George Mason’s Foundation Does Not Need to Release Records of Koch Foundation Agreements, Judge Finds

The Charles Koch Foundation’s campaign to make inroads in academe has weathered a difficult past few months. The conservative foundation’s efforts have generated well-publicized controversy at public and private institutions around the country, including Chapman University, Montana State University, and George Mason University. Activists stoking that pushback have exulted in their successes.

But a group of those activists suffered a setback on Thursday, when a Virginia judge rejected their attempt to lift the curtain of secrecy shielding gifts to a foundation that raises money for George Mason.

The case involved a George Mason student group, Transparent GMU, that had sued to gain access to donor agreements between the Koch Foundation and the George Mason University Foundation. The students argued that George Mason’s foundation, an entity that accepts and manages private gifts, works for the public university and should be subject to the same open-records laws.

But the judge, John M. Tran of Fairfax County Circuit Court, found that the foundation is not a public body under current Virginia law. He deferred to state legislators to change that law if they saw fit.

The ruling does little to clarify an already-cloudy legal picture. As The Chronicle has reported, little consensus exists on the reporting obligations of university foundations. States like California have put laws in place that subject those foundations to open-records requests. Other states, like Connecticut, have laws exempting foundations. The question has divided state courts.

Thursday’s decision was issued as the Koch Foundation continues to pour money into academic programs. The foundation donated $49 million to more than 250 colleges in 2016, according to the Associated Press, a 47-percent spike over the previous year.

At George Mason, students and professors had long pressed to find out more about the university’s Koch ties. In April their pressure led George Mason to release some older agreements, dating as far back as 2003, between outside funders and the university. Those documents revealed that donors had leeway to influence faculty hiring and assessment. George Mason’s president, Ángel Cabrera, said the deals fell short of academic standards and announced a review of gift-acceptance policies.

The students’ lawsuit sought access to a wider swath of unreleased donor records that they believe are currently held by George Mason’s fund-raising foundation. They pledged to appeal Thursday’s decision to the Virginia Supreme Court.

Despite the setback, “we’ve successfully galvanized a national conversation about transparency and about the relationship private donors have with universities,” said Samantha Parsons, a George Mason alumna who co-founded both Transparent GMU and UnKoch My Campus, a national advocacy group for which she now works.

Jay O’Brien, chairman of the George Mason University Foundation, released a statement welcoming Thursday’s court decision.

“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. “This does not however mean that this foundation or George Mason University, who we so proudly support, should ever relinquish its academic integrity.” The foundation, he said, is cooperating with Cabrera’s gift-policy review.

The judge’s ruling did offer some hope for transparency advocates.

“This decision does not mean that the university has unfettered right to keep secret its use of gifted funds to create programs in compliance with conditions and restrictions imposed upon those gifts,” Tran wrote.

The judge noted that, when it comes to donations with strings attached, those gifts could become public records once they are accepted and used by the university. That’s because George Mason has a gift-acceptance committee composed largely of senior university officials. The committee’s work, he wrote, is not exempt from the state’s Freedom of Information Act.

That aspect of the decision “is going to give interested parties a lot of latitude in terms of finding out the conditions under which George Mason accepted the funds,” said Jim Newberry, a lawyer with the firm Steptoe & Johnson who focuses on higher education, and who is not involved in the George Mason case. “If there are any strings attached to the money,” he said, “the public is going to know about it.”

Marc Parry writes about scholars and the work that they do. Follow him on Twitter @marcparry or email him at marc.parry@chronicle.com.