|
« AAUP Homepage
|
Sunshine Laws in Higher Education
State open-meetings and -records laws occupy a significant place in the landscape of American higher education. All of us—as citizens and faculty members—have a stake in sunshine laws and their effects on institutional governance.
By James C. Hearn and Michael K. Mclendon
Every state in the union has "sunshine" laws that apply to public higher education, and the leaders of public institutions deal directly or indirectly with these laws almost daily. Sunshine statutes go to the very heart of institutional functioning, influencing presidential searches and selection, board deliberations, research and intellectual property issues, financial decisions, fund raising, athletics, and other matters. On one campus, a presidential candidate might quietly withdraw from a search after a reporter uses open-records statutes to uncover a past impropriety, while at another, the administration might hire an extra staff attorney to deal with a rising volume of public-records requests and disputes.
Despite the importance of sunshine laws, most activity related to them goes unnoticed by faculty members, who rarely consider the ways the laws shape their institutions' decisions and directions. They are not alone. Although substantial public attention has focused on national legislation affecting the privacy of student records, especially in the wake of recent threats to national security, the influence of state sunshine laws on the work of governing boards, administrative staff, and, yes, faculty in public institutions of higher education has been mostly overlooked. Yet a sizeable portion of our nation's wealth is invested in state-supported higher education, and all of us as citizens have a stake in sunshine laws and their effects on institutional governance. This article aims to redress the lack of attention to the laws.
In fall 2002, we initiated an in-depth study of sunshine laws and their impact on the governance of public higher education in six states: California, Florida, Iowa, Massachusetts, Texas, and Washington. We collected documents (including newspaper articles, legislation, and reports) and conducted interviews with ninety-two people. We talked with members of governing boards; presidents, chancellors, and provosts of individual institutions; university attorneys; heads of faculty senates; education reporters; heads of university systems and state agencies; state attorneys general; legislators; and other informed observers. We also interviewed national authorities on sunshine laws, reviewed research literature, and examined media reports on issues related to sunshine laws around the country. Our experience convinced us that the laws are more important, touch on more areas of institutional functioning, and are more difficult to understand than most people know.
Our study also revealed strongly held opinions about the value (or lack thereof) of sunshine laws. But our fieldwork suggested that some of those opinions may merit rethinking. Some straightforward views, for example, disregard important nuances. So, for this article, we start with some common, boldly phrased "dissenter" and "advocate" positions and move toward what we hope is an instructive examination of the more subtle realities of the laws.
Sunshine Dissenters
Dissenter View 1: Leaders of public institutions of higher education deeply resent enforced openness, doubt its value for their institutions, and would seek to overthrow sunshine laws if given the chance.
Reality: Openness is a widely and deeply shared value among presidents, vice presidents, and board members in public higher education. Open deliberations and records may occasionally discomfit them, and they often relish legalized exceptions from the laws. At the same time, these officials repeatedly told us that they believe openness is essential for ensuring public trust, accountability, and fairness in state-supported colleges and universities. Not a single one urged abolishment of the laws, and many leaders were impressively eloquent and passionate in expressing their commitment to openness.
One institutional system head stressed the democratic underpinnings of openness in public higher education: "There's this symbolic quality to having your deliberations and your votes in public. . . . That's what you expect legitimate governments to do. Illegitimate governments do things in private. . . . It's the symbolism of saying you know the taxpayers pay for this, that we live in a democracy, a republican form of government." In a similar vein, referring to open meetings, a high-level campus administrator noted that openness "brings parties into [a] discussion who may not normally be a part of that discussion. It enriches it. . . . [Openness] is . . . native to what universities should stand for." Many officials endorsed this notion of openness not simply as a means to an end, but as central to the fabric of universities. Even when they expressed reservations or qualifications, these leaders never expressed opposition to the underlying importance of openness.
Dissenter View 2: Requirements for openness in presidential searches have diminished the quality of the public higher education presidency.
Reality: Our evidence on the effects of sunshine laws on presidencies is conflicting. On one hand, many campus officials assiduously maintain that sunshine laws have greatly reduced the ability of public colleges and universities to recruit highly qualified candidates for their presidencies. Dissenters argue that sunshine laws tend to have a "chilling effect" upon search processes, diluting the quality and quantity of applicants for the position of president. A particular concern expressed by many campus leaders is that the laws dissuade sitting presidents from applying for openings at peer institutions because, in doing so, they risk losing support on their home campuses. The alleged net effect of this problem is that public colleges and universities have been systematically disadvantaged in hiring experienced leaders.
