Arkansas Blog

Another item of legal interest arose during my visit yesterday to the Societ of Professional Journalists meeting, where I was on a panel with UALR law professor Rick Peltz, a Freedom of Information expert, on the furor stirred up by my publication of the list of concealed weapon permit holders in Arkansas.

Peltz distributed copies of his new law review article about the University of Arkansas's use of federal privacy law to defeat efforts by a Little Rock lawyer to obtain information about how affirmative action policies affect law school admissions. The lawyer was able to get data about application and admission rates by race, but wasn't allowed to receive information about individual test scores and grades. The university argued that specific test information might lead to identifying individual students.

(Relevant context: Peltz was at the center of a law school controversy arising from classroom debates on affirmative action. A black law students group criticized Peltz. He sued students for libel. The school has generally moved past the event, but strong feelings linger.)

To oversimplify, Peltz's article says the UA was incorrect in shielding data. He argues that it could have been released in a way that protected individual students' privacy and that federal policies provided for just such "de-identification." He said the University of Arkansas's resistance was "indefensible" because the university failed to demonstrate any statistical basis to support its theory that release of test score information could lead to personal identification.

The article will undoubtedly reignite discussions about the core issue of affirmative action at UALR.

But I was also drawn to the piece for its discussion of where strong state disclosure laws should prevail over the Pavlovian response that university officials in Arkansas (and elsewhere) have to requests for student information. The federal law is reflexively used to squelch any request, even in cases where federal officials say the law doesn't apply.

Think UCA. Apart from its interim president, it hasn't been able to turn up legal authority to defend its protection of the names of students who received discretionary scholarships from former President Lu Hardin. Yet secrecy persists. Sue if you want,  UCA says.

The attitude is illustrated by a telling memo that the Little Rock attorney (unidentified in Peltz's article) dug up when seeking the affirmative action data at UALR. Said a University official: "We say FERPA [Federal Educational Rights and Privacy Act], they can challenge if they want." It takes deep pockets to sue. The UA has a staff of attorneys that will litigate you until you're broke, bringing in high-dollar outside counsel as backups when necessary. I know this from bitter personal experience.

Thanks to Rep. Lindsley Smith's recent legislation, there might at least be some access in the future to state-provided legal fees when public officials stonewall legitimate requests for information.