. In its place, agencies are directed
to apply a "presumption of disclosure."(102) Reno's enactment of Clinton's
order could be useful guidance for universities. Among other directives, she instructed all government
agencies and departments that FOIA exemptions should only be invoked in
limited circumstances;(103) and she urged all government FOIA officers to make
discretionary disclosures under the act whenever possible.
These guidelines could help universities avoid the embarrassment of having the
courts force release of information.
CONCLUSION
A public university is given powers by the people, and in order to maintain
public trust, the institution must avoid abusing those powers, yet foster
academic freedom. A tension exists
between the university's need to function efficiently and effectively, and
the public's right to monitor how and what their officials are doing. This article began with the withholding
of information at the University of South Carolina, which one attorney
called "one of the grossest public relations blunders ever by a state
agency."(104) Whenever public trust is violated, outside intervention
appears warranted, and autonomy is diminished.
Rationality and fairness will prevail if universities continue to
resist unwarranted outside interference with academic freedom, but
demonstrate openness with other information. Universities should perhaps adopt the Clinton/Reno model
instead of having the courts force release of crime statistics, presidential/chancellor
short-lists, and peer review letters. Rather than go kicking and
screaming, universities should lead the way by modeling openness for their
students and communities.
Notes
1 Harry S. Broudy, *Truth and
Credibility--The Citizen's Dilemma* 94
(1981).
2 My thanks to Rendi Mann-Stadt for her
editing, and to Roger Woodbury and Gregory Bopp, for keeping me "on
task."
3 No. 86-CP-40-3405 (South Carolina
County Court of Common Pleas, Oct. 27,
1986) (Perkins v. University of South Carolina), see also Jef Feeley, S.
C. student's attorney-wife turns to FOIA and wins: husband sought Sadat salary
data. The *National Law Journal*, Vol.
9, Nov. 24, at 8 col. 1 (1986).
4 M. Taggart, "Freedom of
Information and the University," *Otago Law Review*, (1988), 6, 4, p
638-663.
5 For a detailed discussion of the
far-reaching impact of newspaper examination of university documents, see
Joe Tevlin, The Man Who Nailed Najarian, *Minnesota Monthly*, July 1993,
at 40-66. This article tells about
two reporters who won the National Press Club Freedom of the Press Award. In giving them the award, moderator Gil Klein
said, "A team of reporters at the Minneapolis Star Tribune fought to
gain access to public records while working on an extensive investigation
involving the University of Minnesota.
They were looking into whether gifts and other special sources of money
were improperly influencing the mission of the university. Although Minnesota state law explicitly
states that public documents are available, the reporters said officials
were uncooperative in responding to requests for data. The university even lobbied the state legislature
to change the law. Eventually a paper
trail led to the discovery of financial abuses in the medical school that
the university was aware of, the Star Tribune reported. After a full-scale inquiry, the FBI
started a probe which led to an indictment, an overhaul of the university's
conflict-of-interest policies, and replacement of top leadership at the
medical school. " Federal News
Service March 16, 1994, Special Transcript, National Press Club.
6 Maura Lerner, Federal News
Service March 16, 1994, Special
Transcript, National Press Club.
7 Cal. Const. Article IX at 9(a). Of interest: On Nov. 2, 1976, 9(g) was added, requiring the Regents'
meetings to be open to the public, with only a few exemptions.
8 Concurring in Sweezy v. New Hampshire,
354 U. S. 234 (1957).
9 Id at 262-263
10 For a more in-depth discussion of
autonomy, see Caitlin M. Scully, Autonomy and Accountability: The University of California and the State Constitution, 38 *Hastings Law Journal* July, 927 (1987).
11 Universities are explicitly treated
like any other public body in 623 N.E. 2d 51 (Ohio 1993) (Beacon Journal
Publishing Co. v. Kent State University, 1993), and 577 No 88-493 U.S.
182, 110 S. Ct. (University of Pa. v. EEOC, 1990).
