UPDATED: Annenberg-Gate: University Tipped Off Ayers/Obama Ally on Records Release

(Corrected Sept. 7: Ken Rolling linked to CPEF.)

(Updated Sept. 8 with additional legal analysis, par. 13-15 below in italics)

(Updated Sept. 9 with details based on Chicago Tribune reporting)

The President of the University of Illinois, B. Joseph White, and the University Counsel of the University of Illinois, Thomas Bearrows, contacted Kenneth C. Rolling, the former Executive Director of the Chicago Annenberg Challenge (CAC) and a professional colleague of Barack Obama for many years, prior to the release of CAC records to the public late last month and offered Rolling an opportunity to recommend to the University which records of the CAC held at the University’s Chicago campus (UIC) should be restricted from public access.  

In response to Rollings’ detailed request to prevent public access to certain CAC records Bearrows replied “as promised, we will carefully consider the concerns that you identify…”

The request is described in documents released by the University last week pursuant to a Freedom of Information Act (FOIA) request filed by a third year law student in Chicago. The law student who initiated the FOIA request provided Global Labor with the documents.

An email dated August 23, 2008 sent by Rolling to Mr. Bearrows, states:

“I’m writing to follow up on part of the discussion held yesterday re: my concern for protecting confidential information that may be in the Chicago Annenberg Challenge archive/files located at the library at the UIC. (The conversation included President White, Tom Hardy [Hardy is the University’s Executive Director for University Relations], you and myself.)…I’m following up on the offer from Pres. White and you made during our discussion yesterday, for me to recommend pieces of information in the files that should be considered confidential and restricted for access by the public.”

Rolling describes himself in that email and a follow up email as the “donor” of the CAC records. However, there is no indication of any legal support for that description. The CAC ceased operations in late 2001. Its successor organization is the Chicago Public Education Fund (CPEF), set up by the CAC and granted the CAC’s remaining assets according to CAC records. Mr. Rolling is a member of the Leadership Council of the CPEF, as are several other individuals who had a role in the CAC. The documents released by the University make no mention of the CPEF.  A former president of the University of Illinois, Stanley Ikenberry, also served as a director of the CAC.

The University has previously indicated that it obtained the CAC records in 2002 from the CAC when the CAC ceased operations. A letter from Rolling to the University dated October 24, 2001 indicates the interest of the CAC in depositing the records there.  A university would normally negotiate the transfer of legal rights to the documents including the preparation of a “deed of gift” to be executed by the donor and the University that fully and finally defines the terms of the gift.  
The completion of a deed of gift ordinarily enables the University to process the records, including the preparation of a finding aid, and make them available to researchers without concern about future claims to the materials.  Thus it is highly unusual for a university to expend the time and resources processing the materials much less take the risk of agreeing to allow a researcher access to the material prior to the negotiation of a deed of gift.
University Closes Its Doors in Face of Conservative Researcher 
Such a finding aid was made available earlier last month to Stanley Kurtz of the National Review Online after Kurtz asked for and was granted permission to review the 947 folders of CAC documents.  However, the University then abruptly reversed themselves and denied Kurtz, a Harvard-trained social anthropologist, access just as he was leaving his home in Washington, D.C. for Chicago. The University then issued public statements indicating that although the CAC records had been fully processed for access by researchers and a finding aid had been prepared and made available, that the University lacked a “formal ownership agreement” from the donor.
It was after Kurtz was prevented from reviewing the records in mid-August and before the University finally released at least some of the CAC records to the public on August 26 that President White and Bearrows were in contact with Rolling.
One key element of a gift is the intent of the donor. Records of the CAC indicate an interest among board members with preserving the “institutional memory” of the CAC, for example. Thus, a typical goal of such a gift of records would be to enable researchers to review the records to better understand the history and impact of the Challenge.
It is, however, highly unusual to allow someone who once worked for a donor to change the terms of the gift such that the records originally deposited with the University for public review are no longer available. That amounts to a revocation of the original gift and re-gifting the now restricted set of documents to the University. However, for such an action to be valid the individual engaging in the revocation would need both the authority of the donor organization and the donee University. That would not have been possible with respect to the CAC because it had ceased operations and dissolved.
UPDATE September 8: 

The terms and conditions of the original gift should have been put in place as a result of negotiations between the CAC and the University at the end of 2001.  That agreement must express the intent of the donor.  In effect, the donor is the people of the state of Illinois and their agent was the board of directors of the CAC. Presumably the intent of that donor was to make the records of the CAC available to researchers.  Any officer or director, or any agent of an officer or director, who attempted to interfere with that intent would be violating their fiduciary obligation to the people of the state of Illinois.

