Free Press takes its transparency dispute with the University of Michigan to court

An attempt to clarify state law--and establish a principle of openness for public universities

Investment commitments and funding of more than $120 million, a property purchase for $12.8 million, construction of a new biological sciences building—all unanimously approved by the University of Michigan Board of Regents without public deliberation or discussion.

Those allegations, among others, are at the heart of a lawsuit filed last week by the Detroit Free Press and the Lansing State Journal, in the Michigan Court of Claims. The papers are suing the Regents under the state Open Meetings Act and the state constitution, which both guarantee in different ways public access to government meetings.

The suit is an attempt to clarify the murky area of law governing the openness of public university boards, and to push back at aggressive positions taken by some of the boards to conceal their deliberative processes. How it will play out, though, is uncertain. First, a major precedent in this area is as clear as concrete—and while state universities have exploited that lack of clarity to avoid transparency, whether the courts will rebuke them is an open question. Second, Michigan’s state legislature may act first—it’s considering a resolution that would allow voters to require the boards to comply with state sunshine laws.

While the suit parallels the legislative push, it follows a challenge in the pages of the Free Press. The complaint relies partly on a Freep review of university board practices published earlier this year to argue that at U-M, which receives a state appropriation of more than $300 million annually, the Regents “only meet in public approximately once a month for pro forma votes on matters that they have already decided, which are typically unanimous” and are “approved without deliberation, discussion, or debate.” From January 2013 to February 2014, the Regents voted on 116 matters, with public discussion occurring for only 12; and in only eight of the 116 was a dissenting vote cast. Twice in the last two years the Regents met out of state—in California and New York. (CJR wrote about the Free Press’ coverage here.)

According to the complaint, “These numbers establish clearly that the Regents do, in fact, routinely discuss the issues they must decide, and do routinely make their decisions about the University of Michigan’s governance, all behind closed doors, out of the public’s view, without public accountability.”

One fell swoop

Herschel Fink, legal counsel for the Free Press, told CJR that the suit targets the University of Michigan—rather than, say, Michigan State, also criticized in the Free Press’ earlier review—because it is the state’s flagship university and “a serial abuser of state sunshine laws.” Plus, the suit’s larger goal is to establish a principle that will apply to all public universities in the state. “If it’s established for one, it’s established for all,” Fink said.

That basic principle is simple: public university boards truly must operate in public. But the legal edges of that principle are rough, and they implicate both the state Open Meetings Act and Michigan’s constitution.

Generally, the Open Meetings Act requires that all meetings of a public body involving the deliberation or rendering of a policy decision—where a quorum is present—must be open and held in a place available to the public after notice is given. Similarly, the Michigan Constitution requires that “formal sessions of governing boards of [public universities] shall be open to the public.”

The wrinkle is the case Federated Publications v. Board of Trustees of Michigan State University, decided in 1999 by the Michigan Supreme Court. At issue was Michigan State’s mostly private 1992-1993 presidential search, whose privacy was challenged in court by the Lansing State Journal. MSU prevailed in that case, and some of the state’s public university boards have since relied on it to conceal parts of their decision-making processes. To them, the case says that under the state constitution, the boards are not required to comply with the Open Meetings Act—because the boards, as constitutional creatures with elected members, have the power generally to supervise their institutions.

Of course, the boards are subject to certain regulations, and one is the constitutional command noted above: that “formal sessions of governing boards of [public universities] shall be open to the public.” In the Federated case, the court interpreted that to mean that the universities “retained their power to decide whether to hold ‘informal’ sessions in public.”

So, in one fell swoop, the court made it possible for Michigan’s public universities to ignore the Open Meetings Act and to circumvent the related constitutional requirement.

“We want to reexamine what the Federated case says and how far it goes,” Fink told CJR. “And we want to answer that question outside the context of a presidential search.”

Sunshine: “Wouldn’t it be nice …”

Context may be the key to unlocking the Federated opinion. Some boards have read it liberally to mean they’re not required in general to comply with the Open Meetings Act, but it’s possible to read the opinion more narrowly. It arose in the context of a presidential search, and the opinion is filled with language suggesting that its scope is limited to that context.

For example, here’s how the court framed the issue before it: “We granted leave … to determine whether the presidential selection procedure … violated the Open Meetings Act … and whether application of the [Act] to committees formed by the governing boards of our public universities to assist in the selection of university presidents is constitutional.” (Emphasis added.)

Overall, the opinion’s language may be sufficiently narrow that the Free Press and State Journal can successfully argue that it doesn’t apply outside the presidential search context. Moreover, a board’s power to select its institution’s president is enumerated in the Michigan Constitution—which could indicate that it’s unique and entitled to greater protection than other powers.

It might follow, then, that a presidential search is so special constitutionally that it plays by different rules. In other words, a board is immune in that context from the Open Meetings Act—because of the type of power being exercised.

But that interpretation is strained because the Michigan Constitution also states, “Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution’s funds.”

That provision covers all of what a board does, and, although it’s more general than specific, it appears alongside the presidential search provision, perhaps indicating that they be treated alike. In other words, if the Open Meetings Act doesn’t apply in the search context, it also doesn’t apply in the supervision and expenditure contexts—because they’re all enumerated in the constitution.

I’m at a loss, really. Part of the problem is that the Federated opinion is not the paragon of precise drafting, and it’s eminently arguable that the language some boards have relied on to conceal their deliberative processes is just obiter dictum: judicial commentary unnecessary to the decision and therefore not precedential.

“I think that’s the case,” Fink said. “That’s one reason the suit was filed—to reexamine what’s the holding. One way or the other, we’ll get at the larger underlying problem. In that sense, our suit is a complement to ongoing legislative efforts.”

A joint resolution pending in the Michigan House would permit voters to amend the state constitution to require public university boards to comply with state sunshine laws. Fink testified before a legislative committee in favor of the resolution, and Stephen Henderson, the Free Press’ editorial page editor, opined that the resolution may be necessary “to remind the [university boards] who is in charge.”

For its part, the University of Michigan essentially declined to comment to CJR, with spokesman Rick Fitzgerald referring me to a statement the university released in March to the Free Press. Notably, it was drafted after the board met in private session to discuss a Free Press reporter’s inquiry about its practice of meeting privately. The statement reads:

The board acts in compliance with the law. The framers of the state Constitution thought carefully about these issues, and the end result has been excellent public universities with significant public input and impact. Stability in leadership is embedded in the state’s Constitution, which provides for eight-year terms for members of the Board of Regents. This structure allows board members to develop deep, long-term knowledge and familiarity with the issues.

Most issues that come before the board are not divisive by their nature; however, over time there are instances of disagreement and robust debate. Overall there is likely to be less debate than at a city council or legislative session because the university’s priorities remain very constant from year to year.

To that, Fink said: “Wouldn’t it be nice if the taxpayers who provide the money that the university spends knew what those ‘instances of disagreement and robust debate’ were? Allowing the public to observe the deliberative process doesn’t interfere with the board’s power. It enables the public to be informed to play its essential democratic role of holding officials accountable.”

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Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters. Tags: , , ,