The Student Press Law Center blog
News that Rolling Stone has agreed to pay $1.65 million to the University of Virginia of Phi Kappa Psi to settle a defamation lawsuit over the 2014 story “A Rape On Campus” brings legal closure to a troubling episode that reminds all journalists of the importance of rigorous fact-checking and editing.
The since-debunked article told the story of a student given the pseudonym “Jackie,” who alleged that several Phi Kappa Psi members had raped her, at the instigation of a member she trusted. The story was later retracted by Rolling Stone after many of its claims were discredited, but not before the story created a legal headache for the magazine.
Earlier, both the magazine and author Sabrina Rubin Erdely were found liable for defaming a former UVA administrator whose conduct was a focus of the article, and paid a substantial but undisclosed settlement to avoid appeals over a $3 million jury verdict.
An independent report by the Columbia Journalism School (the report's subtitle -- "A failure that was avoidable" -- is a giveaway) found Rolling Stone had missed many opportunities to get the story right and avoid liability. Here are five lessons, derived from the Columbia findings, that student journalists can learn from Rolling Stone’s mistakes:
(1) Give opportunity for comment. In some cases, Rolling Stone totally failed to give accused individuals and entities opportunity to comment on Jackie’s allegations. In other cases, it didn’t give individuals enough detail about Jackie’s allegations to properly comment. For example, when the magazine contacted the fraternity for comment, the reporter asked only generally about “allegations of gang rape.” The reporter did not explain that she had been in contact with Jackie, or what Jackie had specifically said about the incident.
This opened the magazine up to legal trouble. Had the reporter asked more detailed questions of accused individuals and entities, she may have seen reason to investigate further and may have discovered that Jackie’s story was not completely true. The single best defense against a claim for defamation is to give any identifiable person accused of wrongdoing a complete opportunity to respond to the accusation, and a "complete" opportunity requires understanding the severity of the accusation.
Student journalists should always give accused subjects opportunity to comment, including opportunity to comment on specific allegations. This gives involved parties opportunity to set you straight if one source has given you incomplete or incorrect information, saving you from potential liability down the line.
(2) Be especially careful when stating or implying that a professional person is incompetent at her job or failed to do her job. When these statements prove to be false, it’s what lawyers refer to as “libel per se,” something so damaging to a person's reputation that it's assumed to be harmful without even needing to prove the harm. This is exactly the type of injury that libel laws exist to prevent.
In one of the libel suits that came out of “A Rape on Campus,” Rolling Stone was accused of portraying then-UVA associate dean Nicole Eramo as the “chief villain.” The article had alleged that Eramo had encouraged Jackie not to report her rape, thereby making it appear that Eramo failed to do her job. Avoid similar mistakes by fact checking, giving opportunity to comment, and avoiding inflammatory language. When appropriate, focus on institutional versus individual professional failure. It’s much harder to libel an entire large institution like a university than an individual, and had the article more broadly asserted that “the university” failed to take the rape case seriously, it would have been more challenging for any individual plaintiff to establish a personal injury from the article.
(3) Be judicious in using pseudonyms. Rolling Stone used many pseudonyms in its “A Rape on Campus” story, sometimes using them as a substitute for reaching out to individuals for comment. For example, the magazine assigned made-up names to three of Jackie’s friends after the reporter had trouble arranging contact with them through Jackie (a red flag that went ignored). The magazine also used a pseudonym for the main perpetrator of the alleged assault instead of seeking to identify the individual and reach out for comment -- or, at least, to verify details confirming that he was a real person. Had the magazine sought out these individuals, it may have uncovered inaccuracies in Jackie’s story and avoided liability. When considering using a pseudonym, think carefully about whether the situation warrants it, or if it’s being used as a bandage for lazy journalism.
(4) Don’t assume that attributing accusations gives you any protection. Rolling Stone almost exclusively relied on Jackie for its report. The reporter did not seek out additional sources because of pushback from Jackie and because she wanted to trust Jackie. This meant that Jackie’s untruths became Rolling Stone’s, setting it up for liability. It is a common rookie mistake to assume that it's legally "safe" to accuse people of wrongdoing if the accusation is attributed. It's not. Publishing an unfounded accusation without due care can be libel whether the accusation is made by the publication or by a source quoted in the publication.
