In the past few weeks, student activists at many colleges across the country have held protests and demonstrations to condemn racism on campus and to call for changes. But as student and professional journalists attempt to cover the protests, they have repeatedly been denied access.
At Smith College, student activists holding a sit-in in solidarity with University of Missouri racial-justice protests on Thursday banned reporters from covering the event unless they “participate and articulate their solidarity with black students and students of color,” student activists told MassLive. Smith College Sophian editor-in-chief Michelle Lee said the paper is “in the stages of responding” to the incident and declined to comment further.
Smith media relations staff supported the ban on press access, saying the students could ban reporters if they wanted and that as a private college, Smith reserves the right to exclude reporters from the protest area.
The rule echoes similar media bans in other university protests, including Missouri, and illustrates a widespread distrust of mainstream, majority-white media outlets among activists of color. “By taking a neutral stance, journalists and media are being complacent in our fight,” one student activist told MassLive.
Media bans at the Missouri protests sparked outrage among journalists and non-journalists alike, particularly after a now-viral video showed faculty member Melissa Click calling for “muscle” to be used against a student photojournalist.
Activists lifted the media ban the next day, but tensions still flared between student activists and reporters nationwide. Last week, protesters at Loyola University Chicago banned outside media from entering a protest area they deemed a “safe space.”
“I think it’s very important for the media to realize that these are also healing spaces, so when the demonstrations are going on, obviously students want to get some kind of press … but don’t invade people’s healing space by documenting what’s going on,” said Ryan Sorrell, chief editor of The Black Tribune, a publication run by Loyola students of color.
Professional reporters were also barred from entering protest areas during a sit-in at the Towson University president’s office, although student reporters from the Towerlight student newspaper were allowed access because they had developed mutual trust and rapport with the protesters, Towerlight editors said. A video posted to YouTube on Wednesday shows activists chanting at WBAL-TV reporters, “For our safety, we do not wish to be recorded.”
The access issues have sparked outrage from professional journalists, who say that the media ban, even if technically legal when on private campuses, is disgraceful to the principle of free press. “To welcome some reporters and not others — and to make support for the cause the price of admission — is to disregard not only the fundamental principles of journalism but also the school itself,” wrote Callum Borchers of The Washington Post, referring to the Smith protest.
Journalism organizations have responded to the press access issues by urging reporters to keep chasing the story, even when facing obstacles and uncooperative sources.
“Even though they are likely aggravated, journalists should also make sure their reporting is fair and balanced. Thorough, ethical and responsible reporting is always the best defense and character reference for journalists,” wrote Andrew Seaman, the chair of the Society of Professional Journalists’ ethics committee, in a blog post.
Tagged: recent-news, student protests, University of Missouri
The Education Law & Policy Review's second volume, published in fall 2015 and part of the Education Law Consortium at the University of Georgia, was devoted to the issue of free speech in schools.
The issue was dedicated to and inspired by Mary Beth Tinker and the 1969 Supreme Court decision stemming from protest by her and her brother John at school, which established the Tinker standard and ensured that students maintained their constitutional rights past the schoolhouse gates.
Former Student Press Law Center staff attorney Mike Hiestand recounted the 2014 Tinker Tour, a special project of the SPLC where Tinker and Hiestand traveled through 41 states and covered almost 25,000 miles. The two spoke to more than 100 groups, recounting Tinker’s experience fighting censorship and engaging with students, a large majority of whom were young women. Tinker is traveling again in the 2015-16 school year.
But, in his article, Hiestand also pointed out more recent court decisions — most notably the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier — that have chipped away at those rights, allowing censorship when “related to legitimate pedagogical concerns.”
“The Court gave some examples in its decision of what might fit within the standard it had created. Unfortunately, rather than clarify such vague language, the examples only made matters worse. Henceforth the Court declared, school officials could censor material that the Officials themselves deemed: ‘ungrammatical,’ ‘poorly written,’ ‘inadequately researched,’ ‘biased or prejudiced,’ ‘vulgar or profane’ or ‘unsuitable for immature audiences.’ The Court said that school officials could also censor speech that would associate the school with ‘any position other than neutrality on matters of political controversy.’ Finally, there is my personal favorite: Otherwise lawful student speech could now be censored, the United States Supreme Court said where school officials felt it promoted ‘conduct otherwise inconsistent with the ‘shared values of a civilized social order’
It is the sort of rule we would probably expect to see in North Korean high schools. But today it is also the free speech guidepost for public high schools in North Carolina and North Dakota.”
