MINUTES OF THE meeting
of the
ASSEMBLY SUBCommittee on Education
Seventy-Second Session
April 9, 2003
The Subcommittee on Educationwas called to order at 6:33 a.m., on Wednesday, April 9, 2003. Chairman Bob McCleary presided in Room 3143 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
SUBCOMMITTEE MEMBERS PRESENT:
Mr. Bob McCleary, Chairman
Mr. William Horne
Mr. Jason Geddes
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Chris Giunchigliani, Assemblywoman, Assembly District No. 9
STAFF MEMBERS PRESENT:
Carol Stonefield, Committee Policy Analyst
Linda Corbett, Committee Manager
Victoria Thompson, Committee Secretary
OTHERS PRESENT:
Bonnie Parnell, Public Policy Consultant
Rick Bennett, University of Nevada, Las Vegas (UNLV)
Mike Alonso, Jones, and Vargas Law Firm, representing MBNA America
Gary Peck, Executive Director of the American Civil Liberties Union of Nevada
Chairman McCleary:
We’ll open this Subcommittee on A.B. 353. We’ll let the record reflect that all members are present.
Assembly Bill 353: Makes various changes to provisions regarding University and Community College System of Nevada and Board of Regents of University of Nevada. (BDR 34-76)
I think we have three real issues on A.B. 353. One was the size of the board, the second was the privacy issue, and the third was the terms.
If you have anything different to offer, or if you want to make brief opening remarks, you may go ahead and do so at this time. As a matter of fact, we’ll let you do it last; would that be appropriate? After that, I’m going to listen to the Subcommittee members.
Assemblywoman Giunchigliani, District No. 9:
[Introduced herself] Mr. McCleary and I met right after you were appointed to the Subcommittee. Chancellor Nichols sent me language that I suggested for you to take a look at. I subsequently got another e-mail from staff that said that language was unconstitutional, that it would conflict with the commerce law. This is saying to the Committee that we need to go back to a different “square one” and look at a “median opt-in” again which is contained . . .
Carol Stonefield, Legislative Counsel Bureau Research Analyst:
Kristin Roberts from the Legal Division suggested to us that she had conferred with Kim Morgan, and their position is that the proposed amendment that would restrict the credit card companies would be unconstitutional under the U.S. Constitution Commerce clause.
Assemblywoman Giunchigliani:
I’m suggesting that we need to go back to the bill and see where the Subcommittee wishes to “land,” looking at the opt-in or opt-out issue. I still tend towards the opt-in provision myself.
Chairman McCleary:
Should we tackle these things one issue at a time? We have three issues. Let’s start with this one. Is there anything, constitutionally, that would prevent us from saying that the University System cannot profit off the student registry? I don’t like opt-in or opt-out, because that’s definite. You opt in for everything, or you opt out for everything; I don’t like that. It’s not fair to the alumni and others. We’ll have to hear how our panelists feel.
Assemblywoman Giunchigliani:
That would not be unconstitutional. That’s for you to make a discussion on a policy change. That section is really Ms. Parnell’s, so she might need to comment.
Bonnie Parnell, Public Policy Consultant:
[Introduces herself] My prepared comments are very short, but they show information that came out at the time when this hit the press.
There were a number of editorials written; a lot of information was given about student debt, and some negative results of that student debt. I also have copies of those editorials if anyone would like them.
More and more college students are facing debt problems from credit cards. This is a trend that is making a recession-weakened job market even more daunting for graduating seniors, many of whom also bear the burden of unpaid student loans. I referenced that in my comments in the other Committee meeting. The average credit card debt of college students has increased from $1879 in 1998, to $2748 in 2000. We can only assume that number has continued to increase.
The federal General Accounting Office reports that students are graduating with an average of $19,400 in student loans. Combining this with the existing credit card debt leaves college students graduating with thousands of dollars in debt, some being forced to file bankruptcy. The names, addresses, and phone numbers are a matter of public record, but it is how such information is compiled and provided, as well as the University’s implied endorsement of commercial products that makes the difference.
