The Student Press Law Center blog


Snap away: Pennsylvania becomes the seventh state to recognize a right to take smartphone photos of public records



Back in 1996, high school journalists in Palo Alto, Calif., got a tip that administrators in their school district were running up huge dinner tabs on the taxpayers' dime. When the school district quoted a prohibitive fee for access to records of credit-card purchases, an enterprising student reporter borrowed a portable copier from his grandfather's office, wheeled it into the district headquarters, and duplicated the records free of charge, enabling The Campanille to break a scoop about unauthorized meal tabs on government expense accounts.

Fast-forward two decades, to a world where 64 percent of all Americans own a phone capable of doubling as a copier/scanner, and making duplicates of public records ought to cost no more than a click. But government agencies haven't always welcomed do-it-yourself copying, which costs them a revenue source and eliminates a back-door method of obstructing public access.

Pennsylvania is the latest state to make clear that the right to inspect public records includes the right to photograph them. In a ruling issued Aug. 14, the state Office of Open Records found that a township police department violated Pennsylvania's Right to Know Law ("RTKL") by preventing a requester from taking photos of expense-account documents. 

Hearing officer Kathleen A. Higgins noted that the Right to Know Law expressly contemplates waiving the customary copying fee when a requester makes his own copies. It would be "absurd and unreasonable," she wrote, to forbid requesters from using their own resources to save money on copying fees -- whether that means taking a smartphone picture of a document, writing down its contents, or dictating the contents into an audio recorder.  

Pennsylvania joins a growing number of states allowing citizens to use technology to fight back against open-records fees that often serve, intentionally or not, as a deterrent to public access.

In recent years, state attorneys general in Arizona and Kentucky have directed government agencies to allow requesters to make their own copies or scans without charge. State statutes in Connecticut and Florida provide that requesters cannot be prevented from photographing or scanning records, and a court ruling in Louisiana likewise entitles the public to duplicate records using portable copying devices. 

While it predates smartphones by two generations, a 1962 court ruling in Illinois, People ex rel Gibson v. Peller, holds that the common-law right of access to records necessarily implies the right to photograph them as well:

Modern photography is accurate, harmless, noiseless and time saving. It does nothing more than capture that which is seen with the naked eye. Neither defendants nor the public can be harmed by the reproduction of the records exactly as they exist. The fact that more modern methods of copying are devised should not lessen the basic right given under the common law.

With the addition of Pennsylvania, at least seven states now expressly say that the right of access to public records includes the right to make self-service copies, including smartphone photos. Even in states without an explicit right, requesters should assume that any record that could legally be transcribed with a pen-and-pad is equally legal to photograph -- and if a government custodian balks, make the agency identify a legal basis for refusing. 

Tagged: news, Pennsylvania Office of Open Records, Pennsylvania Right To Know Law, public records, recent-news, smartphones

Adviser for The Matador placed on indefinite administrative leave



CALIFORNIA — The student media adviser who oversaw the embattled The Matador student newspaper at San Gabriel High School has been placed on administrative leave indefinitely, the latest turn of events in the paper’s censorship saga.

The adviser, Jennifer Kim, has been told not to speak to her students and has been prohibited from coming on campus without an escort, according to the Pasadena Star-News. The Alhambra Unified School District is conducting an investigation into her conduct.

According to the Star-News, Kim was placed on leave in August after she had an “encounter” with the school’s new principal, Debbie Stone, at a student-run yearbook camp. Kim told the paper she was enforcing California Education Code 48907 to protect student journalists and their advisers, but declined to go into detail about the incident. The district is not commenting on the issue.

Stone has replaced Jim Schofield as principal. Schofield, who became the district’s director of English language development in July, was accused of censoring The Matador’s coverage of the dismissal of popular first-year English teacher and speech and debate coach Andrew Nguyen.

Schofield had asked to pre-approve the article about Nguyen, saying that it must be a positive feature without specifics of the dismissal. Later, Schofield said it wasn’t his intention to censor, but rather, he was concerned about Nguyen’s right to privacy.

The district conducted an investigation into the incident and found in June that Schofield did not mean to censor the article — critics, however, have found the investigation to be inadequate.

The district also announced plans to implement several safeguards for the student press, including mandatory student media training for staff members involved with student publications and revised procedures that align with California Education Code 48907.

It is unclear who will advise San Gabriel’s student media while Kim is on leave. According to the Pasadena Star-News:

Jazmin Campos, one of Kim’s yearbook students who attended camp, said they were all in “shock” when they heard the news.