In a separate article, SPLC Executive Director Frank LoMonte noted the lack of protection the Tinker standard affords off-campus speech, including on social media.
The article argues that the Tinker level of control over students’ speech is excessive when the speech is not forced on a captive audience of in-school viewers, and that allowing school administrators to punish “substantially disruptive” off-campus speech could be abused, especially because speech on social media is replete with slang, irony and inside jokes that may not translate for the ears of adult disciplinarians. LoMonte wrote:
“When faced with an edgy new form of entertainment popular with young people, adults did what they have always done: They panicked. Reports of the heart wrenching deaths of students who took their own lives after being cruelly hounded via text-messages and social-media posts provoked a wave of questionably constitutional legislation expanding schools’ disciplinary authority into cyberspace. New Jersey enacted a statute, hailed as a ‘model’ for the nation, that defines ‘bullying’ an act carrying punishment up to and including expulsion from school - as any gesture, act or communication that is based on a student’s ‘distinguishing characteristic’ and that causes a student severe emotional harm, regardless of whether any conduct takes place on campus or whether there is discernible impact on the school. North Carolina upped the ante by enacting a statute that criminalizes online speech ‘with an intent to intimidate or torment’ a school employee with penalties of up to a year in jail - but only if the speaker is a student.”
Hiestand called on teachers to not be afraid of new technology, but embrace a sentiment expressed in the Tinker decision, that school is a place to learn and practice civic engagement, including the freedom of speech.
“It is time to try something different,” he wrote. “Instead of educators fearing and censoring young people and their new speech tools, it is time to look to our education system for leadership in helping young people use these new tools constructively and effectively. Young people grew up online. While school administrators may not understand or like it, the Internet is where young people now live much of their lives, and we do them a disservice by trying to change or deny their reality.”
Tagged: Mary Beth Tinker, recent-news, Tinker Tour
The U.S. Supreme Court will be asked to consider whether to hear a case that could have rippling effects on high school students’ off-campus and online speech.
The attorneys for Taylor Bell, who was suspended from Itawamba Agricultural High School in January 2011 for posting a homemade rap video to Facebook and YouTube, filed a petition with the highest court on Tuesday, asking the justices to review the Fifth Circuit’s decision in applying standards established almost 50 years ago in the Tinker v. Des Moines Independent Community School District to off-campus online speech.
Bell, who was sent to an alternative school for the six weeks remaining of the school quarter, used profanity and violent imagery in his video addressing accusations of inappropriate behavior by two male school coaches toward female students.
“Looking down girls shirts / drool running down your mouth / you fucking with the wrong one / going to get a pistol down your mouth / Boww,” Bell wrote in his song.
If the Supreme Court accepts the case, it would be the first time the justices address school discipline of speech outside of the school campus posted to social media websites.
In Tinker, the Supreme Court ruled in 1969 that school officials may not censor student speech unless it causes a substantial or material disruption to the educational operation of the school. Since the standard was established prior to the internet’s existence, courts have been divided about whether Tinker covers off-campus online speech.
“Students’ off-campus speech is entitled to full First Amendment protection,” the petition argued. “But at a minimum, off-campus speech should be governed by a more protective standard than Tinker, which was developed to balance the relevant considerations when students speak on campus.”
The case was first heard in Feb. 2011 by the U.S. District Court for the Northern District of Mississippi. The district court ruled in favor of the Itawamba County School District, finding that, since the teachers changed their teaching styles after the rap’s publication, Bell had caused a substantial disruption. School administrators reasonably understood the speech to be threatening, harassing and intimidating, the court decided.
The district court found “the Tinker standard applies to Taylor Bell’s song without regard to whether it was written, produced, and published outside of school.”