In an attempt to resolve this issue, I stand with Assemblywoman Chris Giunchigliani in suggesting that students should be given the opportunity to opt in to the sale of their names for commercial purposes, as A.B. 353 proposes. I remember one comment, in particular, and I would agree with it; I think the University brought this out, as did one of your members. That comment was that there is a real difference between current students and those who have graduated. The bill right now specifies students, former students, employees, or former employees. I think we’re looking at different issues there. We would all agree that the real issue, and what we were probably trying to achieve, is that students, 18‑year-olds, are getting promotional devices in the mail that say 0 percent interest; 3 months later, the rate has gone up to 22 percent interest.
[Ms. Parnell continues.] I remember my son at one point in time saying, “Gosh, mom, I make the minimum payment, but the balance is just not coming down.” I said, “Have you looked to see what interest you’re paying?” I think it was probably 22 percent interest. Kids can get in a “real heap of hurt” in a short period of time when you combine that with student loans. I read through the articles. There are some kids who are graduating from college, but because of their credit card and student loan debt, they really find it almost impossible to get a good start being a productive person in business. I read about one lady who tried to get a Small Business Loan. She was rejected because of the debt she had compiled in her college years. I think the student issue is a real issue.
I would be happy to amend out “former student, employee, or former employee.” I think this is a different “ball of wax.” I would offer that friendly amendment, if that would make the University and the members feel more comfortable. It’s the current students that I personally have a real concern with, and that’s even outside of the commercial endorsement issue.
Chairman McCleary:
Mr. Bennett, would you like to respond to that? Do you have anything to say regarding this one issue? We’re going to break this down into three issues.
Rick Bennett, representing University of Nevada, Las Vegas (UNLV):
[Introduced himself] I think I can speak for the Chancellor; she did try to provide some alternative language that she thought would meet your specific concerns. Regarding being considered not constitutional, I think I would have to say that the Board of Regents looked at this issue over the past year. Board members, as well as administrators and other system staff, spent hours and hours working through this issue. We received testimony from students, faculty, and employees. After much consideration, we developed a policy that we believe meets the concerns. That policy has been supported by the student organizations on all campuses, as well as faculty and senate representatives, and we believe that policy should be allowed to work. We believe that policy does address the situation.
[Mr. Bennett continues.] I appreciate Ms. Parnell’s suggestion to remove former students, employees, and former employees, because I don’t believe that was ever the issue. The policy does deal with current students. I might mention that, while we do have 18- and 19-year-olds, the average age of a student at UNLV is, I believe, nearly 28 years of age.
Mike Alonso, Law Firm of Jones and Vargas, representing MBNA America:
[Introduced himself] I think it’s important to note, and I think all of you are aware, that MBNA has the contract with the Alumni Association of the University that goes on for seven years. Anything we do here is not going to able to affect that contract, and I think that’s something you ought to consider seriously. We have sessions in between to watch and see what happens, and to see whether or not you really need to make a change here.
I think the other issue, speaking to Ms. Parnell, is that we are all solicited in the mail for credit cards, whether we have a contract or not. I get them all the time; I have for years. I think the students are getting them, and you’re all getting them. In this case, we have a contract that, as I understand it with the University, is very restrictive on what can happen with that information. I think there are protections there, whether students are opting in or opting out. I’d be willing to discuss that more, I think, on what’s in that contract. I think that’s pretty important, and if the Committee is unhappy with some of the provisions of that contract… Rick may know better than I do what’s in that contract, because I haven’t had a chance to see it. My understanding is it’s fairly restrictive.
Whether you exclude the current students, graduates, or anyone else, right now, the contract MBNA has with the University includes everybody, and it goes on for seven years. I’m not sure we’re going to accomplish a whole lot, at least in the near term, by changing that standard. As we understand it, the University can’t enter into a different contract; we have that exclusivity for seven years. This isn’t going to change anything for several sessions. I’d be happy to answer any questions.
Assemblyman Geddes:
Mr. Alonso or Mr. Bennett, what is the term of the contract at UNLV? Do you know the term of the contract at UNLV?
Mike Alonso:
It just was recently amended or changed to seven years not that long ago.
