The Student Press Law Center blog

Getting by with a little help from our friends: SPJ endorses New Voices U.S. campaigns

Apart from being truly awful in every other respect, 2016 has been a major year for student press rights and the New Voices movement. Legislators passed student free expression laws in Maryland and Illinois (the latter being unanimous passage; go ahead and take a bow, Illinois), with bills filed in six other states.

Now, the Society of Professional Journalists is throwing their weight behind the effort, issuing a resolution at their 2016 Excellence in Journalism convention in New Orleans declaring their unyielding support for concrete First Amendment protections for student journalists.

ICYMI, the New Voices campaign is a nationwide, state-by-state effort to pass student free expression laws. It’s a coordinated response to administrative censorship in public high schools and colleges led by students, educators and professional journalists.

And us. Because we’d very much like to start sleeping in on Saturdays.

New Voices laws codify the notion that government employees (public school officials) shouldn’t be able to curtail the free speech of their student media outlets. They protect students from undue censorship and faculty from administrative retaliation. (Not convinced this is a problem? If 2016 hasn't depressed you enough already, take five minutes to peruse our case files of recent censorship and retaliation incidents from around the country.)

See, the Supreme Court made a ruling in Hazelwood School District v. Kuhlmeier that school-sponsored student publications do not enjoy the full protection of the First Amendment (unless explicitly designated a “public forum”), and that administrators can censor student media for any “legitimate pedagogical concerns.”

This is a problem. Because “legitimate pedagogical concerns” all too frequently gets interpreted as ¯\_(ツ)_/¯.

SPJ issued a supportive resolution at its 2015 national conference hailing enactment of the John Wall New Voices of North Dakota Act, but this year's resolution has special resonance coming on top of a series of nationally publicized attacks on campus media. As the authors noted:

 [T]he student media is confronting aggressive hostility from college administrators’ intent on withholding unflattering information, exemplified by the University of Kentucky’s near-unprecedented decision to initiate a lawsuit against its own student newspaper in an attempt to conceal records reflecting the university’s disposition of harassment and sexual battery accusations against a professor;

The resolution cited research reinforcing the civic value of journalism education, including a University of Kansas survey documenting "that high school students whose schools respect and practice First Amendment freedoms graduate with a heightened sense of civic efficacy, as measured by their belief that they can use their words to effect positive social change."

Just as last year, we’re truly thrilled to have the endorsement of the largest and most influential professional organization for journalists in the United States. New Voices is a grassroots effort, and having professional journalists, many of whom came to this profession as a result of their work in student news outlets, spreading knowledge and advocating for legal protections can change the game.

If you’d like to jump on the bandwagon (we totally need more cowbell), you can visit or find your state’s campaign on social media:

Tagged: blog, new voices, recent-news, SPJ

Supreme Court won't act to remedy unjust attorney-fee reduction for student-rights lawyer

After an aggravating two decades of trench warfare against a stubbornly litigious New York college, here is what civil-rights lawyer Ron McGuire has to show for it: A historic First Amendment precedent benefiting untold generations of students -- and $2,000 a year in compensation.

The U.S. Supreme Court announced Tuesday that it will not entertain McGuire's long-shot petition to overturn an unjust order reducing his legal fees for a landmark student-rights victory, Husain v. Springer, by nearly 95 percent. 

That announcement brings a disheartening conclusion to a case that originated in 1997, when editors of the College Voice newspaper at the College of Staten Island sued to challenge administrative reprisals over a special endorsement edition that, in the college president's view, unfairly influenced a campus election. 

With McGuire as their counsel, the students won a decisive ruling on the merits in 2007, when the Second Circuit U.S. Court of Appeals agreed that the First Amendment protects college journalists against indirect as well as direct acts of retaliation. 

The succeeding nine years have been spent squabbling over how much McGuire, a former campus civil-rights activist who has devoted his one-man law practice to the cause of student rights for the past 26 years, would be paid for the 3,500 hours he invested in the journalists' case.

A U.S. district court arrived at a defensible compromise sum of $221,500 in attorney fees and costs -- even at that, an exponential reduction from the going rate for New York counsel of McGuire's experience. But a three-judge appellate panel struck down even that reduced award as excessive, ignoring the well-documented fact that the case took so long because of dawdling by the state's defense counsel that, at one point, resulted in judicially imposed sanctions. 

When the case returned to the district court in 2015, the judge was compelled to slash McGuire's compensation to $56,000, including $18,000 in out-of-pocket costs and just $38,000 in attorney fees, about what a lawyer might expect to make in three months of settling fender-bender cases. McGuire, 68, who was counting on a substantial award to cover mounting medical bills as he tries to wind down his law practice, told the Queens Free Press that he is "facing poverty and ruin" as a result of the judiciary's cruel indifference. 

Leaving aside the particulars of McGuire's case, the more generic issue that it presented to the Supreme Court is one of potential importance to civil-rights plaintiffs and their counsel everywhere: Must a judge provide justification before departing downward from the presumptively correct compensation for the prevailing plaintiff's attorney, which is arrived at by multiplying a reasonable market rate for the attorney's services by the hours necessary to secure the victory?

Regrettably, the issue couldn't capture the interest of a Court depleted by the death of Justice Antonin Scalia that has accepted few civil-rights cases of significance for its just-underway term.

The Student Press Law Center was among the supporters filing an amicus brief asking the justices to accept the case, out of concern that McGuire's fate will dissuade attorneys from committing to represent needy student plaintiffs on a contingency-fee basis:

The decisions of the Second Circuit on appeal in this case trivialize the value of pro-bono legal work necessary to define and defend the rights of student journalists and students generally and will have a chilling effect on the availability of private counsel to defend vital First Amendment rights of students like the Petitioners in this case.

