The Caldwell/Hays Examiner, a progressive nonprofit news outlet covering Central Texas, has had significant success over the years dredging up facts that some people didn’t want the public to see. The Examiner has used the Texas Public Information Act to learn about white supremacists in Hays County; to examine efforts by the San Marcos Police Department to deal with an officer accused of excessive force; and to bring to light ethnic slurs used by a Caldwell County detective, among other things.
In 2022, the outlet was part of a communitywide push by social justice advocates and students from Texas State University to decriminalize low-level possession of marijuana in San Marcos. The Examiner gathered information on the numbers of citizens being punished by the city but also wanted to understand how Texas State was disciplining students accused of possession, particularly students of color. So in March of that year, Caldwell/Hays Examiner founder Jordan Buckley filed a public information request with the university, asking for data on students suspended or expelled for drug-related violations between 2018 and 2021 and their ethnicity.
Buckley pointedly did not ask for the names of the students, knowing that the disclosure of such information would likely be prohibited by the Family Educational Rights and Privacy Act, known as FERPA, which safeguards the privacy of students by restricting when their identities can be made public. “We clarified that they could redact all details except the race of the student, type of drug involved, disciplinary action taken, and academic year when action was taken,” said the Examiner’s Sam Benavides. “Still, they refused to comply, despite us making it clear that we were not seeking names or any other personal information.”
“It spurs us to wonder if there might be a deeply disturbing racial trend afoot.” – Jordan Buckley, Caldwell/Hays Examiner founder
Texas State did make a limited response, providing a chart showing that a total of six students had been suspended and 28 expelled over the specified time period. But it withheld the other details, citing FERPA. So in October of that year, the Examiner filed a lawsuit, which is still ongoing, demanding the information. Now, a ruling in a similar suit has the group concerned.
On Dec. 31, the Texas Supreme Court released a decision in a 2019 lawsuit filed against the University of Texas by the Austin American-Statesman. The Statesman sought records from UT under the Public Information Act for disciplinary hearings involving students accused of violence and sexual assault. UT refused to provide the information, citing FERPA. A trial court sided with the Statesman and ordered UT to release the information. UT appealed. An appeals court sided with the Statesman and UT appealed again, to the Texas Supreme Court. Now, the court has overturned the previous rulings, writing that a clause in the Public Information Act allows universities to withhold information at their discretion.
“The recent Supreme Court ruling creates a disturbing precedent that the disclosure of an entire category of government records is left to the discretion of the governmental body whose actions should be subject to public scrutiny,” said Bill Aleshire, the attorney representing the Caldwell/Hays Examiner. “The result is no transparency and no accountability for the university’s decisions.”
Jordan Buckley said Texas State’s refusal to comply with the open records request heightens concerns about disproportionate drug policy enforcement. “It spurs us to wonder if there might be a deeply disturbing racial trend afoot: namely whether students of color have been disproportionately – or even exclusively – suspended and expelled in recent years for pot,” Buckley said. “And without letting the judge or our attorney see the information, it is impossible for the court to determine, and for our attorney to argue, whether the information we’re seeking could be used to identify a particular student.”
Buckley said Aleshire will soon file a motion asking that a judge review the disputed material and allow Aleshire to see it as well, so all parties can decide whether the information should be protected from disclosure. Aleshire expects Texas State and the Office of the Attorney General to oppose the motion, however, meaning that a hearing will have to be held. Then the case will likely be set for trial.
This article appears in January 17 • 2025.