Assemblyman Horne:
I believe Mr. Alonso is correct; there isn’t anything we can do about existing contracts. However, setting policy is what we do here for the future. We’re not talking about just UNLV; we’re not talking about just UNR [University of Nevada, Reno]; we’re also talking about the Community Colleges in the System that may not be in these extended contracts. We’re talking about the future conduct of our University System. What we’re trying to achieve here is to protect the students, even though it is mostly our 17-, 18-, and 19-year-old students. I understand that the average age of the UNLV student is 28; I returned to school in my late 30s.
Since it would be unrealistic to section out a portion of the student population, I think the policy should reflect the student population in its entirety. I, for one, like the opt-in policy. I’ve been quickly reviewing FERPA [Federal Educational Rights and Privacy Act], because Chancellor Nichols, in her testimony, seemed to more than imply that if we had an opt-in provision instead of an opt-out provision, many students would be barred from receiving a plethora of benefits that the University System provides. I haven’t seen it, and I hope somebody here can show us where, in FERPA, that would trigger such an event.
Rick Bennett:
I’m not an expert on FERPA; I don’t have my “cheat sheet” with me that indicates exactly what information can be provided within a student directory, as opposed to information that can’t be a part of that student directory. Even within those guidelines of what can be a part of the student directory information that might be made public, individual institutions can choose to further restrict the information that might be on a student directory.
I do know that once you’ve established the information that can be on your directory, if a student indicates that they choose either to opt in or to opt out, if they choose not to have that information available to the public, then that restricts us from providing that information in any public sense. That’s my understanding.
Assemblyman Horne:
I remembered correctly during that testimony; it was almost like “six of one, half-dozen of another.” Whether the student opts in or opts out, the same result happens. There is certain information that the school won’t be able to relinquish to the general public; the Chancellor said no, it was different. I wanted to try to narrow that to where and how, because I looked in FERPA, and I couldn’t find it.
Chairman McCleary:
Mr. Peck, let me explain what we’re doing here. We’ve divided this bill into three portions: the privacy portion, the term of the Regents, and the number of the Regents. Presently, we’re talking about the Privacy Act, if you would like to make a brief statement on that.
Gary Peck, Executive Director of the American Civil Liberties Union of Nevada:
[Introduced himself] We’ve been involved with the University and Community College System of Nevada [UCCSN] with respect to this issue for what seems like forever at this point. I am deeply dismayed to learn that the University entered into a binding contract a week before these hearings. You will forgive me for saying that it has the appearance that they are trying to quickly put themselves in a position where this Legislature can’t do anything to protect the interests of current students.
I am an expert on FERPA, not the leading expert, but, because of our involvement with this issue, I’ve had to educate myself, as has our general counsel. We work with our legal staff in New York on these issues. There is absolutely nothing that would prevent the University from creating what you call an “opt-in” system; I would call it a “check-off” system. Somewhere on the registration materials that students would be required to fill out, just like they are required to put their name on their registration, you could have two sets of boxes; one would say, “Yes, you can share my information for commercial purposes,” or, “No, you cannot,” and, “Yes, you can share my information for noncommercial purposes,” or “No, you cannot.”
I think what is most troubling to me is that I am a former professor and someone who really loves the University and Community College System, and believes it should be a model for the rest of our society, I am deeply dismayed at some of the gamesmanship and “wordsmithing” around this issue on the part of UCCSN. This is a simple issue; it is not complicated. The University and Community College System should do what is right, what is ethical, and what is in the interests of its students by protecting their privacy. It is simple, it is straightforward, and, if this Legislature wants to make a decision that is right, principled, and ethical, it will support this bill. I would actually urge the Legislature to look at the contract that the University signed to see whether or not it is possible to create this kind of check-off system without violating or breaching the terms of that contract.
[Mr. Peck continues.] This is pretty straightforward, and I can assure you that 90 percent of the public are on our side. We get calls from people all the time at the ACLU who are not normally on our side of a lot of issues, saying, “We’re not normally on your side, but this one’s pretty clear, it is pretty straightforward, and it’s not complicated.” I urge you to do the right thing and pass a law that says if the University and Community College System wants to share student information with anyone, they should get the students’ permission.