As is their custom, the justices did not disclose the vote on McGuire's petition for a writ of certiorari, merely announcing that the petition (which required four votes from among seven eligible justices, with Justice Sonia Sotomayor disqualified) failed to receive the necessary margin. 

The outcome is the product of a mean-spirited crusade by Circuit Judge Dennis Jacobs, who had been determined for years to punish McGuire and his clients for bothering the court with a dispute that he contemptuously called "a case about nothing." 

Jacobs broke with judicial decorum to write a vicious dissent acknowledging he had not even paid his fellow judges the courtesy of reading the opinion he was disagreeing with. He then took the almost unheard-of step of barring McGuire's supporters from filing friend-of-the-court briefs that might have enlightened the educable members of the court about the larger significance of the Husain case. 

The message sent by the Husain outcome to wrongdoers everywhere is unmistakable: If you are a powerful government agency with unlimited access to legal representation, you can delay your opponent into the poorhouse. 

Tagged: attorney fees, Husain v. Springer, news, recent-news, Ron McGuire

Shouldn't have to say this, but three judges just did: If your college forces you to be molested by your classmates, you have a First Amendment right to complain

Students at public colleges and universities can more confidently object to curricular decisions at their institutions without fear of retaliation, thanks to a federal appeals court’s ruling in the case of Florida nursing students who faced reprisals for resisting an order to serve as human practice dummies for gynecological exams.

You read that last part right. 

Not only did a public institution of higher education consider it a legitimate educational practice to force women to undergo invasive vaginal examinations for the benefit of their male classmates, and not only did that institution believe it was legally entitled to retaliate against women who complained about the practice, but – up until Monday’s ruling – the federal courts were on the side of the asylum-keepers. 

In a 3-0 ruling, the Atlanta-based Eleventh Circuit U.S. Court of Appeals threw out a district court’s ruling that speech complaining about a college’s curricular decisions can be regulated as if the complaints were themselves a part of the curriculum. The ruling, Milward v. Shaheen, revives the First Amendment claim of three Valencia College nursing students against the Orlando college and two administrators of its sonography program. (The case also restores the plaintiffs' Fourth Amendment claims that the compelled sonograms constituted an impermissible government search, a claim that U.S. District Judge Gregory A. Presnell erroneously dismissed.)

When the Supreme Court diminished the free-expression rights of high-school journalists in a 1988 ruling legitimizing the censorship of “curricular” publications, the justices could scarcely have envisioned how lower courts would expand the reach of Hazelwood School District v. Kuhlmeier beyond any rational boundary.

Over the years, Hazelwood – envisioned as a narrow exception to the general rule that students have full First Amendment protection on campus, up to the point where their speech breaks the law or substantially disrupts school operations – has been misapplied far beyond its high-school newsroom context. 

It has been applied to justify punishing students who mention their religious faith during commencement speeches, and to disqualify a student from elected office for advocating in support of same-sex couples. Most noxiously, it was applied to discipline a Texas high school cheerleader who sensibly declined to recite a school-compelled cheer honoring the athlete who pleaded guilty to assaulting her.

Well, we’ve finally located where Hazelwood stops – students do not, it turns out, leave their First Amendment rights at the va-jay-jay gates.

I have told the story of Milward v. Shaheen a dozen times in college lecture halls around the country over the past year, and it has never failed to elicit gasps – not just for the conscription of students as guinea pigs, but for the college’s tone-deaf stubbornness in fighting to legitimize the practice.

Judge William Pryor’s straightforward opinion conclusively puts to rest the college’s argument that speech is subject to the institution’s control as “curricular” just because it is about the curriculum.

Hazelwood, as Pryor correctly analyzed it, is a narrow ruling that applies only where three prerequisites are satisfied: (1) the speech would reasonably be heard by the public as bearing the official imprint of the school, (2) the speech is supervised by faculty, and (3) the speech is itself part of an educational activity. Those conditions simply don’t apply to the speech of student whistle-blowers dissenting from an objectionable assignment:

        The speech at issue—the students’ complaints to the employees about the transvaginal ultrasounds—is not school-sponsored expression. Private complaints from individual students do not “bear the imprimatur of the school.”

The college tried to analogize the Valencia plaintiffs’ case to a 2011 Eleventh Circuit college-speech case involving a Georgia counseling student who insisted on trying to “convert” gay kids during a college practicum placement, but as Pryor noted, the cases couldn’t be more different. At Valencia, the students’ complaints weren’t made as part of an assignment – they were dissenting from an assignment – and they weren’t speaking to outside listeners as representatives of the college.  

The outcome in Milward is welcome news not just for people averse to faculty-assigned sexual battery – and you know who you are – but to anyone with a grievance about a college’s curricular offerings. Had the district court’s ruling stood, it would have a cast a chilling shadow discouraging all types of whistle-blowing speech on college campuses, including that of journalists and editorial commentators.

While the Milward opinion imposes some badly needed boundaries on the Hazelwood standard, it still leaves college students as “second-class speakers” without the full benefit of First Amendment rights afforded in the off-campus world.

In a friend-of-the-court brief joined by three other free-speech advocacy organizations, the Student Press Law Center encouraged the judges to rule that college students have the full benefit of First Amendment protection against content-based censorship or retaliation by their institutions. Instead, Pryor defaulted to the Supreme Court’s Tinker standard – another case birthed in the K-12 setting – which gave schools the authority to restrict or punish speech that “materially disrupts” school activities or causes “substantial disorder."

