The Student Press Law Center blog

Mount St. Mary’s University reinstates fired student newspaper adviser

Updated, 2/12, 6:30 pm, with Egan's comments and news of the faculty members' demand for President Simon Newman's resignation. 

Just days after the student newspaper adviser and a tenured professor at Mount St. Mary’s University were fired, the university president announced he would reinstate the two employees, effective immediately.

Ed Egan, the Mountain Echo’s faculty adviser, and tenured Philosophy Professor Thane Naberhaus were fired on Monday, after the Catholic university in Maryland became the brunt of national outcry when controversial comments by first-year president Simon P. Newman were published by the student newspaper.

In January, the Mountain Echo published emails and conversations about Newman’s freshman-retention plan, which involves administering a survey to students at freshman orientation that was marketed as a learning tool but was actually meant to dismiss 20-25 freshmen who the administration deemed unlikely to succeed in their first year. The plan was an effort to improve the university’s retention rate.

“You think of the students as cuddly bunnies, but you can’t,” Newman was quoted as saying about the plan. “You just have to drown the bunnies … put a Glock to their head.”

Egan, a Mount St. Mary’s alumnus, has said he believes he was fired in retaliation for the newspaper’s reporting. In an interview Friday, he said he received a phone call from Newman this afternoon, in which Newman told Egan that he was being reinstated because it is the Year of Mercy. 

Egan said he told Newman he would have to think about it, and he went to the faculty meeting to announce that he had not made a decision.  

"I said that President Newman should show mercy on Mount St. Mary's and step down," he said. 

Egan said he is still considering his option and has not yet made a decision about his return to the  school. Whether Newman resigns, he said, is "part of my consideration."

Newman had announced at a faculty meeting on Friday that the reinstatement would be “a first step of reconciliation and healing in the Season of Lent and the Year of Mercy.”

“We will work to implement the initiatives we agree are important for our students’ future and our university’s future. And most importantly eliminate the feelings of fear and injustice that any may be harboring, work through our misunderstandings, and make a new beginning as a unified team,” Newman said. “You have my solemn commitment to work together to restore our relationship and our school.”

Egan said he told faculty members that there were more serious problems at Mount St. Mary's than can be solved with the reinstatement of the two employees.

In the last few days, Inside Higher Ed has reported that the freshman orientation survey at the crux of this debate could possibly have some legal issues — experts said it was unethical if not illegal to ask students about their mental health or financial challenges without disclosing that their answers might determine their fate at the university. Also, Inside Higher Ed reported that the university's accreditor is "concerned" about the developments at Mount St. Mary's and will be investigating the situation. 

On Friday, Inside Higher Ed reached Naberhaus, the tenured professor, and asked him if he was planning to take his job back. “Hell no,” Naberhaus responded.

The firings generated a firestorm of criticism from free speech and academic freedom advocates. The Foundation for Individual Rights in Education, for instance, condemned the firings in a statement and invited its readers to bombard Newman’s email inbox with demands that Egan and Naberhaus be reinstated so that “dissent and a free student press be respected on campus.”

Now, the overwhelming majority of faculty members have voted to demand Newman resign as president. An open letter stated that the vote was 87 to 3. 

"Our community is suffering," the letter reads. "In recent weeks, we have been divided due to miscommunications, missteps, and misunderstandings. It is clear that we all could have done things differently to avoid the situation that we now find ourselves in. ... We have come to the sad conclusion that this state of affairs cannot be resolved while you continue in your current office." 

Still, Mount St. Mary’s board member Rev. Kevin Farmer said at the faculty meeting that the board continues to support Newman.

“We embrace his vision for the future of the university and believe he is the best person to carry it out,” Farmer said. “We have every desire to resolve the tension on campus and move forward together.”

Tagged: Mount St. Mary's, recent-news

Free speech advocates debate whether Hazelwood standard impedes students’ education on the First Amendment

WASHINGTON, D.C. — In a forum discussing free speech on school campuses, two First Amendment advocates agreed on most, but their views diverged on the use of the 1988 Supreme Court decision in Hazelwood School District v. Kuhlmeier to regulate high school newspapers.

