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 …