12 The whole body of teachers and
scholars engaged, at a particular place, in giving and receiving
instruction in the higher branches of learning; such persons associated
together as a society or corporate body, with definite organization and
acknowledged powers and privileges (esp. that of conferring degrees), and
forming an institution for the promotion of education in the higher or
more important branches of learning; also, the colleges, buildings, etc.,
belonging to such a body. J. A. Simpson and E.S.C. Weiner, *The Oxford English
Dictionary*, 2d Edition, Vol. XI 437 (1989).
13 In 577 No 88-493 U.S. 182, 110 S.
Ct. (University of Pa. v. EEOC, 1990), Judge Blackmun noted that
employers such as law firms could also argue that peer-review materials
are critical to employment decision and should be protected from
disclosure, therefore "we perceive
no limiting principle in petitioner's argument."
14 Derived from a definition in J. A.
Simpson and E.S.C. Weiner, *The Oxford English Dictionary*, 2d Edition,
Vol. XI 437 (1989).
15 State ex rel. Wellford v. Williams, 110 Tenn. 549, 75
S.W. 948, 64, L.R. A. 418 (1903); see also Nedda C. Allbray, *Government,
Science, Technology and the People's Right to Know*, Ph.D. dissertation,
Columbia University, 1988.
16 Harold L. Cross, *The People's Right to Know, Legal Access to Public Records
and Proceedings* 180 (1953).
17 Harold L. Cross, *The People's Right
to Know*, footnote 3, 306 (1953).
18 Harold L. Cross, *The People's Right
to Know*, 25 (1953).
19 Steven J. Helle, "Wither The
Public's Right (Not) to Know? Milton, Malls, and Multicultural
Speech", *University of Illinois
Law Review Fall* 1077-1100 (1991); "Free speech is meaningless unless
the public is free to gather information about which to speak."
Cleveland, Harlan Cleveland, The Cost and Benefits of Openness: Sunshine
Laws and Higher Education, *The Journal
of College and University Law*, 12, 2, Fall 130 (1985).
20 However, the U. S. Constitution's
Bill of Rights does call for open trials, see U.S.C. Article [VI.] "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial."
21 The Reporters Committee for the
Freedom of the Press, Tapping Officials' Secrets (1993) analyses the FOI statutes for all the
states.
22 For example, Chicago mayor Harold
Washington enacted a Freedom of Information Order, signed on May 16, 1983
by his Chief of Staff, William Ware.
23 Harlan Cleveland, The Cost and
Benefits of Openness: Sunshine Laws and Higher Education, *The Journal of
College and University Law*, 12, 2, Fall
127-157 (1985).
24 48 797, 363 NE2d 438 (Ill. App. 3d
1977)
25 Peter T. Flawn, A Primer for
university presidents: Managing the modern university (1990), p
26 412 NE2d 188 (Ill. App.
1980)
27 The Federal FOI Act is qualified in
that it originally had nine exemptions to release; however, Congress has
amended the law over 20 times, redefining its scope. including
invasion of privacy. 5 U.S.C. section 552 (b)(6).
28 5 U.S.C. Section 552 (1966),
including the Reform Act of 1986, now
known as: 5 U.S.C. Section 552 of
P.L. 404 Statute. 237 (1946), as amended through the conclusion of the
103rd Congress, First Session (1994).
29 U. S. Congress, House Committee on
Government Operations. Government Information, Justice, and Agriculture
Subcommittee, *A Citizens Guide on Using the Freedom of Information Act and
The Privacy Act of 1974 to Request Government Records* (fourth report)
(1991).
30 Under the Tenth Amendment, education
is one of the powers reserved for the states. U.S.C. Article [X.} "The powers not delegated to the United States
by the Constitution nor prohibited by it to the States, are reserved to
the States respectively, or to the People." Federal courts do not intervene in school disputes unless
constitutional rights are threatened, or federal law is violated. School officials, teachers and staff are
agents of the state when performing their official duties.
31 5 U.S.C. section 552a (b)
(1988). The Right of Privacy Act
regulates federal government agency record keeping and disclosure
practices and allows citizens to gain access to records about themselves
to correct errors. It states that
information gathered for one purpose cannot be used for another, and that
agency files must be accurate, complete, relevant, and timely. Under this Act, agencies are not
allowed to keep any secret records--they must publish a master list of
all the records they maintain.
