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Mandated openness in public higher education: a field study of state sunshine laws and institutional governance.

  A popular government without popular information or the means of
  acquiring it is but a prologue to a farce or a tragedy, or perhaps
  both. Knowledge will forever govern ignorance. And a people who mean
  to be their own Governors must arm themselves with the power which
  knowledge gives.--James Madison (1822)

  Publicity is justly commended as a remedy for social and industrial
  diseases. Sunlight is said to be the best of disinfectants; electric
  light the most efficient policeman.--Justice Louis Brandeis (1914)


Access by citizens to information about their government is a foundational principle of American democratic theory and governance. Yet, it was not until the latter half of the 20th century that the American states moved aggressively to expand public access to information about state governmental activity, which they sought to achieve through adoption of open-meetings and records laws, colloquially known as sunshine laws. (1) At their simplest level, sunshine laws aim for transparency in the decision-making processes of government agencies by requiring the meetings and records of those bodies to be made accessible to citizens.

Utah and Florida initiated the first sunshine laws in the U.S. in 1898 and 1905, respectively. By 1962, 26 states had laws requiring that government meetings and records be open to the public, most of those laws having been adopted within the previous 10-year period, since Florida initiated a comprehensive reform of its statutes in 1954 (Cleveland, 1985). Another wave of statutory revision occurred in the 1970s when, in the wake of the Watergate scandal and similar episodes of political malfeasance at the state level, the media, citizen advocacy groups, and politicians campaigning on "good government" platforms championed sunshine laws as a remedy to government corruption. (2) These reform efforts prompted all remaining states without sunshine laws to enact their first openness measures and inspired many states with existing laws to strengthen their provisions. (3)

Sunshine laws, therefore, are products of public concern over the ways public officials make decisions. Although their specific terms are rooted in distinctive local conditions, each state's laws seek to ensure that the public good rather than private gain is the chief factor in decision making of publicly controlled or funded entities. Over the past century of reform, proponents of legally mandated openness have advocated the laws as a tool for rendering state governments more "accountable" to their citizens. Specifically, proponents claim the laws foster democratic accountability in two ways (Open Meeting, 1962; Sherman, 2000; Yudof, 1983). First, sunshine laws sometimes are viewed as an extension of America's pluralist democratic tradition: The laws provide a check on governmental power by setting the press and public information advocates against governments and their agents. Consequently, proponents argue, the laws help ensure that information and the power that it brings remain diffused and broadly accessible by different interests within society. Second, sunshine laws are viewed as making government officials more accountable to citizens. In a representative democracy, citizens require access to information about their government so that they may make reasoned and informed judgments about the extent to which government adequately represents the interests of citizens. One analyst observed, "the notion of a citizenry's right to self-government necessarily implies a right to gather information from one's government, even when the government resists disclosure" (Yudof, 1983, p. 249). Thus, by compelling disclosure of information, sunshine laws are said to enhance citizens' ability to assess the adequacy of their political representation.

Today, every state has sunshine laws, and in every case, those laws have been applied to public higher education systems and institutions. In the context of higher education, (4) sunshine laws serve a variety of operational goals, including academic honesty, fiscal soundness, financial stewardship, institutional effectiveness and efficiency, and both procedural and outcome equity in decision making. Because of these diverse and encompassing goals, state open-meetings and records laws influence virtually every major area of campus functioning: board deliberation and development, presidential search and selection, personnel policies, research and intellectual property issues, budget decisions and resource allocation, investments and financial holdings, business negotiations and transactions, university-affiliated foundations, and athletics.

Despite the significance of sunshine laws for institutional governance, only a modest literature has accumulated over the past several decades. Moreover, while much has been written about select issues (particularly presidential search and selection), the literature is largely anecdotal or hortatory. Indeed, the laws, and especially their implications for the governance of higher education institutions, have not been examined systematically and comprehensively in nearly 20 years. To be sure, some of the literature of the 1970s and 1980s, the years of increasing universality of sunshine laws in higher education, may be viewed as foundational. For example, using institutional surveys and a series of case studies dating to the early 1980s, McLaughlin and Riesman (1985, 1986) first brought focused attention to the problems associated with conducting presidential searches in the sunshine.

Also particularly noteworthy is the work of Cleveland (1985), who conducted the last national study of sunshine laws and higher education in the early 1980s. Cleveland observed that the laws, when applied to public colleges and universities, pose for society a trilemma. Cleveland meant that mandated openness in higher education creates an inherent tension among three desirable, but often competing, societal objectives: ensuring public accountability, protecting individual privacy rights, and providing institutions the autonomy they need to achieve their public purposes. Cleveland argued that the rationale classically asserted in support of sunshine laws--that is, the "public's right to know"--acknowledges but one of these societal obligations. The protection of individual privacy rights is a second important consideration. A third vexing societal aim, however, involves the special mandate of public higher education institutions. As relatively autonomous institutions possessing formally delegated authority from state legislatures (Yudof, 1983), public universities bear a responsibility to effectively, efficiently, and equitably achieve their manifold societal purposes--purposes that are different and more varied than those of most other state agencies. Sunshine laws, while serving other laudable societal ends, sometimes can interfere with the ability of public colleges and universities to fulfill that mandate. It is the need for balance among these tripartite tensions that makes the application of sunshine laws to public higher education institutions complex and contentious. Yet, with the exception of several thoughtful legal analyses (Estes, 2000; Geevarghese, 1996; Sherman, 2000), scholars have devoted little effort in recent years to systematically exploring these tensions, particularly their relevance for institutional governance.

Examining sunshine laws early in the 21st century is important from several perspectives. At a very broad level, recent controversies in large organizations, such as the debate over transparency in corporate governance, have heightened external scrutiny of public and private institutions throughout American society. In higher education, many emerging conditions are causing policymakers to pay more attention to openness issues: changing fiscal conditions in the states; increasing attention to accountability for public spending; critiques of institutional governance; new electronic technologies; new threats to campus and national security; and, evolving institutional arrangements for funded research, technology transfer, and corporate support. Consequently, in recent years numerous states have revised their open-meetings and records laws as they apply to public colleges and universities. While some of those revisions enhance openness and others detract from it, observers have questioned whether "a retreat from openness" is now underway in public higher education governance (Schmidt, 2001). In this climate, it seems important to explore the laws at the heart of the public compact with higher education, those that promise transparency in the workings of public colleges and universities.

To that end, we report in this article the results of a field study of state sunshine laws that we conducted in 2003. The purpose of our study was to bring a systematic analytic perspective to bear in understanding how stakeholders view the impact of open-meetings and records laws on the governance of public higher education institutions. (5) In the sections that follow, we examine the contemporary landscape of sunshine laws, describe the research design we used to study stakeholders' perceptions of the laws' impact on institutional governance in six states, present 12 key research findings, discuss governance and policy implications of our work, and raise conceptual and empirical questions that might guide future investigation in this important but neglected area.

The Contemporary Landscape of State Sunshine Laws and Higher Education

Despite the meager research base, it is possible to describe broadly the contemporary landscape of state sunshine laws and higher education. In this section, we rely on several important published sources (Cleveland, 1985; Estes, 2000; Geevarghese, 1996; Schwing, 2000; Sherman, 2000) and on a systematic review of recent press coverage of sunshine-related issues (6) to identify legal patterns and major sources of contemporary controversy surrounding the application of the laws to higher education institutions.

Diversity of State Legal Arrangements

Broad national characterizations about sunshine laws hide much differentiation at the state level. Indeed, there is substantial state-by-state variation in the nature of the laws, and that variation holds important implications for the manner in which sunshine laws are applied to public colleges and universities across the nation. For example, in his landmark study nearly two decades ago, Cleveland (1985) developed a "spectrum of openness" that ranked the states based upon 25 characteristics of their sunshine statutes. Cleveland identified a few states, such as Tennessee and Florida, as exhibiting "great openness" under the law; others, such as Pennsylvania, Wyoming, and Mississippi, he labeled, "least open." (7) More recently, in a comprehensive cataloguing of open-meetings statutes, Schwing (2000) identified nine dimensions along which the laws vary. For instance, laws vary from one state to the next in their definitions of public entities subject to open-meetings provisions, in their exemptions for executive sessions, and in the remedies they provide for violations of the law. (8) As with Cleveland's work, Schwing's survey is revealing of the laws' variety.

Because sunshine laws differ from one state to the next, the specific application of those laws to higher education institutions also varies widely across states. (9) Not only does each state have its own organically derived version of sunshine laws affecting educational institutions, but also within states often there is variation by system or sector in the application of the laws to colleges and universities. In a few states, sunshine laws are partly or wholly specific to the system at hand. For example, the flagship universities of California, Michigan, and Minnesota have a form of constitutional autonomy not provided to other four-year and two-year institutions in the same state, and they are therefore exempted from certain legal obligations that are incumbent upon those other institutions. Another form of differentiation may be found in the application of sunshine laws to vocational postsecondary institutions, which sometimes are covered under the laws for K-12 education rather than those for institutions of higher education. Of course, the actual climate of openness depends not only on the letter of the law but also on the context of compliance within a given state. (10) Thus, the distinctive historical, cultural, and political contexts in which sunshine laws are fashioned and enforced in a given state serves as another source of differentiation in the concept and practice of mandated openness in higher education.

