The Student Press Law Center blog


Young and the Restless: In daring twist, legislators in Indiana keep New Voices legislation on life support



Rumors of New Voices legislation's death in Indiana may have been exaggerated.

In a plot twist derived from the most daring daytime television, sponsors of HB 1130 proposed adding the language of the bill – protecting student journalists in high school and college from censorship – as an amendment to appropriations bill, HB 1043.

The original bill was pulled from Senate consideration in light of last-minute opposition from the state Department of Education.

On Monday, a joint House-Senate conference committee held public testimony on proposed changes to HB 1043, where a number of witnesses presented their arguments on both sides.

Austin Hood, a senior at Warren Central High School and student newspaper editor, brought a larger view of journalism to his testimony.

"Writers learn from the first story that no institution is too big to question, no individual is too powerful to avoid scrutiny,” Hood said. "What we are arguing is that we as student journalists should not live in fear of punishment for practicing good citizenship."

His argument was backed up by journalists and journalism advisers, including Ruth Witmer, the student media director at Indiana University Bloomington; and Diana Hadley, executive director of the Indiana High School Press Association.

"Students who have the ability to decide content produce much better content," Hadley said.

Steve Key, executive director of the Hoosier State Press Association, called attention to language in the bill that entrusts responsibility with students for establishing editorial guidelines for student media in accordance with community standards. Lobbyists for school administrators had pushed to be the ones setting those standards, a proposal that proponents considered fatal to the bill.

“Who sets those community standards?” Key asked after pointing out that indefensible policies such as Jim Crow laws and segregation used to be considered “standard” in their day.

“If this is your voice and your community, shouldn’t you be setting those standards?”

This “community standards” provision has been a sticking point for organizations representing principals and school boards. When asked, associate director for the Association of High School Principals, Tim McRoberts, said he would like to see language including the administration in defining community standards.

McRoberts proudly declared that, in his 11 years as a high school principal, he was approached to approve numerous articles and never censored a single one. He argued that censorship isn’t a widespread issue in Indiana, and that any bad actors should instead be approached individually to educate them on journalistic practices.

In closing testimony, SPLC’s executive director, Frank LoMonte, testified to his years advocating for student journalists and their advisers. He highlighted the fact that similar laws or administrative codes exist in 11 other states and the District of Columbia for a combined 180 years of experience with student journalism under free press statutes.

Despite similar hand-wringing during the legislative process, those states have not seen any of the predicted "horribles" materialize and have quickly adjusted to the new standard.

For his part, Rep. Clere was grateful for the time given to present comprehensive testimony. Indiana’s legislature adjourns Friday, and this addition was only part of the changes made to HB 1043. The clock is ticking for the appropriations bill to pass the legislature.

“There’s quite a bit of process still to go,” Clere said. And, indeed, the committee did not take action on the proposed changes at Monday’s hearing

“There usually is not much testimony in conference committee,” Clere said. “And Representative [Jeff] Thompson is a good friend, and he was more than gracious to allow, I think about an hour of testimony on this journalism provision which is almost unheard of.”

“We are very grateful to him for his willingness to entertain it.”

Tagged: blog, Blogroll, Indiana, legislation, new voices, recent-news

Pennsylvania court ruling strengthens journalists' claim of access to emails and other school, college records



You’re a journalist needing access to emails between officials in a school district that might shed light on a story of public importance. One problem: The emails mention a student in an identifiable way, and that means the school’s lawyer will classify them all as “confidential education records” and refuse to produce them.

Can anything be done? Increasingly, the answer is “yes.”

A recent Pennsylvania court ruling adds to the growing national consensus that internal agency correspondence can’t be categorized as an “education record” under the Family Educational Rights and Privacy Act unless it is centrally maintained in a file corresponding to a specific student. 

This interpretation – that FERPA means what it says, and that records aren’t covered by FERPA privacy unless they are “maintained” in a student’s central file – comports both with common sense and with U.S. Supreme Court precedent. Yet school and college lawyers remain largely in denial, insisting that any record even tangentially referencing a student can be withheld from disclosure – a position that enables educational institutions to conceal scandal and evade oversight.

That misapplication of FERPA got a bit easier to challenge with a U.S. district court’s March 31 decision (E.D. v. Colonial School District) in a dispute over the adequacy of special-ed services provided by a Pennsylvania elementary school.

The parents of a first-grader sued Pennsylvania’s Colonial School District claiming that their daughter was refused federally required services to accommodate her speech and language impairments. As part of their claim, the family also alleged that the district violated FERPA by refusing to turn over education records corresponding to their child – a draft report of a school psychologist’s evaluation, and emails between school administrators discussing their plans to retain the child rather than advancing her to second grade.