32 Under the Occupational Safety and
Health Act of 1970, employees have the right to know about hazardous
substances in the workplace, the presence of which could affect the
conduct of laboratory teaching and research at colleges and
universities. Universities must inform
workers, state and local agencies, and community residents by issuing
material safety data sheets, training, inventories, and other
information. Once provided to federal
agencies, this information often becomes available to the general public,
either through FOI petitions or by means of routine agency disclosure
practices.
33 FERPA U.S.C. 1232 (g)
pre-empts state law as regards access to student records. Congress enacted FERPA in response to
parents having to resort to the judiciary to inspect and control the
information that schools recorded about their own children. With FERPA, "an educational philosophy
emerged that acknowledged the right of the parents (and students 18 or
over) to be involved in the educational process by having access to
educational records, to challenge the accuracy of those records, and to
have some authority over their dissemination." Louis Fischer, & Gail P. Sorenson, *School Law for Counselors
Psychologists and Social Workers* (Second ed.) 73 (1991). Sometimes schools
inadvertently violate FERPA, for example, by giving private information
to regulatory bodies, which in turn are not protected by FERPA, and
therefore the records are not secure. Arkansas Gazette Co. v. Southern State
College, 620 S.W. 2d (Sup. Ct. of Ark. 1981).
34 U.S.C. 1232 (g) Family
Educational Rights and Privacy Act of 1974. 20 Section 1221 NT.
35 For example, Arkansas Gazette C. v
Southern State College 1981, 620 S.W.
2d 258, 273 Ark. 248. Records
maintained by and intercollegiate athletic conference about the amount of
money given out to student athletes were not "student records"
required to be closed to the public.
36 Pub.L 101-542, Title I, Nov. 8,
1990, 104 Stat. 2381 (20 Section 1232g), The Student Right-to-Know and
Campus Security Act of 1990 requires federally funded institutions to
report detailed graduation information to the Secretary of Education.
Congress excluded campus crime records from FERPA's "education records" definition, giving some
students the opportunity to gain a clearer picture of crime on their
campus. The law encourages the release of several kinds of information
thought by legislators to be important to potential students and parents.
It includes required publication of campus crime statistics, graduation
rates of certain classes of students (in particular, athletes) and other
information which lawmakers seemed to think universities were not making
public. Statistics for graduation of
all students must be made public, including how long it takes the average
student to get a degree, and how many of those who enter do eventually
graduate. Academic neglect of
student athletes caused the athletic emphasis of the law. The law
explicitly exempts campus police records from FERPA protection.
37 The Department of Education must by
law collect the data, not analyze it.
The first annual campus crime statements mandated by the Act were reported
in a long article by Anne Matthews, The Campus Crime Wave, *The New York
Times* , March 7, 1993. The article
reported 30 murders, nearly
1,000 rapes, 1,800 robberies, 32,127 burglaries, and almost 9,000 motor vehicle
thefts, totals which reflected only one-quarter of the schools that are
supposed to comply with the Act.
38 Steven J. Helle, "Wither The Public's Right (Not) to Know? Milton,
Malls, and Multicultural Speech" * University of Illinois Law Review
Fall* 1077-1100 (1991).
39 Harlan Cleveland, The Cost and
Benefits of Openness: Sunshine Laws and Higher Education, *The Journal of
College and University Law*, 12, 2, Fall 132 (1985).
40 For example, the University of Illinois
at Urbana has 26,300 undergraduate students, 10,000 graduate and
professional students, 1388 acres with 193 major buildings, 2,000
academic professional staff, 5,000 regular staff, and a faculty of 2,140
members. There are up to 800 clubs, coalitions,
societies, and teams, a daily newspaper, two radio stations, and Cable
TV. (Facts Booklet, 1994, Office of Publications/Office of the Associate
Chancellor for Public Affairs)
41 J. Victor Baldridge, Organizational
Characteristics of Colleges and Universities. In J. Victor Baldridge,
Terrence E. Deal, Cynthia Ingols, (Eds.), *The Dynamics of Organizational
Change in Education* 38-59 (1983)
42 Peter T. Flawn,* A Primer for
University Presidents: Managing the
Modern University* (1990)
43 See Keyishan v Board of Regents, 385
U.S. 589 (1967) and Sweezy v. New Hampshire, 354 U. S. 234 (1957), also,
Caitlin M. Scully, Autonomy and Accountability: The University of California and the State Constitution,
38 *Hastings Law Journal* 927, July (1987).