George Washington University Law School’s Federalist Society for Law and Public Policy invited Baylor University President Ken Starr and Adam Goldstein, attorney advocate of the Student Press Law Center, to debate the importance of upholding free speech on campus on Monday. Both speakers emphasized how the First Amendment is key to maintaining individual liberty — and academic freedom is foundational to the values of higher education.

But while Starr, a former D.C. Circuit federal judge and U.S. solicitor general, felt strongly about not restricting free speech on college campuses, he insisted restrictions are necessary in high school publications when speech may disrupt the school’s educational function, which is the Hazelwood standard.

The ruling in Hazelwood gave high school officials the right to censor school newspapers that are not public forums, as long as they can provide a “reasonable educational justification” and the censorship is viewpoint neutral.

Starr echoed the legacy of Supreme Court Justice William Brennan, who throughout his judicial career fought to strengthen and uphold the First Amendment — even in controversial situations, such as flag burning in Texas v. Johnson.

However, Starr argued that the full extent of First Amendment protection should be granted to students the day they graduate high school. Although the baseline is freedom, he said, K-12 students are in a “very different custodial setting” in public schools, where contrasting rules apply.

After being appointed to the Supreme Court in 1956, Brennan looked at any threat to free speech with strict scrutiny. In his dissent in Hazelwood, Brennan expressed his disdain for the Court allowing schools to evade the duty of preparing students to exercise the very constitutional rights they learn about in class.

“Instead of ‘teach[ing] children to respect the diversity of ideas that is fundamental to the American system’ and ‘that our Constitution is a living reality, not parchment preserved under glass,’” Brennan wrote in his dissenting opinion, “the Court today ‘teach[es] youth to discount important principles of our government as mere platitudes.’”

Starr said it is important for educators to place a heavier weight on civic education, and to teach students about the full extent of First Amendment and the rights given to them once they are “free of the shackles” being imposed on them by school administrators.

He said schools should start teaching students about why their rights are dialed back in the “unusually sensitive setting of public education.”

Goldstein argued that censoring high school students creates a mindset that the First Amendment is something that can be suspended when it becomes inconvenient for someone.

“Who are the two groups of people the Supreme Court doesn’t think are entitled to the full benefit of the First Amendment?” Goldstein said. “Felons and students. And the felons are winning.”

He said many students come to college and believe they can restrict others’ First Amendment rights — such as requiring “safe spaces,” free speech zones and trigger warnings on campus — because they grew up being told to restrict themselves so as not to offend anyone else in school.

“[Students] were told what the words meant, but they were given no opportunity to actually experience it themselves,” Goldstein said. “I think it is very difficult to correct that problem by the time you get to college.”

Still, Starr argued increased efforts in First Amendment education throughout high school will help. But Goldstein said unless the students are allowed to exercise their First Amendment rights in school, the words won’t have enough weight.

“[Students] are being told they aren’t allowed to write their actual thoughts on any topic the school may subjectively decide is controversial,” Goldstein said. “So by the time [students] are 18, you have people who can register for Selective Service but don’t actually have First Amendment rights in school.”

Tagged: Adam Goldstein, Adam Goldstein, Hazelwood v. Kuhlmeier, recent-news

Massachusetts high school newspaper exposes lack of true student representation in town school committee

MASSACHUSETTS — Fed up with student voices being silenced in the town school committee, a Dartmouth High School newspaper editorial accused administrators of unlawfully picking and coaching student advisory committee representatives.

The article, “Students argue for more free speech at DHS,” published in The Spectrum, raised concerns over whether Dartmouth students truly had any influence in their town school committee. The committee is comprised of elected officials that make important decisions regarding Dartmouth, such as sending students to conferences and setting the school’s budget.