We do not support, by the way, a blanket ban on the sale of such information. We are for real, meaningful, informed choice, and that is consistent with fundamental American principals and values. I would urge you to support any legislation which would accomplish that.
Chairman McCleary:
Thank you, Mr. Peck. We’re now going to discuss the Board of Regents. Mr. Geddes, would you like to start, or did you have a question for Mr. Peck?
Assemblyman Geddes:
In the testimony we had last week, the Chancellor and the Regents brought forth the proposal they had, and the policies they had come up with. The proposal had the opt-out option, each semester, in the front of the course catalog and on the registration page of the Web site, as a reaction to this bill. The thing that struck me on that policy was that the student representatives came forward and said this policy addressed their concerns and issues. They were part of forming this policy, and they thought it handled their problem. In regards to that policy, and the students who believe that policy worked for them, why do you think it doesn’t? I have to say that I think there is room for disagreement.
To say it’s unethical is highly overstating the situation, because if we look at this policy, and we pass this bill, with what this bill goes to address, we’re going to deal with a certain aspect. When I applied to universities as a whole, once I took the ACT, I started getting many credit card requests, and they weren’t just concerning the University. I applied to the University of Nevada last, and credit card applications started piling in. When I came up on the campus, they were in my book bag, there were inserts in the books that I purchased; everywhere there was a credit card application. When I go around campus today, there’re people sitting out on the lawn with their sunglasses, their water bottle, their six-packs of Coke, and their credit card applications. They are everywhere on the campus.
[Assemblyman Geddes continues.] If we passed this bill, in my firm belief, credit card applications to an incoming student would drop from ten a week to nine a week. That is it. That is my concern; this bill may address this one issue, but I don’t think it’s going to do anything to dent the credit card situation. The Foundation, with the two programs at UNR and UNLV, is selling the list for a profit. That profit does go into a lot of scholarships and good programs, and I think those programs are good, valuable programs.
I have a credit card, and I’m going to use my credit card. I’m going to purchase things. If it’s my MasterCard, my MBNA, or my University of Nevada Foundation card, if a little bit of that goes to scholarships, I feel good about that card. I’m going to use my credit card to buy my gas and make my purchases anyway, so I’m okay with that. If you could address the Regent policy, I would appreciate that.
Gary Peck:
I’ll address each of these issues, and I’ll start by saying we can respectfully agree to disagree about whether there is room for disagreement on what is ethical and what is not. I’m happy for you that you use your credit cards. I applaud you, and that should be a matter of choice. That’s the bottom line; it should be a matter of choice. You’re making, in part, an instrumental argument that the ends are great, so whatever the means are, those are the means. I don’t buy that at all.
Yes, there are some student representatives who support this policy. Good for them. They can still make the choice, if there is a check-off system, to check off that they’re happy to let people use their information however they like. They’re also free to take affirmative steps to encourage their constituents—and I assure you it’s a limited constituency—and to inform their constituents about all the wonderful benefits to the system and to those constituents who make the choice to allow the information to be shared.
It boils down to opt in. You use that language; I actually don’t like that language, but I’ll adopt it for the purposes of the colloquy. Opt in versus opt out; everyone understands, including the UCCSN, that the opt-in system captures lots of people who simply don’t pay attention when they register. That’s the truth of the matter, and that’s why they want the opt-in system. That’s why we are saying, consistent with the fundamental principal of informed choice or consent that you should adopt a check-off or opt-in system where you ask people, “Do you mind if we share your private information with these various entities?”
[Mr. Peck continues.] I disagree with you, and not disrespectfully, but I just disagree with you. I think this is a black-and-white, straightforward issue, which is part of why the UCCSN system says, “We don’t sell personal information, we just give it to credit card companies in exchange for royalties; we’re not really selling it.” I’m not alleging bad faith, but who knows what the psychological process is. Forgive me, but the distinction is really lost on me. I don’t get that, and I don’t think the general public will get that. UCCSN also said, “We can’t do this, it’s too technologically complicated, how can you expect us to put these little boxes on forms and get people to check it off?” It’s the flagship University; it’s our University and Community College System.