Sunshine laws vary across states, but they also have varied over time: Most states have refined their laws over the years since implementation. Indeed, a distinguishing feature of the contemporary landscape of sunshine laws is the frequency with which legislatures debate the laws' amendment. At any given time, sunshine laws reflect the state of public concern about the relative merits of privacy and disclosure in the governance of public-sector institutions. Sunshine laws, therefore, may change as public sentiment changes and as lawmakers reconsider how privacy and disclosure should be weighed in service to broad public interests. Since the mid-1990s, lawmakers have amended sunshine laws, or have seriously debated doing so, in California, Colorado, Georgia, Mississippi, New Jersey, North Carolina, North Dakota, Pennsylvania, Texas, and West Virginia. Public information advocates in some states claim that exemptions carved annually to open-meetings and records laws in their states have gradually eroded the effectiveness of sunshine legislation. (11) In many instances, efforts to weaken or to fortify the laws have provoked contentious debates among state press associations, public advocacy groups, legislators, and, often, the universities that may be affected by changes in openness legislation.

Contemporary Conflicts over Sunshine Laws in Higher Education

Disputes involving higher education institutions have been the catalyst for numerous efforts in recent years to modify sunshine laws. For example, a 1997 controversy between the University of North Carolina (UNC) and the North Carolina Press Association centered on whether the state's sunshine laws should be amended to make confidential the proceedings of faculty and student committees that advised the UNC chancellor, to seal alumni and donor records, and to restrict access to the chancellor's office mail (Kirkpatrick, 1997a). One news account characterized the conflict as having had potential to "unravel 20 years of gains and balance in the laws that govern open meetings and public records" in that state (Kirkpatrick, 1997b).

Overall, the one sunshine-related decision arena in higher education that has generated more conflict, litigation, and editorializing than any other involves presidential search and selection (Estes, 2000; McLaughlin & Riesman, 1985, 1986; Sherman, 2000). High-profile litigation over presidential searches at public colleges and universities is one indication of this arena's critical, contested nature. In recent years, public information disputes over the selection of a new president have resulted in litigation involving Michigan State University, Georgia State University, and the Universities of Kentucky, Michigan, Minnesota, New Mexico, and Washington (McLendon & Hearn, 2006). In addition, sunshine laws have been cited as a major impediment to the hiring of presidents at numerous other institutions (Basinger, 2001; Leatherman, 1993).

Although the issues at stake in the application of sunshine laws to presidential search and selection are complex, the principal dilemma is how best to balance the demand for public accountability with the need of institutions to be able to recruit highly capable leaders. Operationally, campus and state officials perennially contend with the following questions: At what point in the presidential search process should the public have access to the proceedings of search committees? Is the public interest well served when public colleges and universities are required to reveal the names of all applicants and nominees for a presidency, or should only the names of finalists be disclosed? Does the availability of more information always advance the public interest? Or are the potential benefits of attracting capable candidates--benefits alleged to result when searches are conducted with some confidentiality for candidates--sufficiently compelling to warrant restrictions on access to information? Is the public interest well served when institutions employ executive-search firms to assist in the search for a new president?

Occasionally, controversies over presidential search and selection in higher education have inspired change in sunshine statutes. In an analysis of recent changes in sunshine laws, Estes (2000) noted that at least 22 states now permit the nondisclosure of the names of applicants for public employment. Estes found that at least three of those states--Michigan, New Mexico, and Texas--have applied the exemption exclusively to public university presidential searches. In all three cases, legislatures revised their statutes after courts compelled universities to reveal the names of candidates. (12) Estes noted a distinctive pattern across these cases: A university's presidential search attracted litigation from the media in pursuit of greater disclosure of candidate identities; the media initially won their lawsuits; the university appealed to the legislature, arguing that it could not attract presidential candidates of sufficient quality under existing legal constraints; and the legislature then adopted exemptions allowing for greater confidentiality in searches in an effort to address the concerns of higher education officials. Estes concluded that this adversarial process culminating in legislative intervention may be preferable in a representative democracy, writing:
  Perhaps state legislatures are in the best position to judge the value
  of attracting top leadership to their higher educational systems, and
  can balance the desire for total openness with the practical reality
  that such openness will diminish their state's chances of attracting
  top candidates. (p. 509)


Of course, controversies over the application of state open-meetings and records laws to public higher education institutions have involved many other kinds of issues, in addition to presidential search and selection. Disputes over the deliberations of institutional governing boards represent one such area. In some cases, disputes have centered on the extent to which boards have complied with laws known generally to be applicable to their institutions. Several episodes have attracted national media attention, as in the case of Auburn University, which a circuit court judge ruled in 2001 had violated state open-meetings laws at least 39 times during the previous 3-year period (Schmidt, 2001). Sometimes, disputes have involved murky legal questions, such as whether open-meetings and records laws pertain to electronic forms of board communication (Wetzel, 1998), or the extent to which ad hoc decision bodies at sub-board levels within multicampus systems must comply with sunshine provisions (Arnone, 2004b).

Clashes over university-affiliated foundations are another source of steady controversy. University foundations, which now number at least 1,500 across the nation, are independent 501(c)(3) organizations established for the purpose of raising private funds and investing, managing, and dispersing those funds on behalf of host institutions. Since 1980, courts have been asked to decide whether sunshine laws may be applied to foundations affiliated with the University of Louisville (1980 and 2003), West Virginia University (1989), Nicholls College (1989-1990), the University of South Carolina (1990-1991), the University of Toledo (1992), Kentucky State University (1992), Indiana University (1995), and Iowa State University (2003) (Bass, 2004; Geevarghese, 1996). At the center of most of these disputes are knotty questions of how best to balance (a) the need for accountability in the use of funds by taxpayer-supported institutions, (b) the privacy rights of prospective donors, and (c) the autonomy necessary to ensure institutional effectiveness in responding to external financial conditions and pressures.

New conflicts over mandated openness in higher education continue to arise. Very recently, for example, several organizations opposed to affirmative action in college and university admissions announced a nationwide campaign in which state open-record laws would be used to force colleges and universities to divulge aspects of their race-conscious admissions policies--namely, how much weight the institutions give to the race and ethnicity of their applicants (Schmidt, 2004). The leader of one of the organizations, the National Association of Scholars, characterized sunshine laws as an effective "weapon" for promoting transparency by universities that, in his organization's view, have attempted to "hide" the contested data.

In summary, the contemporary landscape of state sunshine laws is one marked by diversity, controversy, constancy, and change. Over time, the laws have come to influence most major dimensions of campus functioning, yet the laws themselves vary both within and across states and over time. The fundamental issues at stake in the debate over openness appear enduring, but open-meetings and records laws continue to evolve, as do society's expectations regarding the laws' purposes and forms. For all of these reasons and others we noted previously, state sunshine laws hold important implications for the governance of public higher education institutions and thus merit closer scrutiny.

Field Study Overview and Research Design

The purpose of our study was to bring a systematic and rigorous analytic perspective to bear in understanding how stakeholders view the impact of state sunshine laws on the governance of public higher education institutions. Because the laws represent a complex social, organizational, and legal phenomenon to which little systematic and rigorous analytical attention previously had been paid, our approach was to rely heavily on field research methods and an eclectic mix of qualitative data (Bogdan & Bicklen, 2002; Lincoln & Guba, 1985). In effect, we sought to learn about the laws and their governance impacts by interviewing individuals who are most familiar with the laws' operation in higher education, and by enriching and cross-validating the interview data with archival information sources. The remainder of the section describes the main elements of our research design: our sample selection strategy, data collection activities, and data analytic procedures.

We should note from the outset that, in many critical respects, our investigation took the form of a rigorous exploratory analysis. We did not begin our study with a narrowly crafted set of research propositions, nor did we seek to build a priori on a particular theoretical perspective, because our central purpose was not that of hypothesis testing or theory elaboration. Rather, given the anecdotal nature of extant literature, our overall aim was to accumulate and compare systematically insights drawn from across a variety of settings in order to establish the range and the robustness of the relationships reported to us (King, Keohane, & Verba, 1992; Yin, 2002).

Sample Selection

The larger aim of our study in turn dictated our logic of sample selection. Although we did not pursue a formal "most different systems design," we did attempt to select states with notable differences along key dimensions of interest so that our conclusions would be sensitive to important contextual distinctions among the states and their higher education systems. Consistent with this key design consideration, we pursued a two-stage sample selection process. First, we carefully selected as study sites six states whose diversity along legal, social, and organizational dimensions would, we reasoned, afford insights into the functioning and the impact of sunshine laws across varying settings. We used seven criteria to guide our selection of the sample: geography; population; higher education enrollment; organizational diversity of higher education (i.e., the mix of institutions by level and control); (13) state governance; state rank on Cleveland's (1985) "openness index"; and state classification on a national survey of how "appropriately" sunshine laws had been applied to higher education. (14) Using these criteria, we chose as our sample California, Florida, Iowa, Massachusetts, Texas, and Washington. Table 1 provides a comparison of the six states along the various dimensions of sample selection. Throughout the sample selection process, we endeavored to ensure diversity and balance along each of the sample dimensions and considered numerous combinations of states before choosing the six ones listed above.