“We’re all a little anxious to see how things are going to go,” she said. “We can’t have just any ordinary teacher be our substitute. We need someone with as much experience as her to help run the class.”

Tagged: California, news, recent-news, San Gabriel High School, The Matador

Congress' proposed FERPA amendments restrict use of student data for "marketing," while leaving public-records access problems unaddressed



This may be the year Congress amends the Family Educational Rights and Privacy Act, with proposed legislation looking to bring FERPA into the age of cyber-hacking and targeted advertising. But, at first glance, the proposals seem to mean little change -- good or bad -- for student journalists and other public-records seekers.

Four bills -- two in the House and two in the Senate -- have been filed so far seeking to add greater protection for student data. All four bills would prevent schools and their partner technology companies from selling or using student data for marketing purposes. The bills would also require those entities handling the data to create minimum security measures. Two of the proposals ( H.R. 3157 and S. 1322) would accomplish those goals by amending FERPA, while the other two (H.R. 2092 and S. 1788) would do so separately, without affecting the existing student privacy law.

WOULD MARKETING BAN AFFECT STUDENT MEDIA?

One important question for student media outlets is whether their agreements with outside vendors, such as yearbook companies or photographers, will be affected by the proposed bans on marketing to students. All of the proposals prohibit schools from using or sharing students’ personal information for advertising purposes. That would conceivably apply to scenarios as simple as providing email addresses to the yearbook vendor so that the company could send out information about yearbook purchases.

The proposal most friendly to student media, H.R. 3157, provides an exception for “official school pictures, class rings, yearbooks, or other traditional school-sanctioned commemorative products, events, or activities.” That exemption would cover a lot of student media needs -- but what is “traditional” in one school may not be “traditional” in another.

H.R. 2092 and S. 1788, which are essentially identical companion bills, make an exception for “contextually relevant” advertising online or on mobile applications, as long as the operator does not store information about the student’s online behavior. The bills are sponsored in the House by Rep. Jared Polis, D-Colo., and Rep. Luke Messer, R-Ind., and in the Senate by  Sens. Richard Blumenthal, D-Conn., and Steve Daines, R-Mont.

S. 1322 includes no exceptions to its advertising ban. The bill would prevent schools from using or providing entities access to students’ personal information “to advertise or market a product or service.”

NO CLARITY ON WHAT RECORDS ARE COVERED

Noticeably absent from the proposed FERPA changes is any attempt to clarify what records are actually covered. Open government advocates have repeatedly criticized FERPA’s definition of “education record” as so broad that it’s practically inviting abuse by schools. Indeed, schools have regularly hidden behind the law to deny access to records related to scandals, crime and other issues they wish to hide from the public.

H.R. 3157 would make the most changes to FERPA, but it does nothing to address the concerns about abuse. Its only major change to the definition of “education record” would be an expansion to include records maintained for the school by private companies, such as technology vendors. H.R. 3157 was introduced in July by Rep. Todd Rokita, R-Ind., and Rep. Marcia Fudge, D-Ohio, bipartisan leaders in the House Subcommittee on Early Childhood, Elementary and Secondary Education.

S. 1322 likewise would make few changes to FERPA, except to add new sections concerning information security and targeted advertising. The definition of “education record” would be unchanged. S. 1322 is sponsored by Sens. Orrin Hatch, R-Utah, and Edward Markey, D-Mass.

CREATING STRONGER ENFORCEMENT

The biggest differences in the proposals come down to how they would be enforced.

H.R. 3157 would give the Department of Education the added enforcement powers of imposing fines of $100 to $1.5 million for violating FERPA. Currently, the only statutory penalty for a FERPA violation is total disqualification from eligibility for federal money, which under Department rules can only be imposed if the Department determines that the school won’t voluntarily remedy its violations in the future. The Department has never imposed a financial penalty on anyone for a FERPA violation.

H.R. 2092 and S. 1788 would be enforced by the Federal Trade Commission, with the cooperation of the Department of Education. Supporters have implied that they avoided adding these measures to FERPA because of the Department of Education’s track record (or lack thereof) of enforcement.

Because these proposals creates a new law, instead of altering FERPA, the enforcement powers would apply only to violations of the ban on marketing or the required security procedures, which can be enforced by the FTC.