44 Derek C. Bok, *Beyond the Ivory
Tower* (1982); Frederick M. Wirt and Michael W. Kirst, *The Politics of
Education: Schools in Conflict* (Second Edition) (1989).
45 The Reporters Committee for the
Freedom of the Press, Tapping Officials' Secrets, Washington, D.C.,
analyses the FOI statutes for all the states (1993).
46 Jean W. Ward, & Kathleen A.
Hansen, *Search strategies in mass communication* (1987).
47 E. C. Wallenfeldt, * American Higher
Education, Servant of the People or Protector Of Special Interests?* 78 (1983).
48 Federal laws such Title VII and
FERPA (Family Educational Rights and Privacy Act of 1974) U.S.C.
1232 (g) apply to all schools, public
or private, if they receive federal monies in any form.
49 For example, over one million
dollars was siphoned off from grant and other income to build an
extravagant house for the President of Southern Illinois University
-Carbondale. This scandal in 1969 did nothing to reassure
legislators that universities could be trusted to manage their own finances
with care.
50 E. Culpepper Clark, *The Schoolhouse Door: Segregation's Last Stand at the
University of Alabama* (1993).
51 See Martin Anderson, *Impostors in
the Temple* (1992); Charles J. Sykes, *Profscam: Professors and the
Demise of Higher Education* (1988).
52 "Crisis of Values. The nation's
colleges and universities are enmeshed in, and in some ways contributing
to, society's larger crisis of values. Intolerance on campus is on the
rise; half of big-time college sports programs have been caught cheating
in the last decade; reports of ethical lapses by administrators, faculty
members and trustees, and of cheating and plagiarism by students are
given widespread credence." Wingspread Group on Higher
Education. An American Imperative: Higher Expectations for Higher Education,
(1993).
53 J. Victor Baldridge & Terrence
E. Deal, The Basics of Change in Educational Organizations. In J. Victor
Baldridge, Terrence E. Deal, Cynthia Ingols, (Eds.), *The Dynamics of
Organizational Change in Education*
5-6 (1983).
54 J. Meyer & B. B. Rowan, The Structure of Educational
Organizations. In J. Victor Baldridge, Terrence E. Deal, Cynthia Ingols,
(Eds.), *The Dynamics of Organizational Change in Education* (1983).
55 Trust is destroyed when university
documents are found to show unethical medical experiments. See Joe Tevlin, The Man Who Nailed Najarian,
*Minnesota Monthly*, July, 40-66
(1993). U. S. Energy Secretary Hazel
O'Leary is currently trying to "come clean" on harmful
experiments, some of which were conducted at university hospitals, as
widely reported in articles such as U.S. used poor, sick for testing
radiation, San Francisco Examiner, Jan. 9,
1994, at A-1, A-6. See also David
Pritchard and Craig Sanders, The Freedom of Information Act and
Accountability in University Research, *Journalism Quarterly*, 66, 2,
summer, 402-409 (1989). The authors
argue for more openness about federally funded university research
through FOI laws, and that freer flow of information would lead to less
fraud and more public review of research procedures.
56 Meyer and Rowan (1983).
57 See Cleveland (1985), or Frank A.
Vickory, The Impact of Open-Meetings Legislation on Academic Freedom and
the Business of Higher Education, 24 *Amer.Bus. L.J.* 437 (1986).
58 Flawn, 2 (1991), Frank M. Baglione,
Title VII and the Tenure Decision: The
Need for a Qualified Academic Freedom Privilege Protecting Confidential Peer
Review materials in University Employment Discrimination Cases, *Suffolk University
Law Review*, Volume XXI, 3, Fall 691-721 (1987), Smith, Protecting the
Confidentiality of Faculty Peer Review Records, 8 *Journal of College and University
Law*, 20- 22 (1981).
59 623 N.E. 2d 51 (Ohio 1993)(Beacon
Journal Publishing Co. v. Kent State University 1993).