The Supreme Court has never said whether adult-aged college students are limited to the level of freedom recognized in Tinker or whether heightened protection comparable to that in the off-campus "real world" should apply. The justices have been especially protective of speakers on college campuses, but – at least for now – college students in the Eleventh Circuit states of Florida, Georgia and Alabama will be at risk of campus discipline if their speech can be characterized as materially disruptive.

The district court will now be asked to apply Tinker to the protests of the three former Valencia students. The SPLC will be following the case and prepared to intercede again if the district judge fails to heed the wakeup call of a 3-0 reversal.

Tagged: college student speech, Hazelwood School District v. Kuhlmeier, news, recent-news, Valencia College

It's the law: New Voices of Maryland now protects college, high school journalists' independence

It's Independence Day in Maryland, where as of Oct. 1, student journalists and journalism educators have statutory protection against institutional censorship and retaliation.

Senate Bill 764 passed the Maryland legislature overwhelmingly and with bipartisan support, and was signed into law April 26 by Gov. Larry Hogan. Its prime sponsor, Sen. Jamie Raskin, is a constitutional law professor at American University. 

Nine other states limit school censorship authority by statute, while Pennsylvania and the District of Columbia protect students' rights by way of state board of education regulation. 

"It’s an exciting moment for press freedom in Maryland. For the first time in decades, students will have the freedom to control the content of their own media," said teacher Gary Clites, president of the Maryland-D.C. Scholastic Press Association, who testified in support of the bill and helped secure its passage. 

I have seen the dedication high school journalists display in their work, and I am pleased that now they’ll have the freedom to do that work without fear.

The measure had strong support from the Maryland-Delaware-D.C. Press Association, the state chapter of the American Association of University Professors, and editorial boards throughout Maryland. 

The statute blunts the impact of the U.S. Supreme Court's 1988 ruling, Hazelwood School District v. Kuhlmeier, which greatly reduced the burden for public schools to justify censoring speech in school-affiliated curricular publications. 

Certain categories of journalistic speech remain unprotected and, at the high school level, can legally be removed from student publications, including material that is libelous, invades privacy, incites students to break the law or violate school board regulations, or that is harassing, threatening, vulgar, lewd or obscene. The law protects students and educators only at public institutions. 

Maryland is the third state in the past two years, joining Illinois and North Dakota, to enact a statute outlawing image-based censorship of student media as part of the national New Voices campaign. 

At least some schools are entering the new world of press freedom with trepidation. An superintendent in the Carroll County schools, Steven Johnson, told the Carroll County Times, "I'm going into this with great caution," fretting that students will use their newfound freedom to stir up controversy unnecessarily. 

If you're a Maryland student or educator encountering press-freedom issues -- or you want a speaker to make a presentation about what the new press freedom law means to your campus -- contact the Student Press Law Center by email, or through this online form:

Tagged: new voices, news, press freedom, recent-news, Senator Jamie Raskin

Better than all the cat videos on the internet: a curation of journalistic support for the Kentucky Kernel

I like to think of myself as an inherently optimistic person. This has been tested of late (I will neither confirm nor deny that I spent the entirety of Monday’s presidential debate tucked in the fetal position, rocking back and forth muttering “there’s no place like home” ad nauseum).

However, one thing has served to replenish my positivity – the daily delivery of Google news alerts loaded with editorials written in support of the Kentucky Kernel.

The Kernel, the University of Kentucky’s independent student newspaper, is currently locked in a legal battle for open records against their school, and as terrible as that is, it has elicited strong responses from scholastic and professional newsrooms in Kentucky and across the nation.

It’s noteworthy in itself that national outlets such as the Washington Post and USA Today have covered the story, but you’d be remiss in not reading the Kernel’s own coverage of the sexual harassment investigation, subsequent records battle, and the recent push by the university president, Eli Capilouto, to address the university’s problematic response to sexual harassment cases.

Not to play on the whole Kentucky = horses thing, but this one’s WAY out of the barn.

The breadth and depth of the Kernel’s coverage of the matter could easily serve as an instructional how-to in journalistic rigor and transparency:

We could make a j-school course syllabus out of this collection of articles alone. You’d be equally remiss in skipping the editorials published by the staff:

The Kernel also published a blog post by a Board of Trustees staff member defending UK’s actions. Which could be considered rather generous given that we couldn’t otherwise find a single editorial supporting UK and President Capilouto.

What’s been most heartening is the staunch support shown by UK’s journalism faculty and the Bluegrass chapter of the SPJ. But it doesn’t end there. Editorial boards at some of Kentucky’s major newspapers have taken a stand for the Kernel.

The Lexington Herald-Leader responded to Capilouto’s letter with some initial confusion:

“Like a clumsy essay that keeps a teacher up late, Capilouto’s explanation for why UK is going to court to fight ‘a series of legal actions regarding open records and meetings,’ ignores fact and defies logic.”

Before ripping apart UK’s arguments line-by-line:

“Then, Capilouto declares UK ‘will never disclose the name of a victim of violence.’

Stirring but irrelevant. As the AG notes, names and other identifiers of both victims and witnesses are to be withheld from any release. And, both the Kentucky Kernel and this newspaper have policies against identifying victims of sexual offenses.”

In a second editorial, the Herald-Leader applaud the Kernel for its tenacity:

“There’s plenty there to make university administrators nervous, uncomfortable, eager to pay a few months’ extra salary to make the problem professor go away. They have skin in the status-quo game.

The Kernel doesn’t. It’s independent. For that we should all give thanks.”

