Hall v. McRaven

• Decision Date: 27 January 2017
• Docket Number: NO. 16-0773,16-0773
• Citation: 508 S.W.3d 232
• Parties: Wallace L. HALL, Jr., in His Official Capacity as A Regent for the University of Texas System, Petitioner, v. William H. MCRAVEN, in His Official Capacity as Chancellor for the University of Texas System, Respondent
• Court: Texas Supreme Court

508 S.W.3d 232

Wallace L. HALL, Jr., in His Official Capacity as A Regent for the University of Texas System, Petitioner,

v.William H. MCRAVEN, in His Official Capacity as Chancellor for the University of Texas System, Respondent

NO. 16-0773

Supreme Court of Texas.

Argued January 11, 2017

OPINION DELIVERED: January 27, 2017

Joseph R. Knight, for Wallace L. Hall.

Stephanie Duff-O'Bryan, Kayla Carrick, Amy Warr, Wallace B. Jefferson, Patton G. Lochridge, Richard D. Milvenan, for William H. McRaven

Justice Devine delivered the opinion of the Court.

Wallace Hall, a regent for The University of Texas System, sued the System's Chancellor, William McRaven, for McRaven's refusal to grant Hall complete access to records containing student-admissions information. At the heart of the case are issues central to governance in higher education. Does a university regent have an inherent right to access information? If so, how unfettered is that right? Can an institution invoke federal privacy law, namely the Family Educational Rights and Privacy Act (FERPA), to redact information and limit a regent's quest for complete access? These are important questions, but before a court can reach them, a plaintiff must overcome the state's sovereign immunity. Absent a statutory waiver of immunity by the Legislature, Hall can proceed only if McRaven's actions in redacting the records were ultra vires —without state authority. The courts below held that McRaven's conduct was not ultra vires and that sovereign immunity required dismissal. We agree and affirm.

I

Ultra vires claims depend on the scope of a state official's authority. The natural starting point in this case, therefore, is the governing structure of the UT System. The authority and duties of the leaders of UT come from various sources, each with an increasing level of specificity. First, the Texas Constitution instructs the Legislature to "organize and provide for the maintenance, support and direction of a University of the first class, to be located by a vote of the people of this State, and styled, ‘The University of Texas.’ " TEX. CONST. art. VII, § 10. Acting on that directive, the Legislature established the UT System and vested governing power in a nine-member Board of Regents. TEX. EDUC. CODE § 65.11.

Each regent is appointed by the Governor with the advice and consent of the Senate. Id. The Legislature gave expansive authority to the Board to "govern, operate, support, and maintain" the System. Id. § 65.31(a). The Board must also "provide the policy direction" for each respective institution within the UT System. Id. § 51.352(b) (assigning responsibilities to all governing boards of institutions of higher education in Texas). The Board also bears more specific statutory responsibilities, such as to "set campus admission standards." Id . § 51.352(d)(4).

The Board is not expected to run the entire UT System by itself. Instead, the Legislature authorized the Board to promulgate rules and to use those rules to "delegate a power or duty of the board to a committee, officer, employee, or other agent of the board." Id. § 65.31(c), (g). These rules, the Regents' Rules, have the same force as an "enactment of legislature." Univ. of Hous. v. Barth , 403 S.W.3d 851, 855 (Tex. 2013).

The Legislature also directs the Board to appoint the Chancellor "or other chief executive officer of the system." TEX. EDUC. CODE. § 51.352(d)(2). But the Education Code says little else about the Chancellor's duties, save the following:

Subject to the power and authority of the board, the chief executive officer is responsible for the general management of the university system within the policies of the board and for making recommendations to the board concerning the organization of the university system and the appointment of the chief administrative officer for each component institution within the system.

Id. § 65.16(c). As a result, the specific responsibilities of Chancellor McRaven—which are of utmost importance to this lawsuit—come from the rules and resolutions of the Board, which we consider in the context of this dispute between the System's Chancellor and one of its regents.

II

The underlying dispute began in 2013, when Regent Hall raised concerns about potential improprieties in the admissions process of UT Austin, one of the 15 institutions that comprise the UT System. In response, then-Chancellor Francisco Cigarroa ordered an internal inquiry into the admissions practices. That inquiry revealed a common practice of legislators, alumni, regents, and other influential individuals recommending students for admission to UT Austin outside of the established procedures for submitting such recommendations. These findings spurred Chancellor Cigarroa to commission another investigation into the UT Austin admissions process: an independent, external investigation performed by Kroll Associates, Inc.