Had Rolling Stone checked with additional sources, such as Jackie’s friends or the fraternity calendar (which showed, contrary to Jackie’s report, that no party had been held on the night in question), the magazine may have been able to responsibly report the truth. Especially when dealing with controversial subjects or issues that might damage individuals’ reputations, take care to find at least two sources to corroborate important details in the story -- even if you’re doing the fact-checking as an internal “gut check” with no plans to publish all of the details. (In the case of reporter Erdely, that moment of remorse struck when -- much too late -- she asked Jackie to confidentially share the name of the accused ringleader of the assault. As soon as Erdely had the name, it became evident that the story did not check out.)
(5) Discuss approaches to sensitive stories with other members of your staff. You'd assume a large national magazine like Rolling Stone would catch mistakes through multiple layers of review. That's what they assumed, too -- and that assumption led to a disastrous result. Instead of independently verifying claims, the fact-checker trusted that the editor and reporter had already done this. The editors trusted the reporter. The reporter trusted the editors. Like the fly ball that drops between the outfielders, "A Rape on Campus" became a story for which everyone was liable but no one was responsible.
A rigorous editing process isn’t a guaranteed defense against error -- no process can make any news publication 100 percent error-free, and even seemingly trustworthy people sometimes furnish false information -- but it is a defense against losing a libel suit. The law doesn’t expect perfection, but it does demand that publishers take reasonable precautions against falsehoods. Every precaution that could’ve been followed and wasn’t puts another weight on the scale of liability. Had the Rolling Stone newsroom culture fostered healthy debate over best practices in pursuing this story, the editors may have pushed the reporter to check with more sources, and the fact-checker may have independently researched aspects of Jackie’s story and uncovered inconsistencies. Plus, having these conversations can make you a better journalist by giving you ideas and perspectives you may not have considered.
Tagged: Columbia Journalism School, libel verdicts, news, news-recent, recent-news, Rolling Stone, tip-sheet, tipsheet
The First Amendment continues to prove confounding for those running public high schools in New Jersey – from Wall High School to Princeton High School, and now Morristown High School, where the administration removed an art piece depicting President Trump as a pig holding an angry cat.
The satirical artwork was created by Morristown High School junior Liam Shea for the annual MHS Art & Design Show. Shea’s other art piece – depicting Trump on a missile, taking a selfie – was also removed. The theme of the show was “America Takes a Selfie.”
Shea told MorristownGreen.com that MHS Principal Mark Manning “was very respectful. First he said, ‘I appreciate the risk you took, and it’s very well done … but other people weren’t too happy with this.'”
Though his artwork was removed, Shea, an aspiring video game designer, welcomes the publicity the controversy has caused.
“Me, I think it’s great,” Shea told MorristownGreen.com. “If it wasn’t taken down, I wouldn’t be talking to you!”
On the other hand, Shea’s mother, Kelly Shea, is disappointed the school caved to complaints.
“Whatever happened to freedom of expression? Isn't this what art is about?” she wrote in a Facebook post.
She later posted, “[Liam] holds no ill will over the decision and has the utmost respect for the principal and all his teachers at MHS. He has no intention of demanding it be returned to the display or causing any trouble for the school.”
Liam’s artwork will still be seen in the Tricorn, MHS’s award-winning literary magazine.
The support for Liam’s artwork was evident as strangers filled Kelly’s Facebook posts with requests for prints and T-shirts. Due to the demand, the print is now available on Redbubble, where people can order it on a T-shirt, phone case and other items.
Federal courts have given schools significant, but not unlimited, authority to govern the display of student expression in hallways. The walls of a school building are not regarded as a “public forums” for unrestricted expressive use, but any school regulation must pass the test of educational reasonableness and, importantly, must not discriminate based on viewpoint. Pulling down artwork because it provokes complaints from others – particularly where the artwork involves political speech, an especially protected category of expression – is on uncertain constitutional ground.
Tagged: blog, Blogroll, censored-art, New Jersey, recent-news, school censorship
A graduating senior at a New Jersey high school was suspended over what administrators described as a “racist” photo she submitted to the yearbook.
As part of the Princeton High School yearbook’s senior collage, Jamaica Ponder submitted a photo of herself and 16 friends, which included artwork in the background that contained the n-word and images of lynchings. The n-word in the painting is not immediately recognizable, with the ‘N’ and the ‘E’ obscured by people in the photo. The other painting appears in the upper left corner of the photo, partially blocked by a person.