In the second stage of our sample selection strategy, we identified potential informants within each state who were likely to be especially well informed about the application of sunshine laws to colleges and universities. We identified six categories of respondents: (a) members of institutional governing boards, including chairs, vice-chairs, and board secretaries; (b) senior campus and system officials, including chancellors, presidents, provosts, and general counsels; (c) faculty senate leaders; (d) newspaper editors and higher education reporters; (e) state attorneys general and their staff; and (f) state agency officials (15) and legislators. In addition to these state-specific respondents, we also identified various other individuals from across the nation--so-called "national observers"--with first-hand perspective on sunshine laws across a variety of settings. This final category of respondent included leaders of the Washington, DC-based national higher education associations, former presidents whose careers had spanned institutions in different states, executive search firm consultants, and public information advocates. With our initial list of target interviews, we contacted approximately 200 individuals, informing them of our study and our forthcoming site visits and requesting interviews.

Data Collection Activities

Between April and August of 2003, we conducted site visits to the six states in our sample. In each state, we collected documents (e.g., newspaper articles, legislation, and reports) and interviewed key informants. Our semistructured interviews provided an invaluable data source. The focus of these interviews was on learning from individuals with substantial knowledge regarding the application, operation, and impact of open-meetings and records laws in their states. We developed several protocols, each tailored to a different category of respondent, to guide us in conducting the interviews. Although the protocols were differentiated by respondent category, the interview questions contained in Figure 1 reflect the general content of all the protocols. (16) Because a few informants were unavailable at the time of our site visits, we subsequently conducted a number of interviews by telephone. Including both the national and state-specific respondents, we interviewed a total of 92 people for the study. These respondents included 16 board members, 29 senior campus and system officials, 3 faculty senate chairs, 10 members of the media, 15 state agency officials and legislators, 6 members of state attorney-generals offices, and 13 national observers. It is noteworthy that many of our respondents had experience in more than one of the categories mentioned above, and thus held multiple perspectives on openness. For example, one of our media respondents had formerly served on the board of a large research university. Numerous campus officials had served previously in faculty leadership roles, and several board members were former legislators. Most of our interviews lasted from 30 minutes to an hour in length; a small number lasted in excess of two hours. Our interviews were professionally transcribed.

Data Analytic Procedures

We undertook a series of systematic procedures for the coding and analysis of our data (Huberman & Miles, 1994; Miles & Huberman, 1994). First, we merged electronic versions of the interview transcripts into seven separate data files: one file for each state and a seventh file containing the transcripts of interviews with national observers. In total, the electronic data files contained 870 pages of single-spaced text. Working with a third collaborator on the project, a graduate student, we then developed an extensive coding scheme consisting of 97 codes. Of that total, 66 were thematic codes, (17) indicating the impressive number and breadth of topics that emerged in the course of our interviews. For each portion of text in the electronic files, we assigned a series of codes that corresponded to (a) the state in which the interview was conducted (e.g., California, Iowa, etc.); (b) the respondent category (e.g., board members, media officials, etc.); (c) the protocol question asked; and (d) the specific content themes found in that particular section of text. We also developed and assigned codes indicating positive or negative valence, so we could assess the tone with which an interviewee discussed a given topic. For most passages of text, we assigned multiple thematic codes; some passages received five or more such theme-based codes. We performed multiple rounds of coding. In order to ensure high inter-rater reliability, all three coders reviewed one another's transcripts, negotiating discrepancies. In total, these iterative coding procedures permitted us to electronically sort and cross-sort codes and the themes to which the codes were assigned, thereby enabling us to identify patterns in the data that served as the basis for our findings.

Study Limitations

Inevitably, there were limitations to our study. For example, we were unable to interview all of the arguably critical actors in any state. Time, resources, and respondent willingness to participate each posed constraints, and these constraints make us hesitant to suggest conclusions specific to any one state. In particular, the sample was affected by the timing of our data gathering: The spring of 2003 was a difficult period as state and campus leaders struggled to deal with pressing financial challenges. Thus, some actors (e.g., legislators) were not available to speak with us. Still, the interview sample is robust in its size and diversity.

A second potential limitation of our study involved a classic threat to validity common to all forms of social survey research: social desirability bias. In some circumstances, the tendency of respondents to give the socially desirable response (i.e., one that they believe portrays them favorably rather than one that describes what they actually think, believe, or do) can lead to overreporting of what is socially desirable and underreporting of what is not, thus affecting the accuracy of the data obtained (Phillips & Clancy, 1972). The mode of survey administration also may influence the extent to which this kind of measurement error occurs, with face-to-face questionnaires somewhat more susceptible to social desirability bias (Schuman & Converse, 1971).

Because we anticipated that social desirability might attend some of the topics bound to arise over the course of our interviews (e.g., perceptions of institutional legitimacy, compliance with state law, etc.), we took a number of steps to limit as much as was practicable this potential source of bias in our data. For example, we initially conducted a small number of pilot interviews, revising our protocol to account for problematic wording of questions. We developed open-ended interview questions accompanied by a series of prompts with which to probe a particular topic in the event that the interviewer believed he was receiving a "pat" response. We checked self-reports on certain factual questions (ones involving institutional practices, state enforcement procedures, or patterns of litigation in a particular state) against other data sources. We interviewed campus officials who had served at multiple institutions or who were no longer affiliated formally with any higher education institution, reasoning that these individuals might feel less constrained in their responses. Finally, we assured all those whom we interviewed full confidentiality and reminded them that our purpose was one of enhancing understanding of a complex phenomenon rather than making assessments of a particular organization's practices. Although threats to the validity of interview data cannot be neutralized entirely, our respondents seemed comfortable in the interviews and candid in their responses to our questions. (18)

Study Findings

Our analysis revealed a number of consistent themes, as well as some fault lines, or areas of distinct difference of practice or opinion. In this section, we present 12 findings from our study, highlighting areas of consistency and difference in the views of our respondents. Throughout the discussion, we make liberal use of quotations and anecdotes from our interviews in an effort to convey the richness of the views expressed by our respondents.

1. Openness is a Widely and Deeply Shared Value in Public Higher Education

Public records and deliberations may be uncomfortable at times for college and university leaders, and those leaders sometimes seek exceptions from enforced openness, but respondents repeatedly told us that maintaining open meetings and records is essential for ensuring public trust in state-supported colleges and universities. Indeed, we heard no proposals for abolishment of the laws, regardless of whether the state in question had relatively strong or relatively weak sunshine legislation. As might be expected, media officials held the most uniformly positive views of sunshine laws. The media representatives we interviewed tended to view openness not simply as a means to an end but as an end itself. For example, the editor of an urban newspaper commented:
  Anything at all that leads to more openness in higher ed is a good
  thing. And merely the existence of sunshine laws goes a long way
  toward creating a mindset both in the public and in these institutions
  that there is an assumption of openness, and a reminder which many
  people need, that they are working for the public.


Institutional leaders, however, also voiced strong support for the concept and practice of openness in public higher education governance. Repeatedly, institutional officials said that the "public's business deserves to be conducted in public." Often, higher education leaders couched their espoused commitment to openness in broad, philosophical terms. The leader of one institutional system, for example, stressed the democratic underpinnings of openness in public higher education:
  [T]here's this symbolic quality to having your deliberations and your
  votes in public.... That's what you expect legitimate governments to
  do. Illegitimate governments do things in private so that's apart from
  whether you get a better decision, more involvement, more
  accountability. It's the symbolism of saying you know the taxpayers
  pay for this, that we live in a democracy, a republican form of
  government. And the institutions and democracies are supposed to be
  relatively open except under extreme circumstances.


Perhaps not surprisingly, faculty representatives also expressed strong support for openness in public higher education institutions. One faculty leader at a research university commented:
  I think that most of our colleagues on the faculty appreciate that
  they are at a public institution, and consequently, there is this
  certain amount of sunshine that always has to illuminate everything
  that we do. We are actually responsible to the public, you know. Most
  of the faculty here, if they wanted to, could traipse on to a private
  institution and command good salaries and do what they wanted. I think
  they enjoy being here because of that aspect of public education that
  they so cherish: the diversity, the richness, and in many cases, the
  openness, too.


2. Sunshine Laws Are Increasingly Institutionalized as Part of the Fabric of Higher Education Governance

No respondent viewed the laws as a temporary hurdle to be endured and eventually surmounted in his or her state. Sometimes, our questions about reforming the laws were met with responses indicating that the laws were on the books and followed, but that they were not especially prominent matters in day-to-day business; individuals and boards had simply incorporated the requirements into their way of doing business and no longer thought routinely about the matter. For example, a state higher education executive officer stressed:
  It is such a natural part of operations that it is not something that
  you think about on an ongoing basis.... Of all the issues that we
  grapple with, this issue is one that requires very, very, very little
  attention. So it's not something that we spend a lot of time looking
  at or talking about.


A corollary of institutionalization is that most officials accept that there are trade-offs involved in complying with sunshine laws, but that the financial, legal, and political costs of noncompliance far outstrip the potential benefits of evading the law or mounting efforts to overturn the law.

Of course, the fact that the laws are quietly followed and largely taken for granted in many settings does not imply that the laws are neutral and insignificant in their governance implications. Respondents told us of some senior institutional officials ceasing to take notes in meetings because of concerns over possible subsequent open-record requests. Such activity--or deliberate inactivity--may have important implications for institutional memory and, more broadly, for effective governance.