The Louisville Courier-Journal, meanwhile, questioned UK’s stubbornness in pursuing the lawsuit in light of Kentucky’s strong public records laws and court history of favoring transparency:

“Kentucky has some of the country's better laws on open records and meetings, yet some institutions still insist on fighting every step of the way to protect their reputations and operations from public scrutiny. This lesson about institutional intransigence is one these UK student journalists will have for a long time.”

KyForward, an online-only news outlet based in Edgewood, ran an editorial by a former Kernel alum which questions whether criminal charges can or should be sought against the accused professor and applauds the work of the Kernel in bringing the accusations against him to light:

“It involves the University of Kentucky and its independent student newspaper, the Kentucky Kernel, and the ongoing narrative conclusively establishes that young men and women often display more wisdom and fortitude than their elders.”

The Bowling Green Daily News stated unequivocally that they stand with the Kernel:

“We respect Capilouto’s desire to protect the identities of victims, but we believe that information about the behavior of a professor and the university’s response to allegations against him should be made available to the state’s taxpayers. The refusal to do so simply gives the impression that UK has something to hide.”

In an editorial titled “Hats off to the Kernel for taking a stand,” the News-Graphic out of Georgetown, Kentucky, expressed serious doubts about who, exactly, the university is seeking to protect:

“UK’s student population, parents, alumni and the community at large have a vested interest in knowing how allegations of sexual misconduct are handled on campus. We suspect the UK community would like to know that such situations are handled appropriately and in the students’ best interests, rather than hidden to avoid public embarrassment.

Congratulations to The Kentucky Kernel for the courage to stand up to its own administration.”

The Times-Tribune based in Corbin, Kentucky called on the Board of Trustees to put an end to the shenanigans ahead of the Sept. 9 board meeting (which the board declined to do):

“If Capilouto won’t obey the law, UK’s trustees should. It is within their power to demand that he honor the mission of this institution and the principle of open government. The university should heed the attorney general’s order and tell its attorneys to stand down.”

Harlan, Kentucky’s newspaper, the Harlan Daily Enterprise, acknowledged both sides of the argument and their valid interests, but ultimately concluded:

“Fear of exposure can intimidate victims into silence. But transparency and sensitivity to victims can co-exist when institutions are truly committed to both. Hiding the internal handling of such cases from scrutiny only invites more and worse abuse.”

Some of the most widespread support has come from fellow student media.

Western Kentucky University’s student paper, the College Heights Herald, showed their support for the Kernel, and the Kernel’s campaign to raise money for their legal defense, citing Editor-in-Chief Will Wright’s statement that "university administrators must not be allowed to hide public records simply because they have the most money in the game."

“I wholeheartedly agree. Student journalists across the country work tirelessly to hold accountable the very same institutions from which we seek our degrees. It can be a tough load to carry, especially when that very institution decides to sic its top-notch legal team on you and your colleagues.”

The staff at Northern Kentucky University’s The Northerner kicked off their own editorial by encouraging readers to follow the Kernel’s reporting and pointed to the larger implications for student journalists in Kentucky:

“These stories are alarming to all of us in the newsroom, and they should be alarming to the students who attend this university.

Our job is to both hold people accountable for their actions, and to give a voice to the voiceless on campus. We are your watchdog.

Yet there are those who would try to silence student journalists, both here and in Lexington. It’s not just our voice they’re trying to silence, it’s yours.”

The Louisville Cardinal newsroom at the University of Louisville (where the fundraising foundation is engaged in its own open records lawsuit), added its voice to the conversation, emphasizing the crucial part student publications play in informing the community:

“Often [student journalists] report on topics and stories within a university community that go uncovered by larger publications – a vital role that often goes unnoticed.”

Out on the East Coast, the students at The Flat Hat (arguably the best newspaper name in scholastic journalism) who cover the College of William and Mary in Virginia, sent their best wishes to the Kernel and hammered home the necessity of open records laws:

“Time and again, The Flat Hat has relied on open records laws to do its job (sometimes meeting resistance). In a system that benefits campus authorities at every step, these laws — and their faithful application — are one of the only tools the student body has to protect its own interests.”

At Rutgers University in New Jersey, the Daily Targum penned a nuanced examination of the competing interests in this case, ultimately coming to a critical conclusion:

“...the main takeaway of the issue is the underlying responsibility of the media to be ethical and sensitive when handling similar cases. Sexual assault stories are unfortunately prevalent, so college newspaper reports on the problem are likely to happen again.”

Vassar’s Miscellany News explored the rights of the victims (whose representative has been working with the Kernel) to come forward in whatever degree they see fit:

“Capilouto and the University of Kentucky’s actions strip the sexual assault victims and the Kernel staff of their right to free speech. A student-run newspaper, like the Kernel, should operate free of University control; Students have every right to report the news, even if it sheds a negative light on the school.”

The University of Virginia’s Cavalier Daily  addressed the stark, David-versus-Mechagodzilla financial implications of the suit, for the Kernel and for all financially struggling student publications:

“The rise of the Internet has led to a considerable decrease in profits for print newspapers all around the world, and student newspapers often barely break even. The University of Kentucky, on the other hand, has a $1.143 billion endowment.”

Penn State’s newspaper has already made waves this school year for an unflinching editorial criticizing their school’s decision to honor former head coach Joe Patterno, and the Daily Collegian didn’t shrink from the opportunity to speak up for the Kernel, framing the debacle within the wider national concerns over universities concealing sexual assault:

“Time and time again there is a nationwide push for greater awareness of sexual misconduct and abuse, and there is a drive for more people to come forward, report his or her case, share their story. There is a growing voice, pleading for an end to fear of coming forward and praising the advances being made.