Amy Koczera, author of the editorial and co-editor-in-chief of The Spectrum, accused administrators at Dartmouth of breaking the law by personally selecting student representatives instead of letting students vote on who will represent them. Section 38M of Massachusetts General Law Chapter 71 on Public Schools requires school committees of cities, towns and regional school districts meet with a student advisory committee consisting of five members elected by the student body. It states the elected students will select one chairperson to be an ex-officio, nonvoting member of the school committee.

The editorial argues Dartmouth administrators are taking that right away from their students.

Though the law clearly states, “the members of such student advisory committees shall, by majority vote prior to the first day of June each year elect from their number a chairperson who will serve for a term of one year,” Koczera said no such voting practice occurs at Dartmouth — but that representatives are selected by administrators and only serve sporadically.

Dartmouth Principal John Gould told the South Coast Today the school has representatives rotate each meeting so that they can “share the experience,” but didn’t address why students don’t elect their advisory members.

But that is not the biggest problem, Koczera argues.

She also claims that Dartmouth Dean Janice Sharp coached the representatives prior to every school committee meeting, urging them not to say “anything negative” about the school.

“They were told only to share the good things about our school and not to talk about issues or concerns because the School Committee does not want to hear about those,” Koczera wrote.

Thus, she argued, the legitimate concerns of students regarding their school are squashed. Issues such as the potential switch from block-scheduling to a rotating period and the status of a “lunch show” have gone without mention.

Instead, the agenda for meetings is spent on benign topics, like a new bulletin board being put up in the front of the school.

Sharp denied putting any pressure on the student representatives. She said the purpose of the role is to give the school committee an update on the school and suggests students talk about that.

Quoted in the article are several students serving on the Dartmouth Student Council who think the administration is even blocking their attempts to express opinions internally.

Typically, the Principal Advisory committee, comprised of student leaders in the school, would report concerns voiced at Student Council meetings to administrators. But Koczera claims the administration decided to add different students to this group and provide their own agenda to fill the meeting time.

One student argues that Gould and Sharp implemented this change to carry out their independent agendas, instead of listening to frustrations of the members.

“It’s basically just the administration bringing to us what they’ve done and asking our opinion, but we have no say in it,” Senior Class President Bryce Boswell told Koczera. “It seems like the changes they are making are to suit the administrators, not the students.”

Koczera asked for her fellow students voices’ to be heard instead of ignored.

“It frequently happens to us as student leaders that the administration says they are open to change, but once we are actually conversing with them about the topic, we soon realize that it’s their way or the highway,” she wrote.

Tagged: high school newspaper, recent-news, student government

North Dakota state attorney urges release of candidate information from North Dakota State University

The North Dakota state attorney has called on the fundraising wing of North Dakota State University to release records that hold the names of candidates interested in the then-open president/CEO position.

In an opinion issued last week, the North Dakota Attorney General Wayne Stenehjem wrote that the North Dakota State University Foundation and Alumni Association violated public record laws when it refused to release records to a state newspaper.

The foundation declined the Student Press Law Center’s request for comment. Under state law, the foundation had seven days from Jan. 25, when the opinion was issued, to disclose the record or it could face additional legal consequences, like lawsuits from requestors.

Stenehjem argued the foundation — along with the private search firm the university hired to help with the search — is subject to open records laws because the two bodies were acting as, or on behalf, of a public entity: the university.

“The North Dakota Supreme Court has stated that public entities cannot circumvent open records law by delegating the public duty of searching and obtaining applications for public employment to a third party,” Stenehjem wrote.

Matthew Von Pinnon, editor of The Forum (also known as InForum), had requested the state attorney general’s office review the legality of the foundation’s denial of a reporter’s request for the names of the candidates interested in the open position.

In the search for a new president/CEO, the foundation hired Boston-based search firm Lois L. Lindauer Searches to advertise the position and help receive information from candidates, according to the opinion.

After 12 interested candidates submitted their qualifications to the search firm, the university search committee conducted a “blind review” where they reviewed a candidate’s information to see if they are qualified for the job without identifying them by name, according to the opinion.