3. Stakeholders Maintain Very Distinct Notions of the "Public Good" as it Relates to Public Information in Higher Education

Although there was a broad consensus among our respondents regarding the importance of openness in public higher education governance, there were also some clear differences in perspective concerning the extent to which the "public good" may be served by unfettered access to information. Citing a societal climate of visible and significant misuse of power by various public and business leaders, media respondents indicated that they were exceedingly reluctant to yield grounds of privacy to colleges and universities. Their experience and values point them toward making few concessions to institutions, an approach they pursue on both philosophical and parochial grounds. Indeed, almost all of our media respondents presented the view that openness is an absolute value and more information about higher education institutions is an unalloyed public good. Consequently, the media typically equate the public good with complete public disclosure about virtually all aspects of campus governance, regardless of the implications for campuses. Commonly, the belief expressed was that the public's full knowledge about the manner in which their tax-supported institutions function ultimately leads to decisions that are made in the best interests of the public. The media representatives we interviewed said that they were sometimes sympathetic to the concerns of higher education officials but never willing to concede the public's (and their own) fundamental right to information. Referring to the argument that the public is best served when interests in openness are balanced by legally permitted exemptions in certain circumstances, an editor said:
  There are very few exemptions that I think are appropriate, frankly,
  and if the test is ... what level of restrictiveness or openness of
  government decision making leads to the best policy--my belief is that
  the more open the decision making, the better the public policy.... I
  think every scrap of information that is revealed about almost
  anything is beneficial.


In contrast, institutional leaders tended to view the public good in multifaceted form--individual privacy rights and institutional needs for discretion in disclosure sometimes outweigh blanket accession to media demands for openness. These leaders asserted that sunshine laws are a tool of accountability, but that if the tool is used bluntly and without regard to special circumstances, then the public good, which includes having institutions capable of making well-informed decisions, is undermined. Perhaps the clearest statement in opposition to the argument for blanket openness came from the former president of a major university system:
  These advocates of complete openness say subjecting our institutions
  to complete openness is beneficial, but in fact it compromised the
  public good because many other noble goals of equal value are
  comprised, are sacrificed, such as lowering the quality of board
  discussion and debate, lessening the quality of institutional
  leadership, reducing the number of public servants who will serve on
  boards.


Some campus officials bluntly asserted that the interests of the press and society are "very often distinct," meaning that the kinds of stories written about the workings of public colleges and universities sometimes appear to serve a narrow parochial interest in news that sells, rather than an enlightened public interest in well-balanced, accurate, and substantive news reporting. The ambiguities of the "public good" question, perhaps, were best captured in the plainspoken terms of a veteran board member for a major university system:
  I've sat there biting my teeth in a public meeting while some faculty
  person, [expressing] their rights under our bylaws and our rules and
  the Sunshine Meeting [law], beat the crap out of us. Okay? You don't
  think the press is going to write my answer at the end of the meeting
  or write the positive outcomes, because [for] the press, good news is
  never news. It's bad news that's news. We've had [reporters] come in
  and march in our room and stand there [along] the wall on a tough
  issue. But that's democracy. That part never bothered me.... Those
  parts, I think, are the good parts about the Sunshine Meeting law.
  People get to confront the Board of Trustees.


Thus, whether the public good is sometimes better served by shade rather than sunshine was a point of contention among the media and campus officials we interviewed.

4. Journalistic Culture and Institutional Culture Can Collide around Sunshine Issues, but Both Media and Campus Officials Indicate They Work Hard to Avoid Conflict over Public Information Issues

A number of tensions exist between these primary parties (i.e., journalists and campus officials) to sunshine issues in higher education. The arenas use different languages, base their work on differing assumptions, and ascribe to different values. For example, journalists' conceptions of timeliness and effectiveness differ markedly from those of faculty and staff in higher education. To put it colloquially, the two camps operate on different clocks. While faculty, staff, and many leaders on campus tend to see effectiveness lying in taking however long it takes to do something right, journalists tend to view effectiveness as very closely related to speed. Accuracy is important in both cultures, of course, but accuracy achieved at severe cost to timeliness is less valued in corporate-based print and broadcast journalism. These differences lead to complaints about the impatience of journalists and the inefficiency of institutions.

The imagery used by our respondents in characterizing these differences in perspective was sometimes dramatic. For example, higher education officials repeatedly told us that journalists tend to view openness in "religious terms." A state official in Florida, whose sunshine statutes have long been viewed by public information advocates in other states as the model of openness, observed:
  I will put it in religious terms, and I'm really not stretching it.
  [If we argue for closed meetings,] we basically come out speaking
  against someone's religion and the religion that we are speaking
  against is the religion of the media, particularly the print media.


In turn, journalists commonly employed "ivory-tower" imagery in describing the insularity of campuses and the insensitivity of many campus officials to the legitimate roles and responsibilities of the media. The editor of a city newspaper put it this way:
  [Institutions] are insulated. They have always been and they always
  will be. And even the public institutions see themselves in an almost
  cocoon-like environment. And so, their natural tendency is not to
  accept the fact that they are state employees and that they are
  subject to the same kind of rules and regulations and discovery
  procedures as clerks and secretaries. So, [compared to covering other
  public organizations] it's been more of an uphill ride ... with higher
  ed.


As some of these quotations suggest, cultural differences between the media and public higher education institutions do exist, and these differences sometimes contribute to mistrust between the parties. Yet, that mistrust is not as pronounced as many might believe, and reporters who regularly cover higher education told us of generally good working relationships with many administrators. Although a popular stereotype may be that of institutions reluctant to engage the media and of media eager to sue institutions, both parties in every state we visited said that they work hard at developing productive day-to-day working relationships and that, when tensions over openness arise, they prefer negotiation to litigation.

5. The Specific Applications of Sunshine Laws Are Not Always Well Understood among Stakeholders

It is perhaps not surprising that the general public lacks a detailed understanding of sunshine laws. It is surprising, however, that even at the highest levels of campus and system governance, respondents in every state told us that the precise application of sunshine laws to a given situation is often ambiguous. One board secretary who also is an attorney said:
  The exceptions are very confusing.... And I think even people who want
  to comply and want to understand the law, unless you read it and
  reread it often, unless you keep up with every single opinion from the
  Attorney General that comes out, you've really run the risk of not
  being up to date.


Of course, any legal context creates room for differences of interpretation, and sunshine laws are no exception. At the same time, though, there appears to be a notable zone of misunderstanding, indifference, or inattention surrounding the details of openness requirements in some states, systems, and institutions. Board members say their boards are trying hard to comply but often are deeply concerned about the difficulties of holding to both the letter and spirit of the laws. Particularly problematic is the fluid nature of state legal and political environments: Legislatures frequently amend their public information laws; courts periodically reinterpret the laws; and a transition from one attorney general to the next may change subtly or dramatically the state's monitoring, interpretation, or enforcement of its laws. These changes can breed uncertainty about decision processes and can create legal liabilities for campuses.

6. The "Weaponization" of Sunshine Laws Concerns Many Higher Education Leaders

In every state, officials expressed concern about the "guerilla tactics" used by "cranks," "gadflies," the "disaffected," and others "with an axe to grind" or bearing "political grudges." One campus official commented that reporters sometimes use the laws "as an act of intimidation," but generally, those who use the laws as weapons are not affiliated with the mainstream media. For example, the lone citizen, aggrieved at an institution or an individual, may use the laws to bog down an institution in myriad records requests. "Weaponizing," the arguably excessive use of the laws by disaffected individuals in the general public or on campus, also can include use of the laws by commercial interests to gain a proprietary advantage over competitors, by parties involved in collective bargaining to gain an upper hand in negotiations with campus officials, and by parties involved in litigation as a way to circumvent legal "discovery" rules. An official in one state attorney general's office commented on the problem of weaponization:
  The people who use it the most often don't have the best motive or
  don't have the motive that the law envisioned. We hardly ever have a
  member of the public who comes forward in an honorable way and says,
  "I'm just curious about how you run your affairs." Maybe once in a
  blue moon. It's always just somebody who's just using it for a purpose
  that isn't public or that is more personal than public.


The inappropriate use of sunshine laws can cause substantial financial and legal costs for institutions. Weaponizers may employ public records laws to force institutions to expend staff and financial resources at particularly inopportune times, such as at the end of a budget year or in the midst of legislative hearings on university funding. Similarly, at pivotal times in a negotiating process, unions may sue universities to tie the hands of officials, consume institutional resources of institutions, and create a public impression of institutional impropriety (e.g., why would the university have been sued if there were nothing to hide?). Institutions sometimes have become entangled in larger political squabbles when partisans sue institutions for records in an attempt to bring suspicion to a candidate's campaign. A favorite tactic among weaponizers is volume. One university system attorney we interviewed said:
  [Sunshine laws] can be used and abused by people who really aren't
  trying to advance any public policy or accountability. They're just
  trying to lay a beating on the agency, and this is a pretty way to do
  it. You know, you put a stamp on something and send it to the agency
  and 300 hours of staff time just goes down the drain.


7. The Costs of Compliance Are Substantial for Many Institutions

The weaponizing issue brings up the broader issue of costs: Setting up human, legal, and organizational systems for responding to queries from the media and the public under sunshine laws can be expensive, especially in states with complex, large, and highly visible state institutions. Appealing to judicial authorities for clarification of an institution's legal duty presents additional financial burdens, both for the institution and for the state. Thus, sunshine laws can require sizable ongoing allocations. Yet the risks of noncompliance are simply too great for institutions to do otherwise. Penalties for noncompliance under the laws are far too steep in financial, legal, political, or stature terms for a university or a system to downplay or ignore, and legal staff increasingly are at the side of presidents and chancellors. Attorneys we interviewed described such investments as largely defensive measures, and as such, they raise the question of whether the funding could be better spent in other domains if the possible judgments against institutions and systems were not so painful.