FERPA is both a privacy statute and an access statute, and when a document is classified as an “education record,” that means a student’s parents have an absolute right to inspect and correct it, and that the school must enforce policies to keep the record from being publicly released.

Contrary to what schools have been arguing in court for decades, attorneys for the Colonial School District argued that FERPA is in fact a narrow statute applying only to centrally maintained records held with some degree of permanence, which is exactly how the U.S. Supreme Court defined the scope of FERPA in its 2002 ruling, Owasso Independent School District v. Falvo.  

U.S. District Judge R. Barclay Surrick agreed with the school district that the requested documents did not qualify as “education records,” meaning the school had no duty under FERPA to produce them.

As to the emails, Surrick found that email messages -- even when they refer to a specific student -- do not generally meet the statutory definition to be covered by FERPA, because emails are not "maintained" by the institution and may be deleted by the recipients at any time.

Unless Defendant kept copies of e-mails related to E.D. as part of its record filing system with the intention of maintaining them, we cannot reach the conclusion that every e-mail which mentions E.D. is a bona fide education record within the statutory definition. These e-mails appear to be casual discussions, not records maintained by Defendant.

Likewise, Surrick found that the psychologist's preliminary report did not qualify as an "education record" because it was retained by the psychologist and not filed away for the school's use in making decisions about the student.

The draft report does not fit within the statutory definition of education records. There is no reason to believe that the draft report is in fact "maintained" by Defendant or any of its employees in any meaningful way. It was not circulated among staff, nor were any decisions in regard to E.D.'s educational accommodations made in reliance on the draft report.

This ruling is true to the purpose and intent of FERPA, which was always meant to be primarily about protecting parents' rights to see the documents on which schools rely in making decisions about their children, and to correct any errors in those documents. The contemporary notion of FERPA as an all-encompassing secrecy blanket is a fiction that exists in the minds of school attorneys and, regrettably, in the rulings of some lackadaisical judges who've deferred to schools' wishful thinking. 

Surrick's ruling echoed, and relied on, a California judge’s similar 2009 decision (S.A. v. Tulare County Office of Education), which rejected a family's contention that all emails mentioning their child were subject to parental access as FERPA education records. 

To the contrary, the judge ruled in the Tulare County case, only emails that are actually filed with a student's permanent record are covered by FERPA:

Emails, like assignments passed through the hands of students, have a fleeting nature. An email may be sent, received, read and deleted within moments. As such, [plaintiff's] assertion - that all emails that identify [students], whether in individual inboxes or the retrievable electronic database, are maintained 'in the same way the registrar maintains a student's folder in a permanent file' - is 'fanciful.' Like individual assignments that are handled by many student graders, emails may appear in the inboxes of many individuals at the educational institution. FERPA does not contemplate that education records are maintained in numerous places. 

The takeaway for journalists is never to accept a claim of FERPA secrecy at face value, because the statute applies to a limited range of records, almost none of which a journalist would ever legitimately need or ask for (grades, transcripts, standardized test scores and the like). In particular, emails exchanged by government officials should never be withheld on FERPA grounds unless the institution is being asked to produce them from a student’s central file, which rarely if ever will be the case. 

Confused about your right of access under FERPA? Consult the SPLC's widely used FERPA White Paper, and if you're still getting the runaround, submit your access problem to the SPLC's award-winning "FERPA Fact" blog for our assessment. 

Tagged: Family Educational Records and Privacy Act, FERPA, news, recent-news

Pittsburg Steel: High school journalists' investigative feat fuels calls for legal reforms -- everywhere except Indiana



This weekend's editorial pages overflowed with praise for a groundbreaking piece of student reporting by journalists whose newspaper, The Booster Redux, now has more online reads (29,457 and growing) than their town has people (20,398).

The headline heard 'round the world -- District hires new principal; Background called into question after discrepancies arise -- even garnered two Pittsburg High School editors a featured segment with CNN's Jake Tapper, a former Philadelphia-area student journalist whose editorship was memorable for a different reason (resulting in suspension and community service).

The Booster Redux story has been hailed as validation of the civic value of student journalism and of the importance of state statutes like the Kansas Student Publications Act, which enabled Pittsburg journalists to take on a powerful authority figure with confidence that the law would be on their side.

This from columnist Jason Probst at Kansas' Hutchison News:

The journalists at the Booster Redux deserve all the credit and praise that’s being sent their way - as well as administrators who encouraged their work rather than attempt to silence the students’ questions. They have demonstrated the sort of tenacity and dedication to truth that’s critical for a strong democracy, a vibrant community and hopeful future.