The search committee concluded that eight of the 12 individuals who had submitted their information were qualified for the position. Four of the candidates ultimately submitted formal applications, according to the opinion.

Yet when a reporter from The Forum contacted the foundation requesting the names of the applicants the search committee had reviewed in the “blind review,” a university administrator said neither the university nor the search firm had access to the documents she was requesting.

When the reporter followed up with the request, an attorney with the foundation refused to provide the information, stating the names of the dozen people in the “blind review” were considered a “trade secret.”

Instead, the attorney provided the formal applications that the foundation received.

The foundation argued, according to the opinion, that the names of people looking to change positions in the higher education industry is valuable to the search firm.

“They point out that LLLS has spent years cultivating the contacts and it would not be able to sell its services if this entire database of contacts was generally known to the public,” Stenehjem wrote in the opinion.

Still, Stenehjem argued that while the whole database of individuals might be considered a trade secret, the search firm did not derive “independent economic value” from the 12 names.

“This information was bought and paid for by the [North Dakota State University Foundation] as part of LLLS duties under contract and, since there is a contract in place, the LLLS is not in competition with any other company to advertise and obtain applications for this CEO/president position,” Stenehjem wrote in the opinion.

Efforts to keep the names of presidential candidates secret during searches at universities are nothing new. The Student Press Law Center highlights secrecy in administrative searches through the Sack Secrecy project.

And university foundations, which handle large donations that create scholarships, raise money for programs and build memorial funds, among other things, have also been known to be secretive — whether the foundation is subject to public records laws varies from state to state and sometimes from case to case. An article in the spring 2015 edition of the Student Press Law Center’s Report magazine explored how campaigns, such as the student-led UnKoch My Campus movement, have fought for transparency from university foundations. The report also looked at how students filed record requests to their university’s foundation in order to expose donor influence.

Tagged: North Dakota, public university foundations, recent-news

‘I Am The Free Speech Zone’ nationwide event hopes to bring awareness to campus free speech issues

A nationwide protest of censorship of speech on college campuses has been set for April 21, with a day of free speech debates, First Amendment education and featured speakers to bring awareness to students’ free speech rights.

Chris Sargent, who organized the event, “I Am The Free Speech Zone,” with his brother Robert, said in an interview with Campus Reform that the inspiration came from their growing frustration with political correctness and free speech zones, which restrict student protests or demonstrations to specific areas on campus.

The event, which will be organized by interested college students on campuses across the country, is an effort to educate young adults on their First Amendment rights and empower them to oppose free speech limitations, according to a press release.

By restricting students to free speech zones, schools are violating students’ First Amendment rights and limiting their free expression, Chris Sargent said in a statement.

“Free speech isn't constrained to arbitrarily defined boundaries, it's guaranteed by citizenship, and it travels with you, wherever you are on campus,” he said. “‘Free speech zones’ are an oxymoron and anything but free.”

Sargent told Campus Reform that the event is meant to push back against what he thinks is stifling independent thought on college campuses today, including political correctness. He said he wants to overcome what he says is a misperception that free speech zones are positive for free speech. 

An article in the fall 2015 edition of the Student Press Law Center’s Report magazine explored the legality of free speech zones. Besides being controversial, free speech zones have sparked a number of lawsuits, often filed by the Foundation for Individual Rights in Education, from students who say their First Amendment rights have been violated. At least five universities have settled for tens of thousands of dollars in the past two years.

For example, Dixie State University in Utah settled for $50,000 after three students filed a lawsuit against the university after administrators prevented them from distributing fliers. Administrators told the students that their planned protest would have to take place in a free speech zone, which constituted about 0.1 percent of campus.

In another case, California Polytechnic State University settled a lawsuit for $35,000 after university police told a student he would have to wear a badge signed by an administrator and stay in the campus’ free speech zone — which constituted less than 0.01 percent of campus — when handing out fliers against animal abuse.

State legislatures have also taken action against free speech zones. So far, Virginia and Missouri have both banned free speech zones from college campuses.