In the arena of public records requests, a single request can consume vast amounts of time and resources, respondents in every state told us. (19) The general counsel of one large multicampus system raised the possibility of an individual or group requesting hundreds of thousands of e-mail messages, thereby forcing major disruption in the day-to-day business of institutions and systems. Among other examples noted for us was an institution being asked for a record of every meeting of the president over the past 3 years, a request with which the institution was obliged to comply. Redacting a president's calendar so as to ensure protection of individual privacy interests (e.g., a student disciplinary meeting the president may have attended) can be exceedingly time consuming and risky, in terms of the institution's liability. Some institutions have been subjected to what are arguably "fishing expeditions," in which huge swathes of information are requested in the hopes that a suspicious shred of something may be found. Summing up the problem, the general counsel for a large institution commented:
  It's really burdensome to comply with the public records act.... Even
  a relatively routine request that is asking only for disclosable
  information puts a burden on the department that owns those records to
  pull them together, to make copies, to review the records to make sure
  there's nothing privileged, to coordinate with the campus coordinator
  and possibly the campus legal counsel, and possibly the Office of
  General Counsel. The timeframe is pretty quick. The initial response
  is due within ten days of receiving the request. And I can tell you,
  nothing happens at the university within ten days.


The situation prompted one chief legal officer to gallows humor, saying, "[S]even people fully exercising their rights under the California public records act could shut the university down."

8. Although Campus Officials Agree that Much Good Has Come from Efforts to Make Governing Boards More Open to Inspection by the Public, Sunshine Laws May Impair Board Effectiveness in Several Ways

At its highest level, governance in higher education involves deliberations among members of institutional governing boards, and it is at this level that the most critical decisions regarding resources, personnel, and strategies are made. By all accounts, state openness laws have had a pervasive impact on the manner in which boards perform their duties. The campus officials we interviewed pointed to the routines, processes, and practices boards have developed over the years to accommodate openness requirements as one measure of the laws' impact.

Respondents tended to agree that much good has come from efforts to make governing boards more open to inspection by the public. Board members told us they believed their institutions would lose much of the broad public support they currently enjoy were governing boards permitted to close themselves off from public scrutiny, a view echoed by media officials and other public information advocates. A few institution officials even claimed that sunshine laws had improved the performance of their boards by exposing them to "the real world."

Yet institutional leaders also expressed concern about the negative impacts that sunshine laws can have on board performance and effectiveness. Their concern centered mainly on the areas of board deliberation and internal communication. With respect to board deliberation, campus officials told us that sunshine laws sometimes create uncomfortable climates for board discussion to the extent that board members are reluctant to discuss controversial issues in public. This reluctance is said to stem from a concern that comments made publicly may be misrepresented by the media. As a result, respondents told us, boards often only skim the surface of controversial issues in public, thus reducing deliberations to superficial exchanges. Indeed, several presidents and board members we interviewed characterized the quality of deliberation by their boards as "sugar coated" or "fluff," and attributed this condition in large measure to the requirements of state sunshine laws. One board member told us:
  There are times ... when you'd love to be able to have a meeting so
  you could get a free-thinking conversation going, get the best
  thoughts and get the passionate thoughts of your Board members, and
  maybe some of your leadership that's in the room with you. And
  everyone is choosing their words.... I think that's what you miss
  [with sunshine laws].


Likewise, a university president made the following stark characterization about the discussion of controversial issues that had come before his board:
  It's impossible to have a frank discussion in a board meeting. All
  frank discussions go to subquorum gatherings of Regents, so there's
  not a possibility of actually all of them airing the same argument at
  the same time in any setting. They are simply not willing to discuss
  the pros and cons of any controversial subject in open session. That's
  pure and simple truth.


Numerous informants also said boards sometimes bypass deliberation of issues deemed too controversial for public discussion, ones holding risk of embarrassment for individuals or institutions. One board member said:
  A lot of times, it would be great to talk about the effectiveness of a
  department, the effectiveness of a college, without ruining the
  reputation of that college on that campus.... But okay, have you ever
  seen a discussion on that at a public Board meeting?


These comments indicate that what is not on the agenda can be as important as what is, and many issues simply are left off the agenda. Consequently, nondiscussions sometimes may result in nondecisions, and may constitute a failure on the part of boards to take needed action.

Respondents also expressed concerns about the impact of sunshine laws on board communication, particularly in the area of "board learning." Many institutional leaders told us that board members, especially new ones, need to be able to learn outside of the public eye, where they may feel free to ask whatever questions come to mind and to seek information on issues about which they know little. As several respondents phrased it, board members need a place where they may ask "dumb questions" without fear of public embarrassment. Yet by their nature, sunshine laws often preclude such opportunities. In the words of a university president:
  What really is the problem with the sunshine law is, [they don't]
  recognize that Regents have to learn, and [they don't] provide for
  that learning in any sense. People have to work through difficult
  problems without feeling that they're under television cameras, and I
  literally mean television cameras, when they're trying to find their
  way through a difficult issue. So, they find themselves either not
  asking questions they should because of the setting, or posturing
  because they each have political constituencies that they have to play
  to.


Some trustees said their inability to ask questions without fear of "appearing stupid in public" had suppressed creative thinking and diminished the likelihood of their boards discussing novel ideas. One board member colorfully captured the sentiment expressed by many fellow respondents during the course of our interviews:
  Open sessions often stifle creative thinking.... [T]here isn't as much
  give and take as could be because a Trustee might think, "Well, this
  might be a crazy idea. It might be worth discussing, but if it isn't,
  I don't want to look like an ass."


A university president offered the following frank assessment of the impact of sunshine laws on his board: "The way I'd summarize it is, I don't think the public knows any more, and I think the regents know less than they did before [the advent of the laws]."

We were told of another adverse outcome of the laws as they relate to board communication: shifting patterns of influence within boards. Respondents in several states said that sunshine laws over time, ironically, had strengthened the role of the board chair and the president. Before the laws became pervasive, chairs often could expect frank discussions at meetings pointing to an undetermined outcome; now chairs feel the need to have differences reconciled prior to meetings. Moreover, because of the restrictions in some states on group deliberation at the sub-quorum level, discussion now often occurs increasingly in one-on-one conversations between the chair and individual members of the board, with the chair at the center of activity. Hence, chairs have been significantly empowered because only they may be well situated to obtain rich knowledge about the views and concerns of other board members. Presidents likewise have seen their influence increase as a result of mandated openness, according to our interviews. Because they often play the role of intermediary, relaying information and shuttling messages between board members who may be prohibited under law from speaking directly to one another except in meetings that are publicly posted, presidents in some settings have become increasingly influential (if somewhat invisible) facilitators of internal board communication.

These shifting patterns of influence within boards are said to have undermined board effectiveness in several ways. What may be lost in "filtered" discussions is the ability of board members to speak for themselves, rather than relying on intermediaries. Respondents also cited factionalism as a consequence of shifting influence patterns; restrictions in some states against board members being able to discuss substantive issues without public notice sometimes has led to the splintering of boards into factions or voting blocks. Because group communication is infrequent, and because board members may have quite limited knowledge of the one-on-one conversations that take place between individual members, a minority of organized members in a closed system can exert disproportionate control over the majority.

9. While there is a Broad Consensus that Presidents Should Be Selected with Substantial Input from the Public, Respondents also Expressed Deep Concern about the Drawbacks Associated with Conducting Presidential Searches in the Public Eye

Virtually all of our respondents said that the high visibility and sheer importance of the job of a college or university president are too great for the selection of a president to be closed off from public view. Most stakeholders indicated that they believe the public is entitled to information about the state of a presidential search, should be able to review and comment on candidates, and should have access to the deliberations of search committees. In essence, we found broad consensus for meaningful public involvement in the search for and selection of new college and university presidents.

Our interviews also revealed, however, substantial concern that sunshine laws often impede boards from conducting effective presidential searches. The foremost criticism is that the laws tend to have a "chilling effect" upon searches, diluting both the quality and the quantity of applicants for the position of president. Most of the senior campus leaders and even some of the media officials we interviewed said sunshine laws can create a bias in the outcomes of presidential searches towards candidates currently at lower-level positions--what we call the "no lateral moves" hypothesis. Virtually all of the university chief executives and board members we interviewed said sunshine laws greatly reduce the likelihood of sitting presidents applying for openings at peer institutions. They told us that sitting presidents are unwilling generally to become candidates at peer institutions because public exposure of their candidacy could compromise the backing of the board and core constituencies at their current institutions. With this risk in mind, sitting presidents avoid pursuing presidencies in like institutions, opening the field to second-level administrators (e.g., provosts) at comparable institutions, or to presidents of less prestigious ones. In the words of one president:
  The problem is that it's impossible for a sitting president to be
  involved in an [open search] process like that, absolutely impossible.
  So what it does is, it changes your candidates to a pool of
  provosts.... [P]eople who can afford to do it are provosts. It means
  that you can't look at sitting presidents unless they are making an
  obvious step up, somehow, in their career, or they've already
  announced they're leaving somewhere else.


Respondents told us that the length of time that candidates are exposed to public scrutiny also influences the likelihood that highly qualified individuals will become candidates in presidential searches. Many said that sunshine laws, although necessary in principle, discourage well-qualified individuals from applying for openings because the laws expose candidates too early in the search process. According to these respondents, the vexing issue in presidential search and selection in public higher education is not whether to provide citizens with access and information about search processes, but when to provide it. Despite the diversity of practices across our sample of states, most of our interviewees favored confidentiality in the early stages of a search, but broad public participation in the later stages, upon the announcement of finalists.

