Tarleton State University v. Foundation for Individual Rights and Expression

Court of Appeals of Texas·Decided March 4, 2025·No. 15-24-00057-CV·Published

Opinion

ACCEPTED 15-24-00057-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 3/4/2025 3:10 PM Case No. 15-24-00057-CV CHRISTOPHER A. PRINE CLERK COURT OF APPEALS FILED IN 15th COURT OF APPEALS FIFTEENTH DISTRICT OF TEXAS AUSTIN, TEXAS AUSTIN, TEXAS 3/4/2025 3:10:28 PM CHRISTOPHER A. PRINE Clerk

TARLETON STATE UNIVERSITY,

Appellant and Cross-Appellee,

vs.

FOUNDATION FOR INDIVIDUAL RIGHTS AND EXPRESSION,

Appellee and Cross-Appellant.

SUPPLEMENTAL BRIEF OF APPELLEE/CROSS- APPELLANT

JT MORRIS Tx Bar No. 2409444 FOUNDATION FOR INDIVIDUAL RIGHTS AND EXPRESSION 700 Pennsylvania Avenue, SE Suite 340 Washington, DC 20003 (215) 717-3473 jt.morris@thefire.org Counsel of Record for Foundation for Individual Rights and Expression Because the close of briefing in this Public Information Act (PIA)

appeal of Tarleton State University withholding two sets of records

predated the Supreme Court of Texas decision in University of Texas at

Austin v. Gatehouse Media Texas Holdings, II, Inc., 68 Tex. Sup. Ct. J.

277 (Dec. 31, 2024), this Court granted the parties’ joint motion for

supplemental briefing of their positions on how Gatehouse Media may

affect this case. Appellee/Cross-Appellant respectfully submits that, as

explained below, Gatehouse Media justifies Tarleton withholding only

one of the two sets of the records at issue, so this Court should affirm the

grant of mandamus below regarding the other set, involving Tarleton’s

administrative takeover of the previously editorially independent Texan

News Service (“TNS”) student paper.

ARGUMENT

This Court should affirm the trial court’s grant of mandamus as

to the TNS takeover records in this case, even after Gatehouse Media.

Appellee/Cross-Appellant Foundation for Individual Rights and Expres-

sion (FIRE) sought two sets of records from Tarleton: those relating to its

investigation of a professor for inappropriate conduct toward his female

students, and those relating to its subsequent administrative takeover of

1 TNS for truthfully reporting on that scandal. The trial court held that

Tarleton failed to meet its burden of proving the PIA’s student-records

exception applied and ordered Tarleton to produce both sets of records.

On appeal, FIRE urged that under the 13th Court of Appeals decision in

Gatehouse Media, it was entitled to all the withheld records, redacted of

student identifiers, and to its attorney’s fees. The University argued the

student-records exception prohibits disclosure of any of the records.

After briefing closed, the Texas Supreme Court interpreted the PIA

in Gatehouse Media as “grant[ing] an educational institution

discretion . . . to disclose information in an education record if the

disclosure is authorized by” the Family Educational Rights and Privacy

Act (FERPA). 68 Tex. Sup. Ct. J. 277, 2024 WL 5249449, at *7.

“Education records” are those that “contain information directly related

to a student.” Id. at *1 (citing 20 U.S.C. § 1232g(a)(4)(A)). In so ruling,

the Court overturned the 13th Court of Appeals, which it held “erred by

construing the PIA to require mandatory disclosure” of information

directly related to a student. Id. at *7. In addition, the Supreme Court

held a university need not submit “education records” to the Office of the

2 Attorney General to determine whether the university had properly

drawn redactions of student identifiers. Id. at *8.

Applying the Supreme Court’s ruling here, FIRE acknowledges that

at least some records relating to Tarleton’s investigation of its wayward

professor presumably name students, rendering them “student records”

under Gatehouse Media. The case thus establishes that FIRE is not

entitled to those records with information directly related to a student (or

to attorney’s fees related to them), and Tarleton was not required to

submit them to the OAG for a withholding determination.1

Conversely, FIRE remains entitled to the other set of records that

relate to Tarleton’s administrative TNS takeover. Gatehouse Media does

not change that fact, because as those records do not “contain information

directly related to a student,” FERPA does not protect them from disclo-

sure, 20 U.S.C. § 1232g(a)(4)(A). As FIRE proved at traditional summary

judgment, those documents, like the Provost’s Letter, discuss the paper’s

1 While some of those investigation-related records may not include student names, FIRE will forgo identification and isolation of any such record(s) for production for purposes of this appeal.

3 administrative takeover, yet contain no student-identifying information

of any kind. Appellee’s Br. at 5 (citing CR 66, 83 ¶ 6, 94–95).

And even if takeover-related records exist beyond the Provost’s

Letter,2 Tarleton failed to satisfy its burden of proving they contain infor-

mation directly related to any student. Whether a withheld document

contains information directly related to a student is a factual question,

and Tarleton failed to meet its burden at summary judgment, either of

proving its assertion that it could not produce the documents, or of

raising a fact issue for trial to defeat FIRE’s summary judgment motion.

See Appellee’s Br. at 34–36. The PIA thus compels Tarleton State to turn

over this second set of TNS-takeover records. Yet it continues to withhold

them without lawful justification. Mandamus was and remains the

appropriate remedy under Texas law.

2 In fact, Tarleton revealed below that these records may exist. CR 150 (admitting “Petitioner has obtained some of the withheld documents from other non-University sources” (emphasis added)). Yet it has never stated how many records it has withheld—presumably, emails, meeting minutes, calendar invitations and the like reflect the decision to strip TNS of its independence, as discussed in the Provost’s Letter.

4 CONCLUSION AND PRAYER

This Court should (1) uphold the trial court’s grant of traditional

summary judgment to FIRE with respect to public records involving the

administrative takeover of TNS, (2) reverse the trial court’s denial of fees

to FIRE with respect to those records, and (3) remand to the trial court

for a determination of a proportional fee award to FIRE.

Dated: March 4, 2025 /s/ JT Morris JT MORRIS* Tx Bar No. 2409444 FOUNDATION FOR INDIVIDUAL RIGHTS AND EXPRESSION 700 Pennsylvania Avenue, SE Suite 340 Washington, DC 20003 (215) 717-3473 jt.morris@thefire.org

*Counsel of Record

5 Certificate of Compliance with 9.4(e), (i)

1. This brief complies with the type-volume limitation of Texas Rule of Appellate Procedure 9.4(i)(2)B) because, according to the Microsoft Word 2024 word-count function, it contains 833 words, not including those sections excluded under Rule 9.4(i)(1), and the aggregate word count of all briefs filed by FIRE does not exceed 27,000 words.

2. This brief complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2024 software in Century Schoolbook 14-point font.

Date: March 4, 2025 /s/ JT Morris JT MORRIS FOUNDATION FOR INDIVIDUAL RIGHTS AND EXPRESSION

6 CERTIFICATE OF SERVICE

Under the Texas Rules of Appellate Procedure, I certify I served a

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