Calkins Media columnist Phil Gianficaro, arguably the professional media's most reliable champion of student journalism, pulled no punches in observing that many New Jersey schools would have fired a teacher as capable as Pittsburg adviser Emily Smith for teaching students professional-caliber skills and values:

What happened at Pittsburg High School illustrates the type of impressive journalism that can be accomplished when a school doesn't view its student newspaper as little more than the chess club. It's the kind of greatness that can happen when the shackles come off.

As far away as Bend, Ore., the work of the Pittsburg staff was acclaimed as proof that students can produce serious public-service journalism when supported by administrators who value their work and respect the law:

In an era of “alternative facts,” the journalists at Pittsburg High serve as a reminder that there’s more to news than eye-grabbing headlines. There’s hard work, and a belief that readers have a right to know the truth. There’s a belief that truth matters, even when it’s uncomfortable. Good journalism, as practiced by these students, beats alternative facts every time.

Regrettably, some school authority figures looked at the Booster Redux and, instead of seeing an exemplary act of engaged citizenship, saw a threat -- the threat that their own incompetence and mismanagement might be next in the spotlight.

In Indiana, lobbyists for school administrators sidetracked a state Senate vote to approve expanded press freedom for student journalists by claiming that the bill would lead to Pittsburg-style investigations in their own state. Obviously, these lobbyists and their Senate allies must know there are any number of Indiana school officials whose backgrounds won't withstand checking, and unless state Rep. Ed Clere is able to pull off a miracle to resuscitate HB 1134, principals will retain the ability to intimidate students who question their qualifications and fire the teachers who support them. 

Tagged: First Amendment, Kansas Student Publications Act, news, Pittsburg High School, recent-news

A political journalism veteran turns the spotlight on college athletics



Daniel Libit is a political journalism veteran based in Chicago with no experience in traditional sports reporting.

That’s not stopping him from shining a spotlight on the University of New Mexico athletics department through NMFishbowl.com, a “passion project” where Libit plans to bring accountability journalism to the world of collegiate athletics.

“I wanted to conduct this experiment on how I think college athletics should be covered if you were actually covering it like the public institution that it is,” Libit said. “I wanted to sort of find ways of using public records and sort of a philosophy of public accountability and target a single college athletics department.”

Utilizing records requests

Libit is suing the UNM Foundation, UNM’s nonprofit conduit for donated funds. The Foundation maintains it is a private, nonprofit entity and thus not subject to New Mexico’s Inspection of Public Records Act (IPRA). Libit contends that since the UNM Foundation exists primarily to serve a public institution and thus should be held to the same level of transparency as the institution it serves.

Libit said he is seeking emails related to a deal struck between the Foundation and local business, WisePies. The deal resulted in a ten-year, $5 million gift to the Foundation and the renaming of New Mexico’s famed basketball arena, “The Pit,” to “WisePies Arena aka The Pit.”

The arena’s new namesake is a regional pizza franchise with locations in New Mexico and Arizona.

There have been persistent questions about the nature of the deal and the university’s confidence that WisePies will follow through, which Libit has documented in his “Money Pit” series.

“The university foundation can’t get away with what I’ve described as a public records avoidance scheme, that is to say finding some mere technicality in different domains where they can claim certain acts of their business, the public business, is really the Foundation’s business and therefore can’t be seen by the public,” Libit said.

Attorney Randy S. Bartell, who is representing the UNM Foundation in the lawsuit, declined to comment.

A “test tube”

UNM’s athletics department might seem like an odd choice for an experiment like this. According to USA TODAY, the Lobos ranked 67th among D-1 athletic programs for revenue from 2014-2015. And, not being in one of the Power Five conferences, it rarely enters the national college sports conversation unless the men’s basketball team makes a run in March (with some assistance from The Pit, consistently one of the most effective home court advantages in the sport).

Libit, a New Mexico native and University of Wisconsin graduate, said having no intention of writing gamers or features on UNM athletics has had an interesting effect on how the department reacts to the scrutiny of NM Fishbowl, since the normal rules of access journalism don’t apply.

“I think what they recognize is the carrot and sticks they are normally able to use to cow the few reporters they have who actually cover them don’t apply to somebody who’s not looking for press credentials or friendly interviews with the coaches...they don’t exactly know what to do with me,” he said.

In one story, Libit submitted IPRA requests to UNM asking for records of exit interviews conducted with student athletes who are leaving the program. The piece revealed much of what goes on in the department, including allegations of harassment of female athletes and NCAA and academic violations.