The artwork belongs to her father, Ponder wrote in an online magazine she edits. While submitting a photo containing a racial slur was an oversight, she wrote, she took pride in that “[her] father’s art served its purpose without [her] even noticing.”
She also said she feels the suspension was retaliatory, as she is a black student who was outspoken about racism at her school and “had to be silenced.”
“It's frustrating to me to watch the school deliberately refuse to be more transparent and address its multitude of issues,” Ponder told Newsworks. “The problem isn't that they aren't perfect; the problem is that they aren't doing anything to make themselves better. Rather, they quite literally hide behind me and litter the airways with irrelevant and frequently flawed accusations and reasonings for why things happen.”
About 15 students protested Ponder’s suspension Monday afternoon and created a petition that demanded PHS Principal Gary Snyder remove the suspension from Ponder's permanent record, as well as require all administrators and faculty to educate themselves on how profanity is used by different racial and ethnic groups.
The staff addressed publishing the photo in a Facebook post:
To the PHS Community:
The goal of this year’s yearbook was to highlight “the way we connect,” to both represent and foster the unity of our school community as well as the diversity within it. However, after distributing the 2017 Prince this past Wednesday, we realized we fell short of our goal—we have been notified of several issues in this year’s book.
In addition to the usual small publication errors, some hurtful content was published. It has been brought to our attention that there are senior collages that included insensitive, racist, jarring, provocative content that should not have been printed. The purpose of collages has always been to allow students to own a personal space for celebrating their memories and friendships. We are also aware that there are errors outside of the senior collages, some of which were hurtful. Perpetuating racism or injustice of any kind is never okay. We apologize for not catching these offenses. We would never knowingly publish such content.
We recognize that the copyediting of our book needs to be strengthened and feel responsible for any pain caused. When the book we produce creates hurtful consequences—as it has—we deeply and sincerely apologize, take full responsibility, and commit to action steps that improve our future publications. We want our school’s yearbook to reflect our necessary community efforts toward social justice for all marginalized groups, including race, gender, sexuality, ability, class, and religion.
The post also included a link to a feedback form, which encouraged the community to comment on “the past, present, and future” of the yearbook. The staff wrote the note when it became aware of “these images and unintentional mistakes,” Diana Lygas, the yearbook adviser, said in an email. She said action steps are being taken to improve next year’s volume, including committing to diversifying their yearbook staff through actively recruiting students from different backgrounds.
Ponder’s parents, who are both lawyers, have asked for the suspension to be rescinded and told CNN that they plan to appeal to the borough's civil rights commission to investigate the high school for its disciplinary practices, which the Ponders feel disproportionately impact students of color.
“I think the unintentional presence of the art to be perfectly reflective of my existence and it intrigues me that it is so scary to people,” Ponder wrote. “My history, which is portrayed here with artistic intent, consistently intermingles with the vibrancy of my day-to-day life. I do not pick and choose when it matters to me.”
Tagged: high school yearbook, racial discrimination, recent-news, student speech
The Student Press Law Center’s own Frank LoMonte joined free speech advocates and media experts at the Newseum’s Knight Studio on Wednesday for a discussion about student journalism, protests against controversial speakers and how attitudes of millennials are shaping free speech on college campuses.
At times, the event -- called “The First Amendment on Campus: Freedom of Speech and the Press in Higher Education” and moderated by Gene Policinski, chief operating officer of the Newseum Institute and a founding editor of USA Today -- took the form of a debate.
Jeffrey Herbst, CEO of the Newseum, criticized what he sees as a trend of millennials being intolerant of free speech and older conservatives coming to its defense. Herbst recently wrote a piece for the Chronicle of Higher Education about a case in Washington state where members of the campus community called for a professor’s resignation following comments he made that some described as being racist.
John Wilson, co-editor of the American Association of University Professor’s Academe Blog and a free speech expert, said he disagreed with Herbst’s characterization of millennials as a problem for free speech or unsupportive of the doctrine of the First Amendment.
Turning the discussion to administrators, Catherine Ross, a professor of law at George Washington University, examined the actions and policies of schools that are not in compliance with the First Amendment. When teachers or administrators censor speech that makes the school look bad or that upsets people, schools lose teachable moments in which students can learn to deal with speech they don’t agree with.
The second panel of the event addressed concerns for student media, which often finds itself at odds with their institutions.
