The Student Press Law Center blog

Court punts Kansas social-media expulsion case, finds no consensus on college students' online rights

Where does a public university's authority to regulate what students say on social media during off-campus personal time begin and end?

Nobody is certain, says a U.S. district judge -- and that uncertainty is enough to spare campus disciplinarians from paying money damages for expelling a student for what he posted on Twitter, even if the decision was mistaken.

In a ruling handed down Thursday, U.S. District Judge Julie A. Robinson threw out constitutional claims brought by a University of Kansas student, Navid Yeasin, who was expelled in November 2013 because he posted insulting and profane remarks about an unnamed ex-girlfriend on his personal Twitter account.

The former girlfriend, a KU classmate, obtained a no-contact order after a frightening confrontation in which Yeasin took away her phone and refused to let her out of his moving car. After the university ordered Yeasin to stay away from the woman, he posted a series of comments on Twitter about dating a "psycho" and a "crazy bitch" that were perceived as being about her. When the classmate learned of the Twitter posts and reported them to KU, the university expelled Yeasin for violating the stay-away order.

Yeasin sued, alleging that the university overstepped the First Amendment by punishing speech that was not threatening or otherwise constitutionally unprotected. The university responded that -- even when speech takes place off campus -- students' constitutional rights are diminished in the educational setting, where institutions have a legal duty to maintain an environment free from harassment. 

In her Dec. 1 ruling, the judge refused to afford Yeasin the full benefit of "real world" First Amendment rights, which would have required the university to overcome a heavy presumption that any content-based punishment was unconstitutional. 

Rather, the judge found that colleges have authority over student speech comparable to that recognized in the K-12 school setting in the Supreme Court's benchmark Tinker case, which permits punishment for speech that substantially disrupts school or invades the rights of others.

But that is as deep into the constitutional analysis as Judge Robinson was prepared to wade. 

Regardless of whether Yeasin's remarks were constitutionally protected -- and whether the context of off-campus posts to a personal social media account made a decisive difference in the college's level of authority -- the judge said Yeasin could receive no remedy, because government officials have immunity for the consequences of their decisions if the constitutionality of the decision is unclear. (This legal doctrine, "qualified immunity," allows government employees to, in effect, guess wrong on the legality of their behavior if the behavior is not clearly unlawful at the time.)

The judge wrote:

The law in this area is constantly developing, and when Plaintiff was expelled in 2013, it was even more unclear what standards applied. This case can hardly be categorized as a clear case of a content-based restriction in violation of the First Amendment. Most importantly, circuit courts have come to conflicting conclusions on whether a school can regulate off-campus, online student speech where such speech could foreseeably cause a material disruption to the administration of the school.

Courts everywhere continue struggling to determine where educational institutions' authority over their students' social-media lives begins and ends. A depleted U.S. Supreme Court declined an opportunity to take up the issue earlier this year, and most lower-court rulings have involved K-12 students engaging in speech perceived as imminently threatening violence. 

Just last month, a federal appeals court in Minnesota -- in a ruling repeatedly cited in the Yeasin opinion -- decided that a community college did not violate the Constitution by kicking out a nursing student for angry remarks on his Facebook timeline that a classmate reported as insulting. 

This is the second time -- in two parallel lawsuits -- that a court has declined to address the core issue of whether the First Amendment permits a public university to discipline a college student for posts on off-campus social media that, outside of the college setting, would be constitutionally protected against government sanction.

In a September 2015 ruling, a Kansas appellate court overturned Yeasin's expulsion, finding that the university's disciplinary rules applied on their face only to misbehavior on campus property or at campus events. Because the rules did not give KU the authority to regulate students' personal behavior during their off-hours, making the expulsion unlawful, the court found it unnecessary to decide whether the expulsion was also unconstitutional. 

The state-court case was a direct challenge to the expulsion itself, while the federal case decided Thursday was about whether Yeasin can receive money damages from a KU vice provost, Tammara Durham, for the delay in his educational progress and other harms. 

While the Supreme Court has given courts license to resort to this easy-way-out approach to avoid difficult constitutional questions by skipping directly to the immunity decision, as Judge Robinson did, the Yeasin case exemplifies the detriments of taking that off-ramp.

Qualified immunity applies where the caselaw is unsettled. The only way to settle a legal issue is to, you know, actually decide it. Postponing a decision on the merits means that the next generation of Navid Yeasins will be stuck with the same "law-is-unclear" outcome a year -- or a decade -- from now. 

Moreover, assuming Yeasin takes the case to the Tenth Circuit U.S. Court of Appeals, it will travel without the benefit of the searching factual inquiry that can most effectively be done at the trial court. Even a favorable resolution for Yeasin could be no more than a remand with directions to decide the constitutional question on its merits, setting back resolution of the case by (at the current pace of appellate rulings) at least 18 months. In a citizen-versus-government civil-rights case, delay always favors the government -- and disadvantages not just Yeasin, but everyone else who would benefit from clear judicial guidance on a recurring free-speech issue.

Tagged: college student rights, First Amendment, First Amendment, first-amendment, news, recent-news, social media, Yeasin v. Durham

Michigan Supreme Court denies appeal in secret meetings lawsuit

The Michigan Supreme Court has declined to hear a case challenging the University of Michigan Board of Regents’ ability to hold closed-door “pre-meetings.”

The court’s denial leaves standing an appeals court ruling that gives the school’s governing body full discretion to determine what constitutes a formal meeting subject to open-meetings laws.

The Detroit Free Press sued the Board of Regents in 2014 hoping for a ruling that would require all meetings to take place in a legally mandated open forum, as opposed to the current system, which allows for decisions to be deliberated in closed door-sessions prior to the regents’ open-to-the-public gatherings.

