|Winter 2010-2011 - Access
Vol. XXXII, No. 1 - Page 32
Journalists struggle with one of the most powerful, least transparent groups on campus: student government
© 2011 Student Press Law Center
The media’s role of covering government -- from exposing scandal to highlighting when they get it right -- is so well-accepted, the media is often called “the fourth estate.”
However, lack of clear legal guidance can hinder that same check at the college and high school levels. While student governments have been found to fall under open-records laws in some states, many of these bodies evade mandatory scrutiny, despite having some of the same decision-making, money-moving powers as their adult-world counterparts.
Every state has freedom-of-information legislation, extending the values of transparency to state and local governments. Often, application of the law is triggered by control over public funds or interests. Wisconsin was the first state to enact sunshine legislation -- it did so shortly after becoming a state, even before Congress adopted its own law for the federal government. Many other states passed their own laws in the wake of the Watergate scandal.
The exact scope of the law varies from state to state. And while each state has deadline and fee restraints on open-records requests, they vary greatly.
Dave Cuillier, freedom of information committee chair at the Society of Professional Journalists, said it is clear open-government law should extend to student governments.
“We need to step back and look at the big picture,” said Cuillier, a University of Arizona journalism professor. “We need to say, ‘look, this is a group of people who are making decisions for students and their money, and that should be in the open.’ And if it’s not, that’s just un-American. That’s like Saddam Hussein or Stalin. Do we want to do it like Stalin?”
If sunshine legislation does extend to student governments, those bodies would typically be required to publish meeting minutes in a timely fashion, allow the public to watch meetings and votes, and provide documentation of its spending. If a student government denies access, it could face fines.
Cuillier said a university should be “a champion of good governance,” so pushing for such openness is not only sensible, but critical to students’ education.
Pressing for disclosure
Eric Ercanbrack, editor of Central Oregon Community College’s The Broadside, understands the struggle with student government disclosure. He recently finished going through the local district attorney to acquire student government records, and now fears the paper’s funding will be cut due to stories critical of the student government that were subsequently published.
“The process on how the funding is done is going to be changed,” Ercanbrack said.
One of the stories claimed that a student government official’s boyfriend made over $19,000 for minimal public-relations duties including maintaining a Facebook page -- more than twice the student fee-funded stipend of any student government official. A second story describes how that same official maintained her student government position despite dropping so many classes she was no longer considered a student; she later re-enrolled. Many students have called for a new student government administration.
“It’s been one year that we have been asking for records and not receiving them,” Ercanbrack said. He said there have probably been 15 separate requests. “In the past it was because the requests were too large or too big, too much for them to handle, but we are more specific now.”
The records he requested from the student government are basic -- a monthly payroll, credit card receipts and bank account statements from the last fiscal year. If he was requesting the same documents from the college’s board of directors, they would be public by law as part of routine disclosure.
Ercanbrack said this round of requests is part of a strained history between the media and his school’s student government.
“There’s a lot of conflict of interest,” he said. He said he has questions on how student funds are being spent due to rumors of favoritism in spending -- the exact type of story the professional media often covers.
Ercanbrack said one of the reasons for so much trouble is the student government is trying to understand its legal identity.
“They have been trying to understand if they fall under college policy as far as a public entity,” he said. He said student leaders claim student government is exempt from disclosure as a nonprofit entity rather than a government agency. “Right now the student government doesn’t know if they have to follow college policy because there is nothing in their constitution or bylaws that says they have to follow college policy, so they think they don’t have to follow public meeting law or public records law.”
Under Oregon state law, any entity that recommends policy to a public body falls under public-meetings law. Since the Board of Higher Education is required to take into account student government recommendations when making policy decisions, Oregon student governments could be subject to all open-meetings and records requirements. The state attorney general has explicitly said student governments are a governing body subject to public-meetings law because they recommend fee assessments.
After The Broadside requested documents Sept. 23, Ercanbrack said the student government hired a lawyer -- but continued to withhold the records despite the lawyer reportedly advising otherwise.
“And that’s a discrepancy in itself,” he said. “They have hired a lawyer outside the school and are paying for this lawyer with student fee money.”
Dustin Moore, COCC student government finance coordinator, said he doubts the newspaper’s funding will end soon. He referred additional questions to a spokeswoman, who did not return multiple calls seeking comment.
“The truth is student government hasn’t been very fair with people,” Moore said. “At least not with The Broadside.”
The FERPA rationale
Initially, The Broadside received one requested document -- the overall budget -- but all other recent requests were denied on the grounds of a student privacy law, the Family Educational Rights and Privacy Act. After talking to the college, the paper was able to obtain some additional records: bank accounts, credit card statements and payroll information. However, requests for details or receipts of spending, as well as a document detailing a student government trip to Washington, D.C., continue to be denied.
“What they did give us was a sort of overview and we don’t know what exactly they spent this money on,” Ercanbrack said.
COCC’s student government is not the first to use FERPA as an excuse for non-disclosure, Student Press Law Center attorney Adam Goldstein said.
“I think it’s a pretty transparent excuse,” Goldstein said. “If we apply FERPA, it annihilates student governments. Names of people in elections would be FERPA. They couldn’t hold an election because the ballots and outcomes would be education records.”
