The Student Press Law Center blog

As Education Secretary Arne Duncan prepares to step down, a look back at his views on FERPA

On Friday, media outlets reported that U.S. Secretary of Education Arne Duncan will resign from his post in September to move back to Chicago to be with his family. Deputy Secretary of Education John King will replace him in the interim, though the Obama administration said he will not be nominated as secretary.

Duncan, who has served as secretary for almost seven years, has been both applauded and criticized for many of his changes in K-12 education, from launching the Race to the Top grant program to promoting the Common Core State Standards.

He has also been a controversial figure regarding FERPA, the Family Educational Rights and Privacy Act. The Department has never released clear guidance about what records are protected by the law, and so schools have used FERPA to deny reporters and the public access to public records — from sexual assault records to swim-meet scores.

The SPLC tracks how school districts and colleges use FERPA when they’re denying access to public records — and how legitimate those excuses are — through our FERPA Fact blog. (Duncan’s face is even used as the FERPA meter.)

I dug through the SPLC archives to find four prominent times Duncan commented on FERPA’s reach.

1. In 2014, the Department of Education announced it would join the University of Montana’s appeal of a district-court order requiring the disclosure of public records about how the university system handled a star football player’s disciplinary appeal in a sexual assault case. The SPLC sent a letter to Duncan asking him to cease its involvement in the case.

“Time after time, the Department has stood by idly as schools have forced families to go to court to contest the frivolous misuse of FERPA to obtain records to which they plainly were entitled,” the letter said. “It is amply well-documented that colleges misuse FERPA to mislead the public about how they respond — or don’t respond — to reports of sexual assault … It is astonishing that the sole statement from your Department about FERPA and sexual assault on college campuses is a statement in favor of the continued concealment that has allowed violent crime to fester for so long to the detriment of so many.”

In July of 2015, the records-request case was appealed — for the second time — to the Montana Supreme Court.

2. In 2013, former SPLC reporter Sara Gregory asked Duncan on a press call if the Department of Education had plans to issue any sort of guidance to schools to help stop the misapplication of FERPA. Duncan said journalists who received a dubious claim of FERPA confidentiality can tell the Education Department’s chief privacy officer, Kathleen Styles.

“We always try to do our best to provide very clear guidance and try and strike that balance between absolutely maintaining privacy, but also as much as we can, absolute transparency,” Duncan said. “Where districts or schools are — I’m not saying they are — but if they’re sort of hiding behind FERPA and not sharing simple information, we’re happy to try and assist there.”

3. In 2011, the Education Department proposed new student privacy regulations that also clarify “that states have the flexibility to share school data that are necessary to judge the effectiveness of government investments in education.” The changes, meant to prevent marketers and criminals from gaining access to the information, included allowing schools to limit the release of “directory information,” like students’ names and addresses, to “specific parties, [or] for specific purposes. The department did not specify how a school should decide who can obtain the information.

“We need common-sense rules that strengthen privacy protections and allow for meaningful uses of data,” Duncan said in a statement.

The department also created the position of chief privacy officer, tasked with administering FERPA and other federal privacy laws.

These were the first changes to FERPA regulation during the Obama presidency, and SPLC Executive Director Frank LoMonte was quoted as saying that the changes did not provide a solution to the overuse of FERPA.

“The public and Congress have given the Department several years to recognize, acknowledge and rectify the overbreadth of FERPA, and today the Department has made clear it has no interest in doing so,” he said.

4. In 2010, Duncan was quoted as saying: “If it was up to me and the law allowed it, I would put out student attendance data and hold parents accountable. And while we’re at it, let’s put out funding and facilities data and hold school boards and politicians accountable.” LoMonte wrote a blog post criticizing Duncan for calling for greater transparency while running an agency that has classified increasingly more information as confidential.

“Secretary Duncan, it is ‘up to you,’” LoMonte wrote. “The courts have been abundantly clear — over and over — that the scope of FERPA is more limited than your agency acknowledges. The public is entitled to more information than schools and colleges are releasing.”