Michigan is one of just three states with a constitution that confers nearly absolute autonomy to its public university systems. One 1999 ruling left a precedent for the appeals court to rely on.

That year’s decision in Federated Publications, Inc. v. Board and Trustees of Michigan State University held that the Michigan State University regents were permitted to hold informal meetings in the course of their search for a new university president.

The latest ruling extends that permission to all regents’ meetings, not just ones pertaining to presidential searches.

The appeals court decision on April 26 held: “Michigan’s Constitution insulates (the Board of Regents) from being required by the OMA to open its informal meetings to the public, and furthermore is empowered to define what constitutes a formal session.”

Public universities in Michigan, particularly UM, have long come under fire from newspapers and open-records advocates. The Michigan Daily, UM’s student-run newspaper, published a special report in 2011 detailing the school’s unusually high fees and long wait times for FOIA requests.

The Daily later reported that UM is out of compliance with state-mandated document retention laws, specifically pertaining to email. UM officials had previously reminded faculty and staff in a 2011 memo that internal emails pertaining to university business are indeed subject to open-record requests.

The latest ruling merely codifies what was a longstanding practice at UM. The school’s latest presidential search, which led to former Brown provost Mark Schlissel being named its 14th president, was conducted in nearly absolute secrecy. Many community members heard Schlissel’s name for the first time at the time of the official announcement.

Michigan’s seven-member supreme court was nearly united on the issue, voting 6-0 to decline hearing the case. Justice Richard Bernstein, the brother of current UM regent Mark Bernstein, did not participate.

The SPLC filed a brief in August asking the Michigan Supreme Court to hear the case.

Tagged: appeal, blog, Blogroll, lawsuit, open-meetings, recent-news, sack-secrecy, University of Michigan

Graduate student attacked by looters during Oakland protest of presidential election

In the aftermath of an unforeseen outcome in the presidential election, tens of thousands of Americans in cities and on college campuses across the country marched in protest. The New York Times reported on demonstrations in New York City, Los Angeles, Seattle, Dallas, Chicago and others.

Many protests were peaceful, some turned destructive and violent. The crowd in Oakland, California, swelled from 3,000 to an estimated 6,000 people, according to the Times.

Kyle Ludowitz, a graduate student in journalism at the University of California-Berkeley, was in downtown Oakland, on Broadway between 17th and 19th Streets, to cover the protests.

“The police had kind of cordoned off areas several blocks up and behind, but were not present on those streets when it was happening. I was photographing some of the bonfires that had been lit in the middle of the street when I heard a crash behind me, and then an alarm go off. And so I turned around and directly behind me there was a series of people taking anything they could find in the street -- rocks, bricks and such -- and they were smashing local shop windows. They were particularly attacking what I believe was a pawnshop at the time.”

Ludowitz described the individuals as wearing “black bloc” gear – all-black clothing, black backpacks, and black bandanas or ski masks to obscure their faces. Rioting, street-fighting, and destruction of private property, such as Ludowitz observed, are all black bloc tactics often employed by anarchist groups.

Ludowitz started taking photos.

“So, when I was taking a photograph, I was blindsided on my left-hand side by an individual. I fell down to one knee, kind of stunned. I had been in situations in the past where I had been punched while taking a photograph, so I'm familiar with the feeling of being attacked and I tried to get up instantly when I was mobbed. So, after the first attacker had struck me, I believe it was three other individuals joined in on him and I was attacked by four white men in their twenties that were masked anarchists.”

The rioters quickly got Ludowitz down on the ground, grabbing and ripping at his camera gear. Three protesters noticed the attack and attempted to intervene, but the men in black bloc continued to punch Ludowitz, snatching one of his two cameras and breaking the lens away from the body of his other camera, which was hanging around his neck, sheering away parts of the internal components.

“I mean they didn't really say much to me, the only thing they were saying at that point was ‘Just let it go, just let it go,’ and they said that two or three times and that was referring to my camera. So, that's how I specifically know they weren't just randomly attacking me for no reason. They weren't trying to get the camera to resell it or anything like that. They specifically were attacking me because I was a photojournalist and just wanted my gear destroyed because I had taken photographs.”

Once the cameras were gone, Ludowitz’s attackers relented, and the protesters who’d been trying to help got him up and walked with him to the end of the block until it was clear the rioters weren’t pursuing him. Ludowitz found a street medic who advised him to visit the ER in light of the injuries to his head.

After running into a colleague, Ludowitz heeded the medic’s advice and made his way to a hospital before filing a police report. When asked if he would press charges in the event his attackers were arrested, he said he wouldn’t – the masks precluded him from making a positive identification.

Ludowitz said this is the first time he’s been attacked in the United States, and the first time he’s been confronted by anyone other than a state entity. He’s been a professional photojournalist since 2009, covering conflicts in Israel and Palestine as will as Egypt, Turkey, and Jordan.

He’s photographed landmine victims near the Myanmar border and was in Syria most recently, photographing in Aleppo during several barrel-bombing campaigns in 2014. That was when he decided he was out of his depth and returned to pursue his master’s degree.

Ludowitz is still passionate about covering conflict and human rights abuses, and he recognizes what’s at stake for journalists and for the public. He said, “This is such a critical time in our history, and particularly within journalism.”

“This is a point where tensions are high, people are really angry, a lot can happen, but we as journalists really need to double down and dig our feet in and we need to continue to report stories, so even if it's scary, and there's a little bit of danger to be had, I think it's our duty as journalists to go out there and still just do the hard stories and tell what needs to be told.”

