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 …”