Hank Reichman, vice president of the AAUP, said that financial and editorial independence are especially critical, though many student publications do not have those guarantees. This independence allows students to learn their profession appropriately -- with suggestions, but not requirements, from their journalism faculty and advisers -- and serve their role as a watchdog on campus.
The panel also included a student journalist who was able to provide a first-hand account of how to uphold these principles. Courtney Rozen, editor-in-chief of American University’s student newspaper the Eagle, described the often difficult balance between being a member of a community like a college campus and still providing detached reporting.
LoMonte, executive director of the SPLC, prefaced his discussion about the worst abuses of the First Amendment with the qualification that in some cases administrators and faculty are not adequately trained.
Nevertheless, he said, free, uninhibited student media is the best resource the campus has to shine a light on important issues, many of which employees may not be able to speak out against.
Tagged: recent-news, student-protest, student-run newspaper
A teacher at a New Jersey high school was suspended this week after allegedly censoring photos and quotes in the school year book to remove references to Donald Trump.
Grant Berardo, a junior at Wall High School, posed for his yearbook photo in a t-shirt that included the phrase “TRUMP: Make America Great Again." In the photograph that was published, Berardo's clothing had been digitally altered into a plain black T-shirt. For his photo, Wyatt Dobrovich-Fago wore a fleece with “TRUMP” printed on the breast, but the president’s name was cropped out in the final image. His sister, Montana, who is the freshman class president, submitted a quote from Trump to run alongside her photo. The quote never made it into the yearbook either.
Wall Schools Superintendent Cheryl Dyer said Friday she was investigating why the censorship occurred.
She told the Asbury Park Press that she was “quite disturbed by the entire situation.” She stated that “Political shirts are absolutely not a violation of the dress code" and there's no policy prohibiting political messages in school pictures. The school said Tuesday that students did not play a role in the decision to censor the Trump-related content.
Susan Parsons, the yearbook adviser, has worked in the Wall District for 15 years, according to her classroom webpage. She is described on the high school website as part of the technology/media department and lists digital media design and computer technology among the courses she teaches, in addition to the yearbook class. Attempts to contact Parsons for this story were unsuccessful.
Joseph Berardo, the father of one of the censored students, said he wants the school to issue new yearbooks with the un-altered photos and would consider legal action if that doesn’t happen. In response, the school has offered to send home stickers that could replace the images.
“They’re going the right direction," Berardo told the New York Post. "I’m pleased with the way they’re handling it."
Tagged: donald trump, news, recent-news, school censorship
State and federal employees have long been held to a different level of scrutiny than workers in the private sector.
Their salaries and benefits come from taxpayer dollars, and their performance is a matter of concern for the public they serve.
There is sometimes an uncertain line between employees' personal privacy and proper oversight for the metaphorical shareholders.
And while some distinctions have already been decided by the courts, public institutions or legislatures, journalists and government watchdogs sometimes have to push agencies to reveal the information the public is entitled to.
In California and Oklahoma, student journalists are pushing for lists of retired and soon-to-retire employees, but their colleges have denied their requests, citing personal privacy.
At East Los Angeles College, The Campus News requested a list of soon-to-retire faculty to write features and do a spread about the departing professors, but the request was denied.
Campus counsel cited the California Public Records Act as cause for denial, but did not mention what specific part of it.
Section 6254(c) of the CPRA prohibits disclosure of “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”
However, the courts have ruled that the identity of public employees up for retirement or retiring do not constitute an unwarranted invasion of privacy, nor do they garner protection from the balancing test between the public’s need for disclosure and the individual’s need for privacy.
In 2010, a superior court in Sacramento found that names and pension information of all public employee retirees are public record, after The Sacramento Bee and the First Amendment Coalition requested documents from the Sacramento County Employees’ Retirement System.
The Fourth District Court of Appeal also ruled that the names of public employees who have retired are public, as are the amount of benefits they receive.
The court said, “The disclosure of pension information provides information about the government’s management of public [funds], in which the public has a legitimate interest. Pension benefits are not exclusively related to personal financial decisions of former employees.”
Section 6254.8 of the CPRA also explicitly says that public employee employment contracts are public records.
Megan Razzetti, the editor-in-chief of The Campus News, said she had her staff call each department to try to get names for features for the special issue. She said she felt that, without a complete and comprehensive list, readers might have interpreted the selective inclusion of certain professors in the coverage to be favoritism, which the staff tried to clarify with a front-page editorial.
