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Legislation

Why Some Public Universities Get to Keep Their Donors Secret

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Why some public universities get to keep their donors secret

by Alexa Capeloto for The Conversation

In April 2018, the public learned that George Mason University had let the Charles Koch Foundation have a say in the hiring and review of faculty. The revelation confirmed long-held suspicions that Virginia’s largest public university was susceptible to pressure from wealthy people who make big donations to a foundation that solely exists to support the school.

The news also raised more questions. For example, how was the school able to conceal the strings-attached gift agreements for years? Do other public universities have similar arrangements, in which donations flow not to them, but to affiliated foundations?

Most importantly, do these foundations give donors a legal right to shape a public institution of higher education without public oversight if they so choose?

As a journalist-turned-professor who researches the tension between privatization and the public’s right to know, I can tell you the vast majority of public colleges and universities have separate foundations that exist to receive and manage their private donations. And unless state lawmakers do more to address the transparency status of these foundations, I’m concerned there are few ways to detect the kind of influence allowed at George Mason.

The George Mason case

Transparent GMU, a student advocacy group formed in 2013, had tried for years to access the Koch agreements under Virginia’s Freedom of Information Act (VFOIA). The group suspected that, like Florida State University, George Mason might be trading academic influence for Koch dollars.

The group’s VFOIA requests were denied on the basis that the George Mason University Foundation possessed the agreement records and, as a private entity, did not have to share them.

Transparent GMU sued the foundation in 2017. The group argued that because the nonprofit accepts, disburses and administers funds for the sole benefit of a public university, it should be subject to VFOIA requests just like the university.

More than a year later, while the case was still pending, the university released the agreements and acknowledged that allowing donors to influence faculty decisions “falls short of the standard of academic independence we should expect in every gift.”

In the wake of the scandal, in May 2019 the university revised its gift acceptance policy. The university now accepts conditions attached to a private donation in writing, which makes them part of the public record. The Charles Koch Foundation also announced that it will now make public all multi-year agreements with colleges and universities.

But Transparent GMU ultimately lost its court challenge. In a unanimous decision that leaves no path for appeal, the Virginia Supreme Court ruled Dec. 12 that as a privately held corporation with its own bylaws, the George Mason University Foundation is not a public body. Therefore, it’s not obligated to disclose records.

State by state

Unless it’s related to the federal government, public information access is regulated state by state under individual Freedom of Information laws. Each state defines in its own way what constitutes a public body, public records and public meetings.

Only Nevada explicitly defines university foundations as governmental entities under its public records act. A handful of other states, including Colorado, Georgia and Minnesota, have laws dictating that foundations disclose certain financial records while still remaining private. In most cases, even in Nevada, donor identities remain confidential.

Virginia’s Freedom of Information Act applies to public agencies, bodies supported wholly or principally by public funds, and entities “of the public body created to perform delegated functions of the public body.”

The state Supreme Court cited the Webster’s dictionary definition of the word “of” in deciding the George Mason foundation wasn’t a product “of” the university, even though it exists to support that school, pays the majority of the president’s salary, operates on campus, is part of the GMU website and staff directory, and is considered a “component unit” in university accounting.

“Had the General Assembly intended the unreserved inclusion of nonprofit foundations, that exist for the primary purpose of supporting public institutions of higher education, as public bodies under VFOIA, it could have so provided, but it has not,” Justice Cleo Powell wrote. “Policy determinations of this nature are peculiarly within the province of the General Assembly, not the judiciary.”

California case

Courts in other states have followed the same logic. In 2001 a California appellate court found that the California State University, Fresno Association, a nonprofit that operates the university’s commercial enterprises, wasn’t a public agency under the state’s Public Records Act (CPRA).

The court looked at the language of the law, weighed it against the spirit of transparency, and saw a puzzling gap.

“We are fully cognizant of the fact that our conclusion seems to be in direct conflict with the express purposes of the CPRA ‘to safeguard the accountability of government to the public,’” Justice Rebecca Wiseman wrote. “The Legislature’s decision to narrowly define the applicability of the CPRA, balanced against its sweeping goal to safeguard the public, leaves us scratching our judicial heads and asking, ‘What was the Legislature thinking?’”