Tagged: Arne Duncan, FERPA, recent-news

University of Kansas released some records related to its center’s relationship with the Koch Foundation

KANSAS — What had been almost a year-long battle for public records from the University of Kansas’ nonprofit foundation drew to a close last month. But the fight for access to records to track donor influence is continuing on at several colleges across the country.

In a three-way settlement on Aug. 21, the KU Center for Applied Economics Director Arthur Hall, the university and student Schuyler Kraus agreed to a limited release of records related to the center’s relationship with the Koch Foundation.

In the spring edition of the SPLC’s Report magazine, staff writer Katherine Schaeffer reported on student-led movements like UnKoch My Campus that have popped up to expose the secrecy of some university nonprofit foundations that some say can lead to abuse and undue donor influence. Whether an institution’s foundation is subject to public records laws varies within and between states.

Kraus sought documents from the university exposing the relationship between the center and conservative political donors Charles and David Koch. KU intended to comply with the request, but Hall sued the school to stop the release of the records.

The Lawrence Journal-World reported that Hall objected to the breadth of the request. The records KU was originally willing to hand over included correspondence he considered personal.

The records released as part of the agreement were primarily correspondence between Hall and the Koch Foundation, but also included an agreement in 2004 between KU and the foundation providing start-up money for the center.

“This small subset matches much more closely with what I would perceive to be public records, as opposed to my private correspondence,” Hall said to the Lawrence Journal-World.

The correspondence in the records ranged from 2007 to 2013. Hall updated the foundation on the status of grants and requested additional grant money over the years.

The money covered payroll for the center (Hall was the only employee). According to the Journal-World, Hall’s 2016 salary was $111,000, which includes both his teaching salary from the university and what he made at the center. The grants also funded the Kansas Economic Reform Initiative and research into county-to-county population and income migration.

The records establish a monetary relationship between the center and the foundation, but Hall was already known to be associated with the foundation. He previously worked as an economist for Koch Industries.

Tagged: koch, public records, recent-news, University of Kansas

Hefner First Amendment awards recognize quarterback of North Dakota's student press rights campaign

A college journalism professor who put together the winning strategy for a student press-rights breakthrough in an unlikely state is the winner of the Hefner Foundation's 2015 award for First Amendment leadership in education.

Steve Listopad of Valley City State University accepted the First Amendment Award at a Los Angeles ceremony Tuesday, recognizing his leading role in securing passage of the John Wall New Voices of North Dakota Act, which became law Aug. 1. 

Named in honor of a popular journalism teacher who served in the North Dakota legislature, the law limits the bases on which schools and colleges can censor student journalists and protects faculty advisers against retaliation for what their students publish. The act makes North Dakota the eighth state with enhanced statutory protection for high school media; a ninth, Illinois, protects only college-level media.

"We don't want our new voices retreating to the dark recesses of the Internet to have important conversations," said Listopad, whose students sketched out what became the New Voices statute as part of a class project in 2013, then convinced hometown state Rep. Alex Looysen to sponsor it.

Attorney Mike Hiestand, a 2014 award winner for his nationwide free-speech "Tinker Tour" awareness campaign, presented the award, recalling how he came to appreciate the importance of statutes protecting students against censorship during two decades of fielding legal hotline calls for the Student Press Law Center: "Where students were calling from would determine whether the news I'd give them would be good or bad."

The North Dakota statute has ignited a nationwide movement to enact similar legislation, with New Voices organizations taking shape in MichiganMaryland, New Jersey and being discussed in half a dozen other states.

The head of the North Dakota Newspaper Association, Steve Andrist, an early supporter of the New Voices Act, told The Jamestown Sun that Listopad positioned HB 1471 to succeed by assembling a broad coalition of supporters that even included the educational institutions being regulated:

"Without the law, a principal, a superintendent, a school board or other line of authority could step in and tell students or their adviser that it did not want to deal with an issue it saw as too controversial, such as birth control or same-sex marriage."

