Virginia Supreme Court Upholds Ruling that George Mason University Foundation Is Not Subject to State FOIA Statute, Leaving Koch Funding Details Undisclosed

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Recently, I found myself on some long-haul flights during which I caught up with a handful of films I’d wanted to see, but weren’t playing at a cinema anywhere near where I was located at the time of their release.

One of these films, Vice, focused on the career and influence of Dick Cheney, and the rise of hard right, conservative politics in the US. It’s not altogether surprising that the role of Koch Brothers – specifically the Charles G. Koch Foundation – in funding and promoting the genesis and dissemination of conservative ideas – remains largely explored in cinema, although it’s alluded to in the film. Successful films generally feature finely drawn protagonists, and narrative conflict. The emphasis is on the personal, rather than systemic analysis: we watch actors act.

For enlightenment about the systemic, we must usually rely on other sources.

George Mason University (GMU) is Virginia’s largest university and is a public institution funded by the state of Virginia. The George Mason University Foundation (GMUF) is a privately held corporation established to raise funds and manage donations given for the benefit of GMU. GMU and its Mercatus Center are significant recipients of Koch and other private funding.

Students and other interested parties, including UnKoch My Campus, concerned about the possible threats this funding poses for academic freedom, sought to get GMU and GMUF to release documents under the state’s public disclosure statute, the Virginia Freedom of Information Act (VFOIA).  Numerous shenanigans ensued. Those charged with processing the requests attempted to levy exorbitant fees – no doubt to deter the requests, GMU tried to hide behind GMUF, with GMU claiming it did not hold the relevant documents. GMUF for its part argued that as a privately held corporation, it was not bound by VFOIA.

So, Transparent GMU sued GMU and GMUF under VFOIA, seeking the following:

For the years of 2008 through 2012, any grants, cooperative agreements, gift agreements, contracts, or memoranda of understanding (including any attachments thereto) involving a contribution to or for [GMU] from any of [several charitable foundations under Charles Koch, Claude R. Lambe, and David Koch].(opinion p. 4).

(See this account in the Fairfax County Times, Virginia Supreme Court agrees to hear GMU transparency lawsuit, for further details.)

As I wrote in May 2018 in Tyler Cowen, Koch Brothers Funding, Mercatus Center, George Mason University, and Academic Freedom, these and other initiatives spurred the release of some  emails and supporting documentation that revealed the influence donors, principally the Charles G.Koch Foundation, exerted over GMU’s economics faculty and law school.

But the plaintiffs still did not have all that they asked for.

The Circuit Court of Fairfax County dismissed GMU as a defendant to the lawsuit, leaving GMUF as the sole defendant.

On July 5, 2019, the same court rejected the plaintiff’s VFOIA claim against GMUF, finding  the GMUF was not a public body.

Transparent GMU appealed the lower court’s ruling as to GMUF. The Supreme Court of Virginia considered one issue only:

The questions before us on appeal involve whether the Foundation, a privately held corporation, established to raise funds and manage donations given for the benefit of GMU, is subject to VFOIA (opinion, p. 1).

On December 12, the Supreme Court of Virginia unanimously determined that GMUF’s records are not subject to VFOI disclosure.

“Evan Johns, a lawyer for Transparent GMU, said the ruling is disappointing and leaves no avenue for appeal,”  according to the Washington Post’s account, Court: university foundation exempt from public-records laws.

I concur.

The United States Supreme Court tends not to review decisions of a state’s highest court in interpreting that state’s statutes – unless a major constitutional principle is at stake. And I think it’s safe to say that a current majority of the Supremes won’t have any interest  in reviewing a decision that allows dark sources of university funding to remain in the shadows.

So the Supreme Court of Virginia’’s decision will almost certainly stand. This leaves the public who finances GMU ignorant of  the terms and conditions the Kochs and other private funders impose on academics and departments that accept their contributions. So much for academic freedom….

As the WaPo notes:

Mason’s interim president, Anne Holton, said Thursday in a statement that the ruling will help private foundations continue their support for public universities.

Indeed! And we should ask why some of them provide such funding. Alas, the days when private funders donated funds for disinterested reasons are long gone – if they ever existed. (Jerri-Lynn here: my emphasis.)

Now, the court’s opinion applies to VFOIA requests only. Other states aren’t bound by Virginia law, and some of them have their own disclosure statutes. Over to the WaPo:

Court papers filed in the case show that states across the nation have issued varied rulings on the topic, depending on how each state’s laws are written.

Academic Battlegrounds

Faculties of law and economics are only two battlegrounds. Think of the other areas in which the Koch’s have interests: global warming? Environmental degradation? Plastics?

And the Kochs may be the best known bugbear, but they’re not the only funders that seek to direct academic research in a direction that accords with their own self-interest.

Think Big Pharma. I’m sure readers can come up with many other examples of their own.

What Is To Be Done?

Those of us who rely on FOIA or its various state analogues for our work are well familiar with the deficiencies of these statutes. It’s not uncommon for holders of  documents to impose exorbitant fees to process disclosure requests. Nor are parties bound to meet the timetables specified in the disclosure statutes. So your humble researcher or journalist  makes a request, and waits years to receive a trickle of documents.

But as to GMUF and GMU, the Supreme Court of Virginia has blocked even that narrow pathway.

So, if VFOIA doesn’t apply here, what other mechanisms are available to find out who pays the piper?

There are two options I can see.

The Virginia General Assembly  can amend VFOIA and make GMUF, and other similar private educational foundations, subject to its terms, going forward. Note that this can only be done prospectively, and could not apply retrospectively; the Virginia legislature can not  compel GMUF to disclose existing agreements.

There are moves afoot to enact such a change and make VFOIA cover situations such as the one presented here.

