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Secret E-Mail? Colleges Do That Too

Kavitha A. Davidson is a former Bloomberg View columnist.
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If anything good comes from the hullabaloo over Hillary Clinton's e-mails, it's that we'll demand increased transparency from all our institutions -- including universities.

Deadspin's Diana Moskovitz has been trying to obtain documents from the University of Tennessee related to its controversial decision to do away with the "Lady Vols" name for almost all its women's sports teams (except women's basketball), following a new apparel deal with Nike. Many former Lady Vols resent the men's teams' name and logo replacing their own athletic identity, saying the decision will erase a proud history -- all in the name of "rebranding." 

But when Moskovitz filed a request for communications between the school and Nike, she received a rejection letter noting that the Tennessee Open Records Act grants these rights only to state citizens. While apparently legal, this stipulation is contrary to the very purpose of open records laws. As Moskovitz puts it, "Functionally, this just seems like a fantastic tool for ensuring national media can only give you glowing coverage -- any documented verification is impossible, unless they want to give it to you."

Undaunted, Moskovitz had a clever idea: she put out an open call to her readers who reside in Tennessee to file the same request, using her language for specific documents including e-mails, text messages and memos. Unfortunately, each of those requests garnered but a single document -- a branding audit prepared by Nike -- suggesting that either the school and the shoe company keep all communication oral, and thus off the record, or that the university simply has no regard for transparency.

The Nike deal might very well be on the up-and-up, but even so, this wouldn't be the first time a university stonewalled the press from public information. In January, ESPN sued Notre Dame for failing to provide campus police records involving student-athletes. Notre Dame argues that as a private university it isn't required to comply with Indiana's public-record laws, while ESPN maintains that since the campus police is a public law-enforcement agency, it should be subject to open records. Indiana's public access counselor agreed, and the issue is going to trial.

All in all, schools have shown that they'll tailor their obligations on information standards to suit their agendas. Duke's continued silence on the circumstances of Rasheed Sulaimon's dismissal is defended under the guise of the Family Educational Rights and Privacy Act, which requires all universities receiving federal money to protect students' privacy. Yet Ferpa is riddled with loopholes, and the way it's invoked is wildly inconsistent: the University of Oregon used it to legally justify obtaining the therapy records of a rape victim and using them against her in their defense in court.

If Duke can evade Sulaimon questions under Ferpa, then Notre Dame, another private institution that accepts federal grants, must also be compelled by public-record laws. Universities shouldn't be allowed to cherry-pick in this way. If the laws need to be tweaked, then so be it, but it's not unfair to expect universities -- even private ones -- to adhere to a high standard of transparency given the amount of public money they receive.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Kavitha A. Davidson at kdavidson19@bloomberg.net

To contact the editor on this story:
Tobin Harshaw at tharshaw@bloomberg.net