The Hefner First Amendment Awards are presented by former Playboy Enterprises CEO Christie Hefner and her family's foundation each year to recognize free-speech champions in the fields of journalism, law, education and government. Other winners recognized Tuesday included New York Times investigative reporter James Risen, who defied threats of imprisonment to protect a confidential federal whistleblower, and author/journalist Victor Navasky, longtime editor and publisher of The Nation.

Listopad was joined at Tuesday's event by a cheering section of some two dozen North Dakotans, including two New Voices co-sponsors, state Reps. Corey Mock and Jessica Haak.

Tagged: First Amendment, Hefner Foundation, Mike Hiestand, news, recent-news, Steve Listopad

Virginia Supreme Court decision could restrict how much information state agencies must release

A recent decision by the Virginia Supreme Court that narrowed the amount of information a public agency has to release could have broad implications for future public records requests in the state.

The court ruled on Sept. 17 that the state Department of Corrections did not have to release documents relating to safety and security measures around executions, even if information exempted by the Virginia Freedom of Information Act is redacted.

Justice Cleo E. Powell wrote in the decision, “The wording of the statute applies the exclusion to the entire drawing, manual, minutes or record and makes it disclosable only at the discretion of the custodian. Nothing in this section speaks to redaction except for a general reference to the portion of disclosure at the discretion of the custodian.”

Justice William C. Mims was joined by Justice S. Bernard Goodwyn in a partial dissent from the court’s decision. While agreeing with Powell about the exemption for safety records, Mims said the majority’s ruling on redactions was at odds with the Virginia statute’s strong presumption in favor of public access:

“The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.”

Mims argued that the state public records law "does not create a 'blanket exclusion' for the requested records, and the VFOIA therefore requires VDOC to release any non-exempt information contained in the requested records."

Open government advocates are concerned by the assertion in the decision that the public records statute “creates no requirement of partial disclosure or redaction” when it comes to safety and security exemptions.

State Del. Scott Surovell, who brought the case, had sought a number of documents about the Department of Corrections’ execution procedures.

After the decision was issued, Surovell was concerned about the impact of the court’s ruling, according to the Washington Post. “They’ve incentivized government officials to sprinkle so-called ‘safety provisions’ in any records they don’t want the government to see, and they’ve also directed the courts that they have to give great deference to government officials about what documents the government officials want to produce,” he told the Post.

In an editorial column for the Richmond Times-Dispatch, Megan Rhyne, executive director of the Virginia Coalition for Open Government, expressed concerns with not only the court’s decision, but what she sees as a trend away from open government in the state.

The court has issued six pro-confidentially decisions within the past four years. Additionally, Rhyne noted that the Virginia governor’s office has declined to grant requests for access to a now-completed investigation into misconduct accusations against state alcoholic-beverage agents.

Leadership for open government must come from the top and “the bad apples are frequently the ones in the highest levels of authority. They set the tone; they set the precedent,” Rhyne wrote. “When the governor’s office says FOIA prohibits release of a record (FOIA’s exemptions are discretionary, not mandatory), other agencies or political subdivisions may be emboldened to misstate their duty to disclose. When the General Assembly doesn’t record votes, a school board may pick up the practice. When the courts say they aren’t even the custodian of a database that is literally in their possession, a city may decide its salary database is off-limits, too.”

Gov. Terry McAuliffe’s spokesman, Brian Coy, told the Daily Press that the court’s ruling would be studied, but it is too early to know how future records requests will be handled.

The state’s Freedom of Information Council has been conducting a three-year evaluation of the Virginia public records law.

Tagged: public records, recent-news, Virginia

SPLC's Frank LoMonte receives Louis E. Ingelhart First Amendment Award

The College Media Association has named Frank LoMonte, executive director of the Student Press Law Center, the 2015 recipient of the esteemed Louis E. Ingelhart First Amendment Award.

The award honors Louis E. Ingelhart, a former Ball State University journalism professor who dedicated much of his life to studying, writing and teaching the First Amendment. Ingelhart, a longtime member of SPLC’s executive board, helped form the SPLC in its modern incarnation. He died in 2007.

