The Student Press Law Center blog
There's a new reminder out from a North Carolina court that, just because a government decision involves "personnel," doesn't mean it's legally impenetrable to public scrutiny.
In May 2014, North Carolina's Alamance-Burlington County School Board held a closed-door "executive session" and, unexpectedly, approved a $200,000 buyout to its recently rehired superintendent for unexplained reasons. Understandably, local journalists wanted to know why. They filed a request for the meeting minutes under North Carolina's Public Records Act, and were told: Sorry, discussions of personnel decisions are confidential.
The Times News Publishing Company, which owns the daily newspaper in Burlington, filed suit. And in a July 21 ruling, North Carolina's Court of Appeals sided with the paper, stating: "we reject the school board's argument that the closed meeting minutes are categorically exempt from public disclosure because they concern a personnel matter."
The school board relied on two different exemptions to North Carolina's open-government laws. First, the Public Records Act allows an agency to withhold "personnel files," which the law defines as records "gathered" by a school district about an employee's hiring, promotion or termination. Second, the Open Meetings Law allows an agency to withhold records that "would frustrate the purpose of a closed session."
In an opinion by Judge Richard Dietz, the appeals court held that the minutes of a board meeting are not "personnel files," but that if the minutes contain the kind of information exempted from disclosure in personnel files, then those parts of the minutes can be kept confidential. But the decision isn't all-or-nothing:
[C]ore personnel information such as the details of work performance and the reasons for an employee's departure will remain permanently exempt from disclosure. But other aspects of the board's discussion in the closed session, including the board's own political and policy considerations, are not protected from disclosure.
Significantly, the court refused to defer to the school board's determination that everything discussed during the non-public session constitutes confidential personnel material. The court said that, when a government agency makes a blanket claim of secrecy, the trial court must inspect the minutes and reach an independent decision as to what's exempt. That's helpful, because school board lawyers habitually over-classify records as confidential; now, they're on notice that the judge will be checking their homework.
The court gave an gentle under-the-table shin-kick to the General Assembly, pointing out that the law probably needs amending to allow for greater disclosure when decisions of such public consequence are made behind closed doors:
[W]e note that under the 'personnel file' exception to the Public Records Act, many of the specific facts about the superintendent's departure may remain permanently hidden from the public—perhaps an unintended outcome for a law meant to limit secrecy in government.
The Times News case is another indicator that government agencies' broad-brush claims of "personnel confidentiality" are frequently overblown and vulnerable to legal challenge. Journalists should instinctively doubt, and skeptically challenge, claims that personnel decisions are none of the public's business.
Tagged: news, North Carolina Court of Appeals, open-meetings, open-records, recent-news, school boards, Times News Publishing Co. v. Alamance-Burlington Board of Education
A recent federal appeals-court ruling establishes that students have a constitutional interest in the curriculum they receive in public schools, and that school officials cannot remove material from the curriculum solely to advance their personal ideological agendas.
The ruling came in a constitutional challenge to Arizona's 2010 "ethnic studies" statute that prompted the Tucson school district, where more than half the students are of Latino descent, to cancel courses in Mexican-American studies and remove seven "banned" books from school shelves. (The district later rescinded the prohibition, and The Atlantic has just published a detailed accounting of how the failed ban may have provided fuel for a growing nationwide movement to offer high school courses in Latino culture.)
On July 7, a three-judge panel of the Ninth Circuit U.S. Court of Appeals ruled that the ethnic studies law, HB 2281, could be challenged on the grounds that it (a) constituted government-sanctioned viewpoint discrimination, which the First Amendment almost categorically forbids, and (b) was overly broad in violation of the Due Process Clause. The panel agreed with a U.S. district judge that the law was overbroad because it banned courses "designed primarily for pupils of a particular ethnic group," even if there was no proof the courses contributed to ethnic disharmony or were otherwise harmful.
The decision, written by Circuit Judge Jed S. Rakoff, is noteworthy for its application of the Supreme Court's Hazelwood School District v. Kuhlmeier, a case about schools' authority to regulate student-produced media in the laboratory-class setting. In Hazelwood, the Court held that censorship of students' journalistic work did not violate the First Amendment so long as the school's motivation was "reasonably related to legitimate pedagogical concerns."