Libit, a survivor of the 2016 presidential campaign and veteran of publications like POLITICO, MSNBC and the National Journal, said student journalists should try incorporating elements of political journalism into the sports beat.

“So, I’m covering this in some ways like you’d cover national politics or how you would cover a statehouse, that’s sort of the attitude I’m trying to bring in covering an athletics department … there is a discomfort because of just the nature of the beat, the people who have the most access and insight in the program are also the people who are traveling with the team on the road.”

BONUS: Listen to the extended interview with Daniel Libit on our bonus Podcast.

Tagged: blog, Blogroll, College athletics, college-basketball, recent-news, University of New Mexico

The Booster Redux demonstrates the importance of anti-Hazelwood laws



This week, a group of student journalists in Pittsburg, Kan. achieved something that many their age only dream of: affecting real, tangible change in their community.

The Pittsburg High School Booster Redux investigation into the academic credentials of Amy Robertson, a newly-hired principal, resulted in the revelation that there was no evidence the institution from which she claimed to hold two advanced degrees actually existed. This week, she resigned.

First, the professionals at the Kansas City Star -- located 90 minutes north on U.S. 69 -- took notice.

Then, the assorted Twitter media zeitgeist which student journalists might be familiar with.

Then, the Washington Post.

Then, the New York Times.

Thursday morning, they even appeared on Good Morning America.

The local newspaper, the Morning Sun, cited the Booster Redux in its coverage of the resignation on Wednesday.

The collective reaction of national commentators ran the range from “how could teenagers do such professional reporting?” to “how could students get away with publishing an article making their own district’s hiring practices look so sloppy?”

Had this story occurred in a state without laws protecting high school journalists, this story might never have seen the light of day. The Kansas Student Publications Act, signed into law in 1992, stands among the elders of today’s New Voices laws and legislation the SPLC has advocated in dozens of states.

The Kansas law gives high school journalists considerable control over the content of their publications, including editorial and advertising elements. School administration can only legally intervene if the content is judged to be illegal in some way or disruptive to the school.

Student journalists have the ability to own the stories that go on in their hallways, classrooms and locker rooms in a way that professional news organizations often can’t. We can only hope more states will implement New Voices laws and join the ranks of places like Kansas which enable and encourage their students to hold their officials accountable.

Tagged: Anti-Hazelwood, blog, Blogroll, booster-redux, Cure-Hazelwood, Kansas, new voices, recent-news

Super Tuesday: New Voices Edition



Tuesday came with a flurry of activity for states considering New Voices press freedom bills, including Vermont, Rhode Island and Missouri. While each bill has slightly difference features, all share the common objective of fortifying the rights of student journalists in public colleges and high schools to publish the lawful material of their choosing.

Vermont

Senate Bill 18 enjoyed a mostly positive hearing in Montpelier, though representatives of state school administrators raised concerns about the omission of liability protection for teachers and school districts. Bill proponent Chris Evans, a journalism lecturer at the University of Vermont, said the bill faces several other pressures as it makes its way to the House floor.

Evans said there is a possibility the bill could be handed off to the House Judiciary Committee, slowing its progress and potentially stalling it before the end of the session in July. Another concern was one speaker’s proposal to require training for school journalism advisers, which would place an unfunded mandate on state school districts to adopt training programs and leave students in cash-poor districts with lesser legally protected press freedom.

Barring any stumbles in the committee and if amendments can be implemented smoothly, Evans said he’s confident the bill will be able to make it through to the governor’s desk.

Rhode Island

In Providence, Rhode Island’s fledgling House Bill 5550 received a unanimous chorus of support from student journalists, representatives of the Providence Student Union, and the American Civil Liberties Union. Rhode Island ACLU Executive Director Steven Brown said H 5550 is still early in its lifespan, but early signs are promising.

No further actions are scheduled at this time, but New Voices advocates will have ample room to maneuver before the session ends in June.

Missouri

The effort to pass the Walter Cronkite New Voices Act in Jefferson City is now a race against time. Bill proponent Bob Bergland said no one spoke in opposition to HB 441 in Tuesday’s Senate Education Committee hearing, while student journalist representatives, journalism advisers and school administration representatives lined up to speak in support of the bill.

The next step for the bill will be to push it through to a vote on the Senate floor, where last year’s bill stumbled. Advocates want to make sure HB 441 doesn’t get lost in the shuffle, as happened in 2016.

Bergland said the Missouri Association of School Administrators raised concerns about some of the technical language of the bill but stopped short of urging the bill’s defeat.