How can universities still be this tone deaf? Why are these cover-up stories that are broken by student papers still happening?”

The Daily Trojan out of the University of Southern California voiced support for the Kernel while observing that the newspaper's fighting spirit evidences that college journalism is alive and well:

“Denying access to these documents only exacerbated the consequences for the university, and as long as campus newspapers exist and operate ethically, the search for truth and justice will never be over.”

Finally, the on-again, off-again satirical newspaper for the University of Kentucky, The UK Colonel, addressed Capilouto’s statement defending the lawsuit. After all, the Colonel points out, “As Capilouto is an intelligent man, we’ve deduced that these portions of his statement must be typographical errors.” They go on to produce a tongue-in-cheek, almost line-by-line “correction” of the president’s statement.

“In this first paragraph, Capilouto displays a classic typo — one that has plagued us all at one time or another — the accidental omission of a word. In this case, it was the word ‘not.’ The statement should read, ‘…the responsibility to share information is not at odds with another sacred responsibility.’”

We are hereby initiating the slow clap.

Tagged: blog, Kentucky Kernel, recent-news, University of Kentucky

University of Kentucky faculty and Bluegrass SPJ come out swinging in statements to UK President Capilouto

Since the University of Kentucky filed suit against its independent student newspaper last month, university President Eli Capilouto and the school’s administration have faced local and national criticism for making such an unusually aggressive move against their own students.

Critics also believe the university intentionally withheld documents responsive to a student newspaper’s public-records request that the UK had a legal obligation to disclose.

Among the university’s harshest critics are 15 UK journalism faculty, who hand-delivered a letter to Capilouto on Thursday, objecting to his “insulting treatment” of the Kentucky Kernel and its staff and calling on Capilouto to drop the lawsuit against the Kernel.

“When you told the Board of Trustees that the Kernel, in its story about the James Harwood sexual-assault case, published “salacious details to attract readers,” you impugned the reputation of the newspaper and its editor, Marjorie Kirk, and cast aspersions on journalism faculty who have taught, and are teaching, Kernel staff. An apology is called for.”

Worse, during that same Sept. 9 board meeting, members of the board received copies of letters from two of the victims — one of which, according to the Kernel, was not perfectly redacted. A fact that, in light of the president’s pleas for victim privacy, the faculty were not about to let slide.

“Making matters worse, you selectively released letters from the victims to make your case, and one of the letters revealed the first name of one of the victims. It was Marjorie Kirk who alerted your staff to that violation.”

The state’s attorney general ordered the university to release redacted copies of an internal investigation in August, and the university responded with a lawsuit. The attorney general, Andy Beshear, has since filed a motion to intervene.

In a written response to the faculty’s letter, university spokesperson Jay Blanton told the Kernel, “This issue has been, and remains, about the privacy of victim survivors. We respect and appreciate the voice of our faculty and the concerns articulated by those in the Journalism program. But this disagreement rests where it should – in a court of law.”

Despite the university’s continued arguments for victim privacy, the 15 signatories of the letter maintain that the persistence and veracity of the Kernel’s reporting has been a far greater service — more victims did come forward accusing Harwood of sexual misconduct only after the accusations against Harwood came to light.

“You should be thanking the Kernel for helping protect victims’ rights, not accusing it of violating them – especially in this case, where the victims went to the Kernel to get the full story told,”

If the faculty letter wasn’t loud enough, the Bluegrass Professional Chapter of the Society for Professional Journalists brought a mic to the party. In a statement released late Friday, the organization applauded the tenacity and integrity of the Kernel:

“Journalism at the University of Kentucky is alive and well. That may be the only good thing about the current battle between President Eli Capilouto and the independent student newspaper, the Kentucky Kernel, but it's a really good thing.”

And pointed out the grim irony of their current predicament:

“If the controversy were between the newspaper and anyone else, Capilouto would be proud of the courage and determination shown by the student reporters and editors, and of the professors who obviously have trained them well.”

Critics of the university’s decision to sue the Kernel call the move misguided — noting the university’s repeated refusals to comply with the attorney general’s request to review records to make an independent determination of whether they qualify as confidential.

The faculty’s concerns go beyond one freedom-of-information request to the larger issue of how journalists and the public can hold the university accountable if UK continually defies the attorney general and deems itself the arbiter of what records are and are not public.

“...we are deeply concerned about the larger First Amendment principles of accountability and transparency, and your contravention of a state law that makes the attorney general the initial arbiter of disputes under the Open Records Act and the Open Meetings Act. By refusing to submit documents for confidential review, you are substituting your judgment for that of the attorney general, who is a judicial officer bound by the rules of confidentiality.”

In a stinging front-page editorial published Thursday, the Kernel called the university’s position an exercise in image control.

“UK’s practices would have never come under public scrutiny if it was not for the spokesperson for the victims who told the Kernel about the investigation,” the Kernel’s editorial board wrote. “They showed that at UK, people who have been charged with violations hold too much power. The university gives the accused privacy in matters the public has a right to know.”

As it stands at UK and many other public universities, faculty accused of sexual misconduct have the choice of settling with the institution, resigning and moving on to another university, or completing a formal disciplinary process. These employment provisions mirror federal Title IX guidelines and, at UK, allow faculty the assurance of privacy and ability to move from university to university, undetected, in “a system built for the accused, not for the victims.”

Kirk took special care to address the concerns of victims and victims’ rights advocates in her own editorial, shedding light on the reporting process and editorial decision-making in an effort to be transparent with readers.