According to the editorial, the university’s Academic Senate was also denied the list, which may hinder the distribution of a small token -- a crystal apple for each retiree -- of the university’s appreciation.
“It’s really confusing that they would do that, especially to Academic Senate as well,” Razzetti said. “We‘re not trying to expose how much they make or anything like that. We were just trying to do something nice for our faculty.”
Last year, the University of Oklahoma provided a list of employees eligible for a voluntary early retirement program to The Oklahoma Daily. This year, it denied The Daily’s request, citing Oklahoma Statute §51-24A.7(A)(2), which allows agencies to withhold records that would be an unwarranted invasion of personal privacy.
In its denial, the university mentioned public disapproval with the student newspaper’s decision to publish the list of names provided by the university last year.
One letter to the editor The Daily published said that employees were faced with a tough decision, and the published list could have been used to criticize or pressure the employees who refused early retirement.
The volunteer program had been implemented to save the university money, and was well received by the campus community.
According to The Daily, the list of employees is not just important for determining how much money the program will save the school, but with a hiring freeze in place at OU, the names will reveal if certain departments could see major decreases in faculty. The Daily reports that, last year, 146 of the 386 eligible employees accepted early retirement. This year there are 425 eligible employees.
The Daily’s Editor-in-Chief Dana Branham said that students have a right to know if professors whose classes they signed up for will be leaving and which departments could lose experts in certain topics or many faculty members at once.
“The university is denying us records because of what they are anticipating that we might do with them, which is not how the law works,” Branham said.
Branham said she was not sure if the matter would go to court since her advisers told her it would ultimately be on her or another editor to pursue legal action.
Tagged: East Los Angeles College, news, OU Daily, public records, recent-news, University of Oklahoma
When the government sets out to punish someone for speaking, it doesn’t much matter what the punishment is. Even something as insignificant as canceling an employee’s birthday party, the Supreme Court has told us, can constitute illegal retaliation if it’s meant to deter disfavored speech.
But when the speaker is a student and the regulator is a school, the severity of the punishment can be decisive. “Just a little” retaliation gets a tolerant judicial wink, legitimizing wrongdoing that wouldn’t be tolerated from any other government authority figure.
Courts have sloppily – or mean-spiritedly – departed from settled First Amendment doctrine when bending over backward to rule in favor of school authorities. If you listen closely, you can hear the exasperated sighs of judges desperate to keep their courtrooms from becoming a venue for the grievances of passed-over cheerleading aspirants.
Federal judges have been willing to countenance the retaliatory removal of students from sports teams, from student government offices and, yes, from cheerleading squads even when it’s undisputed that the student was a whistleblower challenging authority figures – exactly that speech that, outside of school, the First Amendment most strongly protects.
So when a judge finally gets it right, that’s cause for celebration – even, dare we say it, for cheering.
In a recent Texas case, U.S. Magistrate Judge Christine Nowak decided that a student whistleblower can bring a First Amendment claim even though his only injury was being benched from his high-school baseball team.
The case, Wright v. Denison Independent School District, began when a Denison high school baseball pitcher (referred to in court as “B.W.” because of his age) reported his baseball coach for a series of unprofessional remarks. B.W. told his parents, who then told school authorities, that B.W.’s coach urged the pitcher to cheat by lubricating the baseball and made crass sexual remarks about B.W.’s mother.
The family’s lawyers allege that, rather than taking any curative action, Superintendent Henry Scott threatened to kick B.W. off the baseball team for “causing trouble” with the coach. B.W. was removed from his starting pitching role and denied an award he had earned as the team’s outstanding pitcher, the lawsuit alleges.
In the view of (too) many courts, B.W.’s injury would be too immaterial to support a First Amendment claim. Particularly where it involves playing time on a sports team, judges hesitate to wade into subjective coaching decisions that may involve intangible considerations of team harmony and morale.
But Nowak resisted the easy opportunity to punt the case, not to mix the sports metaphors too badly.
In an April 19 opinion, she found not only that a student can sustain a First Amendment claim by demonstrating that the lost opportunity to play a sport was meant to punish non-disruptive speech, but that the right is so clearly established that school officials should have known it at the time. Hence, if the cause-and-effect chain of events is proven, Denison school authorities cannot escape liability by insisting that the legality of their behavior was uncertain, the judge found:
Under the circumstances, the Court finds Plaintiff's First Amendment rights were clearly established when the events underlying Plaintiff's complaint occurred, as was the law prohibiting retaliation against students who exercise those rights, and reasonable officials standing in the shoes of the individual defendants would have known their actions and/or inactions violated Plaintiff's constitutional rights.