LoMonte has served as the SPLC’s executive director since 2008. He has provided legal assistance to thousands of high school and college journalists and advisers who faced censorship or other challenges. Known in the journalism world as a tireless fighter for student press rights, LoMonte has traveled to almost all 50 states on behalf of the SPLC to speak at high schools, universities and conferences.

The Louis E. Ingelhart First Amendment Award is not given out annually, but rather, when the CMA recognizes a career of exceptional achievement. In 2011, SPLC’s special project attorney Mike Hiestand received the award, as did former executive director Mark Goodman in 1996.

“It’s kind of overwhelming to look at the list of past winners, which includes so many people who gave a lifetime of service to student media, including so many good personal friends like James Tidwell, Mark Goodman and Mike Hiestand,” LoMonte said. “I feel like I just cut ahead in line, but I’m overjoyed to accept the award not as personal recognition but as recognition for an organization of staff, board members and volunteers who’ve given such valuable service to journalism for 40-plus years.”

Ingelhart was known by many as the first professional advocate for the free-press rights of high school and college journalists. He advised student journalists and their advisers across the country. 

“It’s going to be a challenge to live up to Louis Ingelhart’s legacy as a giant in journalism education, and I’m so grateful to everyone at CMA for recognizing the SPLC’s continuing importance in keeping college media free and vibrant,” LoMonte said.

LoMonte will receive the award on Oct. 29 in Austin, Texas, during the 2015 National College Media Convention.

Tagged: awards, College Media Association, Louis Ingelhart, Louis Ingelhart, recent-news

Constitution Day lesson plan highlights North Dakota's new student press rights protections

In 1952, Congress directed every public school to set aside time on Sept. 17 – Constitution Day – to teach young people about constitutional values and principles. This year's Constitution Day is extra-special in North Dakota, because it marks the first time young people will have meaningful free-speech rights, thanks to the John Wall New Voices of North Dakota Act.

The nation's newest student press-rights statute is also one of its most comprehensive, protecting student journalists from censorship at the college and K-12 levels -- protection that extends to independent journalistic work as well as work in school-sponsored media -- as well as outlawing retaliation against journalism advisers for what their students write.

To mark this advance toward giving students the actual benefit of the Constitution that they're expected to study and learn, the SPLC has created a Constitution Day lesson plan about the New Voices Act that is designed for use in North Dakota schools but could be adapted for use elsewhere (especially in a state with comparable statutory protection for student journalists -- consult this map if you're not sure about your own state).

Download a free copy of the Constitution Day lesson plan, including teacher notes and discussion questions, here.

Tagged: Constitution Day, Hazelwood School District v. Kuhlmeier, New Voices Act, North Dakota, recent-news

Judge dismisses lawsuit against university-based investigative news organization

For at least the second time in recent years, an investigative news organization faced an attempt to sever their relationship with the public university where they are housed.

In California, Superior Court Justice Eddie Sturgeon dismissed a lawsuit against San Diego State University-based inewsource in a brief decision released on Sept. 8, citing the organization’s news-gathering role as a protected activity.

In April, San Diegans for Open Government, a nonprofit group, sued inewsource, its executive editor Lorie Hearn, San Diego State University and the SDSU Research Foundation, over an alleged conflict of interest involving the news site’s lease agreement.

SDOG alleged “lecturer Lorie Hearn had negotiated a sweetheart deal for her private business to operate out of the KPBS studios at SDSU and was using the SDSU/KPBS logos to promote her business, all for about $1 per year.”

In a statement after the lawsuit was dismissed, SDOG said it was "concerned that this ruling paves the way for any public employee to use his or her position to get secret, special treatment at taxpayer expense and escape being held accountable in court just because the employee's private business is in a field protected by the First Amendment."

inewsource shares office space and does investigations with public media outlet KPBS on SDSU’s campus. The nonprofit teaches, trains and mentors students at the journalism school.

