The Student Press Law Center blog


Two Kansas universities are in legal dispute over supervising student speech off campus



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 appeals court rejects newspaper’s petition for access to school district notes



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

NYC to appeal ruling opening schools' leadership meetings to public



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

Colleges cannot enforce gag orders on sexual assault victims



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

Judge rules school security videos subject to FERPA protections



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

SPLC's Sara Gregory recognized with APME First Amendment Award for investigative reporting on campus sexual assaults



A team of investigative reporters including the SPLC's Sara Gregory was just announced as the winner of the Associated Press Managing Editors' national First Amendment Award, for their work on the 2014 series, "Campus Insecurity," about inadequacies and deception in the way colleges respond to sexual assaults.

The series, published in The Columbus Dispatch in installments beginning in September 2014, exposed systemic understatements in the way colleges fulfill their federal crime reporting obligations; a review of 12 years of federal Clery Act crime reports discovered that one-fourth of institutions with on-campus housing (those where violent crime is most likely to occur) claim never to have had a sexual assault. The investigation exposed colleges' widespread practice of, inaccurately, citing federal privacy law to deny the public access to records showing how often students are disciplined for sexual assault and what penalty they receive.

"We could not be prouder of Sara's work on this issue of paramount national concern, which directly advances the SPLC's interest in holding colleges accountable for complying with their legal obligation to disclose public records completely and accurately," said Frank D. LoMonte, executive director of the Student Press Law Center. "As Sara and the team at the Dispatch discovered, colleges routinely mislead the public about the safety of their campuses and are allowed to get away with it because of lax federal enforcement. Their reporting helped elevate this issue to a matter of national urgency and is richly deserving of recognition."

Gregory, a graduate of the University of North Carolina-Chapel Hill who worked for the SPLC for two years as a journalism fellow in a position funded by the McCormick Foundation, is now a reporter with The Roanoke (Va.) Times.

"Campus Insecurity" also won an honorable mention in a different APME category for public service journalism; first place went to The Detroit News for its series on premature births and youth violence, "Surviving through age 18 in Detroit."

Tagged: apme, Campus Insecurity, campus sexual assault, Journalism Awards, news, recent-news, sara gregory

5th Circuit hears case over student's suspension for posting a profane rap video online



NEW ORLEANS — Off-campus speech that students share on the Internet must have heightened protection from school disciplinary authority to keep whistle-blowers and rap artists safe from punishment, an attorney for a suspended Mississippi high school student told appellate judges Tuesday. 

"The question in this case is whether government is so powerful that it can reach into the parents' home, into a student's computer and punish the student as if it were the parent," attorney Scott Colom told the full en banc roster of the Fifth U.S. Circuit Court of Appeals.

Colom urged the judges to uphold a Fifth Circuit panel's  December 2014 ruling in favor of Taylor Bell, an aspiring rap artist suspended from school in 2011 for a profane YouTube video about misconduct by two coaches at his school. Bell accused the coaches of sexually harassing female students in a rap song replete with violent imagery, including a line predicting that a coach would "get a pistol down your mouth." 

In a rare move, the entire Fifth Circuit agreed to rehear the case and vacated the panel's  2-1 ruling that found the Itawamba County School Board overstepped the First Amendment in disciplining Bell as if the speech had been delivered on campus. There was no evidence that Bell played the rap song on campus, leaving the judges to decide how much authority schools have to punish student speech when it is created and distributed entirely off-campus but has the potential to cause a reaction at the school. 

Colom ran into sharp questioning from Judge Rhesa Hawkins Barksdale, the dissenting vote in the December panel opinion, who argued that technology removes any distinction between on-campus and off-campus speech and that schools should have equivalent punitive authority over both. 

When Colom said the issue was about the state's ability to regulate speech critical of government officials, Barksdale interjected: "It's not the state — it's a school." 

When Colom said giving schools punitive authority over off-campus student speech could even allow them to suspend a student who used sharp language criticizing an elected school superintendent at a political rally, Barksdale shot back. 

"That's not what we're dealing with," Barksdale said. "We're dealing with threats, harassment and intimidation." 