60 Redaction is the practice of
deleting portions of confidential material before disclosure; for instance, deleting Social Security numbers.
61 623 N.E. 2d 51 (Ohio 1993) Beacon
Journal Publishing Co. v. Kent State University (1993).
62 Joshua A. Gerstein and Philip P. Pan, Education Dept. Findings Dispute Harvard's
Claims, *The Harvard Crimson*, Vol. CXCIII,
40, Nov. 1 (1990) at 1.
63 U.S. Department of Education, Office
of Civil Rights, Harvard College Admissions Process Compliance Review No.
01-88-6009, OGC File No. H10/DBP70082.
64 Gerstein is quoted as saying: "The law is basically to cover recommendations
from people that have interviewed you or have known you for some period
of time and are therefore in a position to make a recommendation on your
behalf...[The University] is trying to expand it to include admissions
committee members who have never met the applicant and who know absolutely
nothing about the applicant except what they can read from the paper.
" Stephen Glass, Harvard case opens admissions records. *The Daily Pennsylvanian*, March 3
(1992) at 1, 3.
65 Leroy S. Rooker, Director, Family
Policy Compliance Office, U. S. Dept. of Education. Complaint No. 0377 . In a 1991 letter to Harvard President Neil
Rudenstein, Rooker held that the summary sheet at issue was an education record
subject to FERPA, and that the University violated FERPA when it denied
Mr. Gerstein the right to inspect and review those portions of the summary
sheet that were not excepts from, or specifically derived from, confidential
letters and statements of recommendations to which he had waived his
right to inspect and review under 34 CFR 99.12.
66 Charles N. Davis, Scaling the Ivory
Tower: State Public Records Laws and University Presidential Searches,
Proceeding of the Association of Educators in Journalism and Mass
Communication (AEJMC) National Conference (1994). Davis found that state legislatures often changed the law
after the court decisions, closing the door to public access to
candidates' names.
67 Charles N. Davis, Scaling the Ivory
Tower: State Public Records Laws and University Presidential Searches,
Proceeding of the 1994 Association of Educators in Journalism and Mass
Communication (AEJMC) National Conference.
A similar result occurred in Georgia, in 1989, in Board of Regents
of the University System of Georgia v. Atlanta Journal and Atlanta
Constitution.
259 Ga. 214, 378 S.E. 2d (GA. 1989), and in Toledo Blade, Ohio Supreme Ct. (1993).
68 *Las Vegas Review Journal*, Aug. 10
(1994).
69 Alas. Rev. Code 09.25.110
(1993).
70 Lexington Herald-Leader Co. v University of
Kentucky.
71 Tenn. Code Ann. Section 10-7-101 (1993).
72 Based on Fla. Stat. 119.01 (1) (193)
See Clark, footnote 61; see also Wood v Marston (1983).
73 Kate Culver, Behind Closed Doors.
Quill, 81(8), 20-21 (1993).
74 In State ex re. Toledo Blade Co. v.
University of Toledo Foundation,
91-1785 (Ohio Supreme Court 1993).
75 For more discussion, see University
Foundation Subject to Records Disclosure Law, *National Law Journal*,
Feb. 15, 48 (1993).
76 In State ex re. Toledo Blade Co. v.
University of Toledo Foundation,
91-1785 (Ohio Supreme Court 1993).
77
78 Doe v The Red & Black Publishing
Co, Georgia Supreme Court. November (1993).
79 J. A. Simpson and E.S.C. Weiner,
*The Oxford English Dictionary*, 2d Edition, Vol. XVII 791 (1989)
80 Congress enacted Title VII of the Civil
Rights Act of 1964 , 78 Stat.
255, as amended, 42 U.S.C. at 2000e-2(a) (1982 ed.) which makes it unlawful to
discriminate against anyone of the basis of race, color, religion, sex, or national
origin, to halt the widespread and compelling problem of discrimination
in the workplace. In 1972, Congress
eliminated the specific exemption applied to educational institutions,
because of the compelling problem of "invidious discrimination"
in educational institutions. The House specifically
mentioned the lack of access for women and minorities to higher ranking,
tenured positions. (Supreme Court, 1990)
81 See the Note, Civil Rights--Academic Freedom, Secrecy and
Subjectivity as Obstacles to Proving a Title VII Sex Discrimination Suit
in Academia,
60 *N. C. L. Rev.* (1982).
82 Robert K. Robinson, Geralyn M.
Franklin, and Billie M. Allen, The University of Pennsylvania v. EEOC:
The Demise of Academic Freedom Privilege in the Peer Review Process,
*Labor Law Journal* 41 (6) June 364-369
(1990).
83 In Dinnan, 661, F.2d 426 (5th Cir.
1981) and other cases discussed in full in Robert K. Robinson, Geralyn M.
Franklin, and Billie M. Allen, The University of Pennsylvania v. EEOC:
The Demise of Academic Freedom Privilege in the Peer Review Process,
*Labor Law Journal* 41 (6) June, 364-369, notes
72-75 (1990) ; Frank M. Baglione, Title VII and the Tenure Decision: The Need for a Qualified Academic
Freedom Privilege Protecting Confidential Peer Review materials in
University Employment Discrimination Cases, *Suffolk University Law
Review*, Volume XXI, 3, Fall 691-721 (1987).
84 EEOC v Notre Dame Du Lac 715 F.2d
(7th Cir. 1983).
85 Ibid. at 332
86 Ibid. at 333.
87 Ibid. at 336, 337.
88 493 U.S. 182, 110 S. Ct. (University
of Pa. v. EEOC, 1990)
89 Ibid. at 14 .
90 Ibid. Blackmun referred to Rep. No.
92-238, 19-20 (1971).
91 493 U.S. 182, 110 S. Ct. at (University
of Pa. v. EEOC, 1990)
92 Ibid. at 4.
93 Harry S. Broudy, *Truth and
CredibilityDThe Citizen's Dilemma* (1981).
94 Burton R. Clark, * Adult Education
in Transition* 65 (1956).
95 E-mail is a cloudy area. In the
so-called PROFS case, E-mail was construed to be a public federal record.
Armstrong v Bush 924 F2d 282 (D.C. Circuit 1991). E-mail is extremely easy to delete, however,
and could pose a threat to FOI and to loss of public trust. Databases need to be designed with FOI
in mind, so that special programs are not needed to make information
available.
96 A good overview of this topic is
found in Matthew D. Bunker, Sigman L. Splichal, Bill F. Chamberlin, &
Linda M. Perry, Access to Government-Held Information in the Computer
Age: Applying Legal Doctrine to Emerging Technology, *Florida State Law
Review*, Vol. 20, 3, Winter 543-598 (1993).
97 There is a vivid illustration of
this concept in Michael Taggert Freedom of Information and the
University, *Otago Law Review*, 6, 4,
discussion of Re James and others and Australian National University
659-660 (1988).
98 577 No 88-493 U.S. 182, 110 S. Ct.
at 22 (University of Pa. v. EEOC,
1990).
99 Frank M. Baglione, Title VII and the
Tenure Decision: The Need for a Qualified
Academic Freedom Privilege Protecting Confidential Peer Review materials
in University Employment Discrimination Cases, *Suffolk University Law
Review*, Volume XXI, 3, Fall 691-721 (1987).
100 Janet Reno, Federal News
Service March 16, 1994, Special
Transcript of her Address. to the National Press Club.
101 Memorandum for Heads Of Departments
and Agencies about the Freedom of Information Act, Issued by the White
House, October 4, 1993
102 "Under the new policy, the
department will no longer defend an agency's withholding of information
merely because there is a substantial legal basis for doing so. Instead, the department will now apply
presumption of disclosure in all
FOIA Act cases. If an agency cannot overcome this presumption
of disclosure, the Department of Justice will not defend a decision to
withhold information." Janet Reno, Ibid.
103 "Our new policy is that the
Justice Department will not defend the assertion of Freedom of
Information Act exemptions unless the agency reasonably foresees that
disclosure would be harmful to a government or private interest protected
by the exemption. No longer will we
defend nondisclosure in cases where information only technically or
arguably falls within an exemption." Janet Reno, Ibid.
103 * National Law Journal*, Nov. 24, 1986, quoting Jerry Jay Bender, South Carolina
Press Association attorney.