Although we share the concerns about the potential negative effects of sunshine laws on presidential candidate pools, we find no compelling evidence of diminished presidential quality as a result of openness requirements. Leadership is so difficult to assess that the question may never be answered. Some public institutions in states with arguably strong sunshine laws have had extraordinary presidencies, and some institutions in states with weak laws have had highly problematic presidencies. Moreover, our interviews revealed a paradox in the perceptions of sunshine critics: many campus leaders say they are satisfied with the condition of presidential leadership on their own campuses, but confidently assert that sunshine laws have weakened presidencies elsewhere. It is possible that enforced openness has made it more common than in the past for less experienced candidates to apply for presidencies, but the question whether openness has diminished the quality of the public higher education presidency remains an open one.
Dissenter View 3: The media, inherently hostile to colleges and universities, pursue litigation whenever possible to force institutional compliance with open-meetings and -records laws.
Reality: Although a popular stereotype depicts media organizations as eager to bring litigation against public institutions of higher education over matters related to openness, media representatives say they work hard to develop productive working relationships with institutions and, when differences arise, prefer negotiation to litigation. Some members of the media do express concern about the attitudes of institutional leaders and the nature of their organizations. Most, however, attribute incidents of unsatisfactory institutional responses to their inquiries less to purposeful evasion and more to organizational traditions and conditions. They tend to see colleges and universities as naturally prone to secretiveness, cumbersome procedures, and poor information flows.
On the continuum of interactions concerning public information, litigation oc-cupies one extreme, and the informal ex-change of information occupies the other. Between the two lie formal requests for release of public records under state law. Media representatives expressed to us a strong preference for sharing information informally rather than formally, and de-scribed occasions where good relationships with institutional administrators produced satisfactory outcomes for both sides. Organizational culture or interpersonal relationships sometimes preclude informal exchanges of information. Media representatives told us that in those circumstances, they go to great lengths to negotiate formal requests so as to avoid open conflict and litigation. So although some degree of mistrust of academic institutions by the media is perhaps inevitable and healthy, the reality is that media organizations are most often reluctant to employ legal action.
Sunshine Advocates
Advocate View 1: Unfettered access to information advances the public good.
Reality: "My belief is that the more open the decision making, the better the public policy. . . . Every scrap of information that is revealed about almost anything is beneficial." Those words are from an editor of a major state newspaper, and they were echoed throughout the country in our interviews with media officials. Virtually all of our media respondents see openness as an absolute value and argue that the public good depends on complete public disclosure of all aspects of campus governance. Commonly, the belief is that the public's full knowledge about the manner in which their tax-supported institutions function ultimately leads to decisions made in the best interests of the public.
University administrators and board and faculty members, however, raised doubts about this position. Many noted that the privacy rights of individuals must be respected, especially in regard to personnel issues. Many also argued that a presidential search cannot attract a strong candidate pool if the entire process, from nomination or application through selection of a finalist, is public. With this issue in mind, many states have established exceptions to sunshine laws for the early stages of presidential searches.
The appropriateness and value of selective exemptions from public openness are often more hotly contested in regard to other matters, however. A college's business dealings, such as its real-estate purchases, may be less financially successful if discussions on prospective bids and minimally acceptable sales prices must be made public. Investment returns may be less favorable if partners in joint venture-capital investments must be reported. Publicity-shy donors may be wary, for legitimate reasons, of public attention. A university's tactical preparation for legal proceedings may be hampered by openness requirements. In each of these situations, and perhaps some others as well, exemptions to openness requirements may be debatable. In which cases, if any, should we place the public's legitimate interest in effective, efficient public higher education ahead of the public's equally legitimate interest in openness in public affairs?
Deciding whether to make information public involves balancing three good things: privacy, the public's right to know, and an institution's need to function as effectively and efficiently as possible. This is the "trilemma" noted in 1985 by former diplomat and university president Harlan Cleveland in his classic work on sunshine laws, The Costs and Benefits of Openness: Sunshine Laws and Higher Education. Achieving an appropriate balance is no easy thing. Institutional resistance to sunshine restrictions tends to be based on individual privacy claims or claims that institutional effectiveness is threatened. Reporters and editors seem far more understanding and accepting of the former than of the latter, arguing that institutional effectiveness has been increased, rather than threatened, by requirements that meetings and records be publicly accessible. In pursuing the public good, does the public's right to know supersede institutions' operational claims? Or is the public good best served when colleges and universities pursue their purposes autonomously, regardless of implications for public access to information? Neither of these two views is entirely wrong or right. In the middle lies the position of most stakeholders: institutions of higher education must operate in the public sphere, but there should be some reasonable restrictions on the public's right to know.