S. 1322 does not address enforcement, leaving the Department of Education’s existing enforcement regime unchanged.

LEGISLATIVE OUTLOOK

All four bills have bipartisan sponsorship, suggesting it isn’t just one political party wanting to add protections for student data. Blumenthal, one the prime sponsors of S. 1788, told The Hill that he hopes lawmakers will be able to combine their efforts into a single bill, which could pass this fall.

With many in Congress eager to make these changes to FERPA, it may be the best opportunity to fix the other broken parts of the law. It would be a shame if Congress did major surgery on FERPA without addressing the statute’s well-documented history of misapplication to obstruct citizens’ access to non-confidential public records.

For more information about how FERPA affects access to records from colleges and schools, consult the SPLC's FERPA White Paper, or submit your own FERPA records roadblock to be fact-checked by the award-winning "FERPA Fact" blog.

Tagged: education records, Family Educational Rights and Privacy Act, FERPA, news, recent-news

ESPN's quest to open Notre Dame police records gets a huge assist



Private universities should open their police records for public scrutiny because campus police perform "an almost exclusively public function," Indiana's chief law enforcement officer argues in supporting journalists' quest for access at Notre Dame.

In a brief filed Friday with the Indiana Court of Appeals, Attorney General Gregory F. Zoeller argues that sports network ESPN is entitled to the records of Notre Dame's police department because campus police are deputized to exercise the "most core sovereign power" of state government:

A police officer is perhaps the quintessential public employee, cloaked in the authority of the State to investigate, detain, arrest, incarcerate, carry and discharge a firearm, and generally maintain the safety of the citizenry.

ESPN is arguing that, although Notre Dame is a private university, its police should be covered by the Indiana Access to Public Records Act to the same extent as city or county police because they carry state-delegated police authority, including the power to make arrests. 

On April 20, a St. Joseph's County Superior Court judge dismissed ESPN's lawsuit, finding that the Notre Dame police department is an inseparable part of its parent university, which as a private institution is not subject to the Public Records Act. (In addition to Notre Dame, 10 other private institutions in Indiana, including Butler and Valparaiso, maintain police departments deputized to exercise state arrest authority.) 

Access to police incident reports is critical for informed news coverage, since incident reports contain the narrative description of what officers witness when they respond to crimes, as well as identifying information that enables journalists to verify who, what, where and when. 

The attorney general's influential voice could be highly persuasive in the Indiana appellate courts, which have ruled in contexts outside of the Public Records Act that private-college police are "state actors" whose conduct is governed by the same constitutional limits as city or county police. 

In a comparable case brought by a college editor at Ohio's Otterbein University, a supporting brief by Attorney General Mike DeWine helped persuade the Ohio Supreme Court to open the records of Otterbein's police department for public inspection. Since 2012, private-college police reports have been declared to be public records in North Carolina, Texas and Ohio, with only the Indiana ruling as an outlier.

In the nationwide movement to reform campus police secrecy, Notre Dame is perhaps the biggest quarry. Its police force has resisted scrutiny of a number of high-profile cases involving athletes, especially following the 2010 suicide of a college freshman whose sexual-assault complaint against a Notre Dame football player resulted in no criminal charges. 

Tagged: ESPN, Indiana Attorney General, news, Notre Dame, police records, private universities, public records, recent-news

Professor’s free speech case against University of Illinois at Urbana-Champaign will continue, judge rules



ILLINOIS — Professor Steven Salaita will continue his free-speech case against the University of Illinois at Urbana-Champaign over his controversial firing, now that a federal judge has rejected the university’s attempt to throw out Salaita’s lawsuit.

Last summer, Salaita, a Palestinian-American, posted a series of controversial tweets criticizing Israel’s military assault on Gaza. The university fired Salaita, who was tenured.

In late January, the Center for Constitutional Rights brought a lawsuit on Salaita’s behalf against the university, arguing that UIUC violated Salaita’s rights to free speech and due process and breached its employment contract with him. He is seeking reinstatement and monetary relief, on the basis that he has suffered economic hardship and reputational damage because of the university’s actions.

The university tried to block the lawsuit, claiming that it did not have a contract with Salaita and dismissing Salaita’s First Amendment claims. On Aug. 6, the court rejected both arguments, writing that Salaita’s tweets “implicate every ‘central concern’ of the First Amendment.”

“Given the serious ramifications of my termination from a tenured professorship to a wide range of people, I am happy to move forward with this suit in the hope that the restrictions on academic freedom, free speech, and shared governance will not become further entrenched because of UIUC’s behavior,” Salaita said in a statement.