Capilouto and the UK administration continue insisting that they’re fighting to conceal the records out of concern for victim privacy, even though the records have already been released to the Kernel, which in any event had agreed to accept them with victim’s identifying information removed. As the Bluegrass SPJ states:

“Capilouto suggests only he can protect the privacy of students who are victims of predators, and that it can only be done by withholding records. That's a false claim. The newspaper has practiced professional ethics in its restraint. Even though it has those names and even though the university inadvertently released one name, they have not been published. The president is protecting only the administration and its policies.”

And, as the faculty wrote:

“In difficult cases like the Harwood matter, we believe the interests of privacy, and transparency that serves accountability, can be balanced with thoughtful redaction of the documents.”

As the Kernel’s editorial board wrote, “It is now clear that the university is fighting for secrecy, not for privacy. It is fighting for itself, not for victims.”

The case between the Kernel and UK is ongoing, but as of Friday afternoon, Beshear’s motion to intervene in the case was approved after both the university and the newspaper agreed to the intervention at a hearing.

Tagged: blog, Eli-Capilouto, Kentucky, Kentucky Kernel, lawsuit, public records, recent-news, SPJ, University of Kentucky

Worst 30 seconds of my life: federal court ruling leaves the First Amendment on a lonely island

Recently, a US District Court judge entered a partial judgement in a fascinating First Amendment case that involved school prayer, a student tweeting “ITS WAR BITCHES” [sic], and a song featuring the lyrics, “She kept looking at her watch/Doesn't matter, had sex/But I cried the whole time/Doesn't matter, had sex.”

The case, Ryan v. Mesa, was filed in May 2014 on behalf of a group of students who attended Mountain View High School in Mesa, Arizona. The plaintiffs, including Sydney Ryan alongside two unnamed minors, were members of the Mesa High softball team in 2014 when, they contend, their coach removed them from the team in violation of the Establishment Clause and of their right to free speech.

Student-speech cases typically involve speech that is either inside the school building (and hence subject to a well-trod set of First Amendment standards refined over the past half-century) or speech entirely outside of school on personal communication devices (and hence subject to a confusing train wreck of contradictory legal precedent that's been evolving since the dawn of the flip phone). But this case inhabits the murky gray zone of the school field trip – specifically, a music CD meant to be played on a bus ride to a road game.

The case is still ongoing and the plaintiffs declined to comment, but their attorney, Robert Trop, spoke with me about the finer points of this entertaining, if troubling, lawsuit. Speaking to the split decision, Trop said he felt the judge made a fair decision.

On July 19, Senior U.S. District Judge John W. Sedwick dismissed the two free speech-related counts (concerning the tweet and the mix CD), but left the issue of team prayer and its possible violation of the Establishment Clause open for further argument.

Trop acknowledged the free-speech complaints weren’t as strong as the Establishment Clause count, and while he and his clients would have liked to see those two counts prevail, they accepted the court’s finding.

The plaintiffs allege that their coach, Joseph Goodman, dismissed them from the softball team in retaliation for discontinuing team prayers, playing a racy mix CD during a team trip, and sending a misconstrued tweet.

On the subject of the mix CD, a compilation created for the road trip to a softball tournament in Tucson, the court agreed the contents of the CD were "lewd" and that the coach was within his authority to restrict its playing during a school-sponsored trip.

One song of particular note was The Lonely Island’s “I Just Had Sex” (a link that under no circumstances should you click right now on a workplace or school computer). The band responsible for “Dick In a Box” and “Mother Lover” penned the song as an ode to “...them girls/That let us flop around on top of them” 

Jokey descriptions of coitus aside, the singer assures the listener that it was, “The best 30 seconds of my life.”

For the record, most Lonely Island songs would be considered not-safe-for-work (or for school, as it happens). “Jack Sparrow” seems like a goofy, innocent tune until it gets to the end and Michael Bolton starts channeling Tony Montana. 

The Supreme Court precedent on which Judge Sedwick relied, Bethel Area School v. Fraser, was about a "lewd" speech delivered during a mandatory-attendance  school assembly, and it's by no means undisputed that Fraser applies to speech outside of that "captive audience" setting – but the court regarded the bus trip as an extension of the school day governed by in-school legal standards.

More critically, the judge found that Goodman had "qualified immunity" insulating him from First Amendment liability to the extent that his disciplinary action was based on the “ITS WAR BITCHES” tweet. Goodman argued that he and several of the other softball players felt the tweet was an attack on the plaintiffs’ teammates.

The girl who authored the all-caps, “shouty” missive to her more than 250 followers revealed she was good-humoredly live-tweeting a dustup between the Ryan sisters in which one of the girls slapped a Starbucks coffee out of the other’s hand – certainly not leveling a threat or trying to incite violence.

I’m a big enough person to admit to feelings of inadequacy that a teenager has more Twitter followers than I do.

The opinion states that the tweet was sufficiently aggressive, regardless of its aim, to cause a credible concern for Goodman and the coaching staff. As such, Judge Sedwick decided, Goodman was neither knowingly violating a constitutional right nor “plainly incompetent” in reading the tweet as an attack and anticipating a significant disruption. 

Again, it's far from settled that "disruption" is the trigger for school disciplinary authority when students are speaking off-campus on social media. "Disruption" is where the Supreme Court drew the line for in-school speech in its 1969 Tinker case, but students almost certainly have more freedom to speak when they're not participating in school functions on school grounds. Cases like Ryan are blurring that boundary in potentially dangerous ways for school critics and whistleblowers – and for fans of NSFW music. 

