The University Record, December 13, 1999

Assembly Roundup

Commercial note-taking, e-mail privacy and Open Meetings Act focus of Krislov’s comments

By Theresa Maddix

General Counsel Marvin Krislov spoke on three issues affecting the University at the Nov. 22 Senate Assembly meeting—commercial note-taking, e-mail security and a recent Michigan Supreme Court case regarding the Michigan State University (MSU) Board of Trustees.

Commercial note-taking

A memo from Provost Nancy Cantor went out to all faculty Nov. 18 regarding, a commercial note-taking service that has approached approximately 100 faculty members for permission to post notes from their courses on the Web.

Krislov stressed this point from Cantor’s memo, “My office, along with the Office of the Vice President and General Counsel, is going to convene a small working group to study the issues posed by and similar Internet-based commercial note-taking services, and to recommend a University position on these new developments in teaching and learning. The group’s work will be swift as this is a matter which clearly needs urgent attention.”

It is “absolutely imperative,” Krislov emphasized, “that any commercial note-taking enterprise print notes from classes only with faculty consent.”

He also said that there is “no University endorsement of or any other note-taking process.”

Faculty members considering participation in these enterprises, Krislov said, should consult their unit’s conflict of interest/commitment policies, which vary from department to department, to see if participation is allowed. has agreed, at least in its pilot phase, to obtain faculty consent before posting notes. If a note-taking service posts notes without faculty consent, Krislov says, it presents a difficult legal question as to what the University or individual faculty members can do.

“Copyright,” Krislov said, “is hard to prove.” Faculty members must prove their “ideas are fixated and that the student’s notes are the same as the professor’s lectures. For example, did the note-taker use any analogies?”

He said a copyright case “would be difficult, but may not be impossible.”

E-mail privacy

“We, the University, are not interested in going into users’ e-mail. We would only do it if it came to our attention that serious infractions were being committed, including criminal activity and pornography.”

The question about e-mail, Krislov said, is “How secure is it?” Currently, passwords are encrypted, but there have been some problems, particularly with stolen passwords. The Information Technology Division, Krislov said, is working on other authentication methods to protect computer users.

Open Meetings Act

Reversing a lower court ruling, the State Supreme Court ruled June 15 that the search process that resulted in the appointment of Michigan State University President M. Peter McPherson did not violate the Open Meetings Act (OMA). The ruling could affect the way the U-M handles future presidential searches.

The question before the court was whether a sub-forum advisory committee appointed by MSU’s Board of Trustees was in violation of the Open Meetings Act when it met without public notice and did not hold public deliberations.

“The State Supreme Court, in an overwhelming decision, came down and said the OMA does not apply to the MSU Board of Trustees in its presidential searches,” Krislov explained.

The court ruling cited the Constitutional autonomy of the state’s universities, including the U-M, Krislov noted, indicating that they have reasonable discretion to decide when their meetings should be public.

Writing for the majority on the 5-2 decision, Justice Maura D. Corrigan said, “ . . . the Legislature is institutionally unable to craft an open meetings act that would not, in the context of a presidential search committee, unconstitutionally infringe the governing board’s power to supervise the institution.”

The OMA/presidential search process issue has been alive at least since a 1988 lawsuit against the University by the Ann Arbor News and Detroit Free Press. The State Supreme Court ruled on the case in 1993, finding that the University had violated the OMA during the search that led to the appointment of President James J. Duderstadt. (The University Record, April 3, 1995)

In the search for Duderstadt’s successor, then-Provost J. Bernard Machen presented the Regents with a 14-step plan, attempting to follow the guidelines of the OMA. (Record, Jan. 30, 1996)

During the search, Booth Newspapers Inc. filed another suit claiming the University was in violation of the OMA, temporarily halting the search. The delay and court ruling on the case led to the withdrawal of one of the finalists. (Record, Oct. 21, 1996)

In December 1996, the Legislature passed two bills to allow greater privacy in Michigan’s public universities’ search processes. The Dec. 17, 1996, Record reported “All deliberations and interviews with the five finalists will be conducted in public. However, the legislation allows the Regents to examine recommendations and references that are not required to be made public.”