Several federal appeals courts have, in recent years, 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. The Tinker principle allows schools to punish speech reasonably forecast to substantially disrupt school operations. The December panel opinion, however, questioned whether schools can be trusted with so much control over speech students create on their personal time, noting that Bell was attempting to complain about misconduct by school employees.

The school district's attorney, Benjamin E. Griffith, argued that Bell's constitutional challenge could be invalidated either by extending Tinker to reach potentially disruptive speech that is "intended to reach the school" or by finding that Bell's speech constituted a "true threat," which the Supreme Court has deemed to be categorically outside the First Amendment even in the off-campus adult world. 

When challenged about how the speech "disrupted" the school, when the only evidence was that the coaches testified to changing their teaching styles around female students to be more careful, Griffith replied, "'Disrupt' means to break apart. They had to break away and break apart from their teaching style and method." 

Several judges visibly struggled to come up with a legal standard that protects student political commentary and whistle-blowing speech from school retaliation. "Everything you say these days has the potential of reaching the Internet, so where's the line?" asked Judge Jennifer Walker Elrod. 

Judge Leslie H. Southwick called it "troubling" that the school's position might expose students to punishment not just for disruptive off-campus speech, under the Tinker principle, but to all of the Supreme Court's legal precedent recognizing exceptions to the First Amendment for in-school speech. In addition to Tinker, the Court has allowed schools to punish in-school speech that is "lewd" or that promotes the use of illegal drugs, even if the speech is not disruptive. "Could a school now punish online pro-drug speech?" Southwick asked.

Griffith did not directly answer, instead focusing on the violent imagery of Bell's particular speech -- a position that invites the Court to create a narrower legal standard than Tinker, encompassing only violent speech but not other forms of potentially disruptive off-campus expression. Judges supportive of the school's position emphasized Bell's use of violent imagery and the need for schools to respond to perceived threats without judicial second-guessing. 

"This is a case about 'I'm gonna put a gun down your throat -- pow!'" Judge Edith H. Jones remarked. "We don't need to go into highfalutin philosophical metaphysical discussions beyond that."

Tagged: Fifth U.S. Circuit Court of Appeals, Itawamba County School Board, Louisiana, New Orleans, news, recent-news, Taylor Bell, Tinker v. Des Moines Independent Community School District

Montana Supreme Court boots open-records appeal in Krakauer case on legal technicality



We may get clarification one day from the Montana Supreme Court on whether the public is entitled to know how colleges handle the appeals of sexual-assault cases -- but it won't be any day soon.

The Montana Supreme Court has dismissed an appeal from the state higher education commissioner challenging a September 2014 court order that directed the commissioner to turn over his files about a University of Montana sexual-assault case that involved a prominent college athlete. 

The commissioner, Clayton Christian, overturned a campus disciplinary board's recommendation to punish the former Montana football star, and author Jon Krakauer wanted to know why. He sued for access to Christian's files for use in research on a nonfiction book about campus sexual assault.

A district court rejected the state's contention that FERPA, the federal student privacy law, forbade disclosure of the commissioner's files, since Krakauer agreed to accept the records with student names removed. The state asked the Montana Supreme Court to block release of the records, with the support of the U.S. Department of Education, which enforces FERPA.

Open-government groups (including the Student Press Law Center) have supported Krakauer in hopes that the case can establish the legal principle that FERPA penalizes only a policy or practice of leaving students' records unsecured, not a decision to honor a single open-records request for newsworthy documents of public concern.  

In an April 28 order, the state Supreme Court found that the state's appeal was premature, because issues (namely, what the state should pay Krakauer for attorney fees as the prevailing party) remained to be resolved at the district court.

Krakauer's counsel filed a petition for reimbursement of attorney fees May 4 and is awaiting the state's response. There is no telling exactly when the case will be completely resolved at the district court so as to make an appeal timely, but when that happens, the parties will have to re-file their briefs with the Supreme Court, meaning an ultimate resolution almost certainly won't happen until 2016.