The Ninth Circuit decided that Hazelwood's "pedagogical concern" standard is also the proper legal yardstick for judging a school's decision to withhold or discontinue curricular materials to which students demand access. That is an intriguing and not necessarily intuitive extension of the Hazelwood doctrine. That a student has a constitutional right to create and distribute her own speech in the school setting does not necessarily imply that the student has an equivalent stake in school-purchased books written by others -- but the Ninth Circuit's Arce decision now finds such a right implicit in the First Amendment right to receive information.
What's more, the Ninth Circuit chose the Hazelwood standard as a more muscular check on school authority than the alternative advocated by lawyers defending HB 2281. Lawyers for the state's former school superintendent, John Huppenthal, said courts should overturn schools' choice of classroom materials only in the extreme case where "narrowly partisan or political" motives could be proven.
But the Ninth Circuit decided on a Hazelwood-based standard that the court described as affording students greater protection: "state limitations on school curricula that restrict a student's access to materials otherwise available may be upheld only where they are reasonably related to legitimate pedagogical concerns."
This is a significant reimagining of Hazelwood that offers encouragement to students in the states encompassed by the Ninth Circuit that have not yet enacted statutes forbidding states from exerting the Hazelwood level of control over student media: Alaska, Arizona, Hawaii, Idaho, Montana, Nevada and Washington. Although schools (and occasionally, judges) are prone to regard Hazelwood as a blank-check, anything-goes level of authority, the Ninth Circuit believes otherwise. Specifically, the Ninth Circuit believes that Hazelwood goes even further than prohibiting school censorship that is based on "narrowly partisan or political" motives -- which means it goes at least that far.
That is a powerful potential tool for opposing school censorship decisions, many of which are demonstrably based on substituting the school administration's own ideological preferences for those of the students. If a student can demonstrate that a school's decision to confiscate a newspaper, rewrite a graduation speech or veto a student-chosen theatrical performance was based on political ideology, then (at least in the Western states subject to the Ninth Circuit's jurisdiction) the student should prevail.
The Arce case is headed back to U.S. district court to determine whether the state of Arizona violated the First Amendment by singling out selective courses for elimination based on viewpoint. However that remaining claim is resolved, the ruling has already fortified the legal standing of future student plaintiffs to challenge school censorship decisions -- even those involving school-provided course materials.
Tagged: Arce v. Douglas, ethnic studies, First
Amendment, First Amendment, first-amendment, Hazelwood School District v. Kuhlmeier, John Huppenthal, news, Ninth Circuit U.S. Court of Appeals, recent-news, Student Rights
With the behavior of law enforcement officers under unprecedented scrutiny, it's becoming easier for journalists and other public watchdogs to use public records to verify whether police used their authority properly.
In a July 7 ruling, a Pennsylvania appeals court held that video from a police cruiser does not qualify as a "criminal investigative record" that can be withheld from the public under Pennsylvania's Right-to-Know-Law, and therefore must be released in response to an open-records request.
"The mere fact that a record has some connection to a criminal proceeding does not automatically exempt it," says the Pennsylvania Commonwealth Court opinion, written by Senior Judge James Gardner Collins. The exemption, the court held, is designed to protect "records
created to report on a criminal investigation or set forth or document evidence in a
criminal investigation or steps carried out in a criminal investigation." At the time of a traffic stop, it's not even clear that a crime exists at all -- the recorder switches on automatically when the car's lights or siren are activated.
(Importantly, the court's ruling reemphasizes that public-records exemptions are not to be applied in an all-or-nothing manner: if police can demonstrate that a particular video contains a witness interrogation or other genuinely investigative materials, then those portions can be removed, but the entire video cannot be withheld.)
The Commonwealth Court's ruling is consistent with recent decisions in other states affording the public access to videos of police doing their jobs in public places:
- The Oklahoma Court of Appeals ruled in 2013 that video from a police cruiser is subject to Oklahoma's Public Records Act and cannot be withheld merely because of the possibility that it might be used as evidence in a future prosecution.