In a May 24 order, the U.S. district judge assigned to the case, Amos L. Mazzant III, adopted the magistrate court's disposition of the First Amendment issues, so the Wright family will get to proceed with its retaliation claim.
The Wright case is worth careful watching, for its potential to correct an injustice in the law that has emboldened schools to retaliate against speakers without fear of consequences.
The First Amendment caselaw is clear that any retaliatory act that (a) is intended to inhibit speech, and (b) would actually inhibit a reasonable person from speaking, is sufficient to sustain a constitutional claim, even if that harm isn't as concrete as being fired from a job or expelled from a school. When a school withdraws eligibility for extracurricular activities as punishment for whistleblowing speech, the school plainly is sending a message -- to that speaker, and to the entire school community -- that complaining is regarded as a punishable offense leading to the loss of a potentially irreplaceable college credential. Particularly with schools asserting jurisdiction over students' social-media speech during their off-hours, it's essential for the courts to get this one right, and to recognize that the loss of extracurricular privileges is a significant injury worthy of constitutional redress.
Tagged: First Amendment retaliation, high-school-athletics, news, recent-news, Wright v. Denison Independent School District
The University of Louisville Foundation‘s ‘forensic’ audit will be released Thursday and is expected to reveal how the foundation handled endowment funds from 2010 to 2016.
The audit was a decision made by the University of Louisville Board of Trustees, who became increasingly frustrated with the Foundation’s lack of transparency – specifically concerning which university employees were being paid by the Foundation. The Foundation used an outside accounting firm to manage its “deferred compensation” plan, which resulted in the foundation paying more than $20 million to about a dozen high-ranking administrators over the years.
“The foundation’s former longtime attorney said in March that the foundation created separate companies, whose sole purpose was to manage the deferred compensation, ‘for obfuscation purposes, clearly,’” according to WDRB. The foundation created these companies for the purpose of subcontracting work and management of documents, which they did with the accounting firm that kept records of the extra pay. Using an independent firm to house the information was intended to provide “privacy” for the administrators who received the extra pay, former foundation attorney David Saffer told WDRB.
To dig deeper into how else the foundation is handling its funds, the board hired Alvarez & Marsal, a Chicago firm, to perform the investigation under a $1.7 million contract.
This is only the latest in an ongoing effort to shed light on the foundation. Last September the foundation, which handles all of the private funding for the second largest university in Kentucky, was sued by the Kentucky Center for Investigative Reporting for delaying and blocking access to records requests. The Foundation was found by the Kentucky Supreme Court to be a public agency back in 2005 because it was created by the university to fill a necessary function, so it is subject to open records requests.
Between August and mid-September 2016 – when the KyCIR began its lawsuit – the attorney general ruled four times that the University of Louisville Foundation was required to hand over the documents as per Kentucky’s Open Records Act. KyCIR settled the lawsuit with the Foundation in December. In the settlement agreement, the Foundation produced the requested documents and agreed to pay $15,000.
This isn’t the first time the University of Louisville Foundation has been brought to court for violating the Open Records Act. In 2001, The Courier-Journal requested the identities of donors and amounts contributed to the University of Louisville’s “McConnell Center.” The Foundation refused to hand over the documents, stating that it was not a public agency and therefore not subject to the Open Records Act. The Foundation also refused on the grounds that “it would be an unwarranted invasion of the personal privacy of each of these donors.”
Though there was disagreement among the courts as to whether the requests qualified as “a clearly unwarranted invasion of personal privacy,” the Kentucky Supreme Court and Court of Appeals upheld the Jefferson Circuit Court decision that the University of Louisville Foundation is a public agency under statutes KRS 61.870(1)(g) and KRS 61.870(1)(j). This decision means the Foundation is subject to the Open Records Act and must respond to open records requests unless they fall under an exception, such as content of private donations.
It’s unusual for universities to actively seek transparency from their nonprofit foundations, but the tribulations of the U of L Foundation may finally be shaking loose the systemic pattern of secrecy it relied on. As the SPLC reported last fall, the lawsuit and lack of transparency led two of the foundation’s major donors to withhold further contributions until an audit was conducted. This secrecy has hurt the organization over the past fiscal year, with endowment gifts to the university at less than half of their total value from the previous year.
