Testimony Before Michigan House Committee on Higher Education Regarding Open Meetings Act, December 3, 1996

Testimony Before the House Committee on Higher Education Regarding Exemptions to the Open Meetings Act and FOIA

Jeffrey S. Lehman
Dean of the University of Michigan Law School

December 3, 1996

Members of the Committee.

I am honored to have been invited to speak before you today about the possibility of amending the Open Meetings Act to exempt the processes used for selecting university presidents.

My understanding of this issue is grounded in my experience this year as the chair of the Presidential Search Advisory Committee for the University of Michigan.  During that search, I came to understand the competing values that are implicated in this issue.  I recently discussed these issues in an op-ed piece that was published in the Ann Arbor News on November 24, and I am submitting copies of the text of that op-ed to the Committee for your information.  Today, I would like to speak briefly about my overall conclusions and then leave time to answer your questions.  I appreciate your understanding of the fact that I must leave promptly to catch an 11:00 flight this morning.

Let me say first that I do not intend to address the important question whether it is ever Constitutional to apply the Open Meetings Act or FOIA to the three Constitutionally established universities.  Instead, I will speak only to the question whether it is good public policy to apply the Act in the context of any university presidential search — a question that has pertinence to all fifteen public universities.

If I could make only one point today, it would be that this is not a simple issue.  No doubt you will hear lots of glib assertions, such as the one-liner that says, “only cockroaches flee the light.”  But like most important public issues of public policy, this one cannot be reduced to a one-liner.  There are important values on both sides of this issue.

At bottom, what is at stake in this debate is whether the newspapers should have a mandatory seat at the table with the Board of Regents as recruit candidates for the University President, gather information about them, deliberate, and make a decision.  As I indicate in my op-ed piece, there are theoretical benefits to giving newspapers such a seat at the table.  At the same time, there are also real costs to the public interest in having our universities attract the best president possible.  

Based on my experience, I would say that the particular characteristics of a university presidential search, and the fact that we are talking about the very most important decision made by a body of publicly elected regents, means that the balance of costs and benefits is clear.  Granting newspapers a right to participate in the process unquestionably harms the public interest.

What, you might ask, is so special about a presidential search?  I would identify two features.

The first special feature of a presidential search is that it is a recruiting process.  In our search, we had 11 people apply for the position.  Our working pool of 302 names consisted of 291 nominees and 11 applicants.

Why are university presidents recruited, rather than selected from a roster of eager applicants?  The main reason is that the job is so complex, and depends upon skills that are learned through experience, that it would be irresponsible for a board of regents to offer the position to someone who lacks a track record of proven success in a position of substantial responsibility.  If the Board of Regents takes its role seriously, the relevant pool of prospects consists exclusively of people who are succeeding admirably in highly visible jobs, people who are dedicated to their current employer and anxious not to do anything that would harm that employer.  

Such people are reluctant to participate in a presidential search under any circumstances.  When I began my service as chair of the PSAC, I spoke with experts on public higher education around the country.  They all agreed that the key to a successful search is to help people overcome that reluctance so that you might have a chance of attracting the most qualified candidate.  For reasons I shall discuss in a minute, giving newspapers rights to participate in the process severely hampers a university’s recruiting ability.

The second special feature of a presidential search is that it is a personnel process.  Unlike the usual subjects of open meetings laws in Michigan and other states, the Regents are not engaged in a deliberations and decisions about abstract issues.  They are making a critical evaluation of the personal and professional qualities of human beings.  Human beings who have strengths and weaknesses.  Human beings whose effectiveness in their current jobs depends in part upon their reputations.

Giving newspapers a seat at the table damages the recruiting process.  And giving newspapers a seat at the table also damages the process of careful deliberation by making it impossible to obtain candid references and by making it impossible to discuss a person’s qualities rigorously while respecting that person’s privacy and dignity.

Let me say a few words about the impact on recruiting.

I know of no other state in the Union that forces its universities to go through the process that the newspapers have demanded in Michigan.  I know that this process meant that when my committee approached sitting university presidents and asked them to be considered, not one was willing to participate.  Not one.  I know that among the five people we were willing to recommend to our Board of Regents, one dropped out when the newspapers used the courts to strip away the last vestigial possibilities of private conversation.  I know that among the remaining four, the three outsiders would not have agreed to go through the process if they had known beforehand what it would ultimately mean in practice.