- In June 2014, the Washington Court of Appeals decided that the state's Privacy Act authorizes police to withhold dash-cam videos only if the videos are actually being used in an ongoing court case, after which the recordings become public record.
The outlier is Ohio, where a state appeals court ruled in July 2014 that the Ohio State Patrol could withhold videos of troopers stopping a suspected drunk driver. The video qualified as a "confidential law enforcement investigatory record," in the court's view, because it showed how the trooper administered field sobriety tests and concluded there was probable cause for an arrest. Even in that case, however, the court did not categorically place all police video off-limits to disclosure (and in fact the highway patrol did turn over the video once the DUI criminal case had run its course).
In this article for SPLC's Report magazine, reporter Michael Bragg looks at the related issues raised by categorizing police body-camera videos as public records. As more and more legislatures require officers to wear body-mounted cameras, lawmakers have been wrestling with the public's right of access. In one recent example, Florida enacted a law exempting body-cam video from disclosure if shot inside a private home, at the scene of a medical emergency or anywhere else that a person appearing in the video has a reasonable expectation of privacy.
Police agencies are prone to over-use open records exemptions that were intended to protect only material that might realistically interfere with the ability to catch and prosecute criminals, such as documents disclosing the name of an informant or the existence of an undercover "sting" investigation. Everyday cases, including the vast majority of traffic stops, do not involve any confidential police sources or techniques. And civil remedies already exist if, in extreme cases, a police video is misused in a way that humiliates identifiable civilians with no legitimately newsworthy purpose.
Tagged: dashcam videos, news, news-recent, Pennsylvania Commonwealth Court, police videos, public records, recent-news
Pennsylvania’s state Senate recently closed a loophole that would have allowed faculty salaries at state universities to be reported in dollar ranges rather than a specific salary number as part of ongoing efforts to increase salary transparency through the Right-to-Know Law.
The expansion of the law aims to increase the amount of employees whose salaries are publicly reported, according to the Pittsburgh Post-Gazette. The larger bill, formally known as Senate Bill 412, would expand the required publicly-disclosed salaries to include all officers and directors of state institutions.
For institutions with more than 2,500 employees, such as Penn State University and the University of Pittsburgh, the top 200 paid employees’ salaries must be disclosed, and smaller institutions must disclose the top 25 salaries. The current standard only requires that large universities disclose 25 salaries.
The sponsor of the revised Right-to-Know Law is state Sen. John Blake, a Democrat, who attached the law to Senate Bill 412. State Sen. Anthony Williams, a Democrat, proposed the amendment to specify exact salary data on behalf of Blake, according to the Pittsburgh Post-Gazette.
“We didn’t want to step back from any current reporting requirement,” Blake told the Pittsburgh Post-Gazette. “We didn’t want to make things any less transparent.”
The original sponsor of the bill is state Sen. Dominic Pileggi, a Republican, who introduced the existing Right-to-Know law in 2009.
The bill still has to pass the Pennsylvania House and Senate and be signed by Pennsylvania governor Tom Wolf before becoming law.
Tagged: news, Pennsylvania, recent-news
The majority of Americans agree: students should be allowed to freely complain about their teachers and administrators on social media without fear of punishment.
That finding — 60 percent, to be exact — is part of the 2015 State of the First Amendment, a survey conducted annually by the Newseum Institute’s First Amendment Center. The group surveyed 1,002 American adults by telephone in May about their opinions and knowledge of various First Amendment issues.
A plurality of 36 percent said that they strongly agree that students should be allowed to post on social media their opinions about school administration without the threat of punishment. Thirty-three percent disagreed, with 19 percent of those strongly disagreeing.
There was a significant age divide in opinions — 84 percent of young Americans aged 18 to 29 agreed that students should be able to freely post on social media, compared to 60 percent of those who are 30 years old or older.
