Access to faculty and other state employee evaluations

When Jane was appointed editor of the student newspaper at her state university, one of her main goals was to investigate the effectiveness of the school's administrators and faculty and expose any abuses she might find in the administrative process. In recent years, tuition at her school had increased dramatically, yet she felt that the quality of education that students received remained unchanged. She wanted to know why.

Her first move was to request various documents from school officials, including faculty evaluations by students and other faculty members or school administrators, to determine if the school's faculty and other personnel were giving students their money's worth through effective teaching and administration. When Jane's information requests largely were denied by school officials who claimed a right to privacy and academic freedom, she realized that one of the biggest problems with the school's administration was that information that was clearly in the public interest was only provided to top-level administrators.

Although some schools — public and private — make available the general, collective results of students' faculty evaluations, which are sometimes published in the school's student newspaper or other publication, many will not disclose results of individual faculty member evaluations. In fact, it is often only a handful of top-level school administrators who are provided access to the actual results of the student evaluations, in addition to the faculty member who can usually review his or her own evaluations.

In this way, that same tiny circle of administrators can conceal serious problems in the performance records of public employees, including teachers and professors of public high schools and universities. Realistically, without such information, a high school student risks obtaining substandard preparation for college, and a college student can end up paying thousands of dollars for an education from incompetent or indifferent professors. Additionally, discriminatory practices based on a faculty member's gender or race often have resulted from such strict protection of evaluative information.

With the average four-year tuition at a public college or university in the tens of thousands of dollars and the same cost at private schools now more than $100,000, it is absurd and unfair that consumers of higher education can often find out more about a new $20 toaster they're thinking of buying than about the faculty members and schools who eagerly take their checks each semester.1

When considering whether and how to request faculty evaluations or their reported results, a state's public records law (also known as the state's open records law, "sunshine law" or freedom of information act) is usually the best place to start. That statute will explain how accessible (or inaccessible) certain documents may be in your particular state. As detailed below, some laws expressly allow or exempt disclosure of faculty or other school employee evaluations. (Incredibly, a few states even allow access to evaluations of some state employees but create a special exemption that keeps faculty members' evaluations secret.) Most, however, do not specifically address the issue, and you will have to carefully analyze the statute's wording and any relevant case law or attorney general opinions for guidance.

Teacher Ratings Web sites

While obtaining and carefully analyzing "official" faculty evaluations is likely to produce the fairest and most accurate portrait of a teacher's competency and teaching skills, the Internet has spawned some alternatives. One of the better-known teacher rating Web sites, for example, is RateMyProfessors.com, where users (presumably students who have taken a professor's class) can anonymously rate their instructor's performance. In 2009, the site claimed to have logged 6.8 million ratings, for more than a million professors.2 The site, launched in 1999, is currently owned by MTVu, which is part of the MTV Networks. Critics have charged that the site's ratings are statistically unreliable and unfair and the site itself admits that its ratings are simply "opinions and judgments." Still, where schools fail to provide access to the "real thing," such virtual faculty evaluations may be the only alternative.

Private schools

It is important to note that most open records laws apply only to "public agencies" or "public bodies," and therefore, do not apply to private schools. Private schools are just that — private — and for the most part school administrators can adopt whatever policy they choose regarding disclosure of faculty or other employee evaluations.

It is true that some states have determined that otherwise private entities that receive funding from the government or that somehow act on behalf of the government can be subject to the state's open records laws. In Arkansas, for example, private entities that receive at least some funding from the government may be subject to public records requests under that state's freedom of information act.3 Still, no court has specifically extended this to private schools that receive state funds, though it theoretically could happen in states with laws similar to Arkansas, particularly where the facts of a case are especially compelling. Generally, however, if you are seeking such information from a private high school or college, you should look to that individual school's policy regarding disclosure.

What the courts and state legislatures say about access

While some courts and state legislatures that have specifically dealt with the issue of access to faculty and other employee evaluations have ruled that the state open records law allows disclosure of such information, other states have taken the opposite position, determining that such records should be closed to the public. A number of states have ruled that certain types of evaluations or records are open while others are not. Still other states have avoided settling the issue one way or the other, and rely instead on a balancing of the public interest and the rights of privacy for the individual whose records will be released to determine whether to allow the disclosure.