Indiana

House Bill 1130 is teed up for a Senate floor vote minus some baggage that had been tacked on earlier in March.

Previous amendments to the bill would have removed advertising from protection as well as giving school districts leeway to create policies that would have allowed them to circumvent the bill’s protections. But sponsors managed to shake off those adverse amendments on a voice vote Tuesday on the Senate floor.

The bill now has 13 Senate sponsors from among the chamber’s 34 members, with eight joining this week.

HB 1130 now needs only a vote of the full Senate, which could come as soon as Thursday, and then the concurrence of the House in Senate amendments to attain final passage.

Tagged: blog, Blogroll, Indiana, Missouri, new voices, recent-news, Rhode Island, Vermont

Arizona case demonstrates student journalists should be mindful of court recording rules



Experts are disputing an Arizona judge’s order to journalism students to delete audio recordings of a sentencing hearing.

The Arizona Capitol Times (with the help of two student journalists) reported that Pamela Gates, an associate judge at the Maricopa County Superior Court, halted court proceedings after learning that a group of Arizona State University journalism students were recording the proceedings. The judge ordered the recordings stopped and destroyed.

Arizona First Amendment lawyer Dan Barr told the Capitol Times that he believed the judge went too far in demanding the deletion of the recordings, though it’s unclear how and whether the judge had the authority to sanction the students at all.

David Bodney, an Arizona attorney specializing in media law, said Arizona’s current court rules for recordings allow camera and audio recording with advance notification. He would know, because he helped implement it.

“The most recent amendment to the rules were to increase camera coverage, not limit reporter’s rights,” Bodney says. “I would argue that an order to destroy the information obtained in an open courtroom would exceed the court’s lawful authority and be unconstitutional.”

Court spokesperson Karen Arras said in an email that Gates had reacted appropriately and the students were at fault for not notifying the court beforehand they would be recording.

“None of the students submitted a written or electronic request 48 hours in advance or notified the judge or the judge’s staff prior to using the devices … students were still able to take notes and write their stories. In addition, all of the Superior Court courtrooms are equipped with a digital video and audio recording system. So if the students’ notes were incomplete, they could have requested a digital recording of the hearing and one would have been provided to them for a nominal charge,” Arras said.

The Capitol Times report states the students’ recordings weren’t intended for publication. The main thing this case illustrates is that student journalists need to be aware and diligent when it comes to court rules in their communities.

It’s hard to make blanket statements on courtroom rules regarding recording. It’s often up to individual judges to make the rules at the local level, and state and federal courts also have their own rules. It can also vary on a case-by-case basis. The Society of Professional Journalists has a helpful guide on court rules, which often boil down to “it depends.”

Oftentimes orders not to record in courtrooms come on the basis of maintaining privacy, decorum or so as to not cause a distraction. Journalists looking to record in courtrooms have the ability to challenge these orders, but oftentimes the rules are the rules.

Whether a judge can order journalists to delete their recordings as a penalty, however, is a different matter, one that has yet to be clearly established by the courts.

Tagged: Arizona, blog, Blogroll, courtroom, erase-recording, recent-news, recording

Supreme Court declines to hear free speech case



The U.S. Supreme Court declined Monday to hear a case that would have set precedent for student speech freedoms on social media.

The decision leaves standing the October 2016 ruling in the Eighth Circuit U.S. Court of Appeals against Craig Keefe, who claimed that his expulsion from Central Lakes College violated his First Amendment and due process rights.

In December 2012, Keefe was expelled from Central Lakes College’s nursing program for Facebook posts – one of which described a fellow classmate as a ‘stupid bitch’ – that he made on his public personal account. The college determined that Keefe’s posts violated the student handbook policy regarding professional behavior.

Keefe filed a lawsuit against the dean of the college, Beth Adams, along with other college administrators in February 2013. The U.S. District Court of Minnesota dismissed his case in August 2014, so he appealed the decision to the Eighth Circuit.

In the majority opinion ruling against Keefe, Judge James Loken wrote that the college had the legal authority to hold students to the standards of their intended profession and had the power to impose “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."

Keefe’s petition to the Supreme Court made the argument that the Eighth Circuit ruling unjustly allowed public colleges and universities to hold students to professional standards for speech that has no relation to the professional context in a particular field.

“There is no suggestion that the Petitioner was unprofessional in his coursework or behavior in the clinical setting even if his Facebook etiquette left something to be desired. CLC violated the First Amendment when it expelled him for personal social media postings unconnected to any course requirement under conduct codes based on amorphous professional standards,” the petition read.