Student speech on social media, and whether it should be given free speech protections, has been a heated issue. There have been recent cases of students who were expelled or suspended, or who have faced criminal charges, because of what they posted on social media. Recently, some federal appeals courts have given schools comparable authority over speech on social media as they have over speech on school premises under the Supreme Court’s 1969 Tinker v. Des Moines Independent Community School District case, which allows schools to punish speech that could reasonably be forecast to substantially disrupt school operations.
Free speech advocates have argued that these types of policies could create a chilling effect on student speech, and that students — particularly college students who are off-campus — still have First Amendment rights.
Other interesting findings from the report: only 19 percent of Americans think the First Amendment “goes too far in the rights it guarantees,” compared to 38 percent in 2014 (which was attributed to public fear after the Boston Marathon bombings).
Thirty-three percent of Americans can’t name any of the five freedoms enumerated in the First Amendment, and only 10 percent can name the freedom of the press (freedom of speech is the most well-known, at 57 percent).
Sixty-nine percent of Americans think the news media should serve as a government watchdog, but only 24 percent think that the news media attempts to report the news without bias — the lowest percentage since the survey started asking this question in 2004.
These and other findings from the report can be found here.
Tagged: First Amendment, first-amendment, news, recent-news
Kansas State University and the University of Kansas are butting heads over how heavily universities can and should supervise student speech off campus under the guidelines set by Title IX to govern sexual harassment.
In an unusual legal alignment, the two sister universities find themselves on opposite sides of a former KU student’s First Amendment case that is working its way through the state appeals courts.
KSU filed an amicus curiae brief on May 22, stating that universities do not have a responsibility to monitor off-campus sexual discrimination, unless the university maintains control over the circumstances in which an event occurs (for instance, at an off-campus university-organized function).
The brief to the Kansas Court of Appeals responds to Navid Yeasin v. The University of Kansas. In June of 2013, Yeasin, a KU student, was charged with criminal battery and criminal restraint against his ex-girlfriend off campus. As a result, the university placed Yeasin under a no-contact order forbidding him from direct or indirect communication with the former girlfriend, then later expelled him for violating that order by posting insults about her on a non-public Twitter account. Yeasin is challenging the expulsion on First Amendment grounds.
KSU wrote that KU overstepped its obligation to discipline perpetrators because “most incidents did not occur on school grounds,” asserting that “Title IX compliance obligations extend only to its campus or to programs and activities the school operates.”
When the fall semester of 2013 began, KU received a complaint from Yeasin’s ex-girlfriend, a student at the university, that said “she experienced the ongoing effects of Yeasin's domestic abuse and sexual harassment — fear, anxiety, depression, insomnia, and nightmares,” for which she obtained medical treatment in order to continue her studies, according to court documents.
The university issued a no-contact order against Yeasin, but then Yeasin made a number of tweets that appeared to talk about his ex-girlfriend which the university said violated the order, according to Inside Higher Ed and court documents.
Kansas subsequently started a Title IX investigation and expelled Yeasin from the university.
The tweets allegedly were sent from off campus, which brings into light KSU’s question of “whether Title IX requires a school to discipline a student for sexual violence committed off campus and outside the school’s substantial control.”
The Student Press Law Center, alongside the Foundation for Individual Rights in Education, filed an amicus curiae brief, which argued that universities have limited authority to regulate off-campus speech by students.
“No matter how honorable the motivation, a public university does not have limitless disciplinary authority to regulate everything a student says and does off campus,” the SPLC and FIRE wrote.
KU filed its own brief replying to KSU and taking a more expansive view of a university’s jurisdiction over off-campus behavior.
“Based on the foregoing, KU had knowledge of Yeasin's sexual violence and retaliation against Ms. W. when she complained,” the university wrote in response to KSU. “KU acted appropriately and in accordance with its obligations under Title IX when it initiated an investigation, and subsequently expelled him.”
KU wrote that KSU interpreted the directive of Title IX too narrowly, saying that the law is meant to be interpreted broadly.
“KSU's argument ignores the plain language of Title IX and the Supreme Court's interpretation of that broad statutory grant of authority given to the DOE,” the KU response said.
Tagged: news, recent-news, Title IX
WISCONSIN — A Wisconsin appeals court recently ruled that notes made by school district officials during an investigation into hazing allegations in a school wrestling program are not public records under state law.