In Dec. 2014, a Fifth Circuit panel of three judges overturned the district court’s decision, with two out of three judges voting in favor of Bell. They found that the song did not cause a substantial disruption and because it was recorded off campus, the Tinker test did not apply.
Judge Rhesa Hawkins Barksdale, who authored the majority opinion, wrote that because of a rise in incidents of violence against schools, administrators must take seriously any possible threats of violence and that “it is necessary to establish the extent to which off campus student speech may be restricted without offending the First Amendment.”
In a dissent, Circuit Judge James L. Dennis wrote that the decision “denigrates and undermines not only Bell’s First Amendment right to engage in off-campus online criticism on matters of public concern, but also the rights of untold numbers of other public school students.”
Want more stories like this? The Student Press Law Center is a legal and educational nonprofit defending the rights of student journalists. Sign up for our free weekly newsletter to receive a notification on Fridays about the week’s new articles.
WASHINGTON, D.C. — Students, like everyone else, have a constitutional right to offend others with their speech, said Catherine Ross, law professor at George Washington University and author of the new book “Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights.”
Speaking at the Newseum on Monday in a conversation with Newseum Institute Chief Operating Officer Gene Policinski, Ross spoke about student expression and the First Amendment, touching on issues currently enveloping some campuses and high schools across the nation, like cyberbullying and students’ off-campus speech on their personal social media accounts.
The First Amendment contains an inherent right to offend, but schools often don’t grant students that right, she said.
In recent years, schools have cracked down on students’ social media use that is outside of school hours and off-campus. Many of those instances have resulted in lawsuits, and courts have been divided on how much authority schools have in their reach.
“It’s insane,” Ross said. “Are we communicating to our students that we are an authoritarian society, the authorities always win and they’re always in control, and we don’t mean what we say in the Bill of Rights?”
Policinski raised the question of the role of the school when it comes to exposing students to certain material that parents might find objectionable.
Ross said parents can send their children to private schools or homeschool them — but public schools have no responsibility to protect students from a certain belief system.
With cyberbullying and harassment, Ross said she sees the federal government not only overstepping, but misdirecting in their messages to local schools. New regulations aren’t necessary, she said.
“First Amendment doctrine remains adaptable and flexible,” she said. “If harassment reaches that level of obnoxiousness and threats, then turn it over. Current laws will suffice if the problem reaches that level.”
Both Ross and Policinski noted a current trend that people feel they should be protected from offensive speech — and it is very disturbing, they said.
During an audience Q&A session, retired educator and journalist Dave Price said First Amendment issues bring up “ignorance and insanity.”
“We can't really do anything about insanity, but we can do something about ignorance,” he said.
“Ignorance is a huge problem,” Ross said. “Most schools of education don't even cover school law and those that do don't necessarily cover First Amendment rights.”
Administrators, she said, cannot “cave into the pressure of the censorious.”
Ross said the first major U.S. Supreme Court case involving students’ rights was
West Virginia State Board of Education v. Barnette, which dealt with compulsory participation in the Pledge of Allegiance. The Court ruled in the students’ favor on free speech grounds and reversed a decision from three years prior. At the time, students were treated as juvenile delinquents if they refused to comply.
Still, Ross said, decisions to come over the next few decades would place limits on student speech that left open the possibility of more restrictions in the future, especially considering new and ever-present technology.
Ross said the
Bethel School District v. Frasercase punched a small hole in Tinker, limiting speech that could be considered lewd. The case addressed student Matthew Fraser’s speech nominating a friend for student body vice president that included indirect but lewd references and double entendres.
The next major relevant Supreme Court case, 1988’s
Hazelwood School District v. Kuhlmeier, chipped away at students’ First Amendment rights, she said. The court ruled that a school officials could censor student speech and expression if they determined a “reasonable educational justification” and if their censorship was viewpoint neutral.
(The Student Press Law Center has a campaign to “
Cure Hazelwood,” with movements popping up across the country after North Dakota passed a law that reverts back to the Tinker standard.)