This story, along with the widespread instances of protests and reports of violence we’ve seen covered by high school and college journalists since the election, has given us pause. Normally, the SPLC concentrates on the legal rights of students, and we do have legal guides for students covering a variety of situations, including protests.

These guides, however, focus on the reporter’s rights when questioned or detained by law enforcement. Our concern has long been with state-exercised censorship, but arrest isn’t the only challenge student reporters face. With this in mind, we put together a short list of tips, an addendum to our legal guide.

The starting point is always to be mindful of minimizing personal risk and to appreciate that any large-crowd event -- whether it is a political protest or the celebration after a basketball championship -- has the potential of turning dangerous. It’s important for every journalist to weigh the importance of photographing or filming a specific incident with their personal safety. Sometimes, the shot isn’t worth it.

Even Ludowitz said, “Next time I ever see someone smashing windows I'm just not going to bother photographing it.”

That said, these events are happening, and students are covering them. Most, thankfully, are peaceful. So, here are some thoughts on protecting yourself and your colleagues during mass demonstrations, protests, or riots.

  • Work together: Ludowitz’s primary advice for any journalists covering protests, rallies, or any other crowd events that could potentially turn antagonistic is to report in pairs or teams. He also recognizes the irony of this, given that many newsrooms have cut staff and require reporters to be one-person writer/photographer/videographer machines.
  • Memorize key phone numbers: This tip is also addressed in our legal guide to covering protests. There, we intended the advice the event you’re arrested and need to make a call from jail. However, this, and the advice to carry quarters, holds just as true in the event that you lose your phone. Also know that any and all phones in the United States (including payphones and mobiles not on a service plan) will connect you with 911 emergency services.
  • Avoid relying solely on your phone: Because rioters may focus on a journalist’s camera, using your phone as your only camera can put you in the doubly vulnerable position of losing both your footage and your lifeline to call for help. Where possible, treat your phone as an emergency backup recording system rather than your primary image-gathering device, and invest in an internet-enabled camera that can upload photos to “cloud” storage for safekeeping.
  • Institute a check-in system: If you’re working as part of a newsroom, and have multiple reporters in the field, schedule regular texts or phone calls with editors and map out a location in advance for reporters to meet up. Editors should also monitor the social media streams of their reporters. Sudden silence might mean trouble, and their Snaps and Tweets can give you an idea where to look.
  • Don’t get cornered: When reporting, stay on the periphery of the crowd. Try not to get pinned between opposing factions, be it protesters, counter-protesters, or police. Non-lethal crowd control weapons and improvised projectiles are most likely to be fired or thrown from one group into another.
  • Insure your gear: This is the last item because, obviously, your personal safety comes first. That said, gear is expensive. It’s bad enough to endure an attack; it’s worse to also be unable to work and report afterward because you can’t afford to replace your equipment. If you have insurance, make sure the policy covers theft as well as damage.

Tagged: attack, blog, Blogroll, California, election-2016, journalist-attacked, Oakland, protest, protestors, recent-news, Trump-protests, University of California Berkeley

Indiana Supreme Court rules Notre Dame police not subject to open records law

The Notre Dame Security Police is, according to its website, “fully authorized as a police agency by the State of Indiana.”

Moreover, “Notre Dame police officers complete state mandated training requirements established for law enforcement officers and have the same legal authority as any other police officer in Indiana.”

The Indiana Supreme Court sees things differently.

This week, in an opinion written by Justice Mark S. Massa, the court affirmed a trial court’s prior ruling (and overturned an intermediate ruling by an appeals court) that NDSP is “not a law enforcement agency” and is therefore not required to comply with requests for public records like the one ESPN submitted in 2014 concerning incident reports potentially involving any of the 725 student-athletes at the university.

“We are extremely disappointed by the ruling and what it represents for public transparency,” said David R. Scott, an ESPN spokesman, in a statement.

Lawyers for ESPN and the University of Notre Dame did not immediately respond to requests for comment

The Indiana Supreme Court held that it is obligated to make a plain-text reading of Indiana’s Access to Public Records Act, which identifies departments at any “level of government” as those subject to records requests. As a private university is not a part of government, the ruling said, NDSP cannot be treated as a law enforcement agency.

Only six states explicitly provide the public access to the records of police at private institutions: Ohio, Connecticut, Georgia, North Carolina, Virginia and Texas.

ESPN asked the state supreme court to consider precedent set in Ohio, where the public-records law expressly covers agencies that exercise any function of government.

But Massa relied on Indiana law in the majority opinion, specifying that the law subjects only agencies acting as an arm of the state to the same transparency standards that might apply to a city police department.

“The (Notre Dame Security Police) Department is not exercising the power of the State; rather, the trustees are exercising power granted to it by the State to appoint police officers to protect and oversee their campus,” Massa wrote, later adding: “For the Department to be a ‘public agency,’ it must be exercising its functions pursuant to government control; mere interconnections between a public and private entity are insufficient.”

ESPN and proponents of private-university police transparency, at least, have a powerful ally: Outgoing Indiana governor and Vice President-elect Mike Pence, who in March vetoed a bill passed by the Indiana Legislature that would have codified a distinction between the transparency requirements for public police departments and ones at private universities.

Pence’s office issued the following statement then:

“Throughout my public career, I have long believed in the public’s right to know and a free and independent press. Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency. While House Enrolled Act 1022 provides for limited disclosure of records from private university police departments, it would limit the application of the Access to Public Records Act following the Court of Appeals decision and result in less disclosure, therefore I have decided to veto the bill.”