Overall, we find the decision troublesome. The decision to award the coach qualified immunity – which means, legally, that a reasonable person in his position wouldn't have known whether the tweet was or was not protected speech – punts the important underlying First Amendment issue without giving guidance to future decision-makers in the coach's position. 

If courts just keep throwing up their hands and saying "oh well, it's confusing," then the law will remain confusing – and students will be the victims of that confusion, since all benefit of the doubt goes to the disciplinarian. Social media is devoid of context and susceptible to misunderstanding, especially by people a generation removed from the intended audience. 

More should be expected of disciplinarians than "when in doubt, punish." That is especially true when, as in this case, the disciplinary action doesn't involve an on-the-spot judgment call to de-fuse an unstable violent situation – in fact, no violence occurred on the road trip, and the punishment did not occur until after the trip was completed, without incident.

Trop expressed a great deal of respect for the students in pursuing the issue as long as they have. Students must contend with with well-funded attorneys representing local school districts in lawsuits that drag on for what feels like an eternity – this case has been pending 27 months and still hasn't reached a final decision, let alone an appeal – and the adversarial process can wear students down and create a “pile-on effect.”

As an example, he described the numerous affidavits by the other students on the team in support of the coach that were presented by the defense – saying he doubted most, if any, of the students approached the school district of their own accord to submit their written accounts. (In other words, the school almost certainly created greater divisiveness and animosity among the students by its aggressive litigation tactics than any tweet ever could have.)

For now, the issue of a potential violation of the Establishment Clause is still undecided. The court has yet to conclude whether the coach endorsed the team prayers and, if so, whether he dismissed the plaintiffs, in part, because of their decision to discontinue the prayers.

We can only hope for greater discussion and a shift in understanding when schools overstep their authority in restricting students’ constitutional rights. We can accept the current defense of “they didn’t know any better” when a government employee cracks down on free speech, or we can reassess the standard.

Tagged: First Amendment, First Amendment, first-amendment, Lonely Island, news, recent-news, Ryan v. Mesa

A Tale of Two AG's: How UK's secret-records policy backfired

When universities confronted with demands to inspect their records claim "privacy," it's rarely out of selfless concern for their students or employees. It's almost always because the documents would expose scandal or mismanagement that the institution prefers to keep hidden.

As with its perennial championship-contending basketball program, the University of Kentucky has elevated the secrecy game to heights rarely seen. Coach John Calipari's hoopsters have mastered the no-look pass, and Kentucky's legal department has perfected the no-look freedom-of-information request.

That is, until Kentucky Attorney General Andy Beshear whistled the flagrant foul.

To understand this inventive UK technique, travel back for a moment to 2012, when the University of Kentucky's feisty student newspaper, the Kernel, was looking into reports that the Wildcats may have overstepped NCAA boundaries in recruiting Massachusetts prep star Nerlens Noel (no NCAA sanctions resulted, and after a stellar freshman season, Noel entered the NBA, where he's now with the Philadelphia 76ers).

The Kernel sensibly asked UK, under Kentucky's Open Records Act, for access to any correspondence between the athletic department and the NCAA about Noel, hoping to piece together indirectly the story the university wouldn't address directly. Kentucky denied the request, citing the Family Educational Rights and Privacy Act (FERPA), which requires colleges to maintain the confidentiality of "education records." (This was almost certainly not a legitimate use of FERPA, among other reasons because college athletes sign broad FERPA waivers allowing for the release of any information that their institution or the NCAA finds advantageous to disclose.)

As provided by Kentucky law, the dispute over the records ended up on the desk of Attorney General Jack Conway. Conway's review was hamstrung, however, by UK's lack of cooperation; the university aggressively claimed that even Conway's attorneys could not review the records without compromising FERPA confidentiality, and refused to provide copies so the attorney general could verify the claim that the correspondence qualified for FERPA protection.

So Conway simply took the university's word for it:

Since we were unable to review the relevant documents in camera, we rely on the University's interpretation and application of the federal law, and its professed appreciation for the value of transparency, to ensure that public records are not improperly withheld in the name of student privacy.

This wasn't just a basket for UK; it was an uncontested layup. All the university had to say was "we promise we're not lying about FERPA this time" and -- decades of well-documented university lies nationwide to the contrary -- the records stayed secret, no questions asked. 

Conway's logic was demolished by a subsequent state-court ruling in the case of a for-profit college being investigated by Kentucky regulators over claims of deceptive marketing practices. 

In that case, Lexington-based National College resisted investigators' demands for records about the job-placement success of National's former students, claiming that cooperating with the investigation would compromise students' FERPA rights. The attorney general -- yes, that attorney general, less timid than when facing off against the state's basketball powerhouse -- took National to court, arguing that the college was stalling consumer investigators with its unfounded FERPA claims.

A state-court judge agreed; even if FERPA did protect the job-placement records, the records could be protected by removing student names and by a non-disclosure agreement with the attorney general's investigators: "National College's attempt to invoke FERPA is yet another example of a continuing pattern of meritless litigation tactics to obstruct and delay the lawful investigation of the Attorney General." The judge imposed sanctions on National, which the Kentucky Court of Appeals upheld earlier this month.

Fast-forward to 2016. After learning of a sexual harassment complaint filed against a UK entomology professor, resolved by an agreement that enabled the professor to resign with no finding of wrongdoing, Kernel editor William Wright asked the university to produce its files of the completed investigation. In a familiar refrain, UK invoked student privacy (as well as the privacy interests of the professor and attorney-client privilege) and denied the open-records request.