The appeals court determined that the records were exempt from required disclosure under Wisconsin’s public records statute due to what the court called the “personal use exception.”
The Voice of Wisconsin Rapids, a now-defunct weekly newspaper, requested all documents related to the investigation, which the district withheld.
The newspaper then requested a writ of mandamus to order the district to grant the newspaper access to documents created by district employees in connection to interviews they conducted as part of the investigation. The circuit court denied the request, and the newspaper appealed.
The definition of “record” under Wis. Stat. § 19.32(2). excludes “drafts, notes, preliminary computations and like materials” that are prepared for the originator’s personal use.
The district argued that some of the requested documents were not “records” under the personal use exemption — they were notes created for the personal use of district employees, who never exchanged or shared the notes with anyone.
Even though the documents might be handwritten notes, the newspaper argued, they were not the types of “personal notes” that could be excluded from the definition of public records. The newspaper argued that the notes could not be subject to the personal use exception if their content has “relevance to a government function.”
The appeals court applied a strict understanding of the statute in rejecting this argument. The statute does not explicitly reference notes that relate to a government function.
“Notes” and “personal use” are not defined in Wisconsin’s public records law.
The court determined from its review that the documents in question were “notes,” due to the fact that most were handwritten, and “at times barely legible,” reflecting “hurried, fragmentary, and informal writing.” Witness testimony available to the circuit court also described the documentary process as note-taking.
A few of the documents are in the form of draft letters, but were in the “nature” of notes, the appeals court said.
The court relied on an attorney general opinion to conclude that the notes were subject to the personal use exception, as they were not distributed to others for the purpose of communicating information, and were not retained for the purpose of “memorializing” agency activity.
The news organization argued that the note-taker’s effectively distributed or planned to distribute the notes to others.
The appeals court, in rejecting that argument, wrote “the mere fact that retained notes could be distributed to others in the future does not deprive the notes of their personal-use nature.”
The decision was filed on June 4, 2015.
Tagged: news, public records, recent-news
Chancellor Carmen Fariña told New York City public school principals last week to ignore a state court ruling that schools’ decision-making meetings are subject to the state’s open meetings law, according to Chalkbeat New York.
The New York City Department of Education plans to appeal the April 21 ruling by the New York State Supreme Court, which held that meetings of the School Leadership Teams should be open to the general public.
Each city school must have an SLT, which helps develop a school’s comprehensive education plan that outlines “a school’s goals, needs and strategies for the coming school year,” according to the court’s decision. The principal must also consult the SLT when establishing the school’s budget.
Members of the SLT include a school’s principal, the parent-teacher association president, the United Federation of Teachers chapter leader and 7-14 additional members balanced between parents and faculty members.
Michael Thomas, a retired teacher, challenged the Department of Education after he was told he could not attend a school’s SLT meeting. The SLT’s bylaws limited attendance to those part of the school community.
Thomas argued that the meetings should be open to the public, citing the role that the meetings play in determining the policies of public schools.
Judge Peter Moulton agreed, writing that because SLTs are established by law in New York to have a voice in the operations of a school, they are public bodies subject to the open meetings law.
“If it is fulfilling its statutory role, a school’s SLT is not a mere advisor to the principal,” Moulton wrote. “The proper functioning of public schools is a public concern, not a private concern limited to the families who attend a given public school.”
The judge relied on previous New York court rulings that applied the open meetings law to a college’s student fee committee and a college’s faculty senate: “[D]ecisions made at meetings of organizations associated with publicly funded schools are governmental decisions subject to the Open Meetings Law.”
A spokesperson for the Department of Education said in a statement to Chalkbeat that confidential school discussions regarding personnel decisions and individual students would be compromised by opening the meetings to the public.
Tagged: New York City, news, open-meetings, recent-news
A recent graduate of Pomona College in California was told by school officials that she could not share any details of the sanctions imposed on the man who sexually assaulted her twice. However, the college’s nondisclosure policy has no basis in the Family Educational Rights and Privacy Act or the Clery Act.
