|Fall 2009 - Access
XXX, No. 3 - Page 24
Student governments close doors
© 2009 Student Press Law Center
By Brian Stewart
Government officials are no strangers to scandals.
And -- as some Texas college journalists learned -- neither is student government.
After staff at the Daily Texan, the student paper at the University of Texas at Austin, received a leaked e-mail tipping it off to a scandal involving the student government elections board, editors filed an open records request, asking for e-mails between some student government officials.
But the Daily Texan staff quickly and unexpectedly learned another thing about student government: At many universities, it has become a tight-lipped, tightly sealed bureaucracy that is often free from public and media scrutiny.
"There's just this attitude that's incredibly condescending and disrespectful toward the student press," said Leah Finnegan, former editor of the Daily Texan. "We basically were denied over and over again anytime we asked for records."
Frank D. LoMonte, executive director of the Student Press Law Center, said college journalists are more frequently hitting roadblocks when trying to access student government information.
"It certainly seems like student governments are getting more assertive about claiming legal separation from the state," LoMonte said.
Butch Oxendine, executive director of the American Student Government Association, said keeping student government business open to the public is important.
"I think there's an appearance of impropriety when student governments intentionally withhold information that's been requested; it just feeds the reporter's instinct to search," Oxendine said. "To me, you want to be as transparent as you can and that would include e-mails because those are usually part of open records laws."
Editors at the Daily Texan were never given the e-mails they requested, after school officials cited federal student privacy laws. Other student government documents the staff requested were turned over heavily redacted and of little use to the student journalists.
Student governments frequently cite a federal student privacy law when barring access, whether they are shutting reporters out of meetings, denying copies of officers' e-mail records or refusing to turn over information on state-funded activities.
That privacy law, the Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment, has become a keyword for student government officials when denying public records requests, LoMonte said.
When Congress enacted FERPA in 1974 it was intended to protect only students' educational records, LoMonte said. But in recent months, universities have cited FERPA when denying access to a range of records -- from spending reports to recordings of committee meetings at which students spoke. FERPA is not reason enough to close meetings or deny records requests, LoMonte said.
But Finnegan said FERPA was the only reason student government officials cited when denying the Daily Texan's e-mail request this year.
University officials, not student governments, typically determine when FERPA applies to student government records, said Charles Davis, executive director of the National Freedom of Information Coalition.
When student government officials receive a request for public records, they often turn to the university officials or legal counsel for assurance that open government laws do not apply to them, Davis said.
"Rather than, I would argue, do the right thing and say they're a public body just like [universities] are, the university usually rushes to protect them and provide them with cover," Davis said. "[Most student government business] can be made far, far more transparent within the rubric of FERPA and without being violative of FERPA."
Davis said many student governments still attempt to keep much of their business and communication private.
"I find it somewhat humorous how student governments mimic their grown-up mentors almost immediately by taking this combative, secretive approach right off the bat," he said.
Oxendine said student governments "very rarely" receive any training on open records laws. He said educating student government officials on being transparent is a good idea, but noted most student governments have bigger issues like low voter turnout and media relations is often not an important focus.
At schools where there is a daily student newspaper acting as a watchdog, student government officials tend to be more comfortable with transparency because the media pressure is much stronger, Oxendine said.
At the University of Wisconsin at Milwaukee, student government officials refused to release documents about the organization's trip to New York City and attempted to ban reporters from a meeting about student government election violations.
In response, three students asked the state's attorney general in a 147-page presentation to determine whether student governments must abide by open records laws. They researched how open government laws have been applied to "quasi-governmental" bodies like a student government.
"The issue was a really a gray area," said Jonathan Anderson, who wrote the letter as a project with two other students.
Anderson said student journalists were getting "mixed messages" from university officials, who simultaneously claimed the student government was a branch of the institution while maintaining that branch was not subject to open records or open meetings laws.
At many public universities, student governments are responsible for the allocation of student activity fees -- a percentage of students' tuition, which funds campus student groups.
For that reason, LoMonte said student government officials need to operate under open government practices.
"When you take on a student office, potentially spending millions of dollars of public money, you're not acting as a ‘student' anymore," LoMonte said. "The fact that you're registered as a student in classes doesn't make everything you do private."
At the University of Wisconsin's campuses, student governments distribute over $25 million in student fees annually. That alone should require them to abide by the same transparency as any group doling out state funds, Anderson said.
"When you're spending the public's money and you're doing the public's business, that at minimum should be open to public scrutiny aside from anything else," he added. "There were millions of dollars of public money being allocated without any accountability."
And accountability is the key, said Anderson, who was also the editor-in-chief of the student newspaper, the UWM Post, before graduating recently. After battling over records concerning the trip to New York City by several officers, the university turned over some documents, but the Post was ultimately unsuccessful in getting any records from the student government.
Anderson said reporters discovered from the university records that the group had stayed in a luxury hotel, rented private vans, and spent $12,000 of public money. The group also brought another student, who was not a student government member, on the trip, according to interviews and Facebook photos.
Experts agreed student governments should be required to comply with states' open records laws, even though they are "quasi-governmental" bodies.
"Student government elected positions are public officials so it's a little different than a general student who is not a part of this and has not chosen to put him or herself on a public stage," Oxendine said.
As states tackle the issue of whether student governments must operate transparently, Davis said he thinks they will "favor openness time and time again for the fairly simple reason that student governments are agencies of public bodies that dispense taxpayer monies." He said student governments have "all the components" of public governmental agencies based on past legal interpretations.
In addition to spending state money, Anderson said many student governments, including the one at the University of Wisconsin, are involved in the university's policymaking process -- a responsibility Anderson said students have the right to monitor and college media has the duty to cover.
"They're not a student council that plans homecoming; they have these very powerful rights and obligations," Anderson said. "The student media have an important role to play, even an obligation, to cover what student governments are doing because they're really the only ones who do that."
At Montclair State University in Montclair, N.J., the student newspaper's attempts to report on actions by the Student Government Association were hindered by closed sessions, leading the Montclarion to sue the SGA.
The recent lawsuit -- filed by the American Civil Liberties Union of New Jersey on behalf of the paper -- stemmed from a February student government meeting over whether an on-campus Latin-American group would be shut down for violating finance policies. The SGA went into closed session for an hour and later denied to release minutes from the meeting.
In response to the paper's initial request for minutes, university counsel Valerie L. Van Baaren wrote that the student government is not a "public body" under the state's open meetings and public records acts. Therefore, she wrote, SGA minutes are not "government records."
In January 2008, the SGA stopped funding the Montclarion when editors refused to turn over their communication with a lawyer, whom they hired to investigate whether the student government had broken open meetings laws. The dispute prompted Montclair's president to declare the newspaper independent of the SGA in June 2008.
The Montclarion and the student government settled the recent lawsuit out of court, with the SGA agreeing to amend its bylaws to include notification of any closed sessions and to provide minutes of closed sessions to the public.
"We maintained from the beginning that they should be covered under the [New Jersey] Open Public Meetings Act," said Bobby Connor, staff attorney with the ACLU of New Jersey, who represented the Montclarion.
"Students have the right to hold their student government associations accountable. You can't have democracy without transparency."
Anderson said student journalists having trouble obtaining student government documents should pursue any options, including publicizing the issue, asking for legal advice from an organization like the Student Press Law Center or calling on state lawmakers to pass a bill that clarifies student governments' status as a public body.
Ultimately, Anderson said student governments need to be recognized as public bodies of elected officials and should be expected to operate transparently.
"In the real world, the public generally has access to the government's information," he said. "Why not emulate that on a university level?"