Texas court punts on issuing decisive FERPA ruling

Days before the end of his tenure as a regent of the University of Texas, Wallace L. Hall saw his request for documents related to a university scandal denied by the Texas Supreme Court.

The ruling marked another missed opportunity by the courts to better define the boundaries of FERPA for universities. For Hall, who filed the lawsuit against UT Chancellor William H. McRaven, it also marked the end of a turbulent career.

It’s a case that goes back years.

In February 2015, then-Chancellor Francisco Cigarroa ordered an independent investigation into practices of then-University of Texas President Bill Powers and his administration. Among the findings was the revelation that Powers had used his authority to overstep the admissions process to obtain places for certain applicants in both the undergraduate college and the UT law school.

Investigative firm Kroll found that while Powers never obtained admittance for an applicant as a result of quid pro quo, he frequently intervened on behalf of “must have” applicants — normally those supported by powerful political figures, including legislators.

Hall, who first charged Powers in 2013 with the accusations, later corroborated by the investigation, requested the documents from the investigation from the new Chancellor McRaven. The findings of the Kroll report were public, but excluded hundreds of thousands of documents that Kroll had reviewed to reach its conclusions, namely because they included private student information.

According to the supreme court decision, “Hall wanted to review those underlying records to, among other things, assess the involvement of specific school officials, identify pressures put on admissions officials, and determine whether Kroll omitted any significant information from the report.” But McRaven refused to provide them.

In June 2015, Hall filed a lawsuit against McRaven to obtain the records, stating that “legitimate educational concerns” outweighed those about privacy. McRaven offered Hall access to the documents with the confidential student information redacted, but Hall insisted on the need to see the documents in their entirety.

The Texas Supreme Court took up the case, Hall v. McRaven, in December and held oral arguments in January. On Friday, the court ruled against Hall, whose six-year term as regent ends Wednesday.

The court decision from Justice John Devine explained that there “are concrete limits on Hall’s claimed right to complete access” – but that those limits are set by the Board of Regents, not McRaven, who executes their directives.

Hall’s error then, seems to not be with the substance of his case, but his choice of defendant.

In his decision, Devine wrote that McRaven was simply exercising his legal authority to block Hall at the Board’s instruction.

The “board instructed him to redact information he determined protected… and he did just that,” Devine wrote.

In his concurring opinion, Justice Willett seems to also suggest that Hall’s crucial error was in suing McRaven.

“We take suits as we find them, and this one, ably argued by both sides, named the chancellor who enforced the Regents access rather than the Regents who enacted them,” Willett wrote.

Ultimately, then, because the Board endorsed McRaven’s process, and because McRaven serves at the behest of the Board, McRaven was within his authority in refusing full access to Hall. The question then remains – should Hall have sued the regents instead of McRaven and, if he had, would the court have interpreted FERPA laws differently?

This case marks a dramatic end to a tumultuous tenure for Hall, who was cast as a divisive figure in Texas for what critics saw as his “witch-hunt” against Powers. In 2013, Hall first made his charge that Powers was giving special preference to the children of the state’s prominent legislators and their benefactors to obtain placement at the university, even if they didn’t meet the institution’s academic standards.

In response, Speaker of the House Joe Straus empowered the Select Committee on Transparency in State Agency Operations to investigate Hall’s conduct. Among the complaints levied against Hall in a 174-page report produced by the committee’s “special counsel,” was one that he was “burdening UT-Austin with impossible document production demands.”

Prior to this case, Hall requested thousands of documents during his tenure to investigate Powers’ administration.

In an August 2014 interview for a profile in Texas Monthly – rather dramatically titled “Is This the Most Dangerous Man in Texas?” – Hall insisted he was pursuing such investigations into Powers’ administration for public good.

“I’m supposed to be anxious because I’m asking tough questions? Because I’m doing the right thing?” he said.

Yet, beyond the symbolism of this case for Hall’s legacy and position in Austin’s education community, is its importance in marking yet another questionable use of FERPA by university bodies to avoid providing access to documents.

During the supreme court testimony, McRaven’s attorney Wallace Jefferson cited FERPA to defend McRaven’s refusal to provide the documents – despite the fact his use of FERPA in this case directly countered testimony UT System Board of Regents’ top FERPA authority, Barbara Holthaus, and the board’s general counsel Francie Frederick provided during a 2013 select committee hearing concerning Hall’s potential impeachment.

According to a Watchdog article, a university cannot be found responsible for violating FERPA so long as those given access to student records have a “legitimate educational interest” in seeing them.

During her testimony, Frederick noted that Hall had expressed surprise when she had suggested that his request to see emails from the investigation might be covered by FERPA.

“He was surprised that it was FERPA because there had been a previous opinion, kind of a casual opinion from the Office of General Counsel earlier, that generally summarized and said regents are entitled to see FERPA information.”

In other words, the chief attorney for the UT System Board of Regents confirmed during the hearing against Hall in 2013 that university regents had a right to see FERPA information.

As Justice Willett wrote in his opinion, “Everything is bigger in Texas, including political theater, and the odyssey of Wallace Hall is, like most Texas tales, filled with outsized personalities.” In this case, though, Hall was caught out by a crucial strategic error and the still-unchecked freedom of universities to interpret FERPA at will.