In 2002, a student was suspended from school for displaying a banner that said “BONG HiTS 4 JESUS.” His case,
Morse v. Frederick, led to the Supreme Court deviating from the Tinker standard because the banner promoted illegal drug use, which can be restricted.
“Now some courts are applying this to anything that could encourage bad behavior,” Ross said.
On schools' regulation of students' off-campus speech:
"Because our schools are so petrified of the power and reach of social media, schools are reaching out into students' off campus lives to threaten them, frankly, for the kind of speech the First Amendment was meant to protect. If the First Amendment doesn't do anything else, it has to protect the rights of citizens to question government policies and to call for improvements into government services, that's why we have it. And teenagers are citizens."
On whether schools have the right to control their image:
"I would never use the word right to refer to a government agency. Rights are the things that protect us from the government, not the other way around. The government doesn’t have the right to protect itself from its own citizens."
On schools' claims of transparency and community involvement:
"I would suggest that anyone who thinks that schools and colleges are transparent, try filing a public records request with them and find out how transparent they really are. What we find is that students and professional journalists who call us as well and even members of the community who try to get the simplest public document out of a school or college are often met with a flurry of objections, denials, exceptions and jackpot fees."
Documents recently obtained by The Washington Post reveal a push by administrators at the University of Virginia — as well as Virginia Gov. Terry McAuliffe — to sway the Department of Education as it investigated the university’s handling of campus sexual assaults.
The documents, including correspondence between officials in the Department of Education’s Office of Civil Rights, UVA President Teresa Sullivan and McAuliffe, illustrate a cordial but contentious exchange in which McAuliffe calls the investigation into four years of the university’s sexual assault record an “adversarial process.”
In an August letter, McAuliffe asked the department to show UVA its findings before they are made public and to pinpoint specific cases that are being investigated. He accused the department of denying UVA due process rights, such as the right to be heard by an impartial tribunal and to be given adequate notice.
“While I tend to believe that constructive and cooperative approaches to reform are preferable — especially in working with public institutions that provide a vital function for our society at taxpayer expense — I understand that [the Office of Civil Rights] has fundamentally shifted course and has pursued a far more adversarial and punitive approach to resolving Title IX complaints,” McAuliffe wrote.
He also emphasized that UVA should be treated fairly “after it was so unfairly attacked” by a now-discredited November 2014 Rolling Stone article that depicted an incident of horrific sexual violence and a culture and administration that tacitly supported it.
Sullivan, in turn, reamed the department for an investigation she wrote is “replete with factual errors,” which she said the university could have corrected promptly if it had been allowed to review the probe’s findings. The department withdrew that version of the findings shortly afterward, then released a revised report of UVA’s Title IX violations on Sept. 21.
The report showed “a basis for a hostile environment existed for affected students at the university and that the university failed to eliminate a hostile environment and take steps to prevent its recurrence during academic years 2008-2009 through 2011-2012.”
Letters from U.S. Senators Mark Warner and Timothy Kaine, both Democrats, urged the department to take the governor’s comments seriously, citing “serious procedural questions that could affect the accuracy of the investigation.”
The university has repeatedly denied the media access to correspondence and documents surrounding the probe, citing exemptions in the state’s Freedom of Information Act that shield “correspondence and working papers” of college presidents from public access.
Although the department revised its findings — it’s unclear exactly how, the Post wrote — officials maintain that it did not soften them.
“The university was enormously displeased with what our findings were and very much hoped we would change them,” assistant secretary for civil rights Catherine Lhamon told the Post. “We did not.”
Tagged: Department of Education, recent-news, University of Virginia
A Massachusetts school district that withheld records of the district’s settlements with parents of special-needs students must make the records accessible to the public, as long as personal identifying details are redacted, the state Supreme Court ruled Friday.
The opinion by Massachusetts Supreme Judicial Court Justice Margot Botsford concludes parts of the settlement records containing student information are shielded from public access under the Family Educational Rights and Privacy Act, the federal student privacy law. But if the school district redacts the personal identifying details of students involved in the settlement documents, she ruled, it must release them to the public.
The high court vacated a state Superior Court ruling that nixed the school’s claim that the settlement records were private education records. The case grew out of a 2012 public records request by district resident Michael Champa, who requested access to Weston School District records from the previous five years detailing how the district settled claims with parents of special-needs children.