But courts don’t act as super-legislatures to determine the wisdom or propriety of statutes, she continued. “The rewriting of a statute is a legislative, rather than a judicial function, a practice in which we will not engage.”

Ten years later, California passed a law that makes university foundations’ financial records, contracts and correspondence subject to public disclosure. Under the Richard McKee Transparency Act of 2011, donors can remain anonymous unless they receive something in exchange that’s worth more than $2,500 or a no-bid contract within five years of the donation, or if they attempt to influence university curriculum or operations.

Pending in Virginia

Following the George Mason court decision, David Bulova, a Democratic Virginia state delegate from Fairfax County, where the university’s main campus is located, introduced two related bills. Both would preserve the private status of foundations that support public universities while also imposing new transparency requirements on them.

One, introduced Jan. 4, would make the amount, date, purpose and terms of a public-university donation subject to FOIA, and only grant donor anonymity if the donor requests it and does not set conditions related to academic decision-making.

The second proposal follows George Mason University’s lead. It would make universities accept in writing any terms or conditions placed on a donation and then provide that document upon request.

If those bills become law in Virginia, they could serve as good models for legislators in other states. Efforts to define university foundations as public entities usually go nowhere, but states can require more transparency of private organizations that are so clearly enmeshed with public institutions.

The Conversation publishes knowledge-based journalism that is responsible, ethical and supported by evidence from academics and researchers in order to inform public debate with facts, clarity and insight into society’s biggest problems.

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Legislation

Virgina Bans Controversial “Conversion Therapy” for LGBTQ Youth

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Photo by Kristel Hayes

RICHMOND — Young people who identify as lesbian, gay, bisexual, transgender or queer in Virginia now are protected from “conversion therapy,” after Gov. Ralph Northam signed a law banning the practice .

The therapy involves mental-health practitioners trying to get a person to change sexual orientation or gender identity, and it’s been widely discredited. Virginia resident Adam Trimmer, who’s been through the controversial practice, said his therapist told him his sexual orientation was the result of an overbearing mother and a distant father.

Trimmer, who now serves as Virginia ambassador for anti-conversion therapy group Born Perfect, said it almost ruined his relationships with his parents.

“Conversion therapy completely wrecked our family. It wrecked my identity, it wrecked our family, and you don’t want this to happen in your family,” he said. “The issue is not that your child is part of the LGBTQ community. They just need someone to talk to.”

Virginia now is the 20th state — and the first in the South — to outlaw the controversial practice. The ban takes effect July 1.

The conversion-therapy bill is considered a historic breakthrough for LGBTQ Southerners, according to the Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality. She said more than one-third of all LGBTQ Americans live in the South.

“This continues to be the part of the country where discrimination is most enshrined in state law,” she said, “or where we haven’t been able to have the breakthroughs in pro-LGBTQ equality and laws that we’ve seen in other parts of the country.”

Currently, 28 states don’t have any laws that protect the more than 13 million LGBTQ Americans from discrimination. Other landmark rights bills also passed Virginia’s House and Senate, and are on their way to the governor.

The text of the legislation, House Bill 386, is online at lis.virginia.gov, and a Williams Institute LGBTQ fact sheet is at williamsinstitute.law.ucla.edu.

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Environment

House Passes Schiff’s Rim of the Valley Corridor Preservation Act

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WASHINGTON D.C. – Rep. Adam Schiff has applauded the bipartisan passage of The Rim of the Valley Corridor Preservation Act, which would add more than 191,000 acres of the Rim of the Valley Corridor to the Santa Monica Mountains National Recreation Area (SMMNRA). The bill passed the House on a bipartisan basis with 231 Yeas and 183 Nays

Schiff first introduced this legislation in 2017, and Senators Dianne Feinstein and Kamala Harris introduced companion legislation in the Senate. It recently passed out of the Senate Energy and Natural Resources Committee on a bipartisan basis.

To view a map of the proposed expansion under the Rim of the Valley Corridor Preservation Act, click here

“I am thrilled that the House of Representatives has passed the Rim of the Valley Corridor Preservation Act, legislation I have championed for nearly 20 years,” Congressman Schiff said. “Preservation of the open space in our communities is not only good for our environment, wildlife, and ecosystems, but it is beneficial for the health and well-being of residents of all ages. The Rim of the Valley corridor is an area of striking and breathtaking natural beauty, and we must do whatever we can to preserve that beauty for the benefit of LA residents, the millions each year who visit, and for generations to come.”