For instance, in Colorado, New York, North Dakota, and Ohio, the state open records law, or a state court's interpretation of that statute, expressly allows disclosure of faculty evaluation information.4

However, statutes or courts in Connecticut, Kansas, Louisiana, Massachusetts, Missouri and Rhode Island allow government officials to keep some of this information secret.5

The other states that have specifically addressed the issue thus far have, for the most part, created special rules for themselves outlining limitations to access, and granting disclosure in only certain situations. For example, in Arkansas, a balancing of the public interest in disclosure of personnel information against the privacy interests of the person whose records would be disclosed must be performed to determine whether disclosure is appropriate in a particular case.6 Unfortunately, the balance in Arkansas seems to tip more often in favor of nondisclosure as the records are presumed to be exempt from disclosure under the state open records law. Other states, including Iowa, Montana, West Virginia and Wisconsin, use the same type of balancing test to determine whether the disclosure is warranted,7 though court rulings in West Virginia and Wisconsin have made it less likely that a request for faculty or teacher evaluations will be granted.8

Because few students have the resources to file a lawsuit to challenge improper withholding of information by school or other officials, many cases in this area have involved faculty members and other employees who have brought discrimination suits against a school, usually in a college or university setting. In a typical discrimination case, a university professor who has been denied tenure will sue the university if he or she believes that racial or gender discrimination motivated the tenure denial. The professor typically needs the evaluation files of other tenure candidates during the same review period, as well as his or her own personal tenure review file, to prove the alleged discrimination actually occurred by showing different and biased treatment of particular candidates. In such cases, courts usually order the school to disclose the desired information under trial discovery rules, though some require the schools to redact out identifying information, such as names and addresses.

For example, in State ex rel. James v. Ohio State University9, where an assistant professor's request for access to his and other faculty members' tenure and promotion records was granted by the university only with all pertinent information omitted, the court held that promotion and tenure records maintained by a state-supported university are "public records" under the state Public Records Act,10 and therefore subject to disclosure. In New York, a court ruled that a settlement agreement that resulted from a disciplinary charge and private hearing for a teacher's misconduct was subject to disclosure under New York's open records law, because such information was "clearly of significant interest to the public."11

In a 1990 case that concerned providing records in response to a subpoena rather than an open records law request, the University of Pennsylvania — a private university — creatively argued that its First Amendment right of academic freedom would be infringed if forced to disclose peer review (evaluation) documents to the Equal Employment Opportunity Commission.12 It argued that the EEOC needed to show a "particularized need" for the desired information prior to disclosure. The U.S. Supreme Court found that the requested information did not relate to the right of the university to make tenure decisions on academic grounds, and thus, did not infringe on the school's "academic freedom."13

While some of the cases above are promising, they do not guarantee success in your particular case, and it remains essential that you look to an individual state's laws to acquire the necessary details regarding a particular information request.

How to request faculty evaluation information

If a state statute allows disclosure of these faculty evaluation records — unconditionally or even under limited circumstances — or if it does not make clear your legal right of access, your first step should be to politely request the records from the administrator who holds and maintains them.

While an oral request often works, a written one may become necessary if your request is rejected or ignored. A written request may also be taken more seriously by school administrators as it is clear evidence of your request and cannot easily be tampered with in the future if a dispute arises about what exactly was requested and when. Lawyers refer to this as starting a "paper trail," which is important should the matter ever go to court. Additionally, a written request for information will more likely evoke a written response listing reasons why that information is or is not available to the requester, which may lead the requester to revise the request to fit the requirements of the administrator in order to compel disclosure.

Filing a written freedom of information request is not complicated. In most cases, a couple of paragraphs specifying what information is desired and citing the appropriate freedom of information law should be enough. The Student Press Law Center has a free, automated, FOI letter generator available on its Web site that can assist you.14

If a state statute expressly prohibits disclosure of employee performance records, you're probably out of luck — at least until you can persuade lawmakers to change the law. Often, however, open record exemptions are discretionary. In other words, a recordkeeper can, but does not have to, release the requested records upon request. If that is the case with your state's law, you should go ahead and file a written request. You may choose to acknowledge the information holder's discretionary authority to release the information, but at the same time provide good reasons why such information should be released. While the administrator still has the option of refusing the information request, he or she may be more likely to grant it if there are valid reasons for doing so — and if they know they will be held publicly accountable for their decision.

