University of Texas Chancellor Wins Records Dispute

AUSTIN, Texas (CN) — The Texas Supreme Court unanimously upheld the dismissal of a University of Texas regent’s lawsuit over access to student admissions records, finding the UT chancellor had authority to redact the records based on federal privacy law.

Wallace L. Hall Jr., in his capacity as a University of Texas System regent, originally sued UT Chancellor William H. McRaven in Travis County Court in June 2015 seeking access to the disputed records.

Justice John P. Devine, who delivered the Jan. 27 opinion, stressed that the ruling only dealt with whether Hall could overcome the chancellor’s sovereign immunity to proceed in his lawsuit— and Texas’ high court ruled he could not.

As such, the ruling does not answer important questions that arose from the case, Devine said. For example, does a university regent have an inherent right for access to information? And, can an institution invoke federal privacy law to redact information and limit a regent’s quest for complete access?

The dispute started in 2013 after Hall raised concerns about possible improprieties in the admissions process at UT Austin. Then-UT Chancellor Francisco Cigarroa commissioned an internal inquiry into the university’s admissions practices.

The investigations yielded revelations that the university’s admissions office was pressured by legislators and other influential people to admit prospective students who were less qualified than those whose applications were denied.

Cigarroa then hired the consulting firm Kroll Associates, Inc. to conduct an external investigation on admissions decisions at the university.

While Kroll was doing the investigation, McRaven took over as chancellor of the UT System in January 2015.

Kroll later released a 101-page report regarding UT admissions decisions. The report confirmed the previous revelations: “The ‘Kroll Report’ outlined a practice of UT Austin’s President—based on recommendations from influential persons—to exercise significant oversight and discretion in the admissions process. Such oversight sometimes resulted in the admission of underqualified students over the objection of admissions officials. While Kroll determined this practice might not be a violation of any existing rules or laws, it did ‘not appear in UT-Austin’s public representations,’” last week’s opinion states.

Bill Powers was UT president during the period relevant to the Kroll investigation. He resigned in 2015.

Despite the findings, McRaven concluded no disciplinary action would be taken against any university officials regarding the suspect admissions practices.

The findings of the Kroll report were made available to the public, but access to the underlying records—hundreds of thousands of pages of documents containing student records—was not provided.

In March 2015, Hall requested access to the Kroll report source materials, but McRaven denied his request.

The board of regents took a vote on Hall’s records request the next month. Three regents favored granting the request, but two regents conditioned their votes on a review by McRaven’s office to determine which information was protected by FERPA, short for the Family Educational Rights and Privacy Act.

At the time of the vote, there was no regent’s rule governing how the chancellor’s office would conduct a FERPA review, so the board adopted a rule that specifically outlined the chancellor’s role in such a review.

The new rule said, “[T]he Chancellor, in consultation with the U.T. System General Counsel, shall determine whether State or federal law restricts compliance with the request. Accordingly, the Chancellor, in consultation with the U. T. System General Counsel, shall determine whether a Regent may review information that is protected by [FERPA].”

Hall again requested full access to the records and cited a list of arguments claiming he had a “legitimate educational interest” in the records.

These arguments failed to sway McRaven, who again denied Hall’s request. McRaven did offer Hall a two-step process for reviewing the records. First, the chancellor’s office would redact all information protected by FERPA and other privacy laws. Second, if Hall identified specific private information he wanted to see, the UT System’s general counsel could review that request.

Hall did not agree to that process and sued McRaven for access to the records. Hall alleged that McRaven acted ultra vires, or outside his authority, in refusing to provide the unredacted information.

Notably, the board of regents held a special meeting a few weeks later regarding Hall’s lawsuit. In a vote on July 8, 2015, a majority of the board endorsed McRaven’s two-step offer of access.

McRaven then filed a plea to the jurisdiction, claiming that sovereign immunity barred Hall’s lawsuit and an ultra vires exception did not apply.

Hall replied with a motion for summary judgment, claiming a right to the unredacted records since he was a regent.

The trial court granted McRaven’s plea to the jurisdiction and dismissed the case. The appeals court later affirmed the dismissal. The Texas Supreme Court then granted Hall’s petition for review.