Although the Supreme Court ultimately reached the same general conclusion as the lower court — that the public has a right to know how public money is allocated toward education — it contended that the lower court’s interpretation was too narrow, although Botsford agreed with lower court judge Angel Kelley Brown that personal details should be redacted from the records.
Brown had ruled that the public-records exemption applied only to education records directly related to academic progress. But Botsford’s ruling found that the records fell within two exemptions to Massachusetts disclosure law, one for student records and one that protects private personal information.
"Notably, once personally identifiable information is redacted, the financial terms of such agreements, which necessarily reflect the use of public monies, partially or fully, to pay for out-of-district placements, do not constitute an unwarranted invasion of personal privacy; indeed, the public has a right to know the financial terms of these agreements," Botsford wrote.
The opinion also cited Massachusetts student-record law, which shields students’ “temporary records” — those that contain student information separate from the academic transcript but significant to the educational process. The ruling said the settlement records contained such information, but that the private details could be blacked out of the documents to make them accessible to the public.
“The record before us, limited as it is, indicates that an agreement is likely to contain information regarding a student's disability, progress, and needs — information that is unquestionably of importance to the student's ‘educational process,’” Botsford wrote. “However, like FERPA, the Massachusetts student records law and regulations protect student records only as they pertain to certain information — not entire documents.”
For more on FERPA and public records, check out the Student Press Law Center’s legal white paper. The SPLC also debunks improper uses of FERPA exemptions on our FERPA Fact blog.
A coalition of feminist and civil rights organizations recently submitted a letter to the Department of Education’s Office of Civil Rights asking the Department to issue guidance to universities regarding anonymous harassment on applications such as Yik Yak.
The letter, signed by 72 organizations including the National Organization for Women, Muslim Advocates and Human Rights Campaign, highlights what the groups see as troubling trends violating students’ civil rights. It argues that colleges are obligated under Title IX and Title VI of the Civil Rights Act to protect students from anonymous harassment — most of which, the letter says, is sex- and race-based.
“Students who have been targeted by anonymous cyber harassment and assault – especially through Yik Yak, where the perpetrators, because of the geo-location feature of the application, are within the campus community – have reported that the harassment has interfered with their academic studies and that they have had to seek therapy, change their extra-curricular activities, and even take extra security precautions,” the letter stated.
Inside Higher Ed reported two of the signatories also filed a complaint against the University of Mary Washington, alleging the university did not respond to harassment on Yik Yak. Female students there were threatened with rape and murder via Yik Yak.
For the past year, colleges across the country have been questioning their role in policing anonymous speech protected by the First Amendment, but that is offensive and harmful for some students, The spring/summer edition of the Student Press Law Center’s Report magazine looked at Yik Yak as a new outlet for anonymous speech and how universities are handling the negative speech and online discourse.
“Requiring colleges to punish what is perceived to be ‘race-based’ speech would endanger even viewpoints that are mainstream positions in society at large, but are disapproved of by politically-correct college campus administrators,” Bader wrote.
The letter attempted to preempt any free speech arguments, positing, “the First Amendment does not prevent schools from taking action to eliminate sex- and race-based harassment, whether that harassment occurs in-person or online.”
Hate speech is protected under the First Amendment, but true threats are not.
Still, he continued, “the coalition is arguing that [certain speech outlined in the letter] should be restricted precisely because of the viewpoints it expresses, and the offense and ‘hostile environment’ that those viewpoints cause.”
The letter provided examples of possible solutions for colleges, including “investigating all reports of online harassment, whether or not perpetrators are ‘anonymous,’ initiating campus disciplinary proceedings against individuals engaging in online harassment, geo-fencing of anonymous social media applications that are used to threaten, intimidate, or harass students, and barring the use of campus wi-fi to view or post to these applications.”
Despite some of the vitriolic tone of some yaks, anonymous postings also have positive outcomes, supporters argue — the University of Michigan campus community discussed mental health issues after a suicide note was posted to Yik Yak.