When the Kernel appealed to the attorney general, UK once again claimed that the requested records were so sensitive they couldn't even be shared with the state's lawyers -- even citing Conway's deferential 2012 decision as precedent.

Conway's successor as attorney general, Beshear, wasn't as credulous of Kentucky's "trust-me-it's-private" defense:

This appeal involves records containing allegations of misconduct against a professor, not a student, and we are not prepared, absent a review of the records, “for substantiation,” to accept the University’s characterization of them as FERPA protected student “education records.”

With no independent means of verifying the university's exemption claims, Beshear sided with the requester and ordered the records produced, with minimal redactions to protect the identities of student complainants.

Beshear's conclusion is logically consistent with the Kentucky Open Records Act, which provides:

The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.

Since the burden of proof rested with the university, it was incumbent on the university to produce something besides its own assurances to override the open records act's presumption in favor of disclosure. And UK failed to do so.

Department of Education rules allow educational institutions to share records with outside agencies "for the enforcement of or compliance with Federal legal requirements that relate to [education] programs" That workaround provides ample latitude for a university to share records with its own state attorney general when necessary to determine whether the university is bound by FERPA -- a "federal legal requirement" that "relates to education programs" -- to keep the records confidential.

In any event, records cease being confidential under FERPA once student identifying information is removed. The university could have provided redacted versions of the records for the attorney general's independent review -- if the university believed that an independent review would have supported its position that the documents are confidential. Evidently, the university did not believe its position could withstand verification.

The university's best efforts notwithstanding, the documents are now largely public anyway. While the dispute was underway, a source provided the Kernel with detailed records of the university's internal investigation, including copies of multiple harassment complaints dating back to 2012. 

Unless cooler heads on the university's board of trustees step in, President Eli Capilouto is determined to continue fighting the now-pointless battle for secrecy, even if that means filing a potentially ruinous lawsuit against his own students' newspaper seeking to overturn Beshear's decision. 

If the university goes that route, "trust-me-it's-private" will not work any more successfully in the courtroom.

Tagged: Attorney General Andy Beshear, Kentucky Kernel, news, recent-news, University of Kentucky

Awards recognize "New Voices" student-rights champions

Advocates responsible for the enactment of laws protecting student journalists in Illinois, Maryland and North Dakota will be honored this fall at the nation's largest high school journalism convention.

The Journalism Education Association is presenting its "Medal of Merit" award to five longtime journalism educators recognized as leaders in the field, among them North Dakota's Sue Skalicky and Illinois' Stan Zoller. Skalicky, who teaches at Legacy High School in Bismarck, and Zoller, a former journalism adviser at Rolling Meadows High School, were key organizers in the "New Voices" campaigns that led to the enactment of laws in their states that limit the grounds on which schools can censor student media.

Skalicky's colleague Steve Listopad was named a JEA "Friend of Scholastic Journalism," an award that recognizes someone outside of high school journalism who has significantly contributed to the advancement of the field. While teaching journalism at the University of Jamestown, Listopad organized his students to draft what became the John Wall New Voices of North Dakota Act, the first state statute protecting student press rights to become law since 2007, ending a drought of eight years.

JEA also will recognize Rebecca Snyder, executive director of the Maryland-Delaware-D.C. Press Association, for her leadership in successfully steering a New Voices law through the Maryland legislature. The law takes effect Oct. 1.

"New Voices" laws blunt the impact of the Supreme Court's 1988 ruling, Hazelwood School District v. Kuhlmeier, which diminished the First Amendment protection of student-produced media, by providing only limited grounds on which a school or college can censor students' journalistic work. The Maryland act provides explicit anti-retaliation protection for journalism educators as well.

The awards will be presented at the National High School Journalism Convention Nov. 10-13 in Indianapolis, sponsored by JEA and the National Scholastic Press Association. Information about getting involved in the New Voices legislative reform movement is available at

Tagged: Journalism Education Association, new voices, news, recent-news, Steve Listopad

A partly cloudy forecast for the First Amendment: Newseum study finds mixed level of public knowledge and support for free-speech principles

At a time of unprecedented national alarm over the free-speech climate on college campuses, a new survey finds only 57 percent of Americans are convinced that students should be allowed to engage in speech that offends others, while 25 percent "strongly" believe otherwise.

Even fewer Americans -- 35 percent -- agree that high school students should have a protected right to speak when their speech offends others, while 43 percent "strongly" say they shouldn't.

That's the takeaway from the State of the First Amendment survey released Friday by the Newseum Institute to coincide with the upcoming Independence Day festivities. Each year, the Newseum surveys Americans about their knowledge of and belief in First Amendment principles -- and each year, the results provide a mixture of glass-half-full-or-half-empty insights.

The survey found an overall decline in awareness of what the First Amendment protects -- fully 39 percent of adults can't name any of the five constitutionally protected freedoms (speech, religious, press, assembly, petitioning the government) -- but, encouragingly, found that most Americans reject the notion that the First Amendment "goes too far" or that journalists have "too much" freedom.

The public's hesitance to protect offensive speech in colleges and schools sharply contrasted with opinions about speech in other contexts; only 10 percent of those surveyed said they support laws "protecting people from hearing things that offend them."

The Newseum survey comes amid widespread attention to the restrictive climate for speech on college campuses, where it has become commonplace for student activists to interrupt the speeches of guest lecturers or force their colleges to cancel the visits of controversial speakers, and where student media outlets are facing threats to their funding and obstructions to their access prompted at times by outrage from their peers over coverage decisions. 

The entire survey is online here at the Newseum Institute's website.

Tagged: news, Newseum, recent-news, State of the First Amendment