Sunshine Laws in Higher Education

Academe, May/Jun 2005 by Hearn, James C, McLendon, Michael K

State open-meetings and -records laws occupy a significant place in the landscape of American higher education. All of us-as citizens and faculty members-have a stake in sunshine laws and their effects on institutional governance.

Every state in the union has "sunshine" laws that apply to public higher education, and the leaders of public institutions deal directly or indirectly with these laws almost daily. Sunshine statutes go to the very heart of institutional functioning, influencing presidential searches and selection, board deliberations, research and intellectual property issues, financial decisions, fund raising, athletics, and other matters. On one campus, a presidential candidate might quietly withdraw from a search after a reporter uses openrecords statutes to uncover a past impropriety, while at another, the administration might hire an extra staff attorney to deal with a rising volume of public-records requests and disputes.

Despite the importance of sunshine laws, most activity related to them goes unnoticed by faculty members, who rarely consider the ways the laws shape their institutions' decisions and directions. They are not alone. Although substantial public attention has focused on national legislation affecting the privacy of student records, especially in the wake of recent threats to national security, the influence of state sunshine laws on the work of governing boards, administrative staff, and, yes, faculty in public institutions of higher education has been mostly overlooked. Yet a sizeable portion of our nation's wealth is invested in state-supported higher education, and all of us as citizens have a stake in sunshine laws and their effects on institutional governance. This article aims to redress the lack of attention to the laws.

In fall 2002, we initiated an in-depth study of sunshine laws and their impact on the governance of public higher education in six states: California, Florida, Iowa, Massachusetts, Texas, and Washington. We collected documents (including newspaper articles, legislation, and reports) and conducted interviews with ninety-two people. We talked with members of governing boards; presidents, chancellors, and provosts of individual institutions; university attorneys; heads of faculty senates; education reporters; heads of university systems and state agencies; state attorneys general; legislators; and other informed observers. We also interviewed national authorities on sunshine laws, reviewed research literature, and examined media reports on issues related to sunshine laws around the country. Our experience convinced us that the laws are more important, touch on more areas of institutional functioning, and are more difficult to understand than most people know.

Our study also revealed strongly held opinions about the value (or lack thereof) of sunshine laws. But our fieldwork suggested that some of those opinions may merit rethinking. Some straightforward views, for example, disregard important nuances. So, for this article, we start with some common, boldly phrased "dissenter" and "advocate" positions and move toward what we hope is an instructive examination of the more subtle realities of the laws.

Sunshine Dissenters

Dissenter View 1: Leaders of public institutions of higher education deeply resent enforced openness, doubt its value for their institutions, and would seek to overthrow sunshine laws if given the chance.

Reality: Openness is a widely and deeply shared value among presidents, vice presidents, and board members in public higher education. Open deliberations and records may occasionally discomfit them, and they often relish legalized exceptions from the laws. At the same time, these officials repeatedly told us that they believe openness is essential for ensuring public trust, accountability, and fairness in statesupported colleges and universities. Not a single one urged abolishment of the laws, and many leaders were impressively eloquent and passionate in expressing their commitment to openness.

One institutional system head stressed the democratic underpinnings of openness in public higher education: "There's this symbolic quality to having your deliberations and your votes in public. . . . That's what you expect legitimate governments to do. Illegitimate governments do things in private. . . . It's the symbolism of saying you know the taxpayers pay for this, that we live in a democracy, a republican form of government." In a similar vein, referring to open meetings, a high-level campus administrator noted that openness "brings parties into [a] discussion who may not normally be a part of that discussion. It enriches it. . . . [Openness] is . . . native to what universities should stand for." Many officials endorsed this notion of openness not simply as a means to an end, but as central to the fabric of universities. Even when they expressed reservations or qualifications, these leaders never expressed opposition to the underlying importance of openness.