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High court to decide if University of Texas can deep-six investigation

By   /   September 29, 2016  /   News  /   No Comments

Part 66 of 72 in the series Trouble in Texas
Courtesy of the Supreme Court of Texas

The Supreme Court of Texas will get the last word on UT Chancellor Bill McRaven’s handling of the results of an investigation into admissions corruption.

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.

RELATED: UT admissions scandal is 10 times bigger than official report

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.

Contact Jon Cassidy at [email protected] or @jpcassidy000.

Part of 72 in the series Trouble in Texas
  1. Texas’ Rep. Pitts announces retirement after improper influence story
  2. University of Texas regents show support for Wallace Hall
  3. Case against UT regent Wallace Hall is a sham — here’s proof
  4. Texas senator got $477k for supposed ‘cameo’ appearance in Wallace Hall lawsuit
  5. Lawmaker admits pulling strings on UT admissions
  6. Trustee accused of crime for rejecting dodgy accounting
  7. Longhorns: Senator used clout in UT law school admissions
  8. Children of Texas lawmakers get into UT School of Law, but struggle to pass bar exam
  9. Chancellor is probing favoritism in UT admissions
  10. UT report: Charge against Hall is legally ‘absurd’
  11. Attorney in UT case hides six-figure charges despite terms of contract
  12. University of Texas clout scandal grows as new e-mails surface
  13. Four more get into UT Law despite low LSATs
  14. Reports on UT favoritism, impeachment expected soon
  15. Attorney: Secret tape covered up by lawmakers proves regent’s innocence
  16. Dozens of UT Law’s least qualified students are connected politically
  17. University of Texas uncovers admissions corruption, halts investigation
  18. UT admissions: Straus, Branch, Pitts pulled strings
  19. Who got the 128? UT Law admits students with bad LSAT scores
  20. Patrick’s win may doom Hall impeachment effort
  21. Chancellor promises complete investigation of UT admissions
  22. Board to decide UT president’s fate Thursday
  23. Texas politicians smarten up, ditch UT pres this time around
  24. Tribune story may have doomed UT’s Powers
  25. Academics condone the privilege they denounce
  26. Three essential stories on the UT admissions scandal
  27. Texas AG Greg Abbott embraces Roe v. Wade
  28. Roe v. Wade is AG’s new pretext for blocking Texas law school investigation
  29. Two UT regents pressed for records destruction
  30. New crime invented for Hall: assisted guesswork
  31. Texas lawmaker failed to disclose his own clout letter in UT flap
  32. Texas legislator Fischer insists on role in UT investigation
  33. Hutchison pulled strings for friends’ kids and grandkids at UT
  34. Ex-UT Law dean’s credit card bill: $400k in four years
  35. Abbott’s UT picks are pro-affirmative action
  36. Report: University of Texas showed favoritism to thousands
  37. Kroll ignored hundreds of weak UT applications
  38. Billionaire defends UT admissions privileges for ‘leaders’
  39. Weak admissions to University of Texas Law increased after Sager’s ouster
  40. Kroll report takes dig at Watchdog.org
  41. Hicks won’t stop UT’s backdoor admits
  42. Texas governor’s wife was on UT nominee’s payroll
  43. Bill to limit UT oversight clears committee
  44. UT regent blasts speaker for ‘abuse of office’
  45. Texas politician rebuts himself with apparently plagiarized letter
  46. Pay-to-play scandal involves UT dean, Texas Exes
  47. Supreme Court asked to look at UT’s backdoor admissions program
  48. Lawmakers want UT applications shielded from scrutiny
  49. McRaven makes UT scandal his own
  50. An open letter to Attorney General Ken Paxton on the UT cover-up
  51. Chancellor Bill McRaven’s UT cover-up has no defenders
  52. UT’s back door still open, but can’t stay secret, AG rules
  53. Whitewash: Kroll left dozens of bad LSATs out of UT report
  54. McRaven’s defense to Hall lawsuit refuted by own words
  55. Ready for the end of affirmative action?
  56. UT admissions scandal is 10 times bigger than official report
  57. McRaven trolls Dallas Morning News
  58. Powers to get top salary at UT Law
  59. UT sues to block Watchdog access to admissions investigation
  60. UT approves ‘Spinal Tap’ policy for backdoor admissions
  61. Admissions survey: No, UT, everybody doesn’t do it
  62. UT admissions scandal prompts new investigation
  63. Ticket scandal a black mark for UT, DA
  64. Showdown over UT cover-up nears end
  65. McRaven’s rationale for UT cover-up denounced by regents, AG
  66. High court to decide if University of Texas can deep-six investigation
  67. High court hears arguments on whether UT can bury investigation
  68. Testimony by UT contradicts story fed high court
  69. These ‘horns ain’t loyal, McRaven finds
  70. UT’s Hall challenges Abbott over board picks
  71. Texas Supreme Court nullifies rule of law; impunity to reign
  72. The battle for the Kroll records goes on

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Jon Cassidy was a former Houston-based reporter for Watchdog.org.