UT Regent Hall’s attorney faces tough questions over records in Texas Supreme Court hearing

By Matthew Watkins
The Texas Tribune
Originally published Jan. 11, 2017

A lawyer for University of Texas System Regent Wallace Hall faced tough questioning Wednesday from state Supreme Court justices over whether he should be allowed to see confidential student admissions records that the UT System chancellor has denied him.

Four of the nine justices in particular drilled down into Hall’s argument that he needs the information to fulfill his oversight role of the UT System and that Chancellor Bill McRaven broke the law when he denied Hall that information. But at least two other justices were far more receptive to Hall’s arguments, and the 40-minute hearing ended with the future of the case still highly uncertain.

Justices primarily focused on two major questions: Who has the authority to determine whether a member of a university’s board of regents — the top level of power at state universities — can have access to confidential documents? And what legal action, if any, can be taken if a regent feels that he or she was unlawfully denied access to that information?

“The nature of the job of governing carries with it a right and a duty to be informed on the issues,” Knight said. “You could not exercise that duty without a right to information.”

But Wallace Jefferson, a former chief justice of the Supreme Court and the lawyer for McRaven, said that giving Hall the information that he wants would violate federal student privacy laws. Hall wants unredacted admissions records, which include personal statements that share intimate secrets. Handing those records over could reveal to Hall that certain students were abused as children or have learning disorders. There’s no educational reason for Hall see that information, Jefferson said.

“A student has a right to know that their private information will remain private,” Jefferson said.

Hall has been asking for the records for months. He requested them after an investigator hired by the UT System found numerous problems with UT-Austin’s admissions system. Multiple students with powerful connections were admitted into the university over several years, even though they didn’t seem to be qualified. The system adopted changes in its admissions practices to address the issue.

But Hall said he wanted to see more records, and the system has said it turned over more than 600,000 pages’ worth. Those records had student names redacted, however.

The justification McRaven gave for redacting the names was that the Federal Educational Rights and Privacy Act, which says universities can’t give outsiders or employees educational records unless the person requesting them wants them for legitimate educational reasons. On Wednesday, Hall’s attorney didn’t dispute that McRaven has the authority to decide whether Hall should be able to see the records. Rather, he argued that McRaven made the wrong decision, and that the federal law wasn’t a legitimate excuse to say no.

Not everyone on the court bought that argument. Some justices questioned whether Hall sued the wrong person — that he should have sued the UT System instead of McRaven. And Chief Justice Nathan Hecht question whether the system could be sued at all because it’s a government entity.

“It seems to me that the state violates the law all the time,” he said, noting that Texas is immune from most lawsuits under state law. “You can’t sue the state for making legal mistakes.”

Others, including Justice Don Willett, seemed receptive to the idea that regents should be given wide access. If a regent wants to look into whether there has been favoritism in admissions, Willett asked, shouldn’t he be able to see admissions documents?

The Supreme Court case may be the final skirmish in Hall’s term as regent — a term that is among the most controversial in the UT System’s history. He has conducted multiple investigations during his time, and he played a role in uncovering the admissions scandal. He has also advocated for controversial reforms, many of which were ultimately rejected by the broader board.

His critics have contended that he has carried out a witch hunt targeting former UT-Austin President Bill Powers and other top administrators.

Hall’s term expires Feb. 1. His case before the Supreme Court is being expedited because he will no longer have a legal right to the documents once he’s off the board. But justices pointed out Wednesday that the timeline isn’t as pressing as many believed. Hall will remain on the board until his successor is appointed by Gov. Greg Abbott and confirmed by the Legislature. That could take months.