Rolling has now told the Chicago Tribune that he believes the University does not have valid title to the records at all.  Given that he is not acting with the authority of the Challenge it is not clear on what basis he makes that claim. Now that the Challenge is dissolved the only entity that can speak for it would be the Attorney General of Illinois, Lisa Madigan.  The Tribune article also states that the University blocked public access to the documents at the request of Rolling.  But Rolling had no authority to block access to the documents as he no longer is acting with the authority of the now dissolved CAC.  If the University had any question about its title to the documents then those questions should have been properly addressed to General Madigan. 

Apparently, Rolling is basing his claim to dispute the University’s title to the CAC records on minutes of a December 2001 CAC board of directors meeting that indicate a desire of the board to place a five year restriction on access to the records.  It is unclear if such a restriction would be valid since the CAC was a non profit corporation operated for the benefit of the people of Illinois and its records would ordinarily be available for public review.  

In any case, the 5 year restriction would have to be accepted by the University and reflected in the deed of gift or other agreement regarding the gift negotiated between the donor CAC and donee University. Absent a written instrument, the oral discussions would be relied upon to divine the intent of the donor and the substance of the agreement.

Of course, that five year restriction would have run its course long before Kurtz asked to see the documents in August 2008.

In addition, if Rolling or anyone else associated with the CAC physically handed over CAC documents to the University without the authorization of its board of directors they would have violated their fiduciary responsibility to the CAC.  If the board authorized the handing over of the documents prior to finalizing the negotiations over the terms and conditions of the gift it would have violated their fiduciary responsibility to their beneficiaries, the peopled of the state of Illinois.  Prior to making such a gift the board would have to determine and make clear the intent of their beneficiaries and make sure the recipient of the documents has agreed to respect that intent.

UPDATE September 9: 

The Chicago Tribune reporters explain that Rolling told them he contacted the UIC library unilaterally on August 11 because he saw reports about the CAC on the internet. Of course, the only reports about CAC records at that point on the web were, as far as I know, those of Global Labor and those reports were based on CAC records provided by Brown University not UIC. I have never attempted to use the UIC documents.

(Global Labor readers will recall that soon after I posted my original analysis of the CAC on June 18 based on the documents I received from Brown, that Brown stopped answering my follow up questions.  Thus, it is conceivable that Rolling may have intervened with Brown as well at that point. I have asked Brown University for clarification.)

Rolling told UIC he did not believe the records were open to the public and UIC shut down access to them to review their right to the holdings. On August 22 they provided Rolling, and the media, a finding aid and that led to the conversations between Rolling and the University President in which he was asked for his recommendations on which documents should be sealed. He made those recommendations on Saturday.

Rolling still maintains that he does not think the University should have allowed the records to be open to the public and is considering a law suit.
Obama/Ayers Ties to CAC

Because the former terrorist William Ayers founded the CAC and Senator Barack Obama was its first board chairman, the records held at UIC were expected to shed more light on the long-standing relationship between Obama and Ayers. Obama has explained that Ayers is just “a guy who lives in my neighborhood” on Chicago’s South Side, where Ayers and Obama both live. Obama lived there from 1985 to 1988 and then again from 1991 until the present. Ayers, who grew up in suburban Chicago as the son of a prominent Chicago corporate executive, Thomas Ayers, moved to that area again in 1987 and has lived there since.

Prior to public revelations about the joint role of Ayers and Obama on the CAC, it was widely thought that the two first met in late 1995 during a “meet and greet” session held at the home of Ayers and his wife, Bernardine Dohrn, in Hyde Park when Obama launched his first political campaign for a seat in the Illinois state senate. Unnamed Obama aides told the New York Times that was when the Senator first met Ayers. However, Obama joined the board of the CAC in the spring of 1995.