Tagged: free speech zones, recent-news

Digital rights non-profit argues against banning anonymous speech platforms like Yik Yak

The debate taking place on college campuses across the country about the merits of anonymous social media speech — which can often veer into racist, sexist or otherwise offensive remarks, but is still mostly protected by the First Amendment — is now playing out before the U.S. Department of Education.

The Electronic Frontier Foundation, a nonprofit digital rights group, recently sent a letter to the Department of Education’s Office for Civil Rights arguing against banning anonymous online speech platforms, such as Yik Yak, on college campuses.

The letter, sent Jan. 13, is in response to another letter sent by 72 feminist and civil rights organizations in October that called on the Office of Civil Rights to provide guidance on how to address sex- and race-based harassment on Yik Yak and other anonymous speech platforms. That letter argues that colleges and universities have a responsibility to protect students from anonymous harassment under Title VI of the 1964 Civil Rights Act and Title IX, which prohibits discrimination on the basis of sex in education.

EFF’s letter, meanwhile, argues that while threats and statutory harassment must be taken seriously, the banning of anonymous speech platforms would be unconstitutional.

“As institutions protect the civil rights of students to be free from unlawful harassment and true threats, they must also protect students’ right to free speech,” the letter stated.

The letter argues that many people — including those looking to further racial and gender equality — use anonymous speech without fear of retaliation for their speech. According to the letter, actions to stop anonymous speech are often barriers to marginalized groups.

“Time and again, in the face of outright censorship or efforts to crack down on free expression, online platforms have proven invaluable for helping groups around the world meet, exchange ideas, and demand political change in ways that are sometimes impossible to do offline,” the letter said.

The EFF letter pointed to a Twitter account at the University of Southern California run by an anonymous group of students that maps the location of sexual assaults on campus. In another case, students at Guilford College in North Carolina used an anonymous online form to receive “testimonials and reports of racial violence.”

New York’s Utica College and Norwich University in Vermont have already taken action against Yik Yak and banned the site from their wi-fi networks. The summer/spring edition of the Student Press Law Center’s Report magazine took a look at the effects of Yik Yak and how students and school administrators alike respond to negative comments posted on the anonymous speech site.

While EFF’s letter condemns barring anonymous speech sites, the group acknowledged the First Amendment does not support harassment or true treats and encouraged institutions to investigate and discipline the crimes when they appear.

The letter lists a number of recommendations that could be used to address threats and harassment without removing the platform for anonymous speech, including using existing laws to investigate harassment and true threats.

The two letters come after the Office of Civil Rights launched an investigation in October into allegations of sexual harassment on Yik Yak at the University of Mary Washington.

The complaint, initially filed in May 2015, alleges the university failed to respond to complaints of sexual harassment on social media and subjected students to a hostile sexual environment, according to the notificataion letter from the office. The complaint also alleges the university retaliated against the complaint by issuing a “disparaging” public letter acknowledging a complaint had been filed with the office.

Tagged: recent-news, yik yak

Former Okla. student suspended for his fiance’s Facebook posts files lawsuit against the university

After receiving “heavy-handed” university sanctions without a hearing for Facebook posts that he didn’t write, George “Trey” Barnett is taking his case to court.

The former University of Tulsa student filed a lawsuit on Jan. 13 against the university, claiming the institution was negligent when it conducted an investigation into Barnett’s alleged violations of the school’s harassment policy. The lawsuit also claims the university ignored Barnett’s due process rights when school administrators did not allow Barnett to defend himself in a hearing.

The university suspended Barnett in October 2014, after a faculty member filed a harassment complaint related to Facebook posts authored by Barnett’s then-fiancé, now-husband Christopher Mangum, who was not a student at the university.

“The investigation performed by TU was reckless and the conduct following the investigation was nothing short of extreme and outrageous,” Barnett’s suit claims.

The lawsuit alleges a breach of contract from the university and intentional infliction of emotional distress. Barnett is asking for $75,000 in damages.

