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High court hears arguments on whether UT can bury investigation

By   /   January 11, 2017  /   News  /   No Comments

Part 67 of 72 in the series Trouble in Texas
The Supreme Court of Texas will decide whether Wallace Hall will be granted access to records of the Kroll investigation.

The Supreme Court of Texas will decide whether Wallace Hall will be granted access to records of the Kroll investigation.

AUSTIN – A lawsuit over a cover-up by University of Texas Chancellor Bill McRaven reached the state Supreme Court on Wednesday, with a decision expected to follow soon.

The ex-Navy Seal’s attorney, Wallace Jefferson, opened his presentation with an argument that could have come straight from one of Col. Nathan Jessup’s scenes in “A Few Good Men.” It was a generic appeal to duty, honor, uniform – all meant as a counter to Regent Wallace Hall’s claim that McRaven has broken the law by refusing to provide him access to a disc of records from an investigation into corrupt admissions practices at the university.

There was no “you can’t handle the truth” moment, but there should have been, as UT’s case comes down to a similar premise: surely somebody gets to decide Hall can’t handle the truth.

The state Supreme Court has inflicted a number of rulings on the public in recent years that have favored the government’s right to keep matters to itself, but a ruling for UT here could be the biggest blow to transparency yet.

In a state where the executive branch is largely organized under the authority of independent commissions, it is those commissioners who are responsible for holding government agencies accountable. A decision in favor of UT would empower bureaucracies across the state to stonewall trustees, board members and other overseers with impunity.

Three of the court’s nine justices showed signs of supporting impunity for McRaven.

Chief Justice Nathan Hecht asked one question that suggested he thought McRaven’s possible lawbreaking would enjoy the same sovereign immunity as other routine government lawbreaking.

Justices Debra Lehrmann and Eva Guzman both asked several questions that suggested they thought McRaven had the legal authority to determine whether Hall had the “legitimate educational interests” supposedly necessary to view the records.

This is the key point of McRaven’s argument: if the Family Educational Rights and Privacy Act says that officials should have “legitimate educational interests” in records they review, then somebody must make that determination. And if McRaven has the authority to make the determination, then it doesn’t really matter if his determination is nonsensical – it’s his authority to decide that makes the decision valid.

Indeed, Jefferson didn’t spend a single minute arguing that Hall didn’t actually have an educational interest in the material.

“How could a regent, with statutory oversight duties and specific responsibility for admissions standards, have no legitimate interest in information showing the extent of improper favoritism in the admissions process?” Hall’s attorney, Joseph Knight, asks in a brief. “How could this information be of legitimate concern to admissions officials, the university President and his staff, the General Counsel, and UT’s consultants, but not to the regents who are in charge of all of them? How is it legitimate to expose student information to a legion of staff and temporary workers charged with redacting it to oblivion, but illegitimate to allow a confidential internal assessment by one sworn to oversee the system?”

Justice Jeffrey Boyd made a similar point about the need for access, luring Jefferson into his example.

Surely Jefferson had reviewed all the vast material in this case, he commented, getting an assent, before making his point that, “90 percent of what you’ve read is irrelevant, but how do you know it’s irrelevant until you’ve read it?”

At multiple points, Jefferson lapsed into outright misstatements, claiming that the names of the involved parties were included in the famous Kroll report (they weren’t, which is the main reason this lawsuit exists), and also claiming that Hall’s two allies on the Board of Regents hadn’t supported his access to FERPA-protected material during the one vote the board has ever taken on the issue.

Under the rules at the time, Hall just needed a second to get access to anything he requested, and he got the support of regents Alex Cranberg and Brenda Pejovich in a 6-3 vote. After that vote, chairman Paul Foster, on his own, read something into the record about how the vote shouldn’t be taken as including FERPA material.

When Jefferson told the court that Cranberg and Pejovich had supported the FERPA restriction, Boyd displayed an impressive command of the minutiae of the case in correcting Jefferson and pointing out that those were Foster’s words, not the board’s instructions.

Jefferson also contended that the Kroll records could include sensitive information such as application essays discussing sexual abuse, without making it clear he was speculating.

Actually, Kroll was granted access only to certain narrow categories of information. According to its own report, “Kroll did not request or review any records containing a student’s date of birth, Social Security number or other information that may be considered personally identifiable information.”

Justice Don Willett also displayed a clear sympathy for Hall’s position, asking Jefferson at one point whether the board had the authority to “immunize” an illegal action by McRaven with a vote taken after the fact.

Justices John Devine, Paul Green and Phil Johnson stayed quiet during oral arguments, while Justice Jeff Brown asked two questions that didn’t tip his hand.

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

One point lost in the debate is that FERPA doesn’t actually forbid schools from disclosing records to anybody, much less its own officials. In plain language, the law discusses how to deal with universities that have official policies allowing for student records to be shared freely with the public.

A federal appeals court that heard a lawsuit over a similar scandal at the University of Illinois ended up tossing the case for lack of federal jurisdiction, finding that the “Act does not by itself forbid any state to disclose anything.” The case was a matter of state law.

The act does have a reference to “legitimate educational interests,” a bit of boilerplate that has been transmogrified through UT’s lawyering into authority that’s “unreviewable by a court,” according to Jefferson.

But FERPA also states plainly that “Nothing contained in this section shall preclude authorized representatives of …  (s)tate educational authorities from having access to student or other records which may be necessary in connection with the audit and evaluation of Federally-supported education programs …”

That would apparently apply to Hall, but it is unquestionably UT’s position that the clause applies to the Kroll papers. As the Franklin Center for Government and Public Integrity (the parent organization of Watchdog.org) pointed out in a friend-of-the-court brief, “Paragraph 12.25 of the August 5, 2014 Kroll/UT contract states that UT ‘designates’ Kroll as ‘its Authorized Representative to conduct an evaluation of the education program as outlined in Exhibit A.’”

“Exhibit A to the Kroll/UT contract further describes that Kroll is to evaluate ‘conduct of [UT officials] in performing admissions services . . . based on the premise that applicants should only be admitted to a public university based on their individual merit . . ..’

“It being expressly stated by UT that the evaluation of the education program, defined as evaluating the conduct of UT officials in performing admission services, satisfies the definition of ‘legitimate educational interest’ – all parties would appear to be agreed on that point.” The only remaining question is whether a Regent is for some reason less authorized to review the Kroll information than Kroll was in the first place.”

So the university has already taken the official position that the Kroll review of admissions is a legitimate educational interest, but it is now arguing that it has the authority to decide that interest simply vanishes when Hall has the same interest.

As Hall’s attorney Knight put it right at the end of the hearing, “They’re saying, ‘We can call it a ball or a strike no matter where it’s thrown.’”

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.