The documents released by the University do not shed any light on the possible role of Ayers in the records flap. It would not have been unusual for a library to consult with an academic like Ayers who had such an intimate role in the life of the entity whose documents are being prepared for public review. 
The CAC was originally housed in the same building as the department where Ayers taught, as was the Small Schools Workshop founded by Ayers and headed by Ayers long-time comrade from his days in the anti-war group Students for a Democratic Society (SDS), out of which emerged the more violent entity, Weather Underground.  Klonsky did not join the Weather Underground but instead founded a maoist sect.  The Workshop was among the first grant recipients of the CAC, awarded $175,000 in 1995.
However, after the initial processing of the documents was complete and a finding aid prepared, further contact with anyone associated with the donor is highly unusual.  
Thus, among the questions that remains to be answered are whether any library or University official notified Ayers of the interest of Kurtz in the CAC documents, whether Ayers asked the University to block Kurtz’ access to the documents, whether Ayers advised University officials including President White on the issue and whether Ayers was in contact with Rolling during the discussions about which records should be changed from available for public review to restricted from public view.
Rolling emails indicate opportunity to limit records access

The two emails authored by Rolling and released by the University make no mention of the absence of a deed of gift. Instead, Rolling only indicates that he hopes the University will allow him physical access to the records prior to their release to the public and “recommends” that certain records that he describes be kept confidential. There is no indication whether his request was agreed to by the University.

Presumably if Rolling had any valid reason for the exercise of residual legal control over the CAC records and thus a right of prior restraint over public access he would have explained that to the University. It is difficult to imagine a situation, however, in which a public university would have agreed to such a grant of authority to the former executive of an organization that had closed its doors several years earlier.  

The only indication that an agent representing the CAC might have some residual legal interest in the documents is the letter that was released by the University from Rolling dated October 24, 2001, while Rolling was still the CAC’s Executive Director. It is addressed to Gretchen Lagana, Special Collections Librarian at UIC and appears to be the initial offer by the CAC to donate its records to UIC.

The Lagana letter notes the interest of the CAC in maintaining confidentiality and that restricting public access for a period of time was a “major concern” of the CAC. There is no record of a response from UIC. Ordinarily such a letter would be followed by negotiations over the terms of the gift. No record of those negotiations was released.

It is likely that the CAC, including its board and officers, would have had a legal obligation to insure that such a deed of gift was negotiated and executed prior to the delivery of the CAC records to the University.
Which Records Did Rolling Want Restricted?
Kurtz wrote in the National Review Online that according to the detailed 60 page “finding aid” provided to him by the University four files containing auditors’ reports out of 947 listed on the aid “are marked, in bold type ‘THESE FILES ARE RESTRICTED VIA ANNENBERG CHALLENGE until further notice.” A fifth folder, containing records of eight CAC Board of Directors meeting in 1995, when CAC was first set up, had a notation nearby with the word, ‘Consent’.”
Ordinarily financial statements and board minutes of non-profit corporations are available to the public for review.  In fact, I was provided two audit reports of the CAC by Brown University as well as minutes of the board of directors, although not the minutes from 1995.  However, the fact that the finding aid indicates that some of the CAC records were designated “restricted” indicates that the terms and conditions related to the gift were, in fact, agreed to prior to the acceptance of the records by the University.
However, Rolling wrote in his email to Bearrows that he was concerned that additional records should now be restricted from public access.  He wrote:
“After reviewing what I believe to be the catalogue/listing of Chicago Annenberg Challenge files, I make the following recommendations. I make these recommendations without being allowed to see the actual contents of the folds. Folder #848 — titled “Executive Director Search Committee” — there may be items relating to personnel, possible personnel to be hired, etc. that should be held confidential, and restricted for public access.
“The contents of Folders 876-884 that relate to the research of the Consortium on Chicago School Research should be reviewed at least by UIC Professor Mark Smylie (who was the PI — Principal Investigator — of the Chicago Annenberg Research Project), to make sure no materials there violate the confidentiality agreement on research subjects, etc. that was signed by the Chicago Annenberg Challenge and the Consortium on Chicago School Research. We followed strict confidentiality agreements established by the universities involved in carrying out the research project. I don’t know if there are memos, documents, etc. in those folders that break the confidentiality agreements related to university research.  Those folders should be scrutinized by people who know the confidentiality agreements.
“Folders 909-912 that are highlighted on my copy of the listing as ‘…Are Restricted via Annenberg Challenge…’ could be re-considered for those restrictions when I can review them. I’m not sure what the contents of those folders really are and whether they need to remain restricted. But I need to review them before making that determination. I’m not able to recommend contents of all the grant files for restriction without reviewing them.”
The ambit of confidentiality of records of a non profit corporation is quite narrow. Ordinarily the entire record of the activity of a non profit entity is made available for public review. While there may be confidential information collected in a research project such as the one the Professor Smylie directed, that information would be held by Smylie not by the CAC. Thus, the Rolling request appears to provide the University with an argument for engaging in a longer review of the documents in question which would delay their availability to the public but which would not likely turn up any private data or information.

