But several states have put down their marker for transparency....

But several states have put down their marker for transparency. Courts or lawmakers in California, Iowa, Kentucky, New York, Ohio, Pennsylvania and South Carolina have moved to make university foundations more transparent. Credit: iStock

George Mason University’s decision two years ago to rename its law school for Justice Antonin Scalia as part of agreements with donors created a sense of unease among students and faculty on the public university’s Fairfax, Virginia, campus. The move prompted a group of students to press for details of the university’s other agreements with the right-leaning, libertarian Charles Koch Foundation — one of the donors to the law school.

The students, part of the Transparent GMU advocacy group, want to examine the agreements to determine whether the gifts include requirements that can sway decisions about curriculum as well as the hiring and firing of faculty. That issue arose at Florida State University, where students and faculty worried that the Koch foundation appeared to seek influence over hiring and curriculum decisions as a condition of its donations. The Koch foundation did not return phone calls seeking comment.

Similar concerns have surfaced after private donations made to public universities in Arizona, Indiana, Kentucky, Michigan and New Jersey became public. Last month, at private Wellesley College, a dispute developed and college officials are rethinking the Koch gifts.

Critics say the lack of transparency from public university foundations at George Mason, Florida State and elsewhere makes it difficult to gauge the level of influence private donors may exert over curriculum, hiring and other decisions. Also worrisome, critics say, is that the exposure to taxpayers for future costs of tenured faculty and staff when the gifts run out is difficult to ascertain because of a hodgepodge of disclosure rules covering public colleges and universities that vary from state to state.

Gerry Sherayko, a history professor at Randolph College in Lynchburg, Virginia, and president of the statewide American Association of University Professors, finds George Mason’s approach troubling. “We are supposed to be open and free when talking about public institutions, but this is a way to sneak around that,” he said. “What are they hiding?”

The decision to rename the George Mason law school was made without input from faculty or students, says Transparent GMU. The name change came after an anonymous donor gave $20 million and the Charles Koch Foundation gave another $10 million. As part of the deal, the donors, and Scalia’s heirs, would be kept apprised of faculty and staff hiring, and the overall direction of the law school. The donors could limit or terminate the donation -which is to be paid out over several years — if they weren’t satisfied. Scalia’s heirs could insist the university drop the Scalia name if they had concerns.

At George Mason, students seeking transparency hit a wall. The university said it had no relevant documents. The George Mason University Foundation, a non-profit on campus that manages donations, said it would not provide the information because it did not have to. Unlike the university, which is taxpayer supported and thus subject to Virginia’s open records law, the university foundation views itself as a private organization whose work is not subject to disclosure.

The students then sued to force disclosure, arguing that the foundation is operating as a public entity in support of a public university. What is likely to be the final round of arguments in the case was heard this week in a northern Virginia courtroom. Fairfax County Circuit Court Judge John M. Tran must decide whether the non-profit foundation, closely affiliated with the public university, is just an arm of that university because it is managing the university’s donors and donations.

If it is, then the donor agreements and other details likely would be subject to disclosure under Virginia’s public records law. If the judge sees the foundation as a separate, private entity, with no public function, the information could be shielded from public scrutiny. Whatever Tran decides, the case is likely to be appealed.

Non-profits such as the Charles Koch Foundation must offer some information to the public about their operations, via the IRS Form 990, which is usually not public for more than a year after it is filed. The 990 provides limited information, and does not offer details of deals the foundation might make to attract and keep private donations.

Whether a public university’s foundation is subject to open records laws depends on the state. Oklahoma allows public universities to keep secret all information on donors and prospective donors to or for the benefit of the institutions or agencies. Indiana and North Carolina have similar shields. In Connecticut, the General Assembly has forced more disclosure of activities by the UConn Foundation, but the foundation itself is not subject to the state’s open records law. Many states have yet to confront the issue.

But several states have put down their marker for transparency. Courts or lawmakers in California, Iowa, Kentucky, New York, Ohio, Pennsylvania and South Carolina have moved to make university foundations more transparent. A 2008 ruling by the Kentucky Supreme Court was typical. It said there was a clear connection between the foundation and the public university, making the foundation’s work subject to public scrutiny.

Janine Gaspari, a junior and a leader of Transparent GMU, said she thought the Koch family’s libertarian leanings could hamper free and open discussion in classrooms where Koch-funded professors teach. “GMU could be playing a really dangerous role in essentially shifting public opinion and public policy to benefit our biggest donors and not everyday people,” she said. The Koch family, she said, “has a big interest in deregulation, and not a big interest in stopping climate change.”

The students’ lawsuit worries some in Virginia’s business community. Echoing a frequent argument heard in other states, the Virginia Business Higher Education Council, whose board includes George Mason president Angel Cabrera, said in a friend of the court brief that disclosure of donation details could harm higher education in Virginia and discourage private giving. Virginia, the brief noted, is “44th in the nation in state support of higher education on a per student basis,” and needs private donations to maintain the quality of its public university system. George Mason University Foundation, whose President Janet Bingham, is also the university’s vice president for development, declined a request for an interview.

As public funds for higher education dwindle in many parts of the country, Bethany Letiecq, a George Mason professor, faculty senator and president of the local chapter of the American Association of University Professors, understands there are times when donors don’t want their names made public. That doesn’t bother Letiecq. She wants to know whether there are any quid pro quos that affect academic freedom, or any likelihood that taxpayers eventually will have to foot the bill for those hired with the donations once the gifts run out.

Cabrera, who declined through a spokesman to be interviewed, has said he is mindful of the need to protect academic independence. “No donor, no matter how generous, can influence who gets who gets tenure, who gets promoted, what is taught in the classroom, what any faculty teaches and so forth,” he said in a 2015 radio interview.

So why not provide details? That way, the public can help assess whether the university foundation is keeping its word about the deals.

The many Koch donations — more than $100 million — to George Mason may have come with no strings. Or they may have come with binding requirements like the law school agreement. But unless Tran decides the university’s foundation is essentially an extension of the university, and thus a public agency in the eyes of the law, taxpayers not only in Virginia but also across the country may never find out.

Miranda S. Spivack, the Pulliam Distinguished Visiting Professor of Journalism at DePauw University, was awarded SPJ’s Sunshine Award in 2017 for “State Secrets,” a series for revealnews.org on state and local government secrecy.