Wallace L. Hall, Jr., in His Official Capacity as a Regent for the University of Texas System v. William H. McRaven, in His Official Capacity as Chancellor for the University of Texas System ( 2017 )

IN THE SUPREME COURT OF TEXAS
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NO . 16-0773
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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
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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JUSTICE GUZMAN , concurring.
Contrary to a well-known aphorism, silence is not always golden.1 Silence has a cost.
Silence allows for injustice, stunts growth, and thwarts change. The case before us today submits
further proof that enlightenment comes from questions, even more than answers.2
Following Regent Wallace L. Hall Jr.’s inquiries about the University of Texas’s admission
1
See Ecclesiastes 3:17 (King James) (“To everything there is a season . . . a time to keep silence, and a time
to speak.”).
2
See Matthew 7:7 (King James) (“Ask, and it shall be given you; seek, and ye shall find; knock, and
it shall be opened unto you.”); W ISD O M FO R TH E S O UL: F IV E M ILLEN N IA OF P RESCRIPTIO N S FO R S PIR ITU AL
H EALIN G 583 (Larry Chang ed., 2006) (“It is not the answer that enlightens, but the question.” (quoting E U GÈNE
I O N ESCO , D ECOU VERTES (1969))); C LAU DE L EVI-S TRAU SS , L E C RU ET LE C U IT [The Raw and the Cooked] 15
(1964), https://monoskop.org/images/3/3a/Levi-Strauss_Claude_Mythologies_1_Le_cru_et_le_cuit.pdf (“Le savant
n’est pas l’homme qui fournit de vraies réponses; c’est celui qui pose les vraies questions.”) (“The wise man
doesn’t give the right answers, he poses the right questions.” (Eng. trans.)).
practices, then-Chancellor Francisco Cigarroa initiated an internal investigation that uncovered
concerns about external influences on admission decisions at UT. Further inquiry and disclosures
prompted the University to commission an independent external audit of admission practices. In
pursuing the matter further, UT’s governing body, the UT System Board of Regents,3 expressed the
conviction that “the integrity of the admissions process at a public university depends upon the
unbiased determination of the appropriate merits of each applicant; that attempts to unduly influence
the process are inappropriate; and that a student should not be advantaged or given special
consideration as a result of . . . connections or financial resources.”4
After an extensive six-month investigation involving several hundred thousand pages of
documents, the independent auditor, Kroll Associates, reported its findings to the University shortly
after Admiral William H. McRaven’s succession as Chancellor of the UT System. According to the
publicly released Kroll Report, a pattern and practice of considering applicants outside the regular
admission process existed at UT, causing “increasing levels of tension” between the Admissions
Office and the University President’s office, but resulting in only a “handful” of applicants being
admitted over the Admissions Office’s objection each year.5 Though an increasing number of
applicants had been considered for admission in this manner, Kroll found that a relatively small
3
See T EX . E D U C . C O D E §§ 51.352, 65.11, 65.31, 67.02.
4
K RO LL A SSO CIATES , F IN AL R EPORT TO THE O FFICE OF THE C HANCELLOR OF THE U NIV ERSITY O F T EXAS S Y STEM ,
at 11 (February 6, 2015) (Kroll Report); see also Kroll Report, App. A, Ex. A (outlining the “scope of work”).
5
Id. at 13.
2
number of “arguably less-qualified applicants” actually benefitted from the practice.6
While no evidence existed that spots had been “save[d]” for certain applicants or that any
applicant had been admitted based on a quid pro quo or other inappropriate promise or exchange,
Kroll determined it was “readily apparent that certain applicants are admitted at the instigation of
the President over the assessment of the Admissions Office,” for a variety of reasons.7 This aspect
of UT’s admission processes had not been publicly disclosed, however.8 Nor had undisclosed
admission practices been divulged during the internal investigation, which Kroll characterized as
constituting “material omissions [that] misled the [internal] inquiry.” In that regard, the report
concluded that key UT officials failed “to speak with the candor and forthrightness expected of
people in their respective positions of trust and leadership.”9
The Kroll Report concludes that, while disconcerting, the admission practices did not violate
any existing law, rule, or policy. Nevertheless, issues of fairness and transparency were implicated
and guidance for University officials was merited.10 Considering a variety of sources for best
practices, Kroll outlined recommended policies and procedures for avoiding undue influence in
university admissions, if the Chancellor and Board of Regents determined that such reforms were
6
“The total number of arguably less-qualified applicants who have benefitted from the hold system and the [UT]
President’s oversight of the hold candidates appears to be relatively small. Indeed, from 2009 to 2014 Kroll identified
a total of only 73 enrolled applicants who were admitted with both a combined SAT score of less than 1100 and a high
school GPA of less than 2.9.” Id.
7
Id. at 13-14.
8
Id. at 14.
9
Id.
10
Id. at 14, 36.
3
necessary.11
In response to the Kroll Report, Chancellor McRaven convened a Blue Ribbon panel of
former chancellors and University presidents to review UT’s admission processes in light of the
Kroll Report’s findings and recommendations. The panel made recommendations for strengthening
the admission process at UT. Thus, prompted by Regent Hall’s inquiries, deficiencies that
threatened to undermine the integrity of the admission process were exposed and addressed.
The upshot is that inquiries can and do spur positive change when those with the power to
act are willing to engage in critical self-examination, as UT’s Chancellor and Board of Regents did
in this case. But does that mean there are no more inquiries to be made? Not in Regent Hall’s view.
