“If only the Baylor Board of Regents held public meetings, the university’s sexual assault crisis would have been prevented.”
Many of us have heard some variant of this argument for months. Recently, this newspaper reiterated the chant by complaining that, while public universities had to demonstrate “considerable transparency in such areas as trustee meetings, their private equivalents are allowed to skirt such scrutiny.”
Unfortunately, this argument ignores some inconvenient but crucially important truths. For starters, public and private universities are fundamentally different under the law.
Public schools, such as the University of Texas and Texas A&M University, enjoy sovereign immunity. This protection, which originated in English common law, holds public institutions and their representatives legally harmless while they are conducting the public’s business — formulating policy, debating issues and spending taxpayer money.
There is no such protection for private universities, and private university boards like Baylor’s rarely if ever hold public meetings.
The Association of Governing Boards advises that boards are the most useful when they vigorously debate ambiguous issues. There are no debates when everything a board member or school official utters is potential fodder for litigation or ridicule.
Further, if private university boards did hold public meetings when considering long-term plans for tuition, faculty compensation, new programs, campus development or almost any action a board is required to approve, its competitors for new students and faculty who do not hold open meetings would unfairly benefit. That’s why the Governance Task Force we at Baylor University convened last year carefully considered and then rejected the idea of public meetings.
Even if the Texas Legislature imposed open meetings on Baylor, the truth is that it won’t make much difference when it comes to dealing with an issue such as sexual assaults. If the Pepper Hamilton law firm had conducted its work at Baylor during an open-meeting era, its communication would still be held in executive session. All of the cases examined also involved employee conduct, so they would have been confidential as a personnel matter. And there’s also an exemption from open-meetings requirements for pending litigation.
Given these limitations — plus the federal confidentiality laws governing Title IX and student records — the board would have had no choice but to go into closed executive session to hear, discuss and vote on everything Pepper Hamilton had discovered. In fact, under current exemptions allowed by the Texas Open Meetings law, the board would have had no obligation to even release the 13-page Findings of Fact, which still stands as one of the most scathing examples of self-criticism in academia.
Which brings us to a final inconvenient truth: the noise created over open meetings by the critics — many of whom have fought with the board for years on yet other issues — is just one more tactic to obscure the real progress that the Baylor regents have made. Within the past year, the board has approved more than 30 substantive changes to enhance governance and transparency.
These changes have included creating a way for the public and Baylor constituencies to have a voice in the selection of at-large regents; doubling the number of faculty representatives on the board; extending voting rights to faculty, student, Bear Foundation and B Association regents; creating a regents website that provides the bios of board members and governing information; providing all 170,000 alumni the opportunity to select a certain number of alumni-regents; creating an executive committee and abolishing the board’s Athletics Committee to bring athletic programs back in line with the mission of the institution.
These aren’t just words. They represent real change, and not the kind of wishful thinking that ignores reality or the law.