Throughout 2014, Mangum posted a number of allegedly defamatory statements on his personal Facebook about a number of people in the University of Tulsa’s theatre department. The posts make derogatory comments about a student’s weight and allege that a professor was having an affair, according to a report by The Tulsa World. While Barnett did not author the posts, Mangum did tag him in the posts, which caused the messages to appear on Barnett’s Facebook wall.

Tulsa Senior Vice Provost Winona Tanaka suspended Barnett from certain activities and classes on Sept. 30, 2014, according to the lawsuit. Then, Theatre Department Chair Susan Barrett filed a complaint stating that Barnett violated the school’s harassment policy, according to the lawsuit.

“Barrett knew that any postings which could be construed as offensive were authored by Mangum but nevertheless accused Barnett of the harassment,” the lawsuit states. “Upon information and belief, since she had no recourse against non-student Mangum and his comments about how she ran the theater department, Barrett decided to punish Barnett by accusing him of the harassment instead.”

In response to the complaint, Mangum submitted an affidavit acknowledging that he wrote the posts while Barnett denied authoring the Facebook posts, according to the lawsuit. On Oct. 24, Tanaka suspended Barnett for violation of the harassment policy, including a breach of the confidentiality notice for sharing information on the case with Mangum.

The suspension permanently prevented Barnett from majoring or minoring in theatre at the university and barred him from taking any classes in the theatre department. Also as part of the sanctions, Barnett’s transcript was marked as “suspended/disciplinary probation-misconduct.” The sanctions were issued less than two months before Barnett’s intended graduation.

In the university’s final decision on Barnett’s appeal, released on Jan. 9, 2015, Tanaka was not found to be at fault, according to the lawsuit.

Barnett had shared his story with the Tulsa student newspaper, The Collegian, in February. Student editors decided to run a story on Barnett’s disciplinary process, despite receiving perceived threats from university officials that they too might be in violation of university policies if they reported on any confidential information.

According to the lawsuit, Barnett did not receive a number of rights outlined in the university’s student code of conduct, including the ability to question his accusers and present relevant information at a hearing. The lawsuit also argues that the school’s investigation into the allegations ignored witness testimony and credible evidence that proved Barnett was not responsible for breaking the harassment policy.

“Barnett is forced to deal with the aftermath of TU’s actions on a daily basis,” the lawsuit claims. “He has been ostracized from his friends and faculty with whom he formed lasting relationships and bonds.”

Tagged: facebook, recent-news, University of Tulsa

Wisconsin high school athletics association tells students to refrain from ‘air ball,’ ‘scoreboard’ chants

The fan-favorite chant, “Air ball!” — used when an opponent misses the hoop in basketball — is among the list of “unsportsmanlike” chants frowned upon by the Wisconsin Interscholastic Athletics Association.

Other discouraged chants include: “You can’t do that,” “Fun-da-mentals,” “There’s a net there,” “We can’t hear you,” and “Scoreboard.”

None of these chants contain expletives, but are being considered unsportsmanlike conduct by the WIAA, in accordance with the Sportsmanship Reference Guide. In a December email to school leaders throughout the state, the association called for student groups, administrators and event managers to take “immediate steps to correct this unsporting behavior.”

The WIAA regulation on taunting chants was thrust into the limelight this month when a student-athlete tweeted her disdain for the rule and was disciplined by Hilbert High School. April Gehl’s three-word post, “EAT SHIT WIAA,” paired with a picture of the first email, landed her a five-game suspension. Her tweet has since been shared about 1,300 times.

Gehl was suspended because she violated the school’s conduct code, the Hilbert High School athletic director told the Minneapolis Star Tribune. The school policy includes a section on inappropriate language. She did not decide to pursue any legal action against the school or appeal the decision, her parents told USA Today.

The guidelines for game chants are not new, but are now being more actively discouraged, according to a second email sent by WIAA spokesman Todd Clark. The jeers are not explicitly banned, and Clark told the Star Tribune that “at most,” school officials could “suggest” students stop those chants at the games.