And not from the perspective of the two other regents who supported his motion to review the
documents provided to Kroll Associates.12 All have expressed concern that regents must have the
information they need to fulfill their duties and responsibilities to the UT System, including “the
legal responsibilities of a fiduciary in the management of funds under the control of institutions
subject to the board’s control and management.”13 All have questioned whether regents—guardians
of the University’s welfare and reputation—can make informed decisions if they do not have access
to the underlying data and documents on which recommended policies and procedures are based.
11
Id. at 93.
12
Regents Alex M. Cranberg and Brenda Pejovich along with two former board members filed an amicus brief
supporting Hall’s request for unrestricted access to the materials provided to Kroll Associates. These current and former
regents “emphasize that a regent should not have completely unfettered access to data and documents containing
personally identifiable student information,” but explain that the starting point of the analysis must be a presumption of
openness rather than a presumption of confidentiality.
13
T EX . E D U C . C O D E § 51.352.
4
Context is often vitally important, and as the Court observes here, “facts are the greatest ally” in the
quest for change.14 I fully agree.
Yet, the record before the Court reflects that Regent Hall has not been denied access to the
documents Kroll Associates reviewed. Rather, he was offered—and has accepted—access to the
Kroll documents with certain student information redacted, information that is, at least in some
respects, confidential under the Family Educational Rights and Privacy Act (FERPA).15 He has also
been offered—but declined—a process by which to obtain all the information he seeks, a process that
ostensibly balances privacy interests against an assurance of legitimate need. The process reflects
the governing body’s judgment that an individual regent’s interest in a particular matter can
overcome competing privacy rights of students, but not necessarily or automatically.
The Board-adopted two-step process may have afforded Regent Hall access to all the
information necessary to fulfill his obligations as a regent without the necessity of judicial
intervention. But must a University official imbued with broad oversight authority for the UT
System—one who is charged with setting admission standards and subject to criminal sanctions if
confidential information is misused—prove his mettle before obtaining the same degree of access
the Board has allowed to third parties, like Kroll Associates, and myriad UT personnel engaged in
the redaction process?16 Should a regent’s right of access to confidential information be presumed
14
Ante at ___.
15
20 U.S.C. § 1232g.
16
See Tex. Att’y Gen. Op. No. KP–0021 (2015) (opining that the Board of Regents “may not prohibit an
individual regent from obtaining access to records in the possession of the University that are necessary to fulfill his
duties as a regent”); see also ante at ___ (W ILLETT , J., concurring) (citing the Attorney General’s decision with approval).
5
or need it be established when compelling privacy interests are at stake?17
Redressing grievances when rights and duties collide is the bread and butter of the judicial
system, but our ability to decide the merits of this dispute is constrained by the limits of our
jurisdiction. And this is no trifling matter.18 So, while the separate writings issued today may touch
on the merits, the Court cannot, because disposition of this appeal ultimately turns on whether Hall
asserts a valid ultra vires action against Chancellor McRaven. As the court of appeals held, and as
this Court unanimously affirms, the answer to that threshold matter precludes further inquiry into
the merits of the parties’ arguments.
The Court faithfully applies ultra vires principles and our precedent in holding that
Chancellor McRaven, a dedicated public servant committed to honoring the chain of command, was
obliged to follow the Board of Regents’ directives and therefore did not act ultra vires.19 I therefore
fully join the Court’s opinion and judgment. I write separately primarily to underscore that the issues
raised and the applicable legal standards restrict the Court’s ability to reach the merits of the
underlying dispute.
The circumstances of this case also compel me to highlight the importance of judicious
17
“Who will guard the guardians?” J UVENAL, S ATIRE VI 6.346-48, http://www.thelatinlibrary.com/juvenal/6.shtml
(“sed quis custodiet ipsos custodes”).
18
See, e.g., Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W .3d 154, 160 (Tex. 2016) (observing
sovereign and governmental immunity implicate subject-matter jurisdiction) (citing Rusk State Hosp. v. Black, 392
S.W .3d 88, 91 (Tex. 2012)); Greene v. Farmers Ins. Exch., 446 S.W .3d 761, 767 (Tex. 2014) (citing constitutional
advisory-opinion restrictions in deciding not to consider an issue when the Court’s disposition of another issue resolved
the parties’ dispute); Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W .3d 821, 822 (Tex. 2000) (“Under article II, section
1 of the Texas Constitution, courts have no jurisdiction to issue advisory opinions.”).
19
Ante at ___.
6
inquiry, especially considering that the caretakers of the University of Texas—an educational
institute “of the first class”20—are charged with cultivating scholars and future leaders. Although
members of a group must work within rules that provide essential order, the events precipitating the
underlying dispute confirm the benefits of being open to inquiry and examination. History, replete
with examples of great debacles that might have been avoided had someone spoken up, validates the
principle that “[i]t is error only, and not truth, that shrinks from inquiry.”21
___________________________
Eva M. Guzman
Justice
OPINION DELIVERED: January 27, 2017
20
T EX . C ON ST ., art. VII, § 10.
21
T HOMAS P AINE , Letter Addressed to the Addressers on the Late Proclamation, in L IFE AND W RITINGS OF T HOM AS
P AINE 186, 209 (Daniel Edwin Wheeler ed., 1908), https://archive.org/stream/lifewritingsofth05pain#page/n0/mode/2up.
7