That release cited the March 15, 2016 ruling by the Court of Appeals of Indiana that identified the NDSP is a public agency subject to ARPA requirements. The state supreme court ruling effectively negated Pence’s veto.

Tagged: blog, Blogroll, ESPN, FOIA, lawsuit, Notre Dame, Notre Dame Security Police Department, recent-news

Georgia law against insulting public school officials in front of students ruled unconstitutional

In 2015, a Georgia man boarded his children’s school bus to complain that they were being bullied — by the bus driver’s grandchildren. Michael Antonio West didn’t swear or become violent, but according to a report in the Florida Times-Union, he still found himself facing criminal charges months after the fact.

The statute West was accused of violating, however, has now been ruled unconstitutional in a unanimous decision by the Georgia Supreme Court. Previously, it was illegal to “upbraid, insult or abuse a public school teacher, administrator or bus driver in the presence of a student at a school or on a bus.”

A video camera aboard the bus taped the entire encounter, which resulted in West facing charges that could have resulted in a fine of up to $500.

West’s lawyer, Jason Clark, was given permission by the trial court to appeal to the state supreme court immediately. The court ruled that while the law may have a legitimate purpose, it is overly broad in violation of the First Amendment.

Overbreadth, more than just an accurate adjective, is a legal doctrine that provides that a law is overbroad if it effectively penalizes constitutionally protected speech or actions along with the unprotected conduct it seeks to regulate.

In its decision, the Georgia Supreme Court stated:

“Further, though ostensibly seeking to prevent disruptions to education or school activities, the statute neither ties the prohibited expression to the disruption of normal school activities nor limits the prohibitions to specific, fixed times, such as when school is in session. McCall, 354 S2d at 872. Also concerning, the statute does not proscribe all speech that might be boisterous or disruptive; instead, OCGA § 20-2-1182 prohibits only that speech directed at public school officials which may be perceived as negative or unfavorable.”

The court cited Broadrick v. Oklahoma, a law upholding states’ ability to prevent employees from engaging in partisan political activities, in its decision:

“Such restrictions are only valid if they are ‘narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society,’”

It’s an important decision for free expression advocates, and the judges took great care to outline the reasons for their finding, emphasizing that they are bound to interpret the law as it was written and not only through the perceived intent of the legislators who passed it. As the Times-Union put it: “The high court unanimously found the statute overly broad because it did not forbid speech that “might be boisterous or disruptive” but instead prohibited only speech directed at public school officials that could be perceived as negative or unfavorable.”

Tagged: blog, Blogroll, court ruling, free speech, freespeech, Georgia, recent-news

A jolt to private colleges from the NLRB: Gagging employees violates federal labor law

A case initiated on behalf of Northwestern University football players aggrieved by institutional restraints on their freedom to give interviews has the potential to greatly improve journalists' access to sources at all private businesses, colleges and universities included.

California labor-rights lawyer David A. Rosenfeld filed a complaint with the NLRB in August 2015 alleging that Northwestern's restrictions on the speech of football players violated the National Labor Relations Act (NLRA), a federal statute that protects the rights of employees to organize in support of better working conditions. While a Sept. 22 memorandum from the National Labor Relations Board (NLRB) received widespread attention for its impact on athlete/media communications, the opinion in no way limits itself to the locker room. Its ripples will be felt at any private organization that prohibits its employees from speaking to journalists or requires employees to refrain from criticizing workplace policies.

The NLRB is a federal agency that enforces compliance with the NLRA, which applies only to private-sector employers, including Northwestern, and not to public agencies.

The Board responded to Rosenfeld's complaint in a Sept. 22 "Advice Memorandum" from its associate general counsel. The memorandum flagged numerous restraints on speech in Northwestern's football team handbook as unlawful if applied to employees. Practices identified as illegal included:

  • Prohibiting interviews with the news media without advance approval of a public-relations officer.
  • Direct employees to say only "positive" things to the news media and to avoid "negative" comments.
  • Telling employees that their speech on social media will be "regularly monitored" by supervisors.
  • Ordering employees to refrain from "inappropriate" or "embarrassing" posts on social media that injure the "image and reputation" of the employer.
  • Telling employees that all aspects of their work are confidential and must "stay within the family."

Because Northwestern rescinded and rewrote the team handbook in response to the complaint -- making changes such as offering the assistance of a sports-information officer in fielding interview requests instead of requiring pre-approval -- the Board found no violations to act on and closed the case.

Under the Obama administration, the NLRB has been aggressively protective of employee speech that even hints toward an effort to collectively improve working conditions, even in an informal way such as complaining to co-workers on social media.

The Northwestern memo builds on an earlier March 2015 advisory memorandum cautioning employers against excessively controlling their employees' speech with all outside audiences, not just the media.

Agency lawyers reviewed employers' handbooks and identified a number of prohibitions as unlawful under the NLRA, including:

  • “Do not discuss customer or employee information outside of work”
  • “Be respectful of others and the Company”
  • “Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments”
  • “Employees are not authorized to speak to any representatives of the print and/ or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline”

The bottom-line takeaway is that the NLRB considers it a violation of federal law for any private employer, including a college or university, to (1) gag employees from giving interviews without the institution's approval or (2) require that interviewees say only favorable things or punish those whose comments are unflattering to the institution. 

This could significantly increase journalists' access to sources at private colleges. In the current image-obsessed climate, more and more institutions are funneling all media interactions through a public-relations bottleneck that delays and at times entirely obstructs interviews. Such policies now are almost certainly illegal, and can be challenged by way of an "unfair labor practice" complaint to the NLRB by any affected employee.

Limits of the ruling: Who's an "employee?"