“To be clear,” the second email said, “there has been no new directives, no new rules, no new mandates, no new enforcement expectations associated with the email.”

Since Gehl’s suspension, many news organizations, sports media outlets and fans have communicated their opposition to the regulation by mocking its nature as coddling and overprotective. In support of the students, a peition has garnered more than 3,000 signatures calling for the WIAA to lift the guidelines against these chants.

The petition asks the WIAA to reconsider its choice of limiting student section cheers at sporting events. It claims student sections “provide energy and an electric atmosphere” to sporting events, but can only do so if students have the ability to cheer freely.

The association’s executive director Dave Anderson said the email was just a reminder of a longstanding sportsmanship policy, not a ban on certain cheers or a “crackdown of enthusiasm.”

The 1986 U.S. Supreme Court decision Bethel Area School District v. Fraser decided that schools can regulate speech that occurs on campus if it is vulgar, lewd or plainly offensive. The Court ruled that schools do not violate the rights of students by disciplining them for these types of speech if it is disruptive to the fundamental values of public school education.

While most of the chants the WIAA seeks to ban don’t fall under the category of vulgar, lewd or plainly offensive, a civil rights attorney told the Star Tribune that as long as athletic officials only set this regulation as an “aspirational goal” without disciplining students, it won’t infringe upon the students’ legally protected rights.

The courts have been divided on whether school officials have the authority to regulate off-campus online speech, such as Gehl’s tweet. There is currently a petition pending for the Supreme Court to review the issue of students’ off-campus speech on social media and to decide if existing standards can be applied.

Tagged: high school sports, off-campus social-media use, recent-news

Oklahoma school district did not violate student’s First Amendment rights by banning eagle feather, court rules

A federal judge has ruled that an Oklahoma school district did not violate a student’s First Amendment rights when officials refused to let her wear an eagle feather on her cap during her high school graduation ceremony.

Hayden Griffith filed a suit against Caney Valley Public Schools six days before her graduation ceremony at Caney Valley High School in May 2015. The suit came after school officials told Griffith she would not be allowed to wear the eagle feather, citing a school policy that prevents students from wearing decorations on their graduation caps.

Griffith, who is a member of both the Cherokee Nation and the Delaware Tribe of Indians, argued the school violated her First Amendment rights and the Oklahoma Religious Freedom Act, which protects individuals’ right to exercise their religion.

Five days later, the U.S. Northern District Court of Oklahoma concluded “that she had failed to show a substantial likelihood of success on the merits,” and denied her request for a preliminary injunction so that she could wear the eagle feather during the ceremony. With the ceremony having passed, Griffith then filed an amended complaint to the district court requesting minimal damages and a declaratory judgement from the court under the same arguments outlined in the initial complaint.

In a decision released Jan. 5, the court decided the school did not violate Griffith’s freedom of speech or her right to free expression. The court did dismiss her ORFA violation claims without prejudice, meaning they could be re-filed in a state court.

Griffith had received the eagle feather from a Delaware tribal elder “in recognition of her academic success, graduation from high school, and passage into adulthood,” according to the court opinion.

In her culture, eagles are considered to be close to God and their feathers are seen as sacred. And when an eagle feather is given, it is considered disrespectful to not wear it for that ceremonial occasion, according to the opinion. Although the school gave her other options, including wearing the feather in her hair or on a necklace, Griffith’s religious beliefs require the feather to be worn on the head.

Chief Judge Gregory Frizzell rejected Griffith’s freedom of speech claim citing the 1988 Supreme Court case Hazelwood School District v. Kuhlmeier. In the opinion, Frizzell decided that while Tinker v. Des Moines Independent Community School District protects students’ speech in their individual capacity as citizens, Hazelwood allows school administrators to control speech in school-sponsored activities as long as there are legitimate educational concerns. Frizzell ruled that the graduation regalia is school-sponsored speech, and therefore can be controlled under the Hazelwood decision.