“Today’s vote in the House is a win for the Rim of the Valley Corridor and the millions of Los Angeles County residents living in the surrounding communities,” said Senator Feinstein. “Preserving this unspoiled terrain will protect sensitive habitat for California wildlife and open space to benefit local economies. I am glad that Congressman Schiff was able to pass it in the House and look forward to doing the same here in the Senate, where it has already advanced out of committee.”

“The Rim of the Valley corridor is home to some of Southern California’s most beautiful wildlife and landscapes,” said Senator Harris. “That is why we must take immediate steps to protect this area’s habitats and natural resources. I am grateful to Congressman Schiff for his leadership on this issue and I applaud the House of Representatives for prioritizing the preservation of this area so it can be enjoyed by future generations. I look forward to working with my colleagues in the Senate to get this bill across the finish line.”

The proposed expansion is based on a six-year study of the region completed by the National Park Service in 2015. This legislation would expand the SMMNRA to include many, but not all, of the land included in the study. The lands included within the expansion will be known as the Rim of the Valley Unit and stretches from the Simi Hills and Santa Susanas to the Verdugos and on to the San Gabriel Mountains. The bill will enable NPS and the local community to better protect natural resources and habitats, and provide members of the community with improved access to nature for recreational and educational purposes.

To view the fact sheet about the legislation, click here.

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City

Significant Funding Announced for LA River Restoration Project

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WASHINGTON, D.C. – Reps. Adam Schiff, Lucille Roybal-Allard, and Jimmy Gomez have applauded the first significant federal funding for the LA River Restoration Project, which will revitalize more than 700 acres of open space along a broad stretch of the Los Angeles River from Griffith Park to downtown Los Angeles.

“The funding announced by the Army Corps of Engineers this week marks an important milestone in the decades-long effort to restore the Los Angeles River to its original natural beauty,” said Rep. Schiff. “I will continue working with the City of Los Angeles and the Corps to build further momentum on this project to revitalize the river’s aquatic ecosystem and provide much-needed green space for all Angelenos.”

“I am delighted that the Army Corps of Engineers’ Fiscal Year 2020 Work Plan provides critical funding to revitalize the LA River,” said Rep. Roybal-Allard. “As a senior member of the Appropriations Committee, I have fought hard to ensure the Army Corps has the funding it needs to move forward with this project, and I will keep up that fight in the years to come as we keep working to restore the river in our Southeast communities.  Restoring the LA River in the Southeast will improve the health and quality of life for families near the river, and provide these neighborhoods with much-needed new green space for recreation.”

“Strong federal investments toward revitalizing the Los Angeles River represent a major victory for our constituents, our city’s diverse communities, and the wildlife whose lives depend on the river’s ecosystem,” said Rep. Gomez. “The Los Angeles River provides us with a unique opportunity to prioritize green spaces for all Angelinos while also strengthening the river’s habitat connectivity. I deeply appreciate the efforts by the Army Corps of Engineers to transform this historic waterway.”

“The L.A. River is an iconic treasure — a place that holds a special place in the history of our city and limitless potential for the future of our communities,” said Los Angeles Mayor Eric Garcetti. “Thanks to the U.S. Army Corps of Engineers, we will have the funding to help our river reach its full potential, restore an incredible natural habitat in the heart of Los Angeles, and connect more Angelenos to this remarkable resource in our own backyard.”

The U.S. Army Corps of Engineers released their Work Plan for Fiscal Year 2020, which includes $1.857 million for preconstruction engineering and design (PED) activities for the Los Angeles River Ecosystem Restoration Project, the first federal funding since FY17 and FY16, when the project received $400,000 and $100,000, respectively, for PED activities.

In April 2019, Schiff, Roybal-Allard, Gomez, and 12 colleagues from the Los Angeles area urged the House Appropriations Committee to provide strong funding for the U.S. Army Corps of Engineers.

In the appropriations legislation that passed in December, Congress increased funding for the Corps by nearly 10% for Fiscal Year 2020—a 50% increase from the President’s budget request. This funding supports the Corps’ important ongoing civil works projects across the nation, including the Los Angeles River Ecosystem Restoration Project.

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