Hearn rejected the notion of indiscretion at the nonprofit investigative news outlet.

“inewsource has had a lease with San Diego State University for years,” Hearn said in a statement to inewsource. “I was paid to teach one class during one semester, in the spring of 2015. Anyone who is familiar with bureaucracies, like universities, knows that a part-time professor has absolutely no power to influence anything, let alone a contract for work space that overwhelmingly benefits not only the KPBS audience.”

inewsource attorney Guylyn Cummins speculated the open government group’s motivation for filing the lawsuit may be retaliation. In the past, inewsource produced stories unflattering to Cory Briggs, a lawyer affiliated with SDOG.

Over the past several years, the number of nonprofit newsrooms housed in universities has risen significantly.

In 2013, an anonymous legislator offered an amendment to the Wisconsin budget bill that would have removed the Wisconsin Center for Investigative Journalism from the University of Wisconsin-Madison campus and banned employees from working with the center as part of their official duties.

In exchange for office space on the UW-Madison campus, the center hires and trains student interns throughout the year.

While the amendment was approved 12 to 4 in committee on a party line vote with Democrats voting against, the measure was opposed by those across the political spectrum in the state. 

“It is the height of arrogance, and everybody who voted for that should be embarrassed. It smacks of the kind of tactics you would expect from Vladimir Putin or Hugo Chavez — not in Wisconsin,” state Sen. Dale Shultz, a Republican, said on Wisconsin Public Radio.

Conservative radio host Charlie Sykes wrote, “Here’s hoping my fellow conservatives will sober up, see the light, and take this out of the budget.”

The amendment was ultimately vetoed by Gov. Scott Walker, a Republican.

In July, the Student Press Law Center announced a partnership with the Institute for Nonprofit News. SPLC will offer training and specialized legal expertise to nonprofit newsrooms based at universities.

Tagged: nonprofit newsrooms, recent-news, san diego state university

Many Americans lack a strong understanding of the Constitution, experts say at D.C. event

WASHINGTON, D.C. — A week before Constitution Day, the non-profit group Essentials in Education launched its “National Constitutional Literacy Campaign” at the National Press Club.

EIE’s CEO Chuck Stetson told the Associated Press the campaign is designed to educate Americans on the importance of the Constitution, the Bill of Rights and the Declaration of Independence. EIE also plans to create the “Freedom in America Series,” a series of interactive educational materials.

The event on Thursday featured speakers from across the nation and included a former congressman, a radio host, several educators and leaders of multiple civics-oriented non-profits. The 11 speakers each had the chance to explain why they value Constitutional education and what their organizations are doing to promote it.

This event — and the campaign — is a way of gathering together people who work to promote better education and understanding of the Constitution. Many of the speakers cited troubling statistics like a survey conducted by market research firm GfK and the American Council of Trustees and Alumni, in which 10 percent of college graduates said Judge Judy was a Supreme Court justice and 46 percent of college graduates didn’t know the length of Congressional terms.

Michael B. Poliakoff, vice president of policy for ACTA, said a lack of understanding of the Constitution is more than an embarrassment, it’s “a threat to our free society.”

The audience seemed to agree wholeheartedly, and several other speakers made similar comments about the dire need for a better understanding of the Constitution and the American government in general. While there was consensus about the need for better education, each speaker had their own idea of how best to achieve this.

Poliakoff cited a different study that showed only 14 percent of colleges and universities in the United States require a foundational course in American government or history. His proposal: enact state laws that require schools teach these courses.

And then there’s Melinda Cooperman, the associate director of the Marshall-Brennan Constitutional Literacy Project. She spoke about the project, which sends American University Washington College of Law students to high schools to teach them about the Constitution. The goal is twofold: to teach students their rights and to encourage them to pursue careers in law.

This is particularly important, she said, because most of the high school students in the program are low-income and minority students: groups that are underrepresented in law careers.

When it comes to education, budget cuts and funding are always part of the equation. Kerry Sautner, head of education at the Constitutional Center in Philadelphia, pointed out that both private and governmental funding goes to science, technology, engineering and mathematics education much more frequently and in larger sums than civics education.