I assure you, it’s not technologically too difficult to do; it can be very easily done. It’s just the right thing to do. I would urge the UCCSN system to get on board with this, but certainly I would ask the Legislature to support what is obviously right, and what is supported by the vast majority of people, both in the general public and in the UCCSN system.
Assemblyman McCleary:
Mr. Bennett, did you want to make a comment on that?
Rick Bennett:
Yes, Mr. Chairman. Mr. Peck and I have worked on several issues over the past years, and I’m used to him using words that are meant to generate an emotional response, and so forth. I would remind the Subcommittee that the Board of Regents, as the elected body responsible for managing and planning the University System, has developed a policy that involved considerable deliberation, work, research, and a tremendous amount of input from interested parties. The fact that the policy they established is not in agreement with what Mr. Peck would like to see does not make that policy any less ethical or moral. I hope that you would support the Board of Regents in their action and in the fact that they have been elected to make those kinds of decisions related to the University System.
Chairman McCleary:
Mr. Geddes, are you finished with your particular opinions on this subject, or are you commenting on what he was talking about? Let me just say what I was thinking; each of us would give our opinion, and then we could hammer out the differences.
Assemblyman Geddes:
That sounds fair. To sum up my position, I think UCCSN has addressed this. If it has been addressed accordingly, and that is subject to debate, I think, since the issue popped up, they instituted policies. We can direct them to make those policies more stringent, or we can put in this language. I think they’ve made that effort going forward.
[Mr. Geddes continues.] The second point that I’m struggling with on this issue is that I have a firm belief in our levels of protection. Regarding our levels of protection for children, right or wrong, that firm cutoff for me is 18 years old. I support changing the death penalty up to 18; I support juvenile court all the way to 18. Everything we can do for people, up until they’re 18, we must do to protect them.
Once they turn 18, we let them into the military and we let them go to the University. If they’re not going to the University, they’re going out on the market, and they’re wide open to this credit card debt, beyond this system. I think we are stepping beyond protecting the people at this point. If we’re going to regulate credit cards, we should regulate credit cards. It’s not just the University people who are racking up this debt. Those trends that Ms. Parnell mentioned, if you look at the population as a whole, credit card debt is just rising out of control.
As a small aside, those interest rates and percentages are something that some good math skills would help people to understand. I draw that distinction clearly at 18, and I’m struggling a bit with the 17-year-olds coming in. When you’re adult enough to make the choice to go to the University System for a higher education, you’re adult enough to make the decision on the credit cards, right or wrong. If you haven’t been taught, I don’t think that UCCSN is going to teach you anything better about how to manage credit card debt or not. I don’t like the idea, simply because I don’t think it will address the problem. At 18, you have your choice.
Chairman McCleary:
Mr. Geddes, if I could summarize, you’re in favor of the status quo, correct?
Assemblyman Geddes:
Yes, under the new Regent policy, although I would recommend that we tell the Regents they need to strengthen the policy. However, I think the Regents’ policy addresses it.
Chairman McCleary:
Thank you, Mr. Geddes. Mr. Horne?
What’s missing, what we’re basically talking about, is who will have the power to make the decision on the information being released. Is it going to be the University System, under an opt-out? In my opinion, in the current policy, if I’m the student enrolling in the University, particularly for the first time, one of the last things on my mind is this. That I’m going to take affirmative steps to make sure my information is not used commercially or noncommercially is highly unlikely. Otherwise, are we going to do an opt-in provision, where we have it with their admission packet, and they can look and say, “What’s this page? Yes, I want this.” Now they’ve made the choice, right then and there. Those students who have chosen to opt in, the University can give their information and can make their money.
I’m an alumnus, too, and I appreciate what the University does with this information. I don’t think that’s the issue. I think you’re right; I think the number of credit card solicitations that are going to be affected by this is nil. I also believe that, in the area in which we have control, it’s our students who are the ones to make that affirmative decision, not the University. As for Mr. Geddes’ suggestion that we cut off our protection at age 18, we have a number of laws that protect people past 18, and Mr. Geddes’ children are small. I have a 16-year-old who is getting ready to go into higher education. I’m older than you, and I’m surprised you don’t remember your parents still being protective when you first entered college.
