Roe v. Wade is AG’s new pretext for blocking Texas law school investigation

By Jon Cassidy | Watchdog.org

HOUSTON — When a pro-life strict constructionist such as Attorney General Greg Abbott interprets Roe v. Wade so broadly it applies to law school entrance exams, a reasonable person might conclude Abbott is engaged in motivated reasoning, to put it nicely.

Abbott doesn’t actually believe Roe v. Wade should be expanded to cover some vast new domain – his long record demonstrates otherwise. So why would he employ such a flimsy pretext to block a reporter’s access to Law School Admissions Test scores that should be public under state and federal law?

One reason is Abbott is no mere disinterested observer of the admissions scandal at the University of Texas and its law school, in particular. He’s a participant. His role so far has been to obstruct those pressing for answers.

In March 2013, the University of Texas Board of Regents rejected a whitewashed report on a forgivable loan scandal at UT’s Law School Foundation and forced the resignation of its author. The next month, the board voted to bring in an outside investigator, but after a coterie of influential lawmakers objected publicly, the board agreed to let Abbott handle the investigation.

Abbott promptly sat on it. He’s gotten away with that for more than a year, but he can’t afford to risk it much longer.

Now that the UT System is pressing forward with its own investigation of admissions favoritism, he won’t be able to cover for his friends much longer without risking his own neck. If he picks the investigation back up, he might still be able to slowplay it if he wants, or even obstruct others, the way Travis County District Attorney Rosemary Lehmberg obstructed regent Wallace Hall from interviewing UT’s admissions director by claiming it would interfere with her own pretend investigation. (Chancellor Francisco Cigarroa testified to that at a recent hearing; the part he didn’t say was it was UT President Bill Powers’ office that had asked Lehmberg to block Hall.)

If the news breaks that some prominent attorneys (who donate to political campaigns, too) bought their kids’ way into UT, and Abbott was supposed to be investigating that, his campaign or nascent governorship will be buried in scandal. And that’s what’s underlying all the talk of forgivable loans, outside influences, and who knew what when. The Law School Foundation has denied payola is taking place, calling the claim “false, defamatory, and malicious.”

The foundation, however, has paid millions to law school administrators and faculty without proper oversight. When the foundation was established in 1952 under Dean W. Page Keaton, who went on to run the law school for a quarter of a century, everyone understood salary supplements or any other bonuses for faculty had to be routed through UT for the sake of transparency, according to an oral history with Keeton.

“The Foundation doesn’t issue the check to” faculty members, Keeton said, “so that no monies are spent by the Foundation, except that which is approved by the Board of Regents. And that’s sound. I always agreed with that, that this separate corporation ought not to be allowed to do as it pleased with the money that it gets, contrary to the policies and ideas of the Board of Regents. The Board of Regents is in charge, and they have a right to know how I’m being paid, or how every member of the faculty is being paid.”

The reason you don’t want a $210 million foundation writing large checks to the dean and faculty with no oversight is simple: it’s a conflict of interest. You can assume, if you like, that a large group of lawyers will always behave ethically, but you still have to guard against the possibility a large donor to the foundation would want something more than simply enhancing the prestige of his alma mater. If that donor’s money is finding its way, directly or indirectly, into the pockets of decision makers, there’s the potential for abuse.

Yet nobody is talking the problem in those frank terms. Hall has been careful over the last two years not to make any allegations unsupported by facts. While his critics have insisted Hall should be more open about what he’s looking for, he faces a dilemma familiar to any investigative reporter: how should one follow up on suspicions without spreading rumors. In the early stages of any investigation, you have to be careful about saying what it is you’re after, for the simple reason you don’t truly know until you get there.

That’s why an apparently minor detail in this saga — a dispute between Abbott’s office and Hall about the potential scope of the investigation — turns out to be crucial. Hall and Deputy Attorney General John B. Scott started off well enough, meeting on June 24, 2013, for four hours to discuss some 34 MBs worth of records Hall was providing. Instead of following up on the records, Scott started insisting Hall provide a formal statement outlining the scope of the investigation. It was a Catch 22: if Hall shared just what he could prove, the investigation would be narrow; if he shared the extent of his suspicions, his persecutors would have all the “proof” they needed he was making wild accusations as part of a witch hunt.

Worse, Scott wasn’t even interested in the emails proving lawmakers were seeking favors for their children.

“I have returned to (UT System counsel) Francie Frederick the three pages that referenced the identity of applicants/potential applicants who became students at the University of Texas,” he wrote. “It is my understanding that the identity of the students within those pages is protected by federal law and should not have been a part of the documents produced….I am holding off on the next phase of this investigation until the receipt of your written statement.”

The federal education privacy law known as FERPA does not cover anything so vague as the “identity” of a student, and it doesn’t protect emails at all, according to a federal district court ruling in 2009. It protects “education records” directly related to a student of the sort maintained in a central file, according to the Supreme Court.

The idea of a law enforcement investigator refusing to start an investigation without sworn statements was strange enough, but one who covers his eyes to the key piece of evidence struck Hall as doubly absurd, given that FERPA explicitly doesn’t apply to records obtained through any “lawfully issued subpoena.”

Hall wrote back that he’d already spent four hours with Scott going over 34 MBs worth of records he thought were important.

Frederick, a System attorney, followed up with Scott, writing that she thought “this is an awkward approach to beginning the work. Will all of the individuals to be interviewed be asked to give sworn statements?”

The request for an investigation, after all, was a formal request from the entire Board of Regents, not from Hall individually.

Yet Scott continued to put all of the responsibility on Hall, insisting in an Aug. 21 email he needed “a sworn, written statement” from Hall that “identifies all individuals about whom you have complaints, criticisms, or allegations of potential wrongdoing,” as well as the specific allegations related to each person, plus “all facts and/or documentary evidence that you believe supports” the complaints, plus Hall needed to identify all potential witnesses, as well as the information he thought those witnesses had.

The kicker: “to the extent that individuals, issues, and facts/evidence are not identified in response to (1), (2), and (3), we will presume that those issues and facts either do not exist or are not relevant to our investigation.”

In other words, Hall had to produce every bit of relevant evidence before the investigation started, and anything he didn’t produce they weren’t going to go find. Whatever you want to call that, it’s not an investigation, which necessarily involves some sort of research and exploration.

On Aug. 26, Hall’s attorney Stephen Ryan responded to Scott’s request for a formal statement, sending him a nine-page letter Hall sent a legislative committee outlining the scope of his concerns.

Scott wrote back a month later, asking for written confirmation the letter reflects the “totality of the issues” and the “totality of the evidence he wishes for us to consider.”

Ryan offered to provide more information in the form of a “five and a half page, single spaced paper that we must ask be treated as confidential.”

Scott agreed to keep the letter itself confidential, but said he would “incorporate its contents into our review,” which would become public.

At that point, Hall’s people let it drop. So did the attorney general.

So far, nobody’s pressed Abbott on why he thought it was Hall’s responsibility to assemble “the totality of the evidence” in an investigation Abbott agreed to conduct. As long as there was little chance of any evidence emerging, Abbott was safe from accusations of a cover up.

Now that somebody else is digging into corruption at the law school, Abbott has no choice but to do the same. Once the dirt comes out, there’s no good excuse for an investigator who failed to investigate.

Contact Jon Cassidy at jon@watchdog.org or @jpcassidy000.