Before the Supreme Court considered hearing Keefe’s case, the SPLC and four other free speech organization filed an amicus brief urging the Court to hear the case. SPLC Executive Director Frank LoMonte spoke to the necessity of reversing of the Eighth Circuit decision, saying it allowed colleges and universities the ability to privatize the First Amendment.

“This case presents our best chance since the advent of social media to, finally, get clarity from the Supreme Court that off-campus speech is entitled to greater protection than speech inside of the classroom during school,” LoMonte said. “This ruling was outrageous and extreme in two respects – first, that it allows for expulsion from college without any of the formalities accompanying expulsion if the college just chooses to call the expulsion ‘academic’ rather than ‘disciplinary,’ and second, that a college can punish ‘unprofessional’ speech even without showing that it disrupted the operations of the college one bit. Even a middle-school student is entitled to First Amendment protection unless her speech substantially disrupts school operations, and the Eighth Circuit’s misguided decision has left college students with lesser free-speech protections than 12-year-olds. It’s imperative that the justices overturn this incredibly dangerous precedent and restore some meaningful boundaries to colleges’ disciplinary authority.”

To date, there has been no definitive ruling clearly establishing the boundaries of public colleges’ authority over off-campus speech and social media.

A Kansas court in 2016 punted a similar social media expulsion legal battle when 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 after posting profane remarks about an unnamed ex-girlfriend on his personal Twitter account.

The Keefe ruling is of special concern for student journalists. Loken wrote in his majority opinion that the concept of the Supreme Court’s Hazelwood v. Kuhlmeier standard – that a school can regulate speech if it breaches the school’s instructional objectives – “has broader relevance to student speech” even beyond the Hazelwood context of a high-school newsroom.

If high schools and colleges begin taking Loken’s interpretation of a “broad” relevance to student speech, that opens the door to issues of censorship when journalists cover issues that paint their schools in a negative light.

Since the Eighth Circuit ruling now stands as the final word in Keefe’s case, the wait begins for another chance to get a definitive ruling on student off-campus speech and social media usage.

Tagged: blog, Blogroll, Keefe v. Adams et al, recent-news, Supreme Court, Supreme Court

Bringing the receipts: A response to the call for stories of student press censorship in Texas with Rachel Dearinger



While New Voices legislation being introduced in Texas earlier in March, it wasn't assigned to a legislative committee until last week. In a March 20 Facebook post, the New Voices of Texas page asked for stories of censorship students and advisers have faced in the Longhorn State to motivate state legislators to move the bill forward.

The SPLC spoke with Rachel Dearinger, who teaches photojournalism, broadcast and is the publications adviser at Mansfield Legacy High School about two instances of censorship she faced in her years of teaching in Texas.

The Q&A has been briefly edited for brevity and clarity.

Burleson High School (2005-06)

“It was school policy that if you were pregnant, you went to the alternative high school. There was one student in particular who opted, or wanted to stay at the high school because she was in AP classes. They covered her, and how not just that she was pregnant, but that she stayed at the high school and went to these classes.

Her life wasn’t over because she had a child. She obviously had great family support, and they encouraged her to stay. They did a story on that in the yearbook and had pictures of the kid in different situations. And obviously the student was still a student, but she was also a parent.

That particular principal, I had to give him every yearbook spread for approval. We had many conversations about how I did not like that, and he would come back and copy edit [the spreads] and all these things, and I was like ‘that’s not really your job.’

Sometimes kids need to make a mistake in order to know not to do it again. It’s not that I wasn’t appreciative of him copy editing, but that definitely wasn’t the reason. Anyway, he got that stack of deadlines and said ‘absolutely not, you can’t publish this story.’ There was nothing not factual in it – we talked to the parents, we talked to the girl who was pregnant, we took pictures of her and her child so obviously the parents were involved with the whole thing.

My editors got pretty upset about that, and I had to sort of step back and say ‘this is a fight I can’t fight for you. If this is something that you’re passionate about, you need to go to the school board and say what happened.’

They printed out the yearbook page and made copies to take so each school board member could have one. I remember the news being there, so the story made the news about how it wasn’t happening. Basically, we pulled it because they weren’t getting the support of the school board either.

During that meeting, the principal came back to me and was very mean and said we already published it by making those copies and distributing it at the school board meeting. What ended up happening is, of course the kids were upset and they thought they would have the support of the school board. When they didn’t, they called the SPLC and had lots of conversations, and the editor just decided she wasn’t going to fight it because she would probably not be done with it to this day.