“Here, the school has not created a forum (of any kind) for student expression on their graduation caps. Indeed, as Griffith herself acknowledges, the school does not allow students any form of personal expression on their graduation caps during the commencement ceremony,” according to the opinion.

Frizzell also writes that although the school permits other items that recognize academic achievement, such as sashes, those items are not worn on the graduation cap and are related to school-sponsored activities.

Because the school issued so much control over the graduation ceremony, observers could reasonably conclude the regalia and caps represent school-sponsored speech, Frizzell wrote in the opinion. Frizzell concluded the cap-and-gown dress code does represent a legitimate educational concern as it avoids controversy.

“Such a policy promotes unity, discipline, and respect for authority, and allows the school to reserve special recognition for student achievement or participation in school-related activities,” he wrote.

Griffith argued that the apparel policy should be subjected to the highest rigor of judicial review (“strict scrutiny”) because it represents a content-based restriction on free speech. But the judge ruled that the school’s graduation cap policy was not based on the content of speech and was generally applicable to all students regardless of message — noting that the school’s policy dictates “hats may not be decorated at all” — and therefore not subject to strict scrutiny.

“Griffith has not alleged any facts showing that school's no-cap-decoration policy applies or was enforced against her for religious reasons,” Frizzell wrote. “Indeed, the facts alleged show exactly the opposite.”

Although the court rejected Griffith’s First Amendment violation claims, the court decided to defer judgement to the state court system on whether the school district’s actions violated her rights under the Oklahoma Religious Freedom Act. The court dismissed Griffith’s ORFA claim without prejudice.

Tagged: graduation ceremony, hazelwood, Oklahoma, recent-news

Public records deflate myths about "profitable" college athletics

A team of Washington Post reporters has been putting on a clinic for using public records to examine the workings of often-secretive college athletic departments, and they're discovering that even traditional powerhouse schools that regularly contend for championships -- including Florida State, UCLA, Auburn and Wisconsin -- spend more money on sports than they take in.

The deficit is borne by rank-and-file students, who are charged as much as $2,000 in athletic fees tacked onto every year's tuition.

It's not that college sports don't generate money. The Post's review of records obtained from 48 major-college athletic powers found that revenue has grown from $2.6 billion to $4.5 billion since 2004 -- but spending has grown proportionately right along with it.

Improved stadiums, weight rooms and practice facilities are one culprit for the increase; another is salaries. Coaches and athletic directors have built a well-paid support structure that at times resembles a corporate CEO's, including a $252,000 "chief of staff" assisting the head football coach at Clemson.

The Post's series, by reporters Will Hobson and Steven Rich, debuted Nov. 23, shortly after an equally thorough and detailed report by The Chronicle of Higher Education, "The $10 Billion Sports Tab," published in partnership with the Huffington Post. The title refers to the $10.3 billion that the 201 universities competing at the highest level (Division I) have poured over the past five years into propping up their athletic programs above-and-beyond what the teams generate.

The Chronicle found that athletic departments at colleges from Rutgers to Northern Illinois to Georgia State are dependent on subsidies for well over half of their annual operating expenses -- and that, ironically, the financial burden on students tends to be highest at schools with the least interest in athletics (and the least successful teams), because they sell fewer tickets and souvenirs.  

This is a story begging for college journalists to localize: How much are students paying in athletic fees, how has that changed over the years, and where are athletic departments spending all of that revenue? The Chronicle has made it easy by creating a searchable table with downloadable financial reports for each of the last five years filed by every major-college program. 

For the national perspective, the NCAA publishes aggregate data online going back to 2004 for Division I. The NCAA's own data confirms that colleges sports have become less self-sufficient, raising 71.3 percent of what they spend and relying on their schools for the rest, down from 76.9 percent a decade ago.

Any public university should readily release details of its athletic revenues and expenditures in compliance with state open-records laws, and since the data already must be gathered to satisfy NCAA requirements, production should be prompt and without objection or significant cost.

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