It occurs, and if you’re a lawyer, you know the number of lawsuits out there from parents against University systems for failing to protect their children while in school, even though these kids were 18 years old. We do this all the time, and I don’t think that’s an issue. To summarize, I like the opt-in, for the reasons I stated. It puts that power in the hands of the students and their parents, instead of the hands of the University. We’re not eliminating their power to send out solicitations; we’re only eliminating their power on who gets to choose.
Chairman McCleary:
We have a status quo, and we have an opt-in. In the policy manual of the University System, there is a clause that says that the University will not sell or lease the student directory information. I’ve asked the LCB [Legislative Counsel Bureau] to look at that. They have indicated to me that, under the letter of those regulations, UCCSN is complying, if maybe not in the spirit. My personal feelings are the University System is not supposed to be in business; they’re providing a service to the community. I have a problem with that. I don’t like the opt-in or opt-out personally, because it’s all or nothing. I don’t understand why we can’t make a clause that says UCCSN cannot profit from their students. Those are my feelings, and Ms. Stonefield has some remarks from the LCB on this. We asked the LCB to look at the opt-in and opt-out aspects, and make their recommendations on what would be legally best. Ms. Stonefield?
Carol Stonefield:
[Reintroduces herself.] About a year ago, I had an occasion to look into this at the request of a legislator. I spoke with a woman named Ellen Campbell of the Family Policy Compliance Office in the U.S. Department of Education. She said the Department holds the position that FERPA is a floor; that is to say, a state can take action to further protect the rights of the students, but it cannot reduce the protections afforded by FERPA. Therefore, an institution could choose not to release directory information at all, and a state could legislate to modify FERPA to require that the students must act affirmatively to authorize the release of their directory information.
With regard to what Mr. McCleary said about the University System not selling or leasing the names, the process that they follow is that they provide the names on labels to a mail house. The business provides blank forms, letters, whatever that is, and the mail house does indeed stamp the labels on the envelopes and mail them out. When a student receives this, he or she sends a little card back in to get more information, and it is at that point that the University System receives some kind of payment for each student who responds to that postcard. That’s how the money is exchanged. Indeed, they do retain control of their list of students.
In talking with the Legal Division of the Legislative Counsel Bureau about this situation, I was reminded of the King case from 1948. The Nevada Supreme Court essentially said that, with regard to executive and administrative functions, the Nevada Constitution assigns exclusive control of the University System to the Board of Regents. Therefore, one of the compromises suggested by the Legal Division was to keep the opt-out provision but to ask the University System to distinguish between commercial and noncommercial uses of the names.
Chairman McCleary:
Thank you, Ms. Stonefield. Would something like that be a reasonable compromise? I can agree with it, if you can. If we’re in agreement on that, we’re going to move to the next topic.
Gary Peck:
Could I ask what that means? I am just not sure.
Carol Stonefield:
As I understand it, what you agreed to is that we would probably delete the section that contains the actual form. The Legal Division thought that might possibly be regarded as micromanaging. We would ask the Legal Division to devise some language that directs the Board of Regents, with regard to FERPA, to distinguish between the commercial use and the noncommercial use of the names. The assumption right now is that students’ directory information can be released to the public under FERPA. According to FERPA, students have to first be asked, and if they indicate they do not want their directory information released, that would continue.
However, we would ask them to make a distinction between the noncommercial use of their name, which includes graduation forms and lists, all the student athletes’ weights and heights, and those kinds of things. That’s also directory information, and, as you may recall, the Chancellor said that if a student were not to opt in to the release of their directory information, their name couldn’t even be in a basketball program as to how tall they are and how much they weigh.
Gary Peck:
There is a reason that people get emotional about it, because you’re talking about a fundamental privacy right here. Are you saying that it would remain an opt-in system for all purposes, or are you suggesting that it would be an opt-out system for all purposes, but the notice in the book would say they should know there’s a distinction between commercial and noncommercial information? Or, are you suggesting that the release of the information would be handled differently, depending on whether it was for commercial versus noncommercial purposes?