The UWM Post at University of Wisconsin-Milwaukee won a battle for open records when the school settled a lawsuit in February 2010 over documents about the Union Policy Board’s agendas, minutes and recordings. The college had invoked FERPA, claiming that records of student officials deliberating on the board, or speaking before it, fell under FERPA’s definition of private “education records.”
Then-UWM Post Editor-in-Chief Jonathan Anderson went one step further, pressing the state attorney general to rule whether student-run governments are subject to open meetings law. While Attorney General J.B. Van Hollen’s response did not refer to any specific student organizations, he said all organizations that exercise government functions are subject to the law. The amount of authority and responsibility will determine on a case-by-case basis if the law applies.
“Typically student governments are subject to state open records law because they allocate state funds, not because of their connection to an institution that takes [federal education] funds,” he said.
FERPA requires institutions that receive funds from the U.S. Department of Education to give students access to and some control over the disclosure of personal records. It primarily covers student grades and discipline, but it is unclear how far the law reaches outside the classroom.
Goldstein said the only way to punish an entity for a FERPA violation is to withdraw federal funding; since student governments do not receive federal funding, they logically cannot be entities subject to FERPA.
Butch Oxendine, executive director of the American Student Government Association, said student government is “a whole different animal” than the university for purposes of confidentiality law.
“I don’t see how that relates to student government in any capacity,” he said.
A state of openness
Three states -- California, Nevada and Washington -- expressly state that university student governments must follow standard open-records law.
Oxendine said there is no norm in the way student governments treat openness -- it depends on the state. He said California is the most progressive, with Florida and Wisconsin also putting value in disclosure.
In California, individual university systems apply state law through their written policies. The University of California (“UC”), California State and Community College systems all have their own openness policies. In the UC system, all standing and special subcommittees of the regents, which includes student government, must be open. In the State System, student legislative bodies and any committees created by those bodies must be open. Finally, the Community College System has said student governments are subject to the requirements of the Brown Act, the California legislation that guarantees citizens the right to attend and participate in public meetings.
In Washington, a state statute explicitly covers meetings of student associations at a public institution, and the attorney general has ruled this applies to committees as well. Student government representatives who attend a meeting in violation of the state sunshine law can face an individual $100 fine.
“This isn’t some law passed by journalists,” said Cuillier, the Arizona professor and SPJ expert. “This was pushed by the presidents of the university student governments in the ‘70s.”
Washington’s student government openness has stuck because it was the student governments, not the media, who pushed for the legislation, Cuillier said.
In Nevada, the state requires student government meetings to be open. The Board of Regents is required to maintain access regulations for student government, and the University and Community College System of Nevada explicitly state by regulation that student governments must be open.
Eighteen additional states have statutes that require a body receiving public dollars to disclose information and hold meetings in public, arguably including student agencies.
Private schools keep it private
Even in states with strong sunshine laws for student government, students at private schools have very little recourse. “They aren’t willing to air their dirty laundry,” Oxendine said.
SPLC Executive Director Frank LoMonte said that, while in limited situations a private agency can be subject to sunshine law if the agency is performing a function delegated by the state, he “can’t fathom making that case” for a private college’s student government.
However, LoMonte said private school students looking to obtain records may be able to acquire information through non-legal arguments.
“People who run for campus office do have some self interest in keeping in the headlines,” he said. “As a journalist, I would help them understand that when they ran for office, talking to the public is part of what they signed up for.”
Yale Daily News Editor-in-Chief Vivian Yee said her paper has a long-standing good relationship with their student government, even though the private college is not bound by open-records or open-meetings statutes.
“In general they are forthcoming and very willing to work with us,” she said. “I think they understand that it’s important for their initiatives to be aired out in the open.”
She said the Daily News student government beat reporter has regular meetings with the student government president, but still does have trouble getting documents. Recently, the newspaper was rebuffed when seeking information about a survey of student views concerning the ROTC.
“In general it’s a friendly relationship, I wouldn’t say very friendly, but we’re certainly not in a position where they are a source of frustration,” Yee said.
Oxendine said his organization teaches student governments the value of openness and encourages full disclosure regardless of public or private status.
“Whether it’s a law or not, they need to be transparent as possible,” he said. “We are certainly trying to teach that.”
What to do
Oxendine said he thinks the first step in creating a better relationship with the media is getting student governments out of the business of funding the papers. Student governments sometimes dictate the spending of student activities fees, the pot where many school papers draw funds. He said that only opens the way for editorial backlash, and unfair spending cuts. He said papers should strive for independence, or at least a way out of the student government’s change purse.
In the opposite direction, Cuillier said the answer to a lack of openness may be lack of coverage.
“If I were a student paper, I wouldn’t cover [closed student governments],” Cuillier said. “They’re not real. Real governments operate in the open and are accountable. And if they don’t do that, they should be blown off as a playhouse government.”
He said in the past he has advised students of the strategy with great success.
“If the university wants to delegate real authority to the students and give them some power, then these students are accountable to the public,” Cuillier said.
By Caitlin Byrnes, SPLC staff writer