All of this occurred while former university president James Ramsey was head of both the University of Louisville and the Foundation. According to a 2015 Courier-Journal article, Ramsey was paid $1.3 million by the Foundation for the previous school year. It also states that Ramsey’s salary was 2.5 times higher than the other 14 presidents and chancellors in the Atlantic Coast Conference.
In an effort to combat the transparency problem, the Foundation has adopted its first detailed operating budget and ended a “deferred compensation” program that cost more than $20 million.
However, according to an article by KyCIR, the Foundation isn’t the only area where secrecy has occurred. Pizza franchise entrepreneur “Papa” John Schnatter pulled $1.5 million from an expansion of the Papa John's Cardinal Stadium, but the athletics department was not informed of this change. The agreement, published on the KyCIR website, was signed by Schnatter and Ramsey, who served as the chairman of the athletic association board of directors, in addition to his role as university president and head of the Foundation.
The Chicago firm performing the investigation will present its findings to University of Louisville's board of trustees in a special meeting Thursday.
Tagged: audit, blog, FOIA, Kentucky, lawsuit, recent-news, university foundations, University of Louisville
It’s that time of year again when school administrators and student journalists face the nail-biting moment of yearbook release, mostly excitement with just a bit of (occasionally well-founded) trepidation.
When an administration decides to bar the class from distributing the publications, requires them to issue refunds, or directs them to black out a sentence or phrase in hundreds of copies because of unflattering comments about the school, it’s easy to sympathize with the infringement on students’ First Amendment rights.
When a yearbook is confiscated or altered just because of remarks critical of the school, the First Amendment violation is clear.
But it's less clear where the First Amendment lines fall when administrators feel pressured to remove material from a yearbook, or recall a book entirely, because of inflammatory speech perceived to target others based on race, gender or ethnicity.
A handful of high schools have already issued public apologies, offered refunds or recalled books for what administrators are calling “inappropriate quotes,” which range from negative statements like “The past 4 years felt like prison,” to ideologically divisive statements like “Build that wall.”
Miranda Taylor, a recent graduate of Richmond Early College High School in North Carolina, chose the mantra and succinct immigration policy of President Trump’s campaign as her senior quote because she admired his outspoken nature and policy proposals, according to her interview with the National Coalition Against Censorship.
Richmond Early College recalled the yearbooks soon after the principal discovered Taylor’s quote and a few other “inappropriate” statements, though Taylor’s has been the only one identified.
“Because of (the school’s) statements, social media has now decided that I am prejudiced, racist, and have no right to freedom of speech,” Taylor said in a statement she released. “I have been (threatened) by hundreds of people that I don’t even know, just because I quoted our president.”
Comments on social media have been varied between admiration for Taylor’s stance and disdain for her beliefs.
“While I am sorry that my classmates and I will not have a yearbook, I can honestly say that I am not sorry for defending my freedom of speech,” Taylor said in her statement. “I have always been taught that when I am given a choice, it is up to me to make that choice. I will choose God and my country every time.”
Poston Butte High School in Arizona has apologized and offered refunds for its yearbooks after finding 15 to 20 inappropriate quotes in its yearbook, but many of the parents disagree with the school’s reaction.
Quotes included “I hate all of you,” “The past 4 years felt like prison,” and “If you have never thought about dropping out and becoming a stripper once, you're lying,” according to The Arizona Republic.
No one has taken the school up on their offer yet, even for the free stickers to cover up quotes.
Sharon Fonzo, the English teacher that advises the club, has been removed as its sponsor.
Another school in North Carolina distributed yearbooks, but not until the yearbook staff took every book and marked out two quotes with black sharpie.
The first quote was a reference to a joke an administrator made to student Julianna Coon: “We're letting you graduate early because we didn't want you here a full year.”
The second quote, chosen by student Francis Quinn, said that Mahatma Gandhi was racist.
Both students said they were surprised to find that their quotes had been marked out. Quinn said that the first quote she submitted was not approved and so she submitted the one that was printed.
“There was an editing oversight at the time the yearbook went to print,” Jennifer Purdee, Piedmont Community Charter’s Head of School, wrote in an email. “The decision was made to mark out the inappropriate comments instead of withholding the yearbooks from being distributed. The comments were not representative of the school’s core values.”
A high school in Colorado issued an apology and promised increased editing for next year’s yearbook after a student used a sexual reference for her senior quote.
