Public colleges are not exempt from transparency
Public institutions of higher education are government entities that should not be empowered to shield information from the public. The Missouri Senate is considering Senate Bill 465, legislation introduced by Sen. Eric Schmitt that would require taxpayer-funded public colleges and universities to post rudimentary course information on their websites.
Under this reform, information such as course syllabi, reading lists, attendance requirements, extra-credit opportunities, assignments and projects would be considered public record.
The legislation is a response to a Missouri court of appeals decision that held faculty at the University of Missouri hold ownership rights over their course syllabi and therefore do not have to provide copies of the syllabi to the National Council on Teacher Quality (NCTQ).
The NCTQ requested information from colleges and universities nationwide in an effort to provide analysis of teacher education programs. Only three school systems — in Missouri, Minnesota and Wisconsin — objected to the disclosure of the information, prompting lawsuits filed by NCTQ. The Minnesota court found in favor of NCTQ and the university system had to provide the syllabi. In Wisconsin, the parties came to a settlement wherein not only did the university have to turn over the syllabi but also was ordered to pay NCTQ more than $10,000 in fees and damages.
The Missouri court of appeals ruled in favor of shielding this information from the public, holding that the syllabi were the copyrighted material of the faculty and therefore were protected against copying and distribution by the federal Copyright Act.
We believe the decision by the court of appeals sets a dangerous precedent that will allow public entities, funded by taxpayers, to bypass our state’s Sunshine Law and shield copyrighted information from the public.
More than 10 percent of Missouri’s general revenue is used to fund public higher education. Taxpayers have the right to know basic information about how their money is spent. Simply providing course syllabi can provide basic information to taxpayers and to the public at large. We, as taxpayers, students, parents and groups that research and evaluate specific degree programs, have a right to know which textbooks are used to teach a course and other basic information.
We are not prejudging these courses, but the public has a right to know the reading list for a course titled “Religion in Science Fiction.” We have a right to know the materials that will be used in “Walt Disney and American Culture.” The same is true for “General Chemistry” or “Foundations of Western Civilization.”
We also need to consider how this lack of transparency in public education will affect our state in the years and decades to come. What will happen if local governments refuse to provide copies of public records to interested taxpayers because the document is copyrighted? Or when a journalist is refused a request for a public record for the same reason? This is one of the reasons the Missouri Press Association recently testified in favor of Sen. Schmitt’s legislation.
Even if we concede that faculty-created syllabi are protected under the Federal Copyright Act (FCA), which actually appears to be in direct contrast to the University of Missouri’s own rules, the FCA still has limitations. One of those limitations is the doctrine of fair use, which holds “the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
This reform does not single out the University of Missouri. It will ensure all public colleges and universities in our state are equally required to make this vital information accessible to the general public. Requiring the information to be posted on a public website does not prevent an individual faculty member from pursuing legal action on a true violation of the FCA. Any burden this might place on a public college or university, or any criticism one might face from the disclosure of information, is minimal compared to the benefits of open, transparent government.
Gregg Keller, founder of Atlas Strategy Group, is chairman of Missouri Century Foundation, a free-market public policy organization.