In looking at McRaven’s conduct and Hall’s ultra vires claims, Justice Devine noted such claims depend on the scope of a state official’s authority.

“[T]he specific responsibilities of Chancellor McRaven—which are of utmost importance to this lawsuit—come from the rules and resolutions of the Board, which we consider in the context of this dispute between the System’s Chancellor and one of its regents,” he wrote in the 19-page ruling.

Devine explained, “An ultra vires claim based on actions taken ‘without legal authority’ has two fundamental components: (1) authority giving the official some (but not absolute) discretion to act and (2) conduct outside of that authority. The proper-party plea by a state official is another way of saying a higher power has deprived the official of all of his or her discretion. In other words, the higher authority has created a ministerial (nondiscretionary) duty for the subordinate official to engage in conduct the plaintiff claims is wrongful.”

The Texas Supreme Court’s decision hinged on whether the board’s July vote took away McRaven’s discretion. Hall argued it did not.

“We agree, at least with respect to a narrow course of action: the Chancellor’s interpretation of federal privacy law,” Devine wrote. “On July 8, the Board endorsed McRaven’s two-step offer of access. The first of those steps, as characterized by the Board, left in place the understanding that questions of law relating to FERPA would remain ‘as determined applicable’ by the Chancellor’s office.”

But Hall argued for an unfettered right to access the records, further claiming that FERPA does not apply to a regent’s request for information he thinks is necessary to fulfill his job.

“If Hall is right about those legal questions, the Board has restricted that right in two ways. First, the Board amended Section 5.4.5 of Rule 10801 to require a majority of regents to approve a request for information. Second, the Board created a governance scheme in which the Chancellor’s discretionary determination of federal law can lead to redactions of information,” Devine wrote. “These are concrete limits on Hall’s claimed right to complete access. But they are limits imposed by the Board—not McRaven. Hall did not explicitly challenge these rules in his ultra vires suit…Because Hall chose to sue McRaven, his complaint must necessarily be a limited one: McRaven made an allegedly incorrect determination under FERPA and that erroneous interpretation resulted in an unlawful redaction of records.”

The court held that McRaven’s alleged misinterpretation of FERPA did not constitute an ultra vires act.

“Here, McRaven’s interpretation is not of his organic authority but rather federal privacy law—a law collateral to McRaven’s authority,” the ruling states. “When the ultimate and unrestrained objective of an official’s duty is to interpret collateral law, a misinterpretation is not overstepping such authority; it is a compliant action even if ultimately erroneous.”

McRaven’s authority gave him absolute discretion to interpret the federal privacy law, Devine said.

“As such, McRaven—whether right or wrong—was not without legal authority in making that determination,” the judge wrote. “Nor was he without authority in redacting information once he made the legal conclusion. The Board instructed him to redact information he determined protected under FERPA, and he did just that.”

The Texas Supreme Court similarly ruled that McRaven did not violate a purely ministerial duty in denying Hall’s records requests.

Hall’s failure to meet either of the bases for establishing an ultra vires action means the case was properly dismissed, Devine said.

In closing, the court showed Hall some sympathy.

“[T]he Board has instituted a governance structure that leaves Hall at the mercy of the Chancellor’s discretionary legal determination, at least in the first instance. Perhaps that scheme is unwise. Perhaps it elevates the status quo above transparency. Perhaps it increases the likelihood that voices in the minority will be stifled. And perhaps it presents none of those dangers,” the opinion states. “But those questions are beyond our reach; the Legislature is the ultimate arbiter of policy at The University of Texas.”

Justices Don Willett, Eva Guzman, Debra Lehrmann and Jeff Brown each delivered concurring opinions.

Chancellor McRaven said in a statement that he is “pleased that the courts confirmed that my actions complied with the authority granted to me by the Board of Regents.”

“I understand that it is important for a governing board to have access to certain information to perform its duties, but I must also ensure that The University of Texas System strictly complies with privacy requirements created by state and federal law,” he said.

Hall’s six-year term on the UT Board of Regents ended Wednesday. Texas Gov. Greg Abbott has already named a replacement, and the Senate Nominations Committee will vote soon on whether to confirm the new regent.

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