Our respondents differed, however, in their assessments of the long-term impact of the "no lateral moves" phenomenon on the performance of public higher education institutions. Some board members, presidents, and other senior campus officials voiced grave concern. They contended that, over time, sunshine laws have systematically disadvantaged public colleges and universities in their competition with private ones for a small number of especially well-qualified leaders, leading to diminished effectiveness at both the campus and sector-wide levels. For example, one long-time board member offered this bleak assessment:
  Absolutely, there's a diminishment of the quality and demonstrated
  [capabilities] of the applicant pool. My own view is, running public
  universities is a very, very difficult task. And people who are
  capable of so doing are a rare breed. And for public universities to
  disadvantage themselves as compared to private universities in the
  attempt to identify, recruit, and hire such scarce talent is one of
  the factors, not the only, but one of the predominant factors that
  [has] led to the comparative deterioration of the quality of public
  universities, as compared with private ones, over the last forty
  years.


Media representatives, by contrast, flatly rejected the assertion that sunshine laws have burdened public colleges and universities with substandard leadership. While some members of the press conceded that institutions have undoubtedly lost some exceptional candidates due to openness requirements, they said they have seen little evidence that such losses have permanently injured either individual institutions or the larger sector of public higher education. One newspaper editor wryly observed:
  You know, this contention, that making candidate lists public scares
  off the best candidates, has been around for as long as I have been
  asking reporters to go get the candidate list so that we can look at
  it. And I'm sure it has scared off some [candidates]. But has that
  meant that the institutions have ended up with second-class leaders?
  I'm not sure it really has.


It is worthwhile noting that the evidence is inconclusive regarding any long-term damage that may have resulted from the application of sunshine laws to presidential search processes in public higher education. Our study provided no hard empirical evidence of poorer or stronger presidencies now than in the past. Some institutions in states with strong sunshine laws have had extraordinary presidencies, and some institutions in states with weak laws have had highly problematic ones. What is more, our interviews revealed a subtle paradox in the views of some critics: Several campus leaders claimed they were satisfied with the outcome of presidential searches at their own institution that had been conducted in the sunshine, but asserted that openness surely had diminished candidate pools elsewhere. Still, in spite of this seeming inconsistency and the lack of incontrovertible evidence generally, we were impressed by the fact that so many of our informants, especially those who themselves had been candidates, perceived the impact of the laws on presidential search processes in such starkly negative terms.

10. University-Affiliated Foundations Represent a Rich Source of Contemporary Debate, Litigation, and Concern over the Application of Sunshine Laws to Public Higher Education Institutions

Although, as compared with a decade ago, some courts appear more likely today to affirm the legally independent status of university foundations (Geevarghese, 1996; Roha, 2000), our interviews revealed both lingering and emerging conflicts over the openness of foundations. Indeed, many of our respondents characterized university foundations as among the most contentious sunshine-related issues campuses currently face. Much of this controversy stems from the increasing dependence of cash-strapped public universities on foundations as sources of private revenue, a development that has led public information advocates to continue pressing university-affiliated foundations for access to foundation meetings and records.

Residing at the heart of most disputes over the application of public information laws to university foundations is the question of how best to balance the individual privacy rights of donors and research funders against the public's interest in accounting for funds used by publicly owned and operated institutions. Although foundations have become major conduits for, and sources of controversy involving, sponsored research, the concerns cited most frequently by our respondents were ones relating to donor confidentiality. Institution officials said they seek to protect the anonymity of donors because donors often do not want their identities revealed and that forced disclosure would breech donors' privacy rights, thus harming institutional fundraising efforts. Institution officials also expressed concern that, if publicly disclosed, donors' identities could become the basis for journalistic exposes that might bring personal embarrassment to those individuals, as happened in the well-publicized case from the early 1990s involving the University of Toledo Foundation (Nicklin, 1997). One university official said:
  I think that's probably one of the main problems, [from] the
  perspective of the foundations: There are donors who want to keep
  things secret ... because they believe it's their own money and
  there's no taxpayer money involved here. I'm sure people from the
  media would tell you they see it differently.


In fact, members of the press apparently do view the issue in quite different terms. Most press officials we interviewed asserted that the need for accountability in the use of funds that support public higher education institutions--whatever their source--outweighs blanket concerns about donor confidentiality. To illustrate the merits of this stance, one veteran print journalist recounted a bruising conflict between his newspaper and foundation officials affiliated with a local university. Although sympathetic to the motivations of donors who may wish to remain anonymous, the reporter commented:
  We had a big, extended fight ... over disclosure of donors. [The
  university] accepts anonymous donations, given by people for the best
  of reasons. And those people desire anonymity for reasons that we
  don't know because they're anonymous. They may be the best of reasons;
  they may not.... [T]echnically the money could've been coming from the
  American Nazi Party or some other thing or institution that would've
  created a considerable amount of [public] interest.


The fact that some state legislatures recently have crafted new exemptions enhancing the confidentiality of foundation activities (e.g., Florida, Ohio), while other legislatures have crafted measures limiting confidentiality (e.g., Kentucky, Iowa), indicates that this particular arena remains dynamic and very likely will continue serving as a flashpoint of controversy over sunshine-related issues.

11. Emerging Communications Technologies Have Created New Ambiguities and Sources of Strain in the Debate over Public Access to Information and Decision Making within Public Colleges and Universities

In all of the states we visited, the spread of e-mail, teleconferencing, videoconferencing, and other sophisticated communication media are presenting complex legal and policy dilemmas for higher education institutions and their leaders by blurring the meaning of what constitutes a "meeting," a "record," or a "deliberation" for purposes of determining the applicability of sunshine laws. Because state law sometimes is vague on the question of the extent to which electronic forms of communication are subject to public disclosure provisions, institutional officials often must make fine-grained distinctions about what constitutes an electronic "deliberation" in the absence of clear legal guidelines or precedent.

An example in one of the states we visited arose over whether sunshine laws should apply to an e-mail message that was forwarded from one member of a university board to another, until a majority had responded. Does electronic communication between individual board members qualify as disclosable information if that communication is forwarded from one member to the next until all members of the board have been involved? If so, where precisely does mere electronic discussion of issues end and deliberation begin? If the deliberation standard that is used in many states to determine the applicability of public disclosure laws does not apply in such cases, then how does e-mail communication differ from the so-called "serial meeting" (illegal in some states) where, in an effort to avoid attaining quorum, one board member will telephone a second member, and the second will telephone a third, and so on, until all board members have "discussed" a particular issue? In many places, the law is underdeveloped with respect to these kinds of questions, with the result that, when confronted with ambiguity, boards and campus officials have had to rely on best-guess approaches that proved publicly embarrassing when they guessed wrong.

Significantly, campus officials also expressed concern about their colleagues' increasing reluctance to record or exchange electronically novel or provocative ideas for fear those records could be obtained through public information laws. Reinforcing these concerns in some states are recent episodes in which records requests were made for the e-mail database of an entire campus or for the e-mail accounts of certain administrators. Our respondents viewed these trends as serious threats to creative problem solving by campus administrators.

12. Finally, Campus Security Issues Present Distinctively New Challenges in the Context of State Sunshine Laws and the Public's Right to Know

Institution officials told us they are responding to heightened security concerns on their campuses in a variety of new ways, notably though the installation of cameras and other electronic devices for monitoring activity on campus grounds. Yet in some cases, these actions have prompted legal counteraction under state open-meetings and records laws. For example, a student newspaper recently sued officials at the University of Texas at Austin to obtain information about the placement of security cameras on and around that campus. The university sought an opinion from the state attorney general, whose office counseled the university that such information is subject to public disclosure: Because the university is not a police agency, it cannot keep such information private, even though doing so might allow criminals to avoid detection (Young, 2003).

As this example implies, institutional officials are deeply concerned about how best to ensure the security of their campuses, while avoiding running afoul of state openness requirements. Indeed, campus officials in all six states we visited told us they worry that their institutions could be compelled, under sunshine laws, to reveal the location and scanning patterns of security cameras, the routines of police patrols, the blueprints of research laboratories, or the procedures for campus evacuation (for example, in the case of a bomb threat). One university attorney described to us certain security-related information requests for which he was unsure of his institution's obligation under state law:
  How do you treat a request for purchasing records for the security
  system put on a laboratory? Let's say you have a [sensitive]
  laboratory ... and I, as a public do-gooder, go to the purchasing
  folks and say, "I want to know what kind of security system you
  purchased for laboratory 4850 in Jones Hall." Now, in general, you
  don't find in state laws an exception for something like that.


While many respondents characterized as insufficient the attention their states had paid to issues involving openness and campus security, officials in other states reported that, increasingly, statutory exemptions are being crafted to address security concerns. Indeed, some officials told us that state attorneys and system officials had encouraged them to rely on these exemptions "when in doubt" about the nature of a records request that might have implications for campus security. This development, in turn, raises important questions about how such exemptions should be crafted so that, in protecting campuses, public access to other legitimate (i.e., nonendangering) forms of information itself does not become imperiled.