For journalists interested in access to campus news sources, the NLRB interpretation comes with two significant limiting factors.

The first is that only "non-supervisory" employees are covered by the NLRA, and "supervisor" is a broad category under federal labor law. A provost, athletic director or other managerial-level employee is certainly a "supervisor" and can legally be gagged from speaking with the media -- and even some professors may qualify as well.

In December 2014, the NLRB ruled that professors are not automatically exempt from the NLRA as supervisory employees based on their title and status alone. Rather, the NLRB ruled, employer must demonstrate that professors actually exercise meaningful managerial authority over such policies as enrollment and budgeting, which (particularly for non-tenure-track adjuncts) will be difficult for any institution to prove. So a no-interviews policy probably can extend to educators at the level of a dean or even a department chair, but the policy will be much more challenging to justify if it extends to rank-and-file educators. 

One group that clearly is covered by the Northwestern opinion is graduate teaching assistants. In August 2015, the NLRB declared that grad assistants are employees for NLRA purposes and therefore entitled to unionize and bargain with their employers. Any private college that prohibits graduate assistants from speaking with journalists or tries to restrict the content of their communications with the media is breaking the law.

The second limiting factor is that -- ironically, since the initial story was treated as primarily one about sports -- athletes may in fact not be covered at all.

For purposes of ruling in the Northwestern football case, the NLRB assumed -- but did not actually decide -- that college athletes are "employees" under the NLRA. Basically, the board told the players "even if you qualify as employees -- which we're not saying -- we can't order Northwestern to do anything more, because they've already changed any policy that might have violated employee rights."

In an earlier case involving Northwestern players, the NLRB refused to decide whether athletes at private colleges can be "employees." The regional NLRB office in Chicago had declared the players to be covered by the NLRA, briefly jolting the college athletics universe as institutions confronted the prospect of having to pay athletes and afford them employee benefits. 

But for every other rank-and-file employee at a private institution -- and for the journalists who cover them -- it's a brand-new day.It remains an open question whether athletes can benefit from the victory they've won for private-college employees; it will take another NLRB complaint to tee up the issue squarely. But the Board threw out that ruling and declined to consider the Wildcat athletes' case, stating that a ruling in favor of the players might destabilize college athletics because the majority of colleges are public institutions and exempt from NLRA standards. That non-decision vacated the earlier ruling of a regional NLRB representative finding that college football players are, in fact, employees of their institutions.

What about public institutions?

Because the NLRB governs only private employers and not governmental workplaces, the Northwestern ruling seemingly creates a paradox: Employees at state institutions -- where the First Amendment applies and where the public's interest in transparency is at its highest -- have fewer rights to speak out publicly than their counterparts at private colleges.

Not necessarily. Federal courts have consistently struck down excessively broad bans on interactions between government employees and the media. 

As described in this article for the SPLC's Report magazine, the Supreme Court has viewed blanket restraints on public employees' speech with skepticism, indicating that the First Amendment requires a more compelling justification for a categorical ban on speech than for punishing a single employee whose speech disrupts the workplace. The Court struck down such a blanket ban in a 1995 ruling, finding that "operational efficiency" could not justify restraining federal employees' outside speaking activity.

Arguably, the NLRB's Northwestern opinion just puts private-sector employees on par with where government employees already are, albeit in a clearer way. 

As a matter of public policy and good governance, no higher-education institution -- public or private -- should be gagging its employees' interactions with the media. Narrower prohibitions against disclosing confidential student records or compromising unfinished criminal investigations are legally more defensible, and the rare employee who disregards these prohibitions can be dealt with individually without compromising the rights of others.

Does your college have a no-interviews policy that violates federal law? Send a copy of the policy to the Student Press Law Center and we'll look into it:

Tagged: National Labor Relations Act, National Labor Relations Board, news, NLRB, Northwestern University, private colleges, recent-news

Court of Appeals rules in favor of community college that removed nursing student over Facebook posts

What began as a series of venting social media posts has become a civil rights lawsuit that reached the 8th Circuit Court of Appeals. Last week, the appeals court issued a decision that stands to chill personal free-expression rights and strains the limits of the 1988 Hazelwood v. Kuhlmeier Supreme Court decision.

The outcome of the court’s 2-1 decision, assuming it is not overturned, leaves college students with diminished free-speech protection in all forums -- including when speaking on off-campus social media on their personal time -- if their speech can be deemed “unprofessional.”

Keefe v. Adams involves former student Craig Keefe, who attended Central Lakes College, successfully completing the Practical Nursing Program in 2011. Keefe subsequently entered the Associate Degree Nursing Program to become a registered nurse.

In the fall semester of 2012, one of Keefe’s classmates reported to one of the nursing professors that Keefe had published what the student felt were threatening and disturbing posts on his Facebook timeline.

Keefe’s Facebook profile was public, and the student cited several posts she felt pertained directly to the class she shared with Keefe.

In one of the posts, Keefe wrote about his frustration with the overuse of an electric pencil sharpener in class and mused that he “might “give someone a hemopneumothorax with it before to [sic] long,” and in a separate post that there was “Not enough whiskey to control that anger,” with regard to a change in a group project.

After the posts were reported, Connie Frisch, the director of nursing at CLC, set up an appointment with Keefe at the direction of Vice President of Academic Affairs Kelly McCalla. When Keefe asked what the meeting was about, Frisch declined to offer specifics, saying she preferred to discuss it in person.

After their meeting, which included the Dean of Students, Frisch decided to remove Keefe from the program, citing a lack of professional conduct in violation of a section of the Nursing Program Student Handbook that Keefe signed at the start of his program.