Carol Stonefield:
That’s the way I understand it.
Gary Peck:
So, that would be the opt-in for the purposes of commercial use.
Chairman McCleary:
That’s also the way I understood it. The students would say, “You can send me things that are noncommercial. That’s fine. Or, you can send me things that are commercial or noncommercial by my choice.” They just want them to separate them. I don’t think that’s unreasonable.
Gary Peck:
That’s an opt-in. I’ll stop, because I know you guys have a lot of business.
Chairman McCleary:
The next issue, and I’m going to take the easiest one, is the term of the Regents. I believe the bill proposes four years. Go ahead, Ms. Giunchigliani.
Assemblywoman Giunchigliani:
The reason that the four years is in there is because the Governor has a four‑year term, the Senate has a four-year term, and only judges in this state have a six-year term, next to the Regents. Secondly, it’s also in anticipation, if we choose to move forward with the constitutional issue, it would not bump them out of their seats again. As a constitutional amendment moved forward, they would be able to run for election and not be thrown out again. I would not want to impact them again for another election or appointment. In addition to that, the Governor wishes to have the ability to appoint. That’s why the recommendation was to change to four years so that the terms would be coterminous with that piece.
Assemblyman Geddes:
I think four years is great. I think it’s the way to go, and I want to be on the record to say, when it takes three to four years to get a Regent up to speed, that’s just ludicrous. Any Regent who’s not up to speed in the first year probably shouldn’t be there. Maybe we should look at two years, but I think four years is fine.
Assemblyman Horne:
I disagree. I agreed with Mr. Seastrand’s argument on this, because of the complexity of all the various issues that Regents deal with. I guess I can’t see how it’s broken with six years, so I’m wondering why change it. Yet, I can see the need for six years, in order to get a “good steam” under you, working through many of the different policies. I think that in four years, you just start to get some of your own projects going, and then you’re up for reelection. I like the six years.
Chairman McCleary:
I’m going to have to side with Mr. Horne on this. I don’t have any stomach to change the term limits at this time, so that will be our recommendation, gentlemen. Two out of three? Okay. Now, let’s deal with the difficult issue. You folks might want to comment on this, the actual number of the board itself. Do you want to begin, Ms. Giunchigliani?
Assemblywoman Giunchigliani:
In the amendment, after you and I discussed it, I agreed to go to nine members. The Governor would like seven, but we’ll deal with that as a separate issue. I think nine is reasonable as far as being able to do the work of the Board. I still prefer seven; there are people who wanted only one. I do think nine is a reasonable compromise, and at least makes it a workable board. I don’t buy the argument that was presented regarding subcommittees; a majority is a majority. I don’t care if you have two people or three on a subcommittee; two is a majority, so I didn’t think that was a reason to keep it at 13. I do think nine is a reasonable compromise.
Chairman McCleary:
Mr. Bennett, did you want to comment on this? Mr. Geddes, could we hear your comments? Do you want me to start this time? We’ll do it backwards so Mr. Geddes gets the last word on this. I think nine is reasonable, and it’s funny because a couple of us talked and we all somehow came up with the same figure independently. I think nine, in my opinion, puts it in parity with the State Board of Education. They have similar roles, similar in some ways, and I think nine is a workable board by committee. I’m going with nine. Mr. Horne?
Assemblyman Horne:
I think nine is good, too. Because we’re reducing the number again, it calls for a longer period of time, six years versus four years. We have fewer Regents to do the same amount of work. So nine is good for me.
Assemblyman Geddes:
Frankly, I was moderately insulted at the argument of how long it takes a Regent to come up to steam. If we get two months to understand the entire State system, as well as the University System, I don’t see how they get four years before standing up in front of the public again, or six years. I agree with nine entirely; I think there is precedent for reducing the number of the Board, as was shown in 1971 when they dropped from nine to seven members. I worked with the Board of Regents for a couple of years as a student, in a nine-member committee, and it worked very well. I think nine is a great number.