Conclusions and Implications for Future Research

All of the states in the union have had at least three decades of experience with legally mandated openness in their public-sector institutions, including public higher education institutions. Although the laws generate public controversy, attract widespread journalistic coverage, and hold important implications both for public colleges and universities and for the public good, researchers have paid scant systematic attention to them. We undertook this multistate study in an effort to develop a better understanding of sunshine-related phenomena, particularly the nature and scope of the laws' impact on the governance of public higher education institutions.

From our field research in the six states emerges a general picture of stakeholder views. In some ways, those views defy conventional wisdom. For instance, there is no evidence of declining openness in higher education, and no evidence of outright revolt against sunshine laws. The media do not evince "devil theories" regarding higher education, and board members and presidents voice respect for the media's roles and responsibilities. The laws are widely viewed as an accepted and largely healthy element in the institutionalized structure of campus relations with external bodies. Though sometimes these laws are perceived as time-consuming and a hindrance to quick action, we detected substantial consensus in the belief that, on average, the benefits of mandated openness outweigh the costs. Indeed, many respondents were impressively eloquent and passionate in expressing their commitment to openness both in principle and in practice. (20)

Yet most of our respondents told us that openness must be sought simultaneously with other values that arguably are equally important--particularly, the safeguarding of individual privacy rights and the maintaining of public colleges and universities that are capable of effectively and efficiently achieving their societal mandate--and it is clear that such balancing often poses steep challenges for the implementation of sunshine laws in higher education. The chief tensions involve, most notably, the provisions for effective board discussion and deliberation, the connections between the laws and presidential searches and selection, and the application of the laws to emerging organizational, financial, and technical developments. In these areas, most of our respondents said sunshine laws, while desirable and necessary in principle, have in practice impaired the ability of boards to adequately deliberate on issues that confront their institutions, hindered the recruitment of exceptionally well-qualified candidates for the position of president, and constrained institutions as they seek to adapt to new financial and technological challenges.

The results of our study raise a series of important questions for institutional governance and state policy. These unexamined questions merit additional analytic and policy attention. To what extent should interinstitutional variations in compliance approaches be formally discouraged by states? Should states standardize campus or system-level arrangements adopted informally over time? What levels of protection for candidate privacy are appropriate in presidential searches? (21) Should states move to allow protected board retreats and information-sharing efforts shielded from strict interpretations of sunshine laws? What informational efforts are warranted to ensure media, faculty, student, staff, and public understanding of issues surrounding openness statutes? How can states protect the public's right to know while also protecting institutions against costly, unwarranted information requests? For example, is the formation of mediating offices warranted? Would it be cost-effective for an organization to initiate periodic status and "best practices" reports regarding openness approaches across the nation? To what extent do "constitutionally prior" systems (e.g., Minnesota and Michigan) need to adopt openness practices previously required only in systems without such legal status? (22)

In addition to these implications for governance and policy, we believe there are conceptual and empirical questions deserving systematic and sustained attention. Because we explore these and other questions in greater depth elsewhere (McLendon & Hearn, 2006), we discuss only briefly four such questions below.

1. To What Extent Does the Alleged Relationship between Openness in Institutional Governance and Public Confidence in Higher Education Hold Up to Empirical Scrutiny?

Respondents in our study repeatedly claimed that mandated openness enhances public confidence in state-supported higher education institutions, a declaration that closely parallels assertions made in support of public information laws throughout the era of their institutionalization in the states, during the 1950s-1970s (Cleveland, 1985; McLaughlin & Riesman, 1985; Sherman, 2000). This claim, however, lacks an empirical foundation of support, one whose basis extends beyond the perceptions of campus officials. Indeed, while there are no data demonstrating a link between higher levels of openness and greater public confidence in higher education, there is good reason to surmise that the reverse may be true: that more openness may diminish rather than enhance the public's trust in higher education. Justice Brandeis (1914) once famously remarked that the sunlight of disclosure in public agency settings may "disinfect," but shining the light on public higher education institutions may make manifest to outside observers the seeming untidy, inefficient, and conflict-prone nature of decision making in those organizations. Hence, greater direct access by citizens to the decision-making processes of public colleges and universities may inspire less, not more, trust in those very institutions. One avenue for future research, therefore, would be to subject the institutional openness-public confidence hypothesis to rigorous empirical examination, perhaps taking the form of a survey of citizens' opinions and attitudes toward public higher education using a sample of states stratified by their legal provisions for openness in public institutional settings.

2. Under What Conditions Can Secrecy Contribute to Effective Decision Making in Higher Education?

This question has resonance in the larger organizational and economic literatures, as theorists have considered secrecy, privacy, and other information-flow issues as strategic factors in performance (e.g., Stiglitz, 2000; Stinchcombe, 1990). Theoretical economists term the problem of secrecy a matter of "asymmetric information"--that is, two parties to a transaction having different levels of knowledgeability about issues at hand. Private and public institutions compete aggressively for presidents and for funds, and the information asymmetries involved in that public/private competition may have implications for effective governance in the public sector. Of course, the effectiveness of decision making is not an easy topic of analysis, but researchers could begin by assaying the domains protected under most states' sunshine applications (e.g., real estate transactions, business investments, personnel matters, security concerns, early stages of presidential searches) and then contrasting the nature and fate of decisions in such domains across more open and more closed settings. For example, given that Florida's aggressive sunshine laws do not protect discussions of real estate issues from public scrutiny, analysts might study what price, if any, the state has paid, relative to other states facing similar matters. Again, empirical analysis of such matters, not to mention even less straightforward matters as presidential searches, is daunting, but the question is one respondent after respondent raised for us. The conventional wisdom is that limits on sunshine (i.e., allowing pockets of asymmetric information) is selectively warranted, but hard data on that assertion is entirely lacking.

3. What Factors Both Internal and External to the States Influence Adoption and Reform of Sunshine Laws, Particularly Reforms Targeting Higher Education Specifically?

We noted earlier what appear to be several distinct eras of rapid and widespread reform of state sunshine statutes. Scholars have documented this tendency of states to copy or emulate one another's policies in numerous different domains, a phenomenon they have termed policy innovation and diffusion (Berry & Berry, 1999; Gray, 1994; Mintrom, 1997; Walker, 1969). Researchers have sought to explain the migration of policies across states by pointing to complex interactions between various intrastate characteristics (i.e., those demographic, economic, and political conditions within states) and interstate pressures (i.e., those competitive or normative pressures that states exert upon their neighbors). Does the evolution and spread of sunshine laws in various states follow patterns noted in earlier research? To what extent does statutory reform involving the higher education sector, such as exempting aspects of presidential search processes or university-affiliated foundations from open-meetings and records requirements, exhibit a pattern across the states suggestive of a diffusion-like effect? Among the important intrastate influences of statutory reform, what roles do higher education systems and institutions play in those reform episodes? From an interest-group perspective, under what conditions does higher education lobby effectively for changes in state open-meetings and records laws? These questions reconceptualize sunshine laws as the "dependent variable" rather than as the independent variable. Such questions could be pursued analytically using case study methods, quantitative time-series approaches (e.g., event history analysis (23)), or ideally both strategies in tandem.

4. How Might Comparisons among the States and the Sectors and Systems of Higher Education within them be Leveraged in Future Research to Improve Our Understanding of the Effects of Mandated Openness?

The impediments to rigorous analysis of the governance effects of various sunshine regimes are daunting. All 50 states have had sunshine laws of some kind in place for many years, so there is no clear-cut "control group." And as our cross-state study demonstrates, the burdens of data collection and analysis in such studies are logistically complex, financially burdensome, and labor-intensive. Still, future studies might consider at least three analytic alternatives for examining sunshine's effects on institutional governance: (a) public/private comparisons, which would permit analysis of the impacts of mandated openness among institutions that are roughly similar in mission, complexity, and resource base but that differ in their fundamental legal obligations to openness; (b) comparisons across public higher education systems within individual states, which would permit analysis of the impacts of mandated openness in states where public institutions themselves operate under very different legal burdens (e.g., the constitutionally autonomous universities in California, Michigan, and Minnesota); and, (c) within-state comparisons over time, which would permit analysis of long-term governance impacts as well as analysis of the impacts of changes in state law.

In conclusion, our study suggests that, as policy instruments designed to ensure responsible and responsive public-sector organizations, sunshine laws will never be made definitively "right"--circumstances will continually change, as will society's expectations of openness as a goal and of sunshine laws as a mechanism suitable for achieving that goal. Yet, even as works in progress, these laws hold critical implications both for the governance of higher education institutions and for the public's compact with those institutions. Precisely for these reasons, the laws merit ongoing, systematic conceptual and empirical scrutiny.

Endnotes

(1) Except as otherwise noted, we use the terms sunshine laws, open-meetings and records laws, openness laws, and public information laws interchangeably.

(2) Texas, for example, enacted its openness legislation in 1973 as a response to the "Sharpstown" scandal, a land-fraud scandal that brought down the state's governor, attorney general, and top legislative leaders. Similar scandals sparked passage of sunshine laws in numerous other states.

(3) See McLendon and Hearn (2006) for more in-depth discussion of the laws' evolution.

(4) Except as otherwise noted, our reference to "higher education" means public higher education.

(5) Glenny and Dalglish (1973) have stated that, in legal terms, the governing board is the institution. Operationally, of course, boards delegate authority to presidents who in turn delegate some role to faculty. Thus, institutional governance often includes members of the university community in addition to the senior-level officials we interviewed. In the end, however, the legal basis of boards' and presidents' primacy as decision makers must be acknowledged. As policy mechanisms, sunshine laws are designed to influence most directly executive levels of decision making in public organizations, where responsibility for maintaining openness legally resides. The scope of our study, although perhaps somewhat restrictive, captured this organizational reality and provided us definitional clarity in identifying those informants we should interview.