The section of the handbook cited requires CLC students to adhere to the Nurses Association Code of Ethics. Frisch stated that Keefe’s lack of acknowledgement or remorse for his posts conveyed to her that he would not or could not embrace these tenets of the program.

Keefe was told he could finish out the semester and transfer his credits to another program within the school and that he had the right to file an appeal. Keefe contacted Frisch with a list of due process violations he felt were made in the handling of his dismissal, and was then advised not to contact any faculty or fellow students within the program while the appeal was pending. He assumed he could not then attend classes and failed the semester as a result.

Ultimately, Keefe’s internal appeal was denied by McCalla, and he was unable to request a review as McCalla stated his removal was not disciplinary, but rather the result of a violation of the academic program’s requirements.

Keefe filed a lawsuit in 2013 contending, as in his administrative appeal, that he was denied due process under the school’s own disciplinary procedures. Additionally, he argued that his personal, off-campus speech on a social media platform should not be subject to academic oversight.

After a lower court upheld Keefe’s dismissal, the SPLC along with several other advocacy groups, filed an amicus brief to the 8th Circuit in support of Keefe’s court appeal. Now, the Circuit’s 2-1 decision is in, and it’s disheartening for a number of reasons.

The author of the two-judge majority opinion, Judge James Loken, accepted the college’s argument that it is constitutional to hold students to the standards of their intended profession -- including those restricting speech -- as a part of college curriculum, so that a student who falls short of professional standards can be dismissed for failing to meet academic requirements. Loken writes:

"That a graduate student’s unprofessional speech leads to academic disadvantage does not “prohibit” that speech, or render it unprotected; the university simply imposes an adverse consequence on the student for exercising his right to speak at the wrong place and time, like the student who receives a failing grade for submitting a paper on the wrong subject."

This interpretation misconceives the school/student relationship. While there can certainly be social and professional consequences to the exercise of free speech, public universities are functionally an agency of the government, and the standard by which they are allowed to impose official consequences, such as expulsion, for a student’s speech are far more stringent than the standard for which a person could be fired from a private-sector job. That a government agency can impose adverse consequences for the content of speech is the very definition of “rendering it unprotected.”

Loken’s analysis also glosses over Keefe’s argument that his participation on Facebook was not curricular. Keefe was not penalized for “submitting a paper on the wrong subject,” but for what he said in his off-campus personal life.

Later, Loken cites Hazelwood School District v. Kuhlmeier in support of the idea that CLC had a “legitimate pedagogical concern” to require adherence to the nursing code of ethics, and by extension the authority to oversee an individual student’s personal speech, even as he acknowledges:

"As the issue in Hazelwood was censorship of a school-sponsored campus newspaper, the Court’s reference to 'legitimate pedagogical concerns' was made in the context of school-sponsored speech."

Loken goes on to say that the “concept” of Hazelwood -- that a school can regulate speech if it contravenes the school’s pedagogical concerns -- “has broader relevance to student speech.” This, too, is a misconception. Hazelwood was about a school’s refusal to help disseminate speech over a school-provided conduit that, in the Court’s view, might be confused for the school’s own speech; no one thinks that Keefe’s personal Facebook page belongs to, or represents the speech of, his college. And Hazelwood was not a disciplinary case; it was about the ability to refuse to distribute a student’s speech, not the ability to expel him afterward.

There is some consolation in the dissenting opinion authored by Judge Jane Kelly. In it, she agrees with her colleagues’ findings that the CLC administration should be immune from paying damages for any due-process violation because of the unclear state of the law. But she disagrees with their findings on the First Amendment issue:

"Here, Keefe’s speech was off-campus, was not school-sponsored, and cannot be reasonably attributed to the school. Hazelwood’s 'reasonably related to legitimate pedagogical concerns' test is therefore inapplicable in this case."

She goes on to argue that Keefe’s remarks cannot be construed as being sponsored by the school, and were not made under any manner of educational directive that would open him up to grading, and therefore academic consequences. The school did not make any requirements or restrictions about participation in social media, and his posts were not class-assigned.

In her opinion, Kelly cited both Bethel School District v. Fraser and Morse v. Frederick (the “Bong Hits 4 Jesus” case), in pointing out that the Supreme Court has gone to great lengths to emphasize that off-campus speech enjoys full First Amendment protection, even in the K-12 setting, much less when the speaker and his intended audience are all adults.

If Keefe decides to go forward, he has the option of requesting an en banc hearing before the full 8th Circuit bench, or appealing to the Supreme Court.

Tagged: blog, Blogroll, recent-news

Louisiana court ruling eases journalists' access to education data sets -- but are school lawyers paying attention?

Journalists seeking statistics about the performance of schools are, by now, accustomed to a familiar (if legally unfounded) refrain: If the statistics pertain to a small group of students, they're confidential and can't be disclosed.

Reporters in Ohio ran into the "small data set" excuse when asking how many times students are caught bringing guns into schools. The state Department of Education claimed that the numbers were confidential if fewer than 10 incidents were reported in any particular school, because the number "7" or "8" might somehow be matched to an individual student in a way that compromises privacy. (Re-read that explanation as many times as you want; it still won't make sense.)

In Delaware, advocates for English-language learners are frustrated in their efforts to track how well schools are serving immigrant students by a ponderous state requirement that says statistics about students won't be disclosed for any group smaller than 30. And an upstate New York school district says it won't identify how many students in the district are homeless if the number drops below five. 

None of these examples, and countless more around the country, are a logical reading of federal privacy law, which forbids only the release of "education records" that give away confidential information about identifiable students. Knowing that Central High School has four homeless students does not reveal anything matchable to a known student. (Indeed, even if the number is "1" and you are able to match that number to Joe Johnson, that's because you already know that Johnson is homeless, so the "1" tells you nothing new.)