Advocate View 2: Sunshine laws have improved the performance of the governing boards of public colleges and universities by promoting citizen access and involvement in the work of the boards.
Reality: Campus officials agree that much good has come from efforts to make governing boards more open to inspection by the public. Board members, in particular, view sunshine laws as having enhanced public confidence in the work of their boards. Yet our fieldwork suggests that the laws may impair board effectiveness in several ways. For example, many board members told us that they guard their words carefully when their comments can potentially appear later in newspapers. As a result, they say that controversial issues are barely discussed or are avoided altogether. Thus sunshine laws may have the unintended consequence of lessening the substantive quality of board deliberation on controversial issues. Sunshine laws may also inhibit "board learning." Many trustees begin their board appointments humbled by their lack of understanding about the academic institutions they seek to serve, and they report the need to be able to ask for information outside of the glare of cameras. As several campus leaders phrased it, board members need a place where they can ask "dumb questions" without fear of being labeled as uninformed. Sunshine laws afford little such cover.
In addition, they may breed dysfunctional communication among board members. Boards require a degree of cohesiveness to perform their duties effectively. Yet the restrictions that openness places on board deliberations can lead to a splintering of communication so that one-on-one conversations replace group discussion on most substantive matters coming before boards. Because board members may have limited knowledge of the one-on-one conversations of other members, and because group communication may be infrequent and superficial, boards can become fractious and more easily dominated by single influential individuals (like chairs) who are positioned (or who position themselves) at the center of the individual discussions.
These potential impediments to board effectiveness vary in their severity from one board to the next. Effectiveness may be increased or decreased by the exemptions that statutes allow for private discussions among board members. Some boards have developed organizational routines (board retreats, for example) to help them function effectively in the sunshine. Ironically, however, as many campus leaders report, although sunshine laws aspire to more informed public decision making, in reality the public may see less board deliberation than it did before the introduction of the laws—and boards may be less effective in the performance of their duties.
Advocate View 3: The costs of openness in higher education are trivial.
Reality: The uses of sunshine laws, and thus the costs associated with them, are greater than many realize. University officials told us that problem-seeking reporters sometimes demand extraordinary amounts of information, and disaffected parties in the public or on campus sometimes use the laws in ways for which they were not intended. For example, the occasional lone citizen, aggrieved at an institution or some other individual, may use the laws to bog down an institution in myriad records requests. Commercial interests may use the laws to gain a proprietary advantage over competitors. Parties involved in litigation may use the laws as a way to circumvent legal discovery rules.
Responding to diverse media and public queries can be expensive, especially in states with complex, large, and highly visible state institutions. Nevertheless, the risks of noncompliance, unwanted publicity, and potential loss of public trust are great in every state. Institutions have no choice but to comply with the received letter and spirit of the laws by developing appropriate human, legal, and organizational systems. University attorneys say that such investments are largely defensive measures, raising the question whether the funding so allocated could be better spent in other domains if the possible judgments against institutions and systems were not so painful.
One university attorney told us, "I joke . . . that seven people fully exercising their rights under the California public records act could shut the university down." In the end, most stakeholders seem to believe that the costs of openness are worthwhile, but our research suggests that those costs are not small.
Conclusions
The dissenter and advocate views we present above are, of course, caricatures. But this approach helps illuminate our basic argument: too few people fully appreciate the complexity, pervasiveness, and influence of sunshine laws. Their use is widespread and evolving, with important implications for institutional governance and the public good.
Sunshine-related issues such as the application of sunshine laws to university-affiliated foundations and presidential searches have occupied much recent newspaper coverage of higher education. Especially prominent "front-page" issues involving public universities have arisen in Alabama, Georgia, Massachusetts, Michigan, Minnesota, Tennessee, and Virginia. Clearly, sunshine laws are associated with much of what the public sees and believes it knows about higher education, public or private. Local newspapers and broadcast media seem to focus far more on the disputes, difficulties, and scandals of public colleges than many faculty and administrators would prefer, and sunshine laws directly or indirectly provide citizens their knowledge of those troubles, for better or worse.
Sunshine laws thus pose a dilemma for state policy makers, campus constituencies, and public information advocates. Some problems, when considered under the glare of sunshine, may end up being inadequately understood and addressed. At the same time, some equally or more significant problems would never come to public view without sunshine. Openness in public higher education is widely supported in principle. In practice, however, it seems more appropriate to view our commitment to openness as a still-evolving public policy experiment whose potentially profound influence on institutional functioning demands the sustained attention of faculty and others on campus.
James Hearn is professor of public policy and higher education at Vanderbilt University. Michael McLendon is assistant professor of public policy and higher education at Vanderbilt.
|