Administrators said the quote unintentionally made it through the student editor, the faculty adviser and the dean of students.
Danielle Clark, spokeswoman for Poudre School District, did not comment about repercussions for the yearbook staff or adviser, according to The Coloradoan.
Two Supreme Court decisions, Hazelwood School District v. Kuhlmeier and Bethel School District No. 403 v. Fraser, allow schools to exercise some regulatory authority over the content of student speech.
Under Hazelwood School District v. Kuhlmeier schools can restrict speech to the extent that their actions are “reasonably related to legitimate pedagogical concerns,” according to the court opinion written by Justice Byron White.
The courts have been deferential to school administrators interpretations of what constitutes a “legitimate pedagogical concern.”
In cases where student speech was found to contain language deemed inappropriate by the school, administrators have exercised prior restraint and censorship in the form of restricting distribution, redacting publications, and punishing students and employees.
In 1986, the Supreme Court ruled in Bethel School District No. 403 v. Fraser that schools could prohibit speech deemed lewd or vulgar because it was inconsistent with fundamental values the school was required to teach, namely “habits and manners of civility essential to a democratic society.”
Matthew Fraser gave a speech nominating a friend for student government that contained a long-running double entendre that resulted in his suspension.
While the lower courts ruled in his favor, the Supreme Court reversed the rulings and said the school was not in violation of the First Amendment.
It’s clear that Hazelwood applies to student media, but less certain that the Fraser standard applies, since the Supreme Court emphasized the “captive” nature of the listening audience in that situation, and a student publication is not forced on unwilling audience members. However, at least
Some states have elected to ensure the free press rights of their student media through legislation. Colorado, where the school apologized for printing the student’s sexual reference as her senior quote, has such a law – though it does not protect obscene language.
Unlike some other states, however, Colorado’s statute does not protect faculty advisers from retribution.
The Arizona legislature passed an anti-Hazelwood law this session, but it was later vetoed by Gov. Doug Ducey. The law, likewise, did not protect lewd or obscene content.
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The Illinois Supreme Court upheld lower courts’ rulings that a non-profit school athletic organization is not subject to Freedom of Information Act requests.
The Illinois High School Association coordinates postseason sporting events for private and public high schools in Illinois.
Justice Mary Jane Theis wrote in the court’s unanimous opinion that the IHSA did not meet the threshold of a public body or a subsidiary of a public body, and was not required to fulfill the governmental duty of releasing records.
To prove that the IHSA is subject to public-records requests, the justices ruled, a requester must show that the IHSA belongs to or is controlled by a public body, such as one of the public schools or the school districts.
In their decision Thursday, the court found the relationship between the nonprofit and the schools to be elective, and not required to fulfill a government function.
The Better Government Association, a nonprofit watchdog group, was seeking records of IHSA’s contracts and vendor applications, particularly any with Home Team Marketing, Streigel Knobloch & Co., Nike, Gatorade, and Country Financial.
To succeed in having the records made public, the opinion said, BGA needed to prove that there was, “a sufficiently close nexus between the state and the private conduct so that the action may be fairly attributable to the state.”
Because IHSA had direction independent of the schools and districts, and because the records themselves did not constitute “public records,” the court upheld the ruling.
Matt Topic, the attorney representing BGA, told Peoria Public Radio that while the result was disappointing, it could help another BGA case to receive records from an organization that manages Chicago’s Navy Pier.
Principals from Illinois public and private schools are elected to serve on the volunteer board of directors, though schools are not required to join the association.
In addition, the elected principal remains a board member even if they switch schools.
The organization is funded by proceeds from the sporting events it hosts and sponsorships. It does not require any member schools or districts to pay dues or membership fees.
In 2004, Kentucky Attorney General James Ringo ruled that a similar school sports organization, the Kentucky High School Athletics Association, was a public body subject to open records law when a resident requested records of correspondence with high school athletics directors about tournament seeding.
"Although the KHSAA was originally created as a private, voluntary, unincorporated association, it assumed a public character as a policy making board" when it began managing interscholastic athletics in state schools, Ringo wrote.
Athletic associations in South Dakota and Pennsylvania became classified as public bodies after the state legislatures passed laws acknowledging that the groups performed duties that were generally left to school boards.
The South Dakota High School Activities Association, however, was created by state statute and received state funding. It also at one time accepted dues from member schools before incorporating more corporate sponsorship.
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