These types of needless obstructions should become rarer thanks to a judge's resolution of a lawsuit involving two Louisiana education watchdogs who fought the state Department of Education over access to student enrollment data.

In an Oct. 5 order, District Judge Janice Clark instructed the state to stop "suppressing" statistics showing how many students in each school are classified as economically disadvantaged students or are learning English as their second language. The judge found that withholding the statistics was not justified by any legitimate exemption to the Louisiana public records act.

Judge Clark's order concluded an unorthodox "sue-the-requester" case brought by the state Department of Education against two Louisiana educators who make frequent requests for data under the state's public records act. Instead of waiting for Michael Deshotels and James Finney to take legal action to obtain the enrollment statistics, the state launched a preemptive-strike lawsuit, forcing the requesters to litigate whether they wanted to or not.

The state claimed that the statistics were confidential under the Family Educational Rights and Privacy Act ("FERPA"), a statute frequently misapplied to obstruct public access to records that schools prefer to keep secret. 

Deshotels suspected that similar gamesmanship was at work in his case, since his Louisiana Educator blog has broken some embarrassing stories about school wrongdoing, including revealing that some New Orleans schools were manipulating their dropout statistics to draw money from the state they weren't entitled to receive. 

While Judge Clark's order isn't binding in future cases, it provides yet another counterweight to the sky-is-falling insistence of school attorneys that disclosing data to the public will -- in a way they're never able to explain -- give away something injurious about specific students.

The U.S. Department of Education has never established a "magical size threshold" beneath which statistics cannot be released. The Department has merely cautioned that data should be withheld if it unmistakably points to an identifiable individual.

For example, if a school with one Asian student (let's call her "Jane") was asked to produce a statistical breakdown by ethnicity of the students who failed a graduation exam, the school legitimately could not release statistics for Asian students, because a "1" would unmistakably indicate that Jane failed the exam and a "0" would unmistakably indicate that she passed.  

By itself, that is a wholly unremarkable position, and if that was as far as schools understood their privacy obligation, it would be inarguable. But it's not. Educational institutions are compromising safety and accountability, perhaps intentionally, by withholding statistics that enable journalists and parents to evaluate how public schools perform, such as district-level statistics about truancy, that pose no conceivable risk to personal privacy.

Advocates for more transparent colleges and schools are starting to awaken to the downside risk of reassuring-sounding privacy laws that, while protecting no legitimate privacy interests, enable educational institutions to mask their under-performance. Recently, the student-rights group Young Invincibles called for reform to federal laws that, in the name of privacy, obstruct the public's ability to track student advancement and job-placement rates -- data that prospective recruits should be entitled to weigh in choosing a college.

Perhaps the Deshotels case will help provoke an overdue conversation at the U.S. Department of Education, which has sole discretion to interpret FERPA, about the need for clearer guidance that avoids more unnecessary lawsuits and gives the public access to essential school-performance data.

Tagged: FERPA, Louisiana Department of Education, news, open data, recent-news

Federal judge smacks down Northern Kentucky's reliance on FERPA privacy to keep secrets in student's sexual-assault lawsuit

When a Northern Kentucky University student filed a federal lawsuit alleging that the college responded inadequately to her complaint that a basketball player raped her in a campus dorm, NKU went into full "FERPA coverup" mode.

The university's lawyers claimed that the federal student privacy statute made essentially everything about sexual assault on college campuses a federally protected secret. They argued:

(1) The college's athletic director couldn't be questioned about how he handled a sexual-assault complaint against an athlete.

(2) The university couldn't turn over records documenting its handling of past rape complaints.

(3) The entire court file needed to be placed under seal and all participants in the trial gagged from making public comments.

Now, a U.S. district judge has answered NKU's FERPA claims: Nope, nope and nope.

It's well-documented that colleges and schools abuse FERPA to conceal scandal under the guise of "student privacy," most notably at the University of Kentucky, where the college's president took the nearly unprecedented step of suing his own students' newspaper to keep a lid on UK's questionable handling of sexual misconduct complaints against a professor.

But even by the assertive standard set by other higher-education institutions, Northern Kentucky's reliance on FERPA has been aggressive -- so aggressive that Senior U.S. District Judge William O. Bertlesman took the unusual step of sanctioning NKU's legal counsel for obstructing a witness' deposition with unfounded claims that testifying about how the university handles rape complaints against athletes would violate FERPA. 

In the lawsuit, brought under the federal Title IX gender-discrimination statute, plaintiff "Jane Doe" alleges that she was sexually assaulted during the fall of 2013 within weeks of arriving at Northern Kentucky as a freshman. She brought a disciplinary complaint resulting in a finding that the accused student, a member of the NKU basketball team, did commit sexual assault, but the player was allowed to remain on campus under a "no-contact" order that, the lawsuit alleges, went unenforced. 

Title IX allows for civil lawsuits against federally funded educational institutions if they discriminate on the basis of gender, which includes subjecting students to severe and pervasive gender-based hostility. The law has been interpreted to permit students to recover civil damages if there is proof that the institution fails to take sexual assault seriously. 

During October, Judge Bertlesman has entered three orders in the case of Doe v. Northern Kentucky University that reflect a commonsense understanding of FERPA as its authors always intended: A narrow prohibition against disclosing students' educational records as a matter of routine practice, not a prohibition against releasing documents or answering questions as part of a lawsuit.