She said this has serious implications because a solid civics education makes young people more likely to vote and be involved in both their community and their government.

Sautner went on to say that while STEM education is popular because it’s seen as fun, civics education is “moving and it moves you further than fun ever could.”

Civic education and participation is one of the Student Press Law Center’s key issues, as student journalism is ‘participatory civics.’ See what we’re doing about it.

Tagged: civic education, Civic Engagement, Civic Youth, recent-news, United States Constitution

Student editors finalize agreement with D.C. principal about attempted prior review policy

WASHINGTON, D.C. — Last Friday, the editors of the Wilson Beacon at Woodrow Wilson High School came to an agreement with their principal to end a planned prior review policy.

Erik Wemple at the Washington Post reported on Friday afternoon that the paper’s co-editors in chief, Erin Doherty and Helen Malhotra, presented their amended editorial standards to Principal Kimberly Martin and she agreed to completely drop the prior review policy.

Martin, who is in her first year as principal of the D.C. high school, had asked the Beacon to implement a quote-checking policy and strengthen article-review requirements after her original policy to review every article before publication herself sparked controversy and backlash throughout the city.

In an initial softening of the policy, Martin said stories would be reviewed by either the paper’s staff advisers or herself.

Now, any review of articles will not go higher than the paper’s advisers, Wemple reported.

“It’s so exciting to know that we don’t have to worry about that and that we can kind of go back to actual content in the paper rather than our relationship with this woman,” Doherty told Wemple.

For more on the controversy and the end result, the Student Press Law Center’s executive director Frank LoMonte will be on D.C. public radio station WAMU’s Kojo Nnamdi Show on Thursday at 1 p.m. EST with two of the Beacon’s editors to discuss the situation.

It’s important to note that Washington, D.C. is one of the few places in the country that provides added legal protection for high school journalists against administrative censorship. After North Dakota passed an anti-Hazelwood law this spring that guaranteed the free-speech rights of student journalists in the state’s public schools and colleges, more states have been looking into passing similar laws.

The Student Press Law Center tracks state-by-state laws and provides information on how to get involved to protect student press rights on its Cure Hazelwood page.

Tagged: prior review, recent-news, Woodrow Wilson High School

Texas high school is requiring students in yearbook class to sign over the copyright to their work

Update, 9/11: A spokeswoman for the school district said that students will not be transferred out of the yearbook class if they don't  sign the contract. The article has been updated to reflect this. 

The Texas high school that made headlines over the summer for ordering a student to stop selling photos of school sports is now requiring students in the yearbook class to sign an agreement that the district owns the copyright to any work they produce.

Students who don’t sign the contract — essentially a work for hire agreement — may be denied access to district-owned equipment and/or press credentials, except for school-specific assignments.

The saga started last spring, when then-sophomore Anthony Mazur was told by Flower Mound High School administrators that he had to take down his online photo gallery of school sports photos, where he was selling pictures for $5 each to interested parents. The school officials told Mazur that he was violating copyright law because the photos were taken with school’s camera, and that it was a violation of the Family Educational Rights and Privacy Act, a federal student privacy law, to post the pictures of student athletes online.

His situation made national headlines and sparked an online campaign, #IAmAnthony, where other photographers and journalists voiced their support.

Mazur appealed the decision, and in June, the Lewisville Independent School Board set aside the order and allowed Mazur to use his own camera equipment to “photograph LISD events open to the public, and from public viewing areas,” a spokeswoman said at the time.

At the time, Mazur said he was concerned that the district declined to define any future policies. Mazur is now the photo editor of the yearbook, according to his Twitter biography. He is refusing to sign the contract.

We’ve reached out to school and district officials for comment and will post an update when they respond. In the meantime, here’s a video of Student Press Law Center attorney advocate Adam Goldstein explaining the latest situation — and why it’s probably not legal.

Tagged: anthony mazur, copyright, recent-news, Texas, work for hire