Finally, some states allow the person who is the subject of the information to waive his or her right to privacy. Unless the faculty member wants his or her evaluations published, however, any request asking for permission will likely be denied. Sometimes, though, teachers and professors who believe they have been subject to improper discipline or discrimination want their records released to prove that their complaints are true.

Conclusion

As the above information indicates, you may not have to accept "no" for answer when seeking information about faculty or administrative job performance at your school. In other cases, and particularly when dealing with private schools, the law may not be on your side. Even so, all is not lost. Though a school may not be legally bound to release faculty evaluations, there remain strong arguments why it should voluntarily do so. You should not hesitate to plead your case to the relevant school officials. Even if they will not release specific evaluations, it would seem only fair that students, their parents — and in the case of a public high school or college, taxpayers — be provided some proof that their hard-earned money given to schools as tuition payments or tax dollars is being wisely spent. If you are denied access, tell your readers. Particularly today, with soaring tuition rates, disintegrating state funding, hiring freezes and rising student indebtedness, we should all have the right to be informed consumers.

For more information on decisions and the latest developments concerning access to faculty and other employee evaluations in your state, contact the Student Press Law Center.

John Myers, a law student at the University of California at Berkley, assisted in updating this guide.

Endnotes

  1. The College Board reported that the average annual tuition to attend a public, four-year college during the 2009-10 school year was $7,020. The average annual tuition at a four-year private school was $26,270. The CB report viewed at: http://www.collegeboard.com/student/pay/add-it-up/4494.html.
  2. RateMyProfessor.com Frequently Asked Questions, viewed at http://www.ratemyprofessors.com/faq.jsp
  3. Ark. Code Ann. sec. 25-19-103(5)(a) (defining "public records" to include "writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds.")
  4. See Colo. Rev. Stat. sec. 24-72-202(4.5); Denver Post v. University of Colorado, 739 P.2d 874 (Colo. App. 1987); Blecher v. Board of Education, N.Y.L.J., Oct. 25, 1979 (Sup. Ct. Kings Co. 1979); Anonymous v. Board of Education for Mexico Central, 616 N.Y.S.2d 867 (Sup.Ct., Oswego Co. 1994); Hovet v. Hebron Public School District, 15 Med. L. Rptr. 1118 (February 2, 1988); and State ex rel. James v. Ohio State University, 637 N.E.2d 911 (Ohio 1994); Dove v. Allen Co. Educ. Serv. Ctr., 118 Ohio App.3d 102 (1997).
  5. See Conn. Gen. Stat. sec. 10-151(c); K.S.A. 45-221(a)(4); Op. Att'y Gen. 85-724; Trahan v. Larivee, 365 So.2d 294 (La. App. 3rd Cir. 1978), cert. denied, 366 So.2d 564 (La. 1979); Connolly v. Bromery, 15 Mass. App. 661, 447 N.E.2d 1265 (1983); Wakefield Teachers Assn. v. School Comm. Of Wakefield, 431 Mass. 792 (2000); and Mo. Rev. Stat. sec. 610.021(13).
  6. Ark. Code Ann. sec. 25-19-105.
  7. See Iowa Code sec. 22.7(11) (1991); City of Dubuque v. Telegraph Herald, Inc., 297 N.W.2d 523 (Iowa 1980); Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283 (1982)(records are presumably open); W.Va. Code sec. 18-29-3; and Wisconsin State Journal v. University of Wisconsin, 18 Med. L. Rptr. 1872 (January 29, 1991).
  8. Smith v. Bradley, 223 W.Va. 286 (2007); Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis.2d 768 (1996). 637 N.E.2d 911 (Ohio 1994).
  9. R.C. 149.43(A)(1).
  10. Anonymous v. Board of Education for Mexico Central, 616 N.Y.S.2d 867, 871 (Sup.Ct., Oswego Co. 1994).
  11. Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182 (1990).
  12. Id. at 199. In fact, at least one federal court of appeal has ruled that there is no "right of academic freedom" under the Firs
  13. Amendment. Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. Va., 2000).
  14. http://www.splc.org/foiletter