{"id":50672,"date":"2020-01-11T11:57:43","date_gmt":"2020-01-11T19:57:43","guid":{"rendered":"https:\/\/world.edu\/?p=50672"},"modified":"2020-01-11T11:57:43","modified_gmt":"2020-01-11T19:57:43","slug":"why-some-public-universities-get-to-keep-their-donors-secret","status":"publish","type":"post","link":"https:\/\/world.edu\/why-some-public-universities-get-to-keep-their-donors-secret\/","title":{"rendered":"Why some public universities get to keep their donors secret"},"content":{"rendered":"

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\nIn April 2018, the public learned that\u00a0George Mason University<\/a>\u00a0had let the\u00a0Charles Koch Foundation<\/a>\u00a0have a say in the hiring and review of faculty. The revelation confirmed long-held suspicions that Virginia\u2019s largest public university was susceptible to pressure from wealthy people who make big donations to a foundation that solely exists to support the school.<\/p>\n

The news also raised more questions. For example, how was the school able to conceal the\u00a0strings-attached gift agreements<\/a>\u00a0for years? Do other\u00a0public universities have similar arrangements<\/a>, in which donations flow not to them, but to affiliated foundations?<\/p>\n

Most importantly, do these foundations give donors a legal right to shape a public institution of higher education without\u00a0public oversight<\/a>\u00a0if they so choose?<\/p>\n

As a\u00a0journalist-turned-professor<\/a>\u00a0who researches the tension between privatization and the public\u2019s right to know, I can tell you the vast majority of public colleges and universities\u00a0have separate foundations<\/a>\u00a0that exist to receive and manage their private donations. And unless state lawmakers do more to address the transparency status of these foundations, I\u2019m concerned there are few ways to detect the kind of influence allowed at George Mason.<\/p>\n

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The George Mason case<\/strong><\/h4>\n

Transparent GMU<\/a>, a student advocacy group formed in 2013, had tried for years to access the Koch agreements under\u00a0Virginia\u2019s Freedom of Information Act<\/a>\u00a0(VFOIA). The group suspected that, like\u00a0Florida State University<\/a>, George Mason might be trading academic influence for Koch dollars.<\/p>\n

The group\u2019s VFOIA requests were denied on the basis that the George Mason University Foundation possessed the agreement records and, as a private entity, did not have to share them.<\/p>\n

Transparent GMU\u00a0sued the foundation<\/a>\u00a0in 2017. The group argued that because the nonprofit accepts, disburses and administers funds for the sole benefit of a public university, it\u00a0should be subject<\/a>\u00a0to VFOIA requests just like the university.<\/p>\n

More than a year later, while the case was still pending, the university released the agreements and\u00a0acknowledged<\/a>\u00a0that allowing donors to influence faculty decisions \u201cfalls short of the standard of academic independence we should expect in every gift.\u201d<\/p>\n

In the wake of the scandal, in May 2019 the university revised\u00a0its gift acceptance policy<\/a>. The university now accepts conditions attached to a private donation in writing, which makes them\u00a0part of the public record<\/a>. The Charles Koch Foundation also announced that it will now\u00a0make public<\/a>\u00a0all multi-year agreements with colleges and universities.<\/p>\n

But Transparent GMU ultimately lost its court challenge. In a unanimous decision that leaves no path for appeal, the\u00a0Virginia Supreme Court ruled<\/a>\u00a0Dec. 12 that as a privately held corporation with its own bylaws, the George Mason University Foundation is not a public body. Therefore, it\u2019s not obligated to disclose records.<\/p>\n

State by state<\/strong><\/h4>\n

Unless it\u2019s related to the federal government, public information access is regulated state by state under\u00a0individual Freedom of Information laws<\/a>.\u00a0Each state defines in its own way<\/a>\u00a0what constitutes a public body, public records and public meetings.<\/p>\n

Only Nevada explicitly defines university foundations as governmental entities under its\u00a0public records act<\/a>. A handful of other states, including\u00a0Colorado, Georgia and Minnesota<\/a>, have laws dictating that foundations disclose certain financial records while still remaining private. In most cases,\u00a0even in Nevada<\/a>, donor identities remain confidential.<\/p>\n

Virginia\u2019s Freedom of Information Act applies to public agencies, bodies supported wholly or principally by public funds, and entities \u201cof the public body created to perform delegated functions of the public body.\u201d<\/p>\n

The state Supreme Court cited the Webster\u2019s dictionary definition of the word \u201cof\u201d in deciding the George Mason foundation wasn\u2019t a product \u201cof\u201d the university, even though it\u00a0exists to support that school<\/a>, pays the majority of the president\u2019s salary, operates on campus, is part of the GMU website and staff directory, and is considered a \u201ccomponent unit\u201d in university accounting.<\/p>\n

\u201cHad the General Assembly intended the unreserved inclusion of nonprofit foundations, that exist for the primary purpose of supporting public institutions of higher education, as public bodies under VFOIA, it could have so provided, but it has not,\u201d\u00a0Justice Cleo Powell wrote<\/a>. \u201cPolicy determinations of this nature are peculiarly within the province of the General Assembly, not the judiciary.\u201d<\/p>\n

California case<\/strong><\/h4>\n

Courts in other states have followed the same logic. In 2001 a\u00a0California appellate court<\/a>\u00a0found that the California State University, Fresno Association, a nonprofit that operates the university\u2019s commercial enterprises, wasn\u2019t a public agency under the state\u2019s\u00a0Public Records Act<\/a>\u00a0(CPRA).<\/p>\n

The court looked at the language of the law, weighed it against the spirit of transparency, and saw a puzzling gap.<\/p>\n

\u201cWe are fully cognizant of the fact that our conclusion seems to be in direct conflict with the express purposes of the CPRA \u2018to safeguard the accountability of government to the public,\u2019\u201d Justice Rebecca Wiseman wrote. \u201cThe Legislature\u2019s decision to narrowly define the applicability of the CPRA, balanced against its sweeping goal to safeguard the public, leaves us scratching our judicial heads and asking, \u2018What was the Legislature thinking?\u2019\u201d<\/p>\n

But courts don\u2019t act as super-legislatures to determine the wisdom or propriety of statutes, she continued. \u201cThe rewriting of a statute is a legislative, rather than a judicial function, a practice in which we will not engage.\u201d<\/p>\n

Ten years later, California\u00a0passed a law<\/a>\u00a0that makes university foundations\u2019 financial records, contracts and correspondence subject to public disclosure.<\/p>\n

Under the\u00a0Richard McKee Transparency Act of 2011<\/a>, donors can remain anonymous unless they receive something in exchange that\u2019s worth more than $2,500 or a no-bid contract within five years of the donation, or if they attempt to influence university curriculum or operations.<\/p>\n