Thus, it appears that in the wake of learning about the interest of Kurtz, a well-known conservative author, in the CAC records from University officials, President White and University Counsel Bearrows contacted Rolling unilaterally, made him aware of Kurtz’ interest in the materials and offered him the opportunity to recommend to the University not only which of the records it would make public but to expand the number of restricted files originally given to the University.

President White Contacted Annenberg Foundation in Advance of Public Access

President White appears to have made a similar offer to the Annenberg Foundation located in Radnor, Pennsylvania. A faxed cover letter from, and a letter on Annenberg Foundation letterhead signed by, Gail Levin, Executive Director of the Foundation indicate the Foundation was asked by President White if the Foundation objected to the release of the CAC records to the public and whether or not the Foundation was the “donor” “blocking access to these documents.” Levin said the Foundation had no objections and that it was not that “donor.”

It is not clear why President White contacted the Annenberg Foundation because the Foundation was not the donor of the documents to the University.

The CAC was founded in 1995 as part of a $500 million national effort funded by the late Walter Annenberg to provide funds to groups interested in reforming public schools. Ayers, a controversial political figure with a long background in violent and authoritarian political activities, conceived the original idea for the CAC and led the effort to prepare the grant application in 1993 and 1994.

The national Annenberg Foundation formally announced that the Ayers grant proposal was successful in January 1995, awarding the Ayers-led group $49.2 million to be matched two to one over a five-year period. Over time the CAC succeeded in raising an additional $110 million, according to annual reports and tax records filed by the CAC.

Ayers and Obama Role in CAC

Ayers became co-chair of the Chicago School Reform Collaborative, which evolved out of the working group formed by Ayers to prepare the grant application, recruited a board of directors for the CAC and then became its operational arm. Ayers served in that role for the entire seven-year life of the Challenge. The Collaborative helped the board and the CAC staff design the request for proposals for potential grantees, reviewed and made recommendations to the board on grant applications and advised the board and successful grant applicants on the development and implementation of grant programs.

Obama served as CAC board chair until late 1999 and then stepped down as chairman but remained a board member until the CAC ceased operations at the end of 2001. The CAC was initially housed, rent free, at the UIC in the same building that housed its Department of Education, in which Ayers taught.

A review of CAC records, including board minutes, financial statements, and annual reports, made available by Brown University’s Annenberg Institute, which supervised the national Annenberg Challenge, indicate that Obama worked closely with the Collaborative headed by Ayers, particularly on a controversial $2 million Leadership Development Initiative. The Initiative was designed by the Collaborative and proposed to recruit and train candidates for election to Local School Councils (LSC’s) in the Chicago Public School (CPS) system. Support for the LSC’s was a central theme of the CAC’s work according to these same records.