An outsider to these processes might well ask, and indeed I probably would have asked before I saw this process from the inside, “What do these people have to hide?  Why are they afraid of publicity?”  Or, to put it more crudely, are these university types just a bunch of cockroaches?

There are at least two categories of things that good, honest people can reasonably fear might follow from agreeing to participate in a public search.  First is the risk that they might hurt their current employer.  If a sitting university President were publicly to entertain, on even the most contingent and tentative basis, a feeler from another institution, the current employer could easily be harmed if third parties were to misunderstand the President’s action as a sign of dissatisfaction with that institution.   

The second fear is that they might be hurt themselves, as a consequence of the cruelty and/or irresponsibility of others.   — especially those associated with the press. 

There are well known examples of people’s careers stalling when they allowed themselves to be considered by another institution because their current employer chose to retaliate for conduct that was perceived to be, in some sense, disloyal. 

In the case of our process, the vast bulk of reporting and editorializing was done with integrity and a sense of responsibility.  But all the good reporters in the world do absolutely nothing to counteract the the damage that one lazy, ignorant, or profit-driven reporter or editor can do.  In our search, the Michigan Daily took the liberty of publishing an ignorant and sexist attack on a woman finalist, calling her a “token” and a “stooge.”  And the Detroit News saw fit to print an uninformed, misleading attack on all four finalists.

Don’t get me wrong.  I wholeheartedly endorse the importance of First Amendment protections for the press.  I believe that part of what makes our country great is the fact that newspaper editors have a constitutional right to be irresponsible and unaccountable, as long as they act without malice.

All I am saying is that, in this context, the fact of press unaccountability and occasional irresponsibility is a fact that deters good people, with nothing to hide, from being willing to participate in a press-driven process.

(Just as an aside, it bears mention that the risk of corruption or wrongheadedness on the part of Regents in a presidential search process is subject to checks and balances.  A mistake can be made only if it attracts the support of a majority of these publicly elected officials.  If one were to imagine a corrupt Board taking a bribe from a presidential candidate, it will be exposed if even a single Board member is not corrupt.  In contrast, no majoritarian processes prevent a rogue newspaper from inflicting potentially serious damage on an innocent person.)

Now let me say a few words about the impact on information-gathering and rigorous deliberation.

I doubt I have to say much to persuade you that nobody will give you a serious, critical reference regarding their boss or their subordinate or their co-worker if they think that what they say will be reported to that person. 

But why can’t a Board of Regents deliberate appropriately about people in public?  Let me give you just one example of a statement that one Regent could appropriately say to another Regent in private:  “I have heard concerns that this person has had trouble working with the student newspaper at his current university, because he doesn’t really think student newspapers are very important.”  Such a statement would be likely to lead to a productive, careful collective appraisal of the evidence on the question.

Why would a Regent be unlikely to make such a statement knowing that it would be printed in the newspapers the next day?  Here are a few possibilities:

The concern might be unfounded, and the candidate might be insulted by the suggestion and withdraw.

The concern might be unfounded, and the candidate might end up getting the job and have to deal with the lingering effects of public, unfounded rumors.

The concern might be unfounded, the candidate might not get the job, but the public suggestion might come back and cause the person damage back at their current institution.

The concern might be well founded, but the Board might nonetheless decide that the person is still the best person for the job, and the Board might then have created special problems for the new President on Day 1. 

Mandatory newspaper access to the process has some benefits.  No doubt it deters some people from saying or doing things that they cannot defend publicly, in ways that are all to the good. 

But mandatory newspaper access also has some very serious costs.  It hampers recruiting.  It prevents candid reference-checking.  And it prevents candid deliberation.  These costs jeopardize the ability of our public universities to attract the leadership they need in order to be the kind of institutions that our citizens deserve. 

At the end of the day, the benefits of mandatory newspaper access strike me as being completely swamped by the costs.  I urge you to amend the statute to do away with this misguided procedure, to allow our public universities to compete effectively with other universities at those critical moments when they must choose a President.