In the midst of Kroll's investigation, McRaven took over as Chancellor of the UT System. Kroll then released its findings in a 101-page report. The "Kroll Report" outlined a practice of UT Austin's President—based on recommendations from influential persons—to exercise significant oversight and discretion in the admissions process. Such oversight sometimes resulted in the admission of underqualified students over the objection of admissions officials. While Kroll determined this practice might not be a violation of any existing rules or laws, it did "not appear in UT-Austin's public representations." Chancellor McRaven received the Kroll Report, reviewed its findings, and concluded that disciplinary action was not warranted against the President or any other admissions official.

The findings of the Kroll Report became available to the public. Likewise, the names of those influential persons who wrote letters of recommendation became available to the public in response to requests made under the Texas Public Information Act. But neither the public nor the regents were given access to the hundreds of thousands of pages of documents containing student records that Kroll reviewed in coming to its conclusions. Hall wanted to review those underlying records to, among other things, assess the involvement of specific school officials, identify pressures put on admissions officials, and determine whether Kroll omitted any significant information from the report.

Hall requested access to this information from the Chancellor's office in March 2015, but McRaven resisted the request. Regents' Rule 10801 governs the procedure for dealing with information requests of this type and provides a process for when the Chancellor's "concerns about a Regent's request" remain unresolved. The Univ. of Tex. Sys., Rules and Regulations of the Bd. of Regents ("Regents' Rules"), Rule 10801 § 5.4.5. As of April 2015, Section 5.4.5 provided that,

the matter will be presented to the Board as quickly as possible, but in no event later than 21 days from the date of the receipt of the request. For the purpose of a Board vote on this issue, the vote of any two or more Regents in support of the request is sufficient to direct that the request will be filled without delay.

Id. (Apr. 8, 2015). On April 8, the Board held a meeting under Section 5.4.5. Three regents (including Hall) voted to grant the request. But, importantly, the two regents joining Hall conditioned their votes on the Chancellor's office engaging in a review to determine which information was protected by FERPA.

FERPA is a federal privacy law that withholds federal funding from institutions that have a "policy or practice of permitting the release of education records ... or personally identifiable information." 20 U.S.C. § 1232g(b)(1). FERPA, however, permits the release of these records to "other school officials ... who have been determined by such agency or institution to have legitimate educational interests." Id. § 1232g(b)(1)(A).

At the time of the April vote, no Regents' Rule governed how the Chancellor's office would conduct a FERPA review. However, in the following month, the Board adopted Section 5.4.6 to Regents' Rule 10801, which specifically outlines the Chancellor's role in this review. Regents' Rule 10801 § 5.4.6 (effective May 14, 2015). Section 5.4.6 delegates the following duty:

[T]he Chancellor, in consultation with the U.T. System General Counsel, shall determine whether State or federal law restricts compliance with the request. Accordingly, the Chancellor, in consultation with the U. T. System General Counsel, shall determine whether a Regent may review information that is protected by [FERPA] ....

Id. When the board members adopted Section 5.4.6, they also amended Section 5.4.5 to require a vote of a majority of the Board—not just two regents—to approve an unresolved request for information. Id. § 5.4.5 (effective May 14, 2015).

In the meantime, Hall again requested complete access, providing a list of reasons that he argued gave him a "legitimate educational interest" under FERPA. McRaven refused to provide access to the complete records, while simultaneously proposing a two-step process by which Hall could seek access to specific redacted information. First, the Chancellor's office would redact all information protected by FERPA and other privacy laws. These redactions applied to information such as students' names, grade point averages, social security numbers, and other identifying information. See 20 U.S.C. § 1232g(a)(4)(A) (identifying records which "contain information directly related to a student" as covered by FERPA). Then, if Hall identified specific private information and articulated a specific need, the System's General Counsel could review that request.

Unsatisfied with this proposal, Hall sued McRaven—in his official capacity as Chancellor of the UT System—for continuing to withhold access to the unredacted records. Hall sought a declaratory judgment that McRaven acted ultra vires in refusing to provide the unredacted information. Hall also sought a...