What they ended up doing, and I was super proud of this, is they took it to the town newspaper and said ‘hey, here’s a story, want this?’ And it ended up getting read by more people than would ever have been read in the yearbook. That was sort of a quiet ‘Yes’ moment for me because I couldn’t really cheer them on to do that, but they did it on their own.”

Mansfield Legacy High School (2012-13)

“There was a student in my Broadcast I class and we were doing PSAs. So I had an African-American student who was an athlete, and he made this PSA. And what he did was he took a kid from every ethnic group that was at this school.

He had them in the studio on a solid background say whatever the derogatory term is for their race. He had them go through this, and the end of the video was saying that those words don’t define those kids. That they’re just words.

He got the idea from The R Word. I have really bad luck with principals apparently. We just thought ‘we better let them know that this is happening,’ because it obviously wasn’t a happy-go-lucky thing, but I thought it was really well done on a sensitive subject.

He was fine with everything in there until “nigger.” The whole point of the video was that we shouldn’t be using these words. That they’re just words and not what define people.

He said ‘yes’ at first when he saw it, and then he came back and said absolutely not. We were just about to post it and he said ‘no, no, no, over my dead body.’ That really surprised me because I thought [the students] were being proactive in a way that would catch students’ attention. That’s hard to do.

Nothing really ever came after that, and I never felt like I did at Burleson. But it’s unfortunate when good work, that I think can reach whatever it is in whatever medium, gets cut. It’s a lesson kids have to learn, but it sucks.”

What would New Voices legislation do for student journalism in Texas?

“I think it would help administrators see that there are a lot of serious kids. I think a lot of people don’t think journalism in high school is serious, that it’s just the yearbook. These kids are doing great work.

I think administrators, if they came into the classroom, would see that. But they’re just scared. Rather than empowering the kids, they just say “no” and protect themselves. I think it would definitely send a message to them that there is a reason [students] have these rights. They should be able to tell these stories that aren’t always happy stories.

All these high schools want the positive coverage, and I get it, but bad things happen too. Kids shouldn’t be afraid to tell those stories, but they are because they want to make everybody happy.

I tell them ‘it is not your job to make it look good if it’s not good,’ and they look at me like ‘what are you talking about?’

They didn’t win, so write about them not winning. I think we paint kind of a rosy picture when it’s not always so rosy. I think we create better journalists and better human beings if they’re allowed to do things freely.”

Tagged: blog, Blogroll, censorhship, high school censorship, new voices, prior review, recent-news, student speech, Texas

U.S. District Court affirms First Amendment right to complain in rejecting motion to dismiss former student's complaint



A case in Virginia has provided a welcome stand against retaliation for students exercising their First Amendment rights. On March 30, the U.S. District Court for the Western District of Virginia rejected a motion to dismiss by the defendants in Deegan v. Moore, finding that student Jennifer Deegan had been well within her rights to voice complaints about Virginia Western Community College’s nursing program, and that the response of Assistant Dean Melanie Moore and other administrators to issue a misconduct charge against her was a violation of these rights.

The Case

According to the narrative in Deegan’s complaint, which the court relied on in Thursday’s ruling, Deegan’s criticism of the nursing program at VWCC stemmed from her concerns over what she perceived to be turnover problems and a lack of qualified instructors.

Disappointed and frustrated by the program’s teaching standards, Deegan wrote a letter to VWCC’s Board of Trustees about her concerns. Deegan noted that by this point, she had already heard Assistant Dean of Nursing Melanie Moore – one of the defendants – criticize the program, although she refused to continue discussing the issue with a student who raised the topic during a class.

The day after sending the letter, Deegan spoke up in one of her nursing classes, voicing her complaints about pop quizzes and lack of instruction. According to Deegan’s complaint, she voiced these concerns in a non-disruptive manner during a group discussion where fellow students were also raising issues with the program, so that her comments were not a detour from the subject matter of the class.

After this class, Deegan attended a meeting with Dean of Health Professions Carole Graham to discuss her concerns, and scheduled a meeting with VWCC’S President Dr. Robert Sandel, Graham, Moore, and VWCC’s Vice President Elizabeth Wilmer. In her complaint, Deegan notes that it was after this meeting that the defendants – Moore, Graham and Dean of Student Services Lori Baker – “caused or encouraged” the filing of a student misconduct report, charging her with disruption and verbal abuse.

Graham and Barker informed Deegan of the charge in their Sept. 3 meeting, which Sandel, Wilmer, and Moore did not attend.

Six days later, Deegan formally filed a grievance outlining her problems with the nursing program. Among her complaints were that “teachers were bullying nursing students and that student concerns were met with hostility, threats, and disciplinary action.” After a meeting with Wilmer, Deegan's grievance was determined to be unfounded.

