“As a matter of law, the foundation is not a public body under [the Virginia Freedom of Information Act] as it is presently situated,” Judge John Tran wrote in his decision. “This decision does not absolve the university of the responsibility, as a public body, to maintain records of the use of funds and programs it decides to develop.”
But even in ruling that the foundation is a private body, the judge offered a reminder that the public university could not dodge the state’s records laws, highlighting a committee that deals with financial gifts. That university panel, the judge said, must make public its dealings with the foundation.
The school’s ties to Charles Koch, the prominent backer of conservative political causes and major donor to universities, have occupied center stage in the debate over philanthropy. At George Mason and other college campuses, funding from Koch has sparked controversy as some faculty members and students raise concerns about whether the gifts constrain academic freedom.
“We are very disappointed in Judge Tran’s decision,” Gus Thomson, a Transparent GMU representative, said in a statement. “We believe the public has a right to know the details of our university’s operations, including its relationship with private donors.”
George Mason University Foundation Chairman Jay O’Brien said the foundation “appreciates and welcomes the ruling.”
“We believe this ruling affirms that our foundation, and others like it at colleges and universities across the Commonwealth, are private entities and that our donors have certain rights, including privacy, associated with their gifts,” O’Brien said in a statement. “This does not however mean that this foundation or George Mason University, who we so proudly support, should ever relinquish its academic integrity.”
Transparent GMU said it plans to appeal. The group’s attorney argued that the George Mason foundation performs a university function. The foundation’s management of private funds is a form of public business, Transparent GMU maintained.
Attorneys for the foundation argued that it is private and not part of the public university. As such, the attorneys said, it should not be subject to state public records laws.
“The university is aware of the decision and is reviewing the opinion,” George Mason spokesman Michael Sandler said in an email Thursday. “We are not currently a part of the suit. Given that the legal matter may continue, we can’t comment beyond that at this time.”
The judge concluded the foundation is not a public body because there is no proof that the foundation is either supported by public funds or was created to perform the functions of a public body.
“A decision to treat the foundation as a public entity requires an examination and reformulation of public policy,” the judge’s ruling said. “As the Virginia Supreme Court recently observed, charting new public policy issues . . . fall within the purview of the General Assembly and not of the courts.”
There were two parts to the judge’s decision, one that emphasized the separate legal status of the foundation, said George Rutherglen, a professor at the University of Virginia School of Law. The other part focuses on communications between the foundation and the university, he said.
“With respect to communications between the foundation and the university, the court holds that those generate public records of the university and those public records are subject to the Freedom of Information Act,” he said.
The decision mentions the university’s Gift Acceptance Committee, which is constituted mostly of university personnel. That committee’s work “cannot be conducted in secrecy,” the decision states, and the acceptance of gifts, with terms approved by university officials, produces public records.
That section drew the interest of Samantha Parsons, a George Mason graduate.
“It brings this entire issue back to the fact that regardless of what the law requires of the foundation, the university does have the power to establish policies that can improve oversight of the foundation and improve the relationship between the university and foundation, in terms of transparency,” Parsons said.
The ruling was disappointing, said Parsons, who is a co-founder of UnKoch My Campus, an organization that focuses on Koch and higher education. Still, Parsons said she felt hopeful.
“There are many avenues,” said Parsons, who is also co-founder of Transparent GMU. “And I know that students, faculty and community members aren’t planning to give up working toward these goals.”
The decision is the latest development in a complicated saga at George Mason focused on philanthropy and academic freedom.
In April, George Mason President Ángel Cabrera disclosed that some donor agreements accepted by the school “fall short of the standards of academic independence.” Those agreements, Cabrera wrote in an email, raised questions about donor influence.
The pacts didn’t give donors control over academic decisions, Cabrera wrote, and most of the documents clearly stated the university is the final arbiter of faculty appointments. Still, Cabrera said, the agreements were not good enough.
Cabrera has said the gift agreements — which were accepted between 2003 and 2011 before he was the school’s president and supported faculty positions in economics — had all expired except one, a pact that was later voided.
Bethany Letiecq, an associate professor at George Mason and president of the university’s chapter of the American Association of University Professors, said while she is disappointed by the decision, she is not surprised by the ruling.
“I understand the judge’s ruling,” she said. “I don’t think that this issue is closed.”