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New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Endowments & Gifts; Freedom of Information & Public Record Laws; Tax; Practice of Higher Education Law; Foundations & Affiliated Entities; Governance

Transparent GMU v. George Mason Univ., et al. (Va. Cir. July 5, 2018)

Opinion Letter concluding that the George Mason University Foundation, Inc. is not a public body subject to the Virginia Freedom of Information Act (VFOIA). In considering this matter of first impression, the court looked to the plain language of VFOIA and limited its analysis to whether the Foundation was “support[ed] wholly or principally by public funds” and “perform[ed] delegated functions of the public body or… advise[d] the public body.” The court determined that neither factor rendered the Foundation to be a public body subject to VFOIA. Specifically, the court found under controlling state law and advisory board guidance that 1) private individual donations held by the Foundation for the benefit of GMU did not qualify as public funds, 2) the corporate structure of the Foundation separated it as an independent entity from GMU, and 3) the Foundation’s fundraising service did not qualify as a public function. However, the court held that the public had a right to inspect records under VFOIA where the GMU Gift Acceptance Committee accepts funds from the Foundation with restrictions or conditions.

7/11/2018
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Freedom of Information & Public Record Laws; Practice of Higher Education Law; Governance

Andrich v. Delta College Board of Trustees (Mich. App. June 5, 2018)

Unpublished Per Curiam Opinion reversing-in-part and remanding for further proceedings. Plaintiff alleged that Defendant in two different public meetings violated the Open Meetings Act (OMA) by failing to identify particular cases when calling for a closed session to discuss “specific pending litigation” and by failing to accurately reflect in its minutes decisions to engage in settlement negotiations as recommended by its counsel. Similar to the court’s reasoning in Estate of Ader v. Delta College Board of Trustees, the court held that the statutory language of the OMA, analogous case law in the jurisdiction, and the Attorney General’s guidance on the matter required Defendant to identify a specific lawsuit before entering a closed session to discuss “specific pending litigation.” The court also found the minutes to be statutorily insufficient.  The minutes reflected that the Board passed motions to “accept Counsel’s recommendation,” when, according to the court, they should have said that the Board “authorize[d] its counsel to settle a specific case within certain parameters.“ The remainder of Plaintiff’s claims were dismissed either because they were without merit or were abandoned on appeal.

6/11/2018
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Freedom of Information & Public Record Laws; Practice of Higher Education Law; Governance

Estate of Ader v. Delta College Board of Trustees (Mich. App. June 5, 2018)

Unpublished Per Curiam Opinion reversing-in-part and remanding for further proceedings. Plaintiff alleged that Defendant in four different public meetings, spanning over two years, violated the Open Meetings Act (OMA) when calling for a closed session to discuss with its counsel “specific pending litigation” without identifying the specific case name. Looking to the statutory language of the OMA, the court found that Defendant violated the statute by failing to identify the “specific pending litigation” to be discussed in the closed session. The court reasoned that while not explicitly required in the OMA, such an omission would render the word “specific” in the legislation void. The court further noted that its decision was consistent with its analysis of closed-session procedures for FOIA-exempt materials in Herald Co., Inc., as well as being consistent with guidance issued in the Attorney General’s OMA Handbook and with the statute’s purpose of promoting government accountability through public notice of “issues and decisions of public concern.” For a related case with similar issues, see Andrich v. Delta College Board of Trustees.

6/11/2018
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Freedom of Information & Public Record Laws; Practice of Higher Education Law

Sheil v. Horton (Ohio Ct. Cl. April 16, 2018)

Report and recommendation from the Ohio State Court of Claims concluding that the Cuyahoga Community College Foundation (“Tri-C Foundation”) – a tax exempt, nonprofit entity created to solicit, receive, and hold public contributions for the benefit of Cuyahoga Community College (“Tri-C”) – is subject to Ohio’s Public Records Act. Requester Sheil alleged that respondent Horton, the Media Relations Manager at Tri-C, denied access to public records by rejecting his request for a copy of a contract between Tri-C Foundation and an actress for a speaking engagement. Horton argued that Tri-C Foundation was not subject to the public records act because it was not the functional equivalent of a public entity, and that, even if it were, the contract constituted a trade secret. Applying the “functional equivalency” test in State ex rel. Oriana House, Inc. v. Montgomery, the court concluded that all factors weighed in favor of finding that Tri-C Foundation was the functional equivalent of a public office. Even were it not the functional equivalent of a public office, Tri-C Foundation and Horton were subject to the act as “person[s] responsible for public records.” Horton’s trade secret argument failed because he failed to show that any material in the requested contract constituted a trade secret.