After Yenli Wong wrote about the college’s alleged mishandling of her case in the Huffington Post, students protested at the college’s graduation ceremony by turning their backs on the president and covering their mouths, to signify the silencing of victims like Wong, according to Slate.
Wong was under orders from the college to refrain from disclosing details of her attacker’s punishment, but she said it was “extremely light.”
Although Pomona College hasn’t cited the rationale for its policy, colleges that employ such gag orders often argue that the restrictions are necessary to maintain the privacy of student education records under FERPA.
In another example, Otterbein University at one time gave students reporting sexual assaults a judicial administrative checklist that included a nondisclosure clause. The school said the requirement was necessary to comply with FERPA, but it was dropped in 2013 after student journalists from the school’s newspaper, the Tan & Cardinal (now called Otterbein360) discovered that the nondisclosure clause violated federal law.
The U.S. Department of Education, the agency charged with enforcing FERPA, has ruled multiple times that sexual assault victims who speak about their cases do not violate FERPA, and that colleges cannot enforce gag orders on victims.
Congress amended FERPA in the 1990 Student Right-to-Know Act specifically to provide that the outcomes of sexual assault cases are not protected by FERPA when shared with the victim. And federal Clery Act regulations -- regulations that implement the federal campus crime awareness statute -- require that the outcome of a disciplinary case involving a sex offense be disclosed to both accuser and accused.
In a 2008 ruling involving the University of Virginia, the Department of Education stated that a university “cannot require an accuser to agree to abide by its non-disclosure policy, in writing or otherwise, as a precondition to accessing judicial proceeding outcomes and sanction information under the Clery Act.” That means colleges that threaten students with discipline for talking about their own sexual assault cases are in violation of federal law.
FERPA applies to education records that are maintained by an agency or institution. Student speech, however, is not an education record, so speech between student journalists and sexual assault victims by definition cannot violate FERPA. In the same way, any student newspaper that quotes sexual assault victims as part of its reporting does not violate FERPA.
Tagged: campus sexual assault, FERPA, news, Pomona-College, recent-news
Security video footage of a public school should remain classified as an educational record under the Family Educational Rights and Privacy Act, Judge Michele Christiansen of the Utah Court of Appeals ruled May 29.
Roger Bryner, the father of a child who attended Butler Middle School, requested a recording of the security camera’s video from October 1, 2012. The footage allegedly showed an altercation that his child was involved in.
The Utah Court of Appeals upheld the trial court’s initial ruling saying that Bryner could pay $120 within 10 days of the ruling to the school district to have the video redacted to only contain footage of his son, in order to comply with FERPA. The district would then have 15 days to deliver the redacted video.
Christiansen wrote that the court viewed FERPA as being broad in scope, citing the Supreme Court’s ruling in Gonzaga Univ. v. Doe and other rulings.
“Nothing in the plain language of the statute limits the application of FERPA to only academic records,” Christiansen said.
The students in the video who were involved with the altercation had their images represented in the security video recording, and therefore the video constitutes part of their educational records. As a result, Christiansen wrote, the video is subject to FERPA protections.
Bryner argued that the video was not maintained by administrators or educators and therefore could not be considered an educational record, but the judge disagreed.
“FERPA requires only that the record be maintained by or on behalf of an educational agency, not that educators themselves maintain the records or review them,” Christiansen said.
In response to a similar situation in Ohio regarding school bus cameras, Student Press Law Center Executive Director Frank LoMonte
argued the security footage was not covered by FERPA because, among other reasons, the video did not pertain to the educational performance of the students involved.
LoMonte said the Department of Education needs to further define what FERPA is intended to protect.
“Clarification is badly needed, because the Department unhelpfully muddied the issue in a February 2004 letter ruling that said a parent could not view a school surveillance tape of a fight if the tape showed any kids fighting other than her own,” he said. “Try saying with a straight face: ‘A parent does not have a right to know who beat up her child because we wouldn’t want to violate the attacker’s privacy.’”
Tagged: Bryner, Butler Middle School, Christiansen, FERPA, news, recent-news, Security video, Utah