In an Oct. 18 order, the judge refused to grant the wide-ranging secrecy order that Northern Kentucky sought, which would have forbidden Doe or her counsel from discussing the case publicly or releasing any documents about the case, and sealed the entire court file -- all drastic departures from the normal rule that court proceedings and records are open to the public. News organizations, including the Cincinnati Enquirer and the Northern Kentucky Tribune, filed briefs opposing closure, disputing the university's claims that publicity would bias potential jurors and that FERPA required sealing the university's filings.

On Oct. 27, the judge ordered NKU -- over its FERPA-based objections -- to produce "all documents and education records relating to any allegations of sexual assault, sexual misconduct, rape, and/or unwanted advances that occurred on campus and in offsite living quarters in the last seven years." This specifically includes two other incidents involving NKU basketball players, one in February 2015 and one in March 2016.

The judge also imposed sanctions, including attorneys' fees, because of the obstructionism of Northern Kentucky's legal counsel, Patsey E. Jacobs of Sturgill, Turner, Baker & Moloney of Lexington, during an Aug. 25 deposition of Athletic Director Ken Bothof.

During the deposition, Jacobs interrupted at least a dozen times to instruct Bothof not to answer questions on the grounds of FERPA. The objections centered on questioning by Doe's counsel about how Bothof responded when notified of a different allegation of sexual assault against NKU basketball players, this one in 2015. Jacobs claimed FERPA precluded asking questions about how Bothof learned of the allegations, whether he asked the players if they committed sexual assault, and how he decided to let them continue playing despite the accusation. 

When a witness is under oath during a deposition, his counsel is allowed to intervene only in extreme circumstances, such as when the questioning would force the witness to disclose a privileged attorney-client communication.

In Bothof's case the objections were unfounded, Judge Bertlesman ruled, because FERPA protects only against the disclosure of education records, and does not apply to the personal observations and recollections of witnesses. 

Judge Bertlesman's refusal to throw the FERPA secrecy blanket over the NKU case aligns with a comparable case against the University of North Carolina-Chapel Hill in 2004, in which UNC similarly tried to seal the records of a student-athlete's sexual-harassment lawsuit. There, too, the judge determined that FERPA applies only to the disclosure of school-maintained "education records" and not to records created in the course of litigation.

Together, these rulings reinforce just how limited the confidentiality shield of FERPA truly is, despite the frequent insistence of school and college lawyers to the contrary. Attempts to conceal records documenting events of great public importance -- and it doesn't get much more important than the sexual assault of students -- should be viewed with deep skepticism and, where possible, challenged legally. 

Tagged: FERPA, news, NKU, Northern Kentucky University, recent-news, Title IX

Journalist arrested for filming in courthouse has charges dismissed

Daryl Khan was standing in a New York City courthouse, waiting to take video of a man who’d just been sentenced for murder – the latest chapter in a series of stories he’d written about violence in a rival pair of housing developments.

Khan was standing in a public space alongside other reporters and camera crews, and gathered footage only from outside the courtroom once the June 24 sentencing had been adjourned. He wasn’t credentialed to cover the event, but press credentials aren’t required to stand in the hallway or to take photographs.

Still, a court officer arrested Khan, detained him for several hours and forced him to delete the contents of his camera. Worse, Khan wound up with a disorderly conduct charge.

Khan is finally off the legal hook, as a judge dismissed the disorderly conduct charges in light of a motion filed earlier this month by Mickey Osterreicher, the general counsel for the National Press Photographers Association. Richard Ross, a New York Criminal Court judge, granted the motion, which argued that Khan was not causing a public disturbance and in fact acting in the public interest as a journalist.

Khan, an adjunct professor in journalism at the City University of New York’s Graduate School of Journalism who was reporting for the nonprofit  Juvenile Justice Information Exchange, faced potential jail time.

Now, the script is flipped. Khan didn’t respond to the SPLC’s requests for comment, but Osterreicher said he hasn’t ruled out filing a claim for civil damages alleging that Khan's civil rights were violated (known as a "Section 1983" claim under federal law).

Federal courts have recognized at least some degree of First Amendment protection for the act of recording news events in public spaces. Journalists also have the added protection of a federal statute, the Privacy Protection Act, that imposes additional legal hurdles before police can search for a journalist's unpublished work.

There are extremely limited circumstances, according to Osterreicher, in which it would be appropriate for a law enforcement officer to seize a recording device, but there are none that would allow the officer to search and examine the device’s contents without permission or a search warrant, as occurred with Khan.

“In exigent circumstances, at least when it comes to somebody performing their official circumstances in a public place,” Osterreicher said, “(the law) basically says that if an officer has probable cause to believe that a serious crime has been committed -- which means like a serious injury, not minor misdemeanor -- and they have good-faith belief that you have evidence of that crime on your phone, for example, and they have good-faith belief that that evidence will disappear if they don’t take action, they can seize your cellphone. They can’t look at it.”

Khan’s circumstances, according to Osterreicher, did not come close to matching those criteria, and even if they had, the officer’s insistence that Khan delete the camera’s contents was inappropriate regardless.

There’s not much in the way of specific legal guidelines for these situations, according to Osterreicher, but the Department of Justice has previously taken the position that “under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed.”

A Section 1983 complaint could include claims under the Fourth Amendment (guarding against unreasonable searches and seizures) and Fourteenth Amendment (ensuring equal protection under the law) on the grounds that Khan was unlawfully detained and forced to delete contents of his camera.

Tagged: arrested, blog, Blogroll, CUNY, Daryl-Kahn, disorderly conduct, First Amendment, First Amendment, first-amendment, Fourteenth Amendment, Fourth Amendment, journalist arrest, juvenile crime, New York City, recent-news