The LSC’s were a controversial and, according to Ayers, “radical” watchdog group set up to monitor the performance of teachers and principals in Chicago schools in the wake of an unpopular teachers’ strike in 1987. Both Obama, then Executive Director of the Developing Communities Project (DCP), and Ayers, then a junior professor at UIC and very active in school reform and later chair of the Alliance for Better Chicago Schools (ABCs) which led the charge on the LSC reform bill, were supporters of the 1988 legislation that authorized the creation of the LSC’s. The DCP was a member of the ABCs. The DCP, which Obama joined in 1985, was funded, in part, by grants provided by the Woods Fund while Rolling was on the staff of the Fund.  Both Ayers and Obama later joined the board of directors of the Woods Fund and Ayers, for a time, was chairman of its board.

CAC Financial Support of School Councils a “political threat”?

Arnold Weber, former President of Northwestern University, and a CAC board member, raised a concern that the money spent by the CAC on the LSC’s could be viewed as a “political threat” to school principals. The 1988 legislation stripped school principals of tenure and turned them into contractual employees of the CPS. The LSC’s were handed the power to terminate principals when their four-year contracts expired and to hire new principals. During the first few years of the LSC reform hundreds of principals resigned or were fired.

Chicago’s new Mayor, Richard Daley, Jr., attempted to curb the power of the LSC’s and thus was concerned about the activities of the CAC as well. Rolling recalled later in an interview:

“There were two or three attempts from them [Chicago city officials] to just ‘get the money.’ Even the mayor got into at one point. The mayor asked the ambassador [Annenberg] to come into Chicago and he wanted to tell him, ‘You are wasting your money. You should give it to me.’ The ambassador never responded to him and never agreed to a meeting. But [new School system CEO Paul] Vallas tried it, his staff worked on how to wrest that money away from us.”

Ayers Maintains Ties to Authoritarian Movements

Ayers is currently a Distinguished Professor of Education at UIC. Ayers helped found the terrorist group Weather Underground, which was responsible for a series of destructive and deadly explosions during the 1970’s. Ayers has never apologized or expressed regret for his violent tactics. He continues to advocate authoritarian views including support for the regime of Venezuela’s Hugo Chavez. On a late 2006 trip to Venezuela, Ayers delivered a speech to a conference on education while Chavez was present and expressed support for the Chavez-led “Bolivarian revolution.”

Although Ayers has indicated that he participated in the violent actions of the Underground group, he was not prosecuted. His wife, Bernardine Dohrn, was a fellow Underground member who was sentenced to probation for her activities during the same period and served six months in jail for refusing to testify to a grand jury in connection with her possible role in an investigation into a bank robbery carried out by black nationalists and some former comrades of Dohrn and Ayers in the Weather Underground.  

Dohrn is a clinical professor of law at Northwestern University.  She was a law clerk, but not a lawyer, in both the New York and Chicago offices of the large Chicago-based law firm then known as Sidley and Austin, now called SidleyAustin. Howard Trienens, a senior partner of the firm, told the New York Times that Dohrn was hired as a favor to her father-in-law, Thomas Ayers.  Dohrn graduated from the University of Chicago law school in 1967 but was refused admission to the New York bar because of her criminal record. 

There is no evidence in the few documents that were released by the University that Ayers was involved in the discussions that took place between the University executives and Rolling about the CAC records.

The FOIA Request

The text of the Freedom of Information Act request filed with the University read as follows:
I request that a copy of all public records, as defined in 5 ILCS 140/2(c), containing the following information be provided to me in the form in which they are ordinarily kept:

1. The ownership status of the Chicago Annenberg Challenge documents that are or were stored in the Special Collections section of the Richard J. Daley Library (“CAC Documents”), including but not limited to communications between the University and the donor of the CAC Documents regarding the initial placement of the documents with the University and materials containing opinions concerning the rights of the state, the public, a subdivision of state or a local government, or of any private persons with respect to the CAC Documents.

2. The discussions, deliberations, and other communications related to Stanley Kurtz’s request to view the CAC Documents and the subsequent decision to bar Mr. Kurtz’s access to the CAC Documents.

3. Any discussions, deliberations, or other communications regarding the possible return of the CAC Documents to the donors and/or owners.

4. Any discussions, deliberations, or other communications regarding the removal of information, including but not limited to possible redactions or removal of entire documents, from the CAC Documents.