Chairman McCleary:
I’m impressed. I thought the last issue was going to be the most controversial. We argued for 45 minutes on the other one, and in ten minutes we hammered out the last two issues. I’m very impressed. Ms. Stonefield, do you want to go over what our recommendation to the Board is going to be? Mr. Geddes, go ahead.
Assemblyman Horne:
I wanted to make sure we’re clear on the opt-in or opt-out provisions. We’re sticking with the opt-out provision, but we’re going to provide a method in which the students can choose commercial or noncommercial.
Chairman McCleary:
Separately. They are two different categories.
Carol Stonefield:
Mr. Chair, if I may summarize, and then if I have anything incorrect, please let me know. We will take out any references to the employees, former employees, and former students, because as I understood, from the U.S. Department of Education, FERPA only applies to students. Also, the form will come out, because that’s probably micromanaging, and the students will be asked to opt out. The assumption is that their directory information, as defined by FERPA, will be public information. They will be asked to opt out of the release of their information; in other words, they have to take the affirmative action to withhold their directory information.
We will ask the Board of Regents to distinguish between commercial and noncommercial uses, and define those terms to the students as to what is a commercial use and what is a noncommercial use. Then they would choose. They would be asked in their information regarding FERPA to choose to have their directory information released for commercial uses, or choose to have their information released for noncommercial uses. I heard that the terms would be six years, and the members would be nine. Is that correct?
Chairman McCleary:
That’s the way I understand it. If you could agree right now with the recommendations I’m going to make on behalf of our Subcommittee to the full Committee, I will accept a motion at this time.
ASSEMBLYMAN HORNE MOVED TO RECOMMEND AMEND AND DO PASS TO THE ASSEMBLY COMMITTEE ON EDUCATION.
ASSEMBLYMAN GEDDES SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
At this time, Ms. Parnell, would you like to make a closing statement?
Bonnie Parnell:
I don’t know if there’s any way you can do it in language, but when they do the opt-out language, where they’re given that option to say “no,” if there’s some way we can just ensure… I was just informed that this has been discussed by the Board, to bold that and not have it on the 90th page. Let the student feel empowered that these are his or her choices. I think they get inundated with information in those early college days, and the parents are also inundated. Something that is at least bold, or in larger print, is preferable. That would be my recommendation.
Chairman McCleary:
Thank you. Mr. Bennett, are you standing to make a final closing statement?
Rick Bennett:
I have to say that type of thing was discussed at some length by the Board. I think it’s part of their policy that the statements related to credit cards or student information and so forth is supposed to be in bold, and it’s supposed to be in the front of the class schedules or class catalogs, as well as on the Web site in bold letters. I think that’s already been dealt with.
Carol Stonefield:
Mr. Chair, may I ask a question of Mr. Bennett? The Chancellor said that when a student makes his designation, it’s for life. The FERPA regulations actually address an annual notification. Are the students actually asked, each semester or each year?
Rick Bennett:
I’d have to look at our policy again, but I think there was another issue that was discussed. It is my understanding that there is a periodic update of that statement. I think it actually is every semester. Again, as you stated, FERPA is kind of the floor.
Assemblyman Geddes:
Every semester?
Rick Bennett:
I think actually it is every semester. Again, as you stated, FERPA is kind of the floor.
Carol Stonefield:
But the Chancellor did say it’s for life. Once you’re out, you’re out, unless you go in and actually take the affirmative action of changing your designation.
Rick Bennett:
Rather than making a statement that wouldn’t be totally accurate, I’d like to go back and double-check.
Carol Stonefield:
Would it be acceptable to include asking the Regents to provide information about the consequences of these choices, along with the actual form that designates the opt-in or opt-out?
Rick Bennett:
I think there is something like that in the current statement that they have approved for all these various media that students utilize.
Chairman McCleary:
These are items that should be discussed by the full Committee later. This Subcommittee is adjourned [at 7:27 a.m.]
RESPECTFULLY SUBMITTED:
Victoria Thompson
Committee Secretary
APPROVED BY:
Assemblyman Bob McCleary, Chairman
DATE: