By Jon Cassidy | Watchdog.org
AUSTIN — On Dec. 3, 2010, state Sen. Judith Zaffirini tried to use her clout with University of Texas System Chancellor Francisco Cigarroa, writing a letter on behalf of an applicant to the University of Texas School of Law.
On Dec. 14, Cigarroa wrote back, assuring Zaffirini, “I will convey your strong recommendation to President Bill Powers” and “I can assure you that he will receive careful consideration.”
Regent Wallace Hall is facing impeachment for mentioning the existence of two letters like this one. At Hall’s show trial Tuesday before a select committee, his persecutors made it clear their strategy is to accuse him of a crime for sharing this information.
Yet, curiously, the letters themselves were hardly mentioned Tuesday. This is why.
The proper channel for recommendations is the Law School Admissions Council. Letters sent outside that channel are clearly meant to gain the applicant admission through influence rather than merit.
It isn’t hard to understand why Cigarroa didn’t correct or scold Zaffirini — university officials invest a lot in trying to keep Zaffirini and a handful of other lawmakers happy.
There are the flattering notes. “Somehow, a football game is dull without your presence in our suite so I get a little jealous when you are in WP’s suite,” Cigarroa emailed Zaffirini last year. WP refers to UT President William Powers.
Then there’s the money. The five luxury box tickets to all Longhorns home games, which the university system has provided since at least 2010 to Zaffirini, her husband, her son and two of their friends, are worth about $30,000 a year.
Then there are the admissions favors, and the question of how effective and commonplace are letters sent outside of the Admissions Council.
Watchdog.org obtained the letter above with the applicant’s name redacted through a public records request. The redaction suggests the applicant was admitted, as unsuccessful applicants are not protected by the Family Educational Rights and Privacy Act.
FERPA is a federal student privacy law that restricts the sharing of “education records” that are “directly related” to a student. Depending on who’s doing the interpreting, that can cover almost everything at a university, or nothing but grades and test scores.
As Barbara Holthaus, the University of Texas Systems’ privacy law expert, said Tuesday, “It’s very gray. FERPA is not a black-and-white law.”
Hall’s persecutors are trying to establish that he shared “FERPA-protected information,” not with the public, but with his defense attorneys, and in doing so, broke a state law prohibiting the disclosure of confidential information.
“FERPA-protected information” is a usefully vague term for Hall’s accusers, as it doesn’t refer to anything specific and verifiable. It’s an abstraction that exists only in the minds of education bureaucrats, each of whom sees something different when he squints at it.
But here’s what Hall’s accusers mean by the term: letters — letters from lawmakers exercising their clout with the highest officials in the UT system, going outside the admissions process to get their kids and their cronies’ kids into school, particularly law school.
Hall found at least two examples of lawmakers pulling strings to get students admitted to law school. He’s facing impeachment for making this fact public, even though his public statements contain less information than the public can obtain through a simple records request.
Hall still hasn’t named names and his accusers are laboring mightily to make sure he doesn’t.
State Rep. Ferdinand “Trey” Fischer, a member of the committee, asked committee counsel to see about getting the Travis County District Attorney’s notorious Public Integrity Unit to bring charges. But the law Fischer cites restricts operators on legislative committees from leaking confidential information, and has nothing to do with officials at universities or anywhere else in state government.
That’s no matter. Fischer’s deception has already served its purpose, getting headlines about Hall and law-breaking in most of the state’s major newspapers.
Hall’s attorney Allan Van Fleet rejects the assertion the emails between lawmakers and Powers are protected by FERPA, and it’s an easy case to make, as courts often reject the argument a record is secret merely because a student is mentioned.
In 2007, a Florida court ruled that “(d)ocuments maintained by an educational institution like FSU do not qualify as ‘education records’ merely because they mention, identify, or refer to a student.”
In 2009, a California court rejected as “fanciful” the idea “that all emails that identify” a student should get the same protections as “a student’s folder in a permanent file.”
The influence peddling e-mails in Hall’s case, however, aren’t part of a student file. Had they been proper recommendations sent to proper Admissions Council channel, Hall wouldn’t have seen them.
One of the emails show that “a senator sought special consideration for an applicant who had been rejected, but was strongly supported by another senator,” Van Fleet told the committee. “In the communication, the senator seeking special treatment reminded the UT Austin official of recent legislative action taken to benefit the university. Upon information and belief, the rejected applicant was subsequently admitted to UT Austin.”
FERPA didn’t apply at the time Hall obtained that letter because “the student discussed was not admitted at the time,” Francie Frederick, general counsel to the UT System Board of Regents, testified Tuesday.
The applicant has since become a student, and is now entitled to FERPA protection going forward, which suggests the special consideration sought by the senator was successful.
One of the accusations against Hall is that his large records requests have been too much of a burden for the university.
It turns out that Zaffirini, one of Hall’s accusers, is far from shy about imposing work on the public records staff at the university system.
On March 26, Zaffirini filed a massive request for “any and all data that relate in any way to the following categories,” naming Powers, Hall and some two dozen people, dating back two years. The system had to contract an outside company to fulfill the request.
She wrote Cigarroa to complain it was taking staff too long to fulfill her requests.
“Frankly, I don’t understand such delays and what always seems to be an over-abundance of concern about what might be confidential – when, of course, usually it is not,” she wrote.
Contact Jon Cassidy at email@example.com or @jpcassidy000.
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