The university has faced intense criticism from multiple academic organizations, prominent academics and its own students and professors — 16 academic departments at UIUC have voted no confidence in the administration, according to the Center for Constitutional Rights.

Also on Aug. 6, UIUC Chancellor Phyllis Wise announced she will resign, effective next week. In a statement, she cited “external issues” over the past year that “distracted us from the important tasks at hand.”

In June, the university was ordered by a federal judge to release about 9,000 emails between university officials and trustees, in relation to Salaita’s firing. The university initially denied the FOIA request, citing the “unduly burdensome or voluminous” clause of the statute.

Salaita’s case is part of a recent rash of cases related to professors’ academic freedom to speak, teach and write without the fear of facing administrative censorship or dismissal for their opinions. Currently, 53 universities have policies in place that do not meet the American Association of University Professors’ standards for academic freedom.

An article on Salaita’s case in the spring 2015 edition of the Student Press Law Center’s Report magazine quoted multiple professors and experts who say that policies that restrict professors’ speech is harmful to the free exchange of ideas essential to a university system — the “marketplace of ideas.”

“If we don’t protect academic freedom, then faculty members will be looking over their shoulders fearful that if they say something that the administration doesn’t like, or the legislature doesn’t like or some big donor doesn’t like, then they’ll be fired,” the AAUP’s Anita Levy said in the article, which will be posted online next week.

Tagged: Illinois, recent-news, steven salaita, University of Illinois at Urbana-Champaign

Let the dead stay buried: online archiving does not bring "zombie" defamation claims back to life



Recently, a college editor in Massachusetts received a nightmarish letter from a law firm claiming that its client was defamed in an article posted to the student newspaper's website.

In 1998.

Imagine trying to go back seventeen years to piece together the circumstances surrounding a news story, when memories have faded, notes have been discarded and recordings erased. Because such a burden would be unsustainable for publishers, every state has a statute of limitations for defamation claims that expires no longer than three years from the date that the statement is first published (and in many states, as little as one year). Once the statute has elapsed, even the best-founded libel claim cannot be resuscitated.

Those statutes of limitation were enacted in a simpler time of paper-and-ink publishing. How they apply to digitized archives is a question that the courts only recently have been forced to confront.

When news organizations began making online back-issues available for public viewing, two things happened. First, people began searching and finding their names in unflattering articles they believed (or at least hoped) were no longer readable beyond the basement stacks in the public library. Second, creative libel lawyers got the idea of end-running the statutory time-bar by arguing that making an article accessible online essentially stopped the clock -- as if every day that a story remained on the Web was a new republication.

A recent federal court ruling out of Tennessee, however, reinforces the consensus that the "single publication rule" -- the principle that the lawsuit clock begins ticking with the first date that an article is made available to the public -- applies on the Web page just as it does on the printed page.

In Clark v. Viacom International Inc., former "American Idol" contestants Corey Clark and Jaered Andrews sued the owners of MTV and VH1 over articles on the network' websites discussing how Clark and Andrews were disqualified from the long-running prime-time talent show (each had an arrest record that came to light after they had advanced to elite rounds of the competition). Several of the posts made sarcastic references to the contestants' backgrounds, including one which named a fictitious "Award for Past Indiscretions" after Clark (who is best remembered as the contestant who claimed he was clandestinely coached by -- and romantically involved with -- Idol judge Paula Abdul).

The articles were published between July 2011 and May 2012, which made the claims untimely under Tennessee's one-year statute of limitations. But Clark and Andrews argued that the stories were "republished" every day that they remained viewable, noting that the websites continually refreshed the ads surrounding the articles. 

In a July 8 opinion written by Judge Richard Griffin, the Sixth Circuit rejected that claim:

Stale statements are not perpetually actionable under Tennessee defamation law solely because they continue to be available to the online public. ... [T]he test of whether a statement has been republished is if the speaker has affirmatively reiterated it in an attempt to reach a new audience that the statement's prior dissemination did not encompass. 

The court noted that at least three other federal circuits (the Third, Seventh and Ninth) have agreed that the "single publication rule" applies even when an article is continuously posted to the Web, and that no circuit has disagreed.

The Clark ruling is the most thorough examination so far of what does and does not equate to "republishing" an online story, so -- even though the publishers won this time -- the case is also useful as a caution to future publishers about the risk of reincarnating a dead libel claim.