Second, GMUF could voluntarily disclose the agreements at issue here, even retrospectively. I know this outcome seems unlikely, but I understand GMUF has in some cases, done so, in response to faculty requests.

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  1. KLG

    Ha! What a surprise.

    Anyway, regarding George Mason University, did anyone else get the ad for their PhD Program in Cultural Studies on their NC page over the past few weeks? IIRC the tag line was a lure to left-leaning prospects. It did make me laugh. Are there any left-leaning prospective graduate students with half a brain who do not know the continuing saga of GMU, Mercatus Center, and the Koch Brothers? Inquiring minds and all that…

  2. readerOfTeaLeaves

    The inability to recognize that their actions delegitimize what they claim to value continues to astonish.

    1. Alfred

      Yes, Virginia, there is a cause for pause. Yes, indeed. “Mason’s interim president, Anne Holton, said Thursday in a statement that the ruling will help private foundations continue their support for public universities.” No irony there, eh? On the bright side, the rejection of any FOIA application always reveals (ipso facto) a vast amount of information. In this case, it seems to have confirmed all of the students’ suspicions.

  3. Dirk77

    I am puzzled. The money and its restrictions flows through a pipeline. If one purpose of GMUF is to launder that money from outside sources, you can still get data on the money flow from GMUF to GMU. I mean the source of any academic restriction would not be known, but the restriction itself would. I assume that Transparent GMU had that data already, but wanted more?

    1. L

      The issue is that based upon what has been disclosed it is apparent that money to the foundation came with stipulations attached such as allowing the Koch’s to set content, review faculty, or otherwise direct (read micromanage) research and academic programs in a way that was a) concealed from everyone, and b) inconsistent with existing rules and standards.

      In effect the problem was that the university was attempting to claim that they were carrying out disinterested research and yet were acting as a front for a specific political agenda. They were in effect laundering Koch-directed activites through their name and even into their classes. As such students, and the general public were unsure whether they were being presented accurate research, or carefully tailored political propaganda.

      Imagine, for example, that the state began telling the university who would teach or not or what they would teach based not upon a public discussion of their work but a private selection of who was “loyal” to one party or another. From the outside that type of curation is exactly what it appears the university was doing. Now the new president has claimed that this is no longer the case but the fact that they have also resisted any attempts to disclose information to back that up leaves everyone more than a little suspicious.

  4. John

    Anyone with half a brain in Virginia knows that GMU was set up as a wing nut training academy from the get go.
    In some ways it’s better because all the cray-cray is concentrated in one place. And paleo UVA wouldn’t have them.
    They are effective however. A cousin who should have known better got fully indoctrinated when she decided to get a law degree there in the late 70’s. She was a fairly progressive feminist who wanted to get a law degree to change some of the horrors she saw working in social services. Coming out of the indoctrination, her career arc led to teaching law at Pat Robinson’s Regent U and she is now helping to crank out lawyers at the Falwell REIT known as Liberty U.
    Wingnuttia does have a plan.

    1. John Zelnicker

      December 16, 2019 at 7:11 pm

      “In some ways it’s better because all the cray-cray is concentrated in one place.”

      Not exactly. The Koch brothers and their allies have funded similar neoliberal education academies (to use your word) at probably a dozen or more universities all over the country. IIRC, one of the more recent ones was established at Florida State U. with a lot of controversy and protest from students and some faculty.

      All of the donations for these academies come with the same requirements giving the donors complete control over the curriculum and the hiring of faculty.

      IMNSHO, it is a perversion of the idea of academic freedom.

      1. smoker

        You’re welcome, Jeri Lynn, thanks for providing the opportunity to do so again. What the Mercatus Center is promoting should be widespread knowledge.

  5. pnw_warriorwomyn

    Which is why, 20 years ago, most Tier I research universities put their fundraising operations, salaries, etc all under independent university foundations. For. Just. This. Reason. The universities love it. Whereas before, when you worked in development and you were fired without cause because say, whistleblower items, (like a university President spending a realized bequest on something not specified by the donor and the donor was darn specific on the donation in his will), you could file a grievance and have it work its way thru the university process. That’s long gone. Students and other interested parties were, I suggest, intentionally mislead. Because billing talks louder.

    1. Jerri-Lynn Scofield Post author

      So much to write about, so little time! I intend to devote more attention to unpacking similar stories in future. The nuts and bolts of how funders shape academic research agenda is something worth exploring further.

  6. KYrocky

    The same legal battle was fought at the University of Louisville against its privately held Foundation, a Foundation which U of L’s President also chaired. The Kentucky Supreme Court decided for the FOIA applicants. Agreements entered into by a public university and binding on the university with any private entity were ruled to be public documents.

    Employees of public universities nor those with authority to act for the university were not legally entitled to enter into secret agreements with private entities.

    Common sense prevailed. Virginia’s Supreme Court Justices have shown themselves to be hatchet men for the Kochs.

  7. Paul Hirschman

    Cut off funding to the university and create a new university whose private foundation supporters must agree to transparency. Get rid of GMU! Don’t Dems control state government?

  8. Sarah Henry

    I’m not an attorney, but I find it interesting that the court cited so heavily a non-binding opinion of the Virginia Attorney General on the question of whether the Foundation constitutes a GMU “entity”, with only one precedent case involving similar facts cited (R&F Corp.) I’m under the impression that non-binding legal opinions are fairly far down the usual hierarchy of what judges are supposed to pay attention to when drawing conclusions of this sort. It makes me wonder if they were sort of fishing for a source to support a foregone conclusion informed by the justices’ personal political leanings.

  9. Frank Manheim

    I see claims that the Koch donations came with stipulations providing it control over appointments curricula etc. That’s not what President Cabrera said, as I recall. I would welcome documentation on this situation if the folks posting on the subject have concrete references.

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