(6) We used the LexisNexis database to search systematically for news reports on sunshine-related issues involving higher education from 1993-2003. In total, we reviewed over 150 stories and wire reports appearing in newspapers across the nation.

(7) It should be noted that Cleveland's classification did not attempt to capture how open the states were in practice, but rather measured the extent to which legal provisions in a given state required government meetings and records be made open.

(8) Those nine dimensions are as follows: definitions of entities subject to the laws; mechanical details; definitions of meetings, quorums, deliberations, and voting; exemptions for executive sessions; remedies; cures; defenses to actions under open-meetings laws; prescribed process of litigation; and, stipulations for attorneys' fees, defense arrangements, and reimbursement.

(9) All states provide certain "executive session" privileges that permit agencies to deliberate privately on matters involving personnel or real estate, for example. Here, too, however, one finds notable differences across states.

(10) A recent audit of public records accessibility in 95 Tennessee counties found that government workers routinely denied representatives of a coalition of media organizations and citizen watchdog groups access to records of schools and law enforcement agencies that should have been available under state law (Alligood, 2004). Similar audits have been conducted elsewhere.

(11) For example, the Florida legislature passed 15 bills creating new exemptions to public records laws in 2001 and another 10 bills in 2002; in 2003, legislators considered 35 additional exemptions (Kallestad, 2003). Tennessee's public records and open-meetings acts were model statutes when enacted in 1957 and 1974, respectively. In the intervening years, the state legislature has adopted more than 200 exemptions to those laws (Alligood, 2004).

(12) The experience of Michigan is noteworthy because disputes over whether that state's Open Meetings Act could be applied to presidential searches at the University of Michigan and Michigan State University spanned nearly two decades, culminating in a historic ruling in 1999 by the state Supreme Court. In writing for the majority on the 5-2 decision that upheld the legality of Michigan State University's search process, Justice Maura D. Corrigan concluded, "the Legislature is institutionally unable to craft an open meetings act that would not, in the context of a presidential search committee, unconstitutionally infringe the governing board's power to supervise the institution" (Federated Publications, Inc., 1999).

(13) Our sample included representatives from a diverse mix of public institutions within each state (i.e., research universities, comprehensive institutions, and community colleges). On the whole, this sample tended toward large institutions.

(14) In 2001, the American Association of State Colleges and Universities conducted a survey of state higher education officials asking officials whether they viewed sunshine laws in their state as having been applied appropriately to public higher education, or whether they were in need of revision.

(15) Agency officials included senior staff of state coordinating boards, state departments of education, and similar bodies with statewide perspectives on higher education.

(16) This sample protocol does not include numerous probes and prompts we used in the field.

(17) For example, the code 16 denoted the theme "presidential search and selection"; the code 53 denoted "individual privacy interests"; and, the code 80 denoted "the public good."

(18) Indeed, numerous respondents offered surprisingly stark observations, strongly worded assessments, and richly detailed anecdotes about the laws and their impacts on institutional governance. On several occasions, respondents asked us to temporarily cease our tape-recording of the interview session or sought repeated assurance of confidentiality before conveying an insight of particular sensitivity to themselves or to their institution.

(19) Although respondents in our study characterized both open-meetings and open-records laws as posing challenges for institutional governance, many of the problematic examples respondents mentioned to us involved records requests. One explanation for their prominence is that records are ubiquitous on university campuses, whereas regental meetings and the like are relatively infrequent occurrences. Another explanation is that records requests actually generate more controversy, on average, than do questions of access to meetings of senior decision makers. While the possibility of differences in the reactions of campus officials to open-meetings versus open-records laws is intriguing, we did not systematically ask our informants to assess the relative burdensomeness of these two kinds of laws, and thus are unable to speak definitively as to whether records are more or less problematic for campuses. This interesting question merits future study.

(20) Despite our efforts throughout the study to limit its potentially corrupting influence, social desirability bias could conceivably explain some of the consensus of opinion we found regarding the perceived importance of openness in public higher education governance. Still, we were impressed by the apparent candor of our respondents and their willingness to discuss potentially embarrassing problems confronting their institutions in the realm of public information law.

(21) Even finalists for the same presidency can sometimes have very different views on the value and impact of openness in a search. A prime example played out recently in the pages of the Chronicle of Higher Education, which featured a colloquy between the two finalists, both sitting presidents, for the top job at the University of Tennessee. See Petersen (2004) and Hall (2004).

(22) See the University of Minnesota's recent court loss in this domain (Arnone, 2004a).

(23) Event history analysis is now the standard approach for "small-n" studies in which the dependent variable is the probability of a state adopting a policy in a given year.

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We gratefully acknowledge support for our research from the Association of Governing Boards of Universities and Colleges and the Center for Higher Education Policy Analysis at the University of Southern California. We also wish to thank participants of the 2003 Governance Roundtable, sponsored by USC's Center for Higher Education Policy Analysis, for their comments on many of the ideas presented in this paper. We are indebted to Leigh Z. Gilchrist, a doctoral candidate in the Department of Leadership, Policy, and Organizations of Peabody College, for her assistance in the initial stages of this project.

Michael K. McLendon is Assistant Professor of Public Policy and Higher Education, Peabody College, Vanderbilt University. He specializes in state governance, politics, and public policy of higher education. His most recent work examines the origins and spread of new accountability, governance, and financing policies for higher education.

James C. Hearn is Professor of Public Policy and Higher Education, Peabody College, Vanderbilt University. His research and teaching focus on organization and policy in postsecondary education. Most recently, he has been examining governance reform, performance accountability, and marketization in higher education.
TABLE 1 Characteristics of States in Study Sample

                                          State
Sample Criterion          California     Florida           Iowa

Geographic region         West           Southeast         Midwest
Population (1)            33,871,648     15,982,378        2,926,324
Total enrollment in two-  2,017,483      684,745           186,780
& four-yr. institutions   (84%)          (79%)             (72%)
(% in public sector)
Total number of two-      419            164               64
& four-yr. institutions   (34%)          (24%)             (28%)
(% in public sector)
State higher education    Advisory       Unclear. 2002     Consolidated
governance arrangement    coordinating   constitutional    governing
in 2002 (2)               board          amendment         board
                                         created hybrid
                                         structure
(Other forms of state
governance since 1985)
Cleveland's (1985) 50-    30             2                 14
state ordering of
"openness" (3)
2001 AASCU survey of the  "Appropriate"  "Needs Revision"  "Appropriate"
"appropriateness" of
sunshine laws applied to
higher education

                                         State
Sample Criterion          Massachusetts  Texas         Washington

Geographic region         Northeast      Southwest     Northwest
Population (1)            6,349,097      20,851,820    5,894,121
Total enrollment in two-  419,695        990,587       306,723
& four-yr. institutions   (43%)          (87%)         (86%)
(% in public sector)
Total number of two-      117            201           79
& four-yr. institutions   (26%)          (54%)         (57%)
(% in public sector)
State higher education    Regulatory     Regulatory    Regulatory
governance arrangement    coordinating   coordinating  coordinating
in 2002 (2)               board          board         board
(Other forms of state     (Consolidated                (Regulatory
governance since 1985)    governing                    board with more
                          board                        power)
Cleveland's (1985) 50-    42 (tied with  42            42
state ordering of         Texas and
"openness" (3)            Washington)
2001 AASCU survey of the  "Needs         Did not       "Appropriate"
"appropriateness" of      Revision"      respond to
sunshine laws applied to                 survey
higher education

NOTES:
(1) State population and enrollment data drawn from the 2002 Almanac of
Higher Education.
(2) Governance data taken from McGuinness (1997, 2002).
(3) Lower number (e.g., 2) indicates more openness.

FIGURE 1 Sample Interview Protocol

 1. To what extent are sunshine laws factored into the various
    operations of your governing board (e.g., presidential searches,
    appointments to the board, electronic communications, academic
    policy decisions, contracting decisions, etc.)?
 2. An examination of your state open-meetings and records laws shows
    that exemptions (e.g., executive sessions) are allowable for certain
    issues. In your opinion, are these exemptions appropriate and
    sufficient?
 3. How is the compliance of your board with sunshine laws monitored or
    enforced?
 4. What are the positive outcomes of implementing open-meetings and
    records laws in this state?
 5. Have there been any negative or unintended effects of implementing
    open-meetings and records laws in this state?
 6. It has been said that open-meetings and records laws present a kind
    of "trilemma" among the public's right to know, the individual's
    right to privacy, and the public college or university's mandate to
    serve the public interest. To what extent are these three needs
    effectively balanced in this state?
 7. In your view, do open-meetings and records laws in this state need
    to be refined? If so, what suggestions do you offer for improving
    the design and implementation of these laws?
 8. In this state in recent years, has public and political support for
    open-meetings and records laws increased, decreased, or stayed
    roughly the same?
 9. On this board, what approaches have you taken to establish positive
    working relationships with the media?
10. The nature of laws in a given state may tend to fit the distinctive
    political, historical, and cultural characteristics of that state.
    Can that be said of open-meetings and records laws here?
11. We are eager to learn more about open-meetings and records laws here
    and elsewhere. Are there any questions I should have asked you but
    didn't? Also, do you have any other suggestions for us as we
    continue this project?
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Date:Jul 1, 2006
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