According to the court, it is not a republication merely to (1) point readers to an old article by linking back to it in a new article, (2) add new content to the page surrounding the old article, or (3) change the functionality of the website or the URL of the article without actually altering the article's text.

And according to the court, here is what can be a republication that restarts the statute of limitations: making a "materially substantive change" to an already-posted article, especially if the change is intended to cause the article to reach a new-and-different audience. 

Intriguingly, the court raised, but did not decide, the question of whether merely making the identical article text available to a wider readership could qualify as a new publication that resets the defamation calendar -- for example, dropping a paywall and making a formerly limited-access article available to the general public. (In a somewhat analogous case from the pre-digital era, a California court decided that reissuing a hardcover book in paperback was a new publication aimed at reaching a new audience, even though the allegedly defamatory passage was itself unchanged.)

If you have questions about the law of online publishing, the SPLC's white paper, "Responding to Takedown Demands," offers research about common scenarios that arise in operating news websites.

Tagged: American Idol, Clark v. Viacom International Inc., Corey Clark, defamation, Jaered Andrews, libel, news, recent-news, Sixth Circuit U.S. Court of Appeals, statute of limitations

Six California colleges were not fully compliant with the Clery Act, state audit finds



CALIFORNIA — Six surveyed colleges in California are not in full compliance with the Clery Act’s standards for campus crime reporting and security policy disclosure, a recent report released by the state auditor found.

The report audited Fresno City College, San Francisco State University, Shasta College, Stanford University, the University of California San Diego, and the University of the Redlands. Only Fresno City correctly reported its crime specifics, and only Stanford disclosed all of its policies in its 2014 annual security report.

The report found 13 reporting errors, including one Clery Act crime that an institution did not report. Five crimes were misclassified as Clery Act crimes — for example, two thefts were misreported as burglaries, which the Clery Act requires institutions to report (the statute does not require colleges to report thefts). More than half of the errors involved misreporting the location where the Clery Act crime occurred.

The auditor also surveyed 79 campuses across California with enrollments of 500 or more that participated in federal financial aid programs and reported no criminal offenses for 2013.

Most of the 79 campuses said that they had processes in place to help ensure they report accurate crime statistics — most said they provided a link on their website to view their security policies and annual crime statistics.

But 21 percent of these respondents did not indicate that they notify their current students and employees of their campus security policies and annual crime statistics, which they are required to do under the Clery Act.

Since colleges self-report crime rates, including of sexual assault and other violent crime, the disclosure rates can be misleading low and some colleges claim they have never experienced a violent crime. In an investigative series, ‘Campus Insecurity,’ Student Press Law Center reporter Sara Gregory and the Columbus Dispatch exposed the secrecy and leniency of colleges’ response to sexual assault.

The California report also found that the most frequently incomplete or missing policy disclosures related to the Violence Against Women Act, which in 2014 added specific policy statements that institutions are now required to include in their annual security reports.

The Clery Act, named for Pennsylvania college student Jeanne Clery, who was murdered in her dorm room by a fellow student in 1986, first took effect in 1998. It mandates that all colleges and universities that accept federal funding — virtually all colleges — provide timely (or in some cases, “immediate”) warning to the campus community of crimes considered to be a threat to physical safety that are reported to campus security or local law enforcement.

In addition to notification of individual crimes, the law requires that schools provide an annual statistical report and a daily campus crime log. The statistical report must include campus security policies and procedures and a listing of policies that encourage accurate and prompt reporting of crime to the campus police and law enforcement agencies.

The California state auditor has conducted five audits of California’s public institutions since 2002, when it became a requirement under state statute.

The issues in the most recent report are similar to those in the four previous reports. The report recommends that compliance could improve with more guidance from the systemwide offices of the state’s public institutions, and from the creation of a state entity that provides guidance to all institutions.

For Sunshine Week in April, the Student Press Law Center conducted its own audit of Washington, D.C.-area colleges — Catholic University of America, Georgetown University, American University, and George Washington University. SPLC reporters, equipped with GoPro cameras, went to the universities’ police departments and asked to see campus crime logs for the past 60 days. Only Georgetown did not provide or let the SPLC reporter review a physical copy of its crime log on site, as federal law requires.

Tagged: California, recent-news

Minutes of school-board personnel discussions can be released for public inspection, N.C. court rules



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

Appeals court's "ethnic studies" ruling fortifies students' rights to receive information



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