A week later, Deegan met with Baker about the misconduct charge. The court record notes that the meeting only came about after Deegan directly asked Baker for one, despite the fact that Baker's investigation into the charge should have included an obligatory meeting. In addition, Baker refused to listen to a recording that Deegan brought with her of the nursing class during which she had reportedly been disruptive.

At some point after that meeting, but prior to her misconduct hearing, Deegan resigned from the nursing program.

On June 6, 2016, Deegan filed a complaint of First Amendment retaliation against Moore, Graham and Baker in U.S. district court, alleging that her criticism of VWCC's nursing program was protected speech and that the student misconduct charge was retaliation from the defendants. The defendants moved to dismiss, arguing that Deegan failed to state viable claims against them and that they are entitled to qualified immunity from paying damages because, even if their actions did violate the law, they wouldn’t have been in a position to know the illegality at the time.

The Right to Complain

In deciding the case, U.S. District Judge Elizabeth Dillon applied the First Amendment retaliation test. Firstly, it asked whether Deegan’s speech was protected by the First Amendment. Dillon rejected the college’s claim that students are protected only if their speech involves matters of public concern. Even if that had not been the case, Dillon added, Deegan’s speech arguably was of public concern, since it involved the quality of public educational services.

“Although Deegan's exact words are not alleged, some of her statements allegedly concerned the quality of education nursing students were receiving at VWCC,” Dillon wrote. “Those statements, which relate to the quality of public education and the training of local health care professionals, could at least plausibly touch matters of public concern.”

Dillon went on to state that the court could not conclude that Deegan spoke in a time and place not intended for such speech:

“Most of these occasions were plainly non-disruptive: three were outside of class in personal conversations or meetings scheduled to discuss Deegan's concerns, and one was a written communication to the Board of Trustees. Although Deegan spoke during a Nursing 238 class as well, she alleges that the statements were not disruptive and that she spoke in context of a larger in-class discussion about the quality of the nursing program.”

Next, the court tackled the defendants’ claim that Deegan has not stated a viable retaliation claim because the alleged retaliatory act – filing the misconduct charge against her – did not adversely affect Deegan's ability to exercise her First Amendment rights. In retaliation cases, the judge wrote, the retaliatory act must go beyond a mere “inconvenience” to the speaker; the college claimed that since Deegan never received any actual disciplinary sanction, the filing of the charge could not by itself be a constitutional violation.

The judge disagreed, finding that just the fact of being brought up on misconduct charges could “chill” the fortitude of a reasonable speaker. However, the judge did agree that Deegan failed to establish any causal connection between Moore and that complaint, so Moore was dismissed as a defendant.

Ultimately, the court found that Deegan had plausibly stated a First Amendment retaliation claim, and that her complaint can continue for consideration.

The important takeaway for all college students, including journalists, is that complaining about the quality of the educational program does not constitute a substantial disruption, and is part of an individual’s protected speech.

This case is also important in drawing clear lines that university administrators can’t cross in using the student conduct system to silence student critics. With this ruling, the court – which denied the defendants’ claim that they are entitled to qualified immunity – made explicit that filing an unfounded disciplinary complaint against a student, even if the student isn't found guilty, violates the First Amendment on the grounds of the intimidation it poses.

A fear of retaliation from administrators remains a prominent concern among student journalists and their advisors, and this ruling marks one of the few recent times where the court has taken the student’s side.

In September 2015, a federal district court ruled against Muscatine Community College student journalists’ request for a primary injunction in their lawsuit against the school’s top administrators for intimidation. The students accused the administrators of harassing them to avoid undesirable news stories about the college, for example by reducing their funding and replacing a full-time advisor with a part-time adjunct instructor.

In June 2016, the San Diego American Civil Liberties Union filed a lawsuit against administrators at UC-San Diego after it cut funding for satirical newspaper, The Koala, along with all student media, apparently in response to The Koala publishing an article mocking students’ desire for safe spaces on campus. The university insisted that the timing was coincidental, and on March 6, 2017, a federal judge dismissed the case.

Deegan’s case, however, seems to demonstrate that taking a stand against retaliation for being outspoken about an institution’s flaws can succeed, so long as a cause-and-effect relationship can be proven. This is only the early stage of the case, and Deegan will still have to prove at trial that the facts bear out as her complaint alleges them -- but at least she will get that chance.

Tagged: blog, Blogroll, court-case, Deegan-v-Moore, First Amendment, First Amendment, First Amendment retaliation, first-amendment, recent-news, U-S-District-Court, Virginia