5/10/2018
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Title IX; FERPA; Sexual Misconduct & Other Campus Violence; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

DTH Media Corp. v. Folt (N.C. App. April 17, 2018)

Order affirming-in-part and reversing-in-part the district court’s opinion.  Plaintiffs, North Carolina-based news organizations, filed requests under the state Public Information Act (PIA) to obtain information from the disciplinary records of students who had violated the University of North Carolina’s (UNC) sexual assault policy.  Specifically, Plaintiffs sought the names of students found responsible for violating the policy, the date and nature of each violation, and the sanctions imposed.  Plaintiffs argued that §1232g(b)(6)(B) of the Family Educational Rights and Privacy Act (FERPA), which permits discourse of “the final results of any disciplinary proceeding . . . if the institution determines as a result of the disciplinary  that the student committed a violation of the institution’s rules or policies with respect to [crimes of violence or non-forcible sex offenses],” required disclosure; while Defendants argued that Plaintiff’s interpretation interfered with FERPA’s “implied grant of discretion” to UNC to decide whether to release student disciplinary records.  Finding no case law or legislative history supporting Defendant’s proposed interpretation of FERPA, the court concluded that the records were generally subject to disclosure, with the caveat that the dates of the offenses sought by Plaintiffs were not subject to disclosure under the plain language of the statute. The court also rejected Defendant’s contention that FERPA pre-empted the PIA. 

4/23/2018
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Freedom of Information & Public Record Laws; Practice of Higher Education Law

Libertarians for Transparent Gov’t v. William Paterson University (N.J. Super. App. Div. April 12, 2018)

Unpublished Per Curiam Opinion reversing an order awarding Plaintiff attorney’s fees and costs. Plaintiff sought disclosure of a settlement agreement from Defendant William Paterson University (WPU) relating to litigation against the University, which WPU provided after the agreement was executed by all the parties. At issue was whether WPU violated the New Jersey Open Public Records Act (OPRA) by failing to disclose an unexecuted, draft version of the settlement that existed on the date of Plaintiff’s OPRA request. The court found that the document at-issue was exempt from disclosure under the OPRA because it was a “draft document subject to continued revision and negotiation.”

4/18/2018
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FERPA; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

Scott v. University of Wisconsin System Board of Regents, et al. (Wis. App. March 6, 2018)

Per Curiam Opinion affirming the circuit court’s denial of Plaintiff’s Petition for Writ of Mandamus. Plaintiff, a former University of Wisconsin-Milwaukee (UWM) student, requested disclosure of public records from UWM, specifically, communications or emails containing certain keywords and numbers sent to and made by the Dean of Students. UMW produced over 2,000 pages in response, but redacted student names as required by the Family Educational Rights and Privacy Act (FERPA). Citing Wisconsin case law and concluding that UWM properly redacted the responsive records, the court held that “the presence of a student’s name in a document maintained by UMW makes the document an education record under FERPA.” Further, the court rejected Plaintiff’s argument that “maintaining” an education record required “something more active and deliberate than merely having custody of the document.” Last, the court found no abuse of discretion in the circuit court’s denial of in camera inspection since UWM provided specific reasons for non-disclosure.

3/8/2018
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FERPA; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

West v. TESC Bd. of Trs., et al. (Wash. App. Feb. 27, 2018)

Unpublished Opinion affirming the decision of the trial court in favor of the Defendants.  Plaintiff sued Evergreen College, claiming that Evergreen improperly redacted and withheld certain records in responding to a request by the Plaintiff under the State Public Information Act (PIA).  Evergreen produced 1219 documents in response to Plaintiff’s PIA request, withholding or redacting documents protected by the attorney-client privilege and documents that contained personally identifiable information from student education records. The court concluded that Evergreen properly redacted student identification numbers, student photos, and student disciplinary correspondence in accordance with Family Educational Rights and Privacy Act (FERPA).  Because the redactions were made pursuant to federal law, the court also concluded that the information was exempted from mandated disclosure under the PIA.

3/1/2018
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