The delayed access to university records hasn't stopped Krakauer from publishing "Missoula: Rape and the Justice System in a College Town," his account of the way universities handle claims of sexual assault by students. The book focuses on the University of Montana and on one particular case in which, with the victim's cooperation, Krakauer traces the case of Beau Donaldson, a former Montana running back sentenced to prison in 2013 after pleading guilty to sexually assaulting a female friend.

Tagged: FERPA, Jon Krakauer, Montana Supreme Court, news, recent-news

Student newspaper board at Northern Michigan U. responds to criticism over adviser’s termination



MICHIGAN — Four student members of the student newspaper’s board of directors at Northern Michigan University released a statement on Tuesday refuting claims a university administrator influenced their vote to terminate the newspaper’s adviser.

“Each of us made up our own minds,” according to the statement. “We are independent thinkers. We take issue with how our fellow student board member and the North Wind have characterized us as easily influenced, poorly informed and impressionable.”

The statement followed a North Wind editor’s claims that the board — comprised of five students, a local journalist, an administrator, a faculty member and the newspaper’s adviser — violated the First Amendment on April 3 when they voted against reappointing Cheryl Reed as adviser. The board also voted against hiring Managing Editor Michael Williams as the next editor in chief, even though he was the only applicant for the job.

Since then, The North Wind has reported on the issue and three media organizations — Society of Professional Journalists, the Associated Collegiate Press and the College Media Association — have released statements calling for Reed’s reinstatement and Williams’ reconsideration.

“We are not looking for validation,” according to the statement, which student board members Aubrey Kall, Eric Laksonen, Troy Morris and Pearl Gaidelis co-signed. “We are comfortable with our votes and are exercising our rights and responsibilities as board members.”

Kall said a story in The North Wind “mischaracterized” January meetings between Vice President Steve Neiheisel, a member of the board, and student members. An April 9 story in the student newspaper alleged Neiheisel told the student board members the newspaper’s open records requests were “a waste of time and money” and he spoke critically of Reed. In January, the board of directors voted against paying for a $300 open records request for the emails of six administrators, including Neiheisel.

Emma Finkbeiner, the newspaper’s editor in chief, had requested the emails in December 2014 following “feelings of intimidation” from administrators.

According to the statement, Neiheisel only met with the student board members to distribute a copy of the board’s bylaws and to discuss the board’s role in the January meetings.

“We were not told how to vote on the FOIA request,” according to the statement, “nor were we told to support or not to support the journalistic advisor.”

Contact SPLC staff writer Mariana Viera by email or at (202) 478-1926.

Tagged: Michigan, news, Northern Michigan University, recent-news, The North Wind

ACP, CMA stand behind terminated Northern Michigan U. student newspaper adviser



MICHIGAN — A week after the student newspaper adviser at Northern Michigan University was terminated, the Associated Collegiate Press and the College Media Association have joined the list of organizations calling for her reinstatement.

“Colleges and universities need to foster an open environment where student media outlets are free from interference, even from publication boards,” CMA President Rachele Kanigel said in a statement on Friday. “There are many ways to bully student media and removing an adviser is simply that: bullying.”

On April 3, The North Wind Board of Directors voted 5-3 not to renew Adviser Cheryl Reed’s annual contract, ending her one-year stint as the newspaper’s adviser. The board also voted 5-4 against hiring Managing Editor Michael Williams as the paper’s next editor in chief, even though he was the only applicant.

In a statement on Thursday, ACP Executive Director Diana Mitsu Klos said the university community “has been ill-served by the embarrassing actions of the board.” The Society of Professional Journalists released a similar statement on Thursday, arguing the newspaper’s board of directors violated Reed’s First Amendment rights.

Reed, an English professor at the university, said she suspects her termination was retaliation for her support of student reporters’ investigative stories, many of which were critical of the administration.

On Thursday, The North Wind reported that Vice President Steve Neiheisel, a member of the board, met with student members of the board in January and told them the newspaper’s open records requests were “a waste of time and money” and spoke critically of Reed.

Along with the story, the newspaper ran a front-page photo illustration with the words “First Amendment, Dead.”

Tagged: Associated Collegiate Press, College Media Association, Michigan, news, Northern Michigan University, recent-news, Society of Professional Journalists, The North Wind