Attempts to reach the Department of Education were unsuccessful. Yik Yak has not responded to request for comment.
Contact SPLC staff writer Corey Conner at 202-974-6318 or by email.
Wesleyan University, a small, private liberal arts college in Middletown, Connecticut, has become the face of a national debate over freedom of speech, censorship and to what extent offensive speech should be tolerated.
In mid-September, a student and Iraq War veteran Bryan Stascavage wrote an opinion piece for the Wesleyan Argus criticizing Black Lives Matter. Since then, students have stolen newspapers, publicly shamed Stascavage and launched a petition demanding that the Argus be defunded if it does not meet certain measures to increase diversity.
In the most recent development last week, the Wesleyan student government unanimously voted to form a working group to consider cutting up to $17,000 in printing funds from the Argus and using the money to create 20 paid positions at various student publications across campus, which could include the Argus. The group will spend the next year discussing the best way to implement the cuts, which haven’t gone into effect yet.
Still, the raging debate between free speech and political correctness has appeared in the opinion pages of newspapers and blogs across the country, including the Washington Post and the Daily Beast (with the headline, “Wesleyan: The School for Intolerant Dictators”). Some journalists and other onlookers have decried the protesters as being too sensitive and fearful of a robust discourse that they might disagree with.
The College Media Association condemned the student government’s actions in a statement last week.
“Anytime the government seeks to control the media, freedom of the press is in danger,” CMA President Rachele Kanigel said. “Whether it’s through direct censorship, or through financial manipulation, interfering with the operations of a student newspaper is a form of censorship.”
University President Michael Roth, who has defended the Argus’ right to free speech since the initial outcry,
wrote an op-ed for the Hartford Courant acknowledging students’ right to criticize the initial column in the Argus but decrying punishment of the paper.
“Protests against newspapers, of course, are also part of free speech,” he wrote. “But punishment, if successful, can have a chilling effect on future expression.”
He continued by saying that students must not “protect [themselves] from disagreement” and “be open to being offended for the sake of learning.”
“Education worthy of the name does not hide behind a veneer of civility or political correctness, but instead calls into question our beliefs,” he wrote. “We learn most when we are ready to consider challenges to our values from outside our comfort zones of political affiliation and personal ties.”
The Argus is now accepting donations to brace for potential cuts. In a message, the editors wrote that a $17,000 funding cut would prevent them from printing twice a week, which the Argus has done for decades. It would also make them unable to pay some of their staff, particularly those in layout and distribution, they wrote.
The student government’s resolution states that it is intended to promote environmental sustainability by lessening the number of papers printed and increase diversity on the newspaper’s staff by removing the financial burden of participating.
In a blog post titled “It’s Already Been a Remarkably Bad Year for Student Press,” the Foundation for Individual Rights in Education wrote that the Wesleyan Argus case, among others, sends an intimidating message to student journalists that they shouldn’t publish anything that might offend someone.
“That this advice is antithetical to a free press, and that journalists cannot be held responsible for how their readers react to opinions they publish, doesn’t seem to matter all that much to the people demanding they be censored,” the post said.
Colleges' stubborn refusal to comply with -- or at times, even acknowledge -- state laws requiring disclosure of open records doesn't just impede journalists. It exacts a real toll on researchers' ability to analyze how public universities are doing the public's business.
As Peter Schmidt reports in The Chronicle of Higher Education(subscription required), lawyers questioning the legality of racial preferences in college admissions are expressing frustration at colleges' growing resistance to requests for public records, even for documents about policies and practices that have no bearing on the confidentiality of individual students' records.
Summing up the researchers' exasperation, Schmidt quotes a brief by UCLA law professor Richard H. Sander, filed with the U.S. Supreme Court in the case of Fisher v. University of Texas at Austin, which is scheduled for argument before the Court Dec. 5: "Our research indicates that universities are becoming steadily less transparent in making admissions data publicly available."
The SPLC has ample first-hand experience with colleges simply feigning ignorance of, or immunity from, open-records laws. When the SPLC surveyed 110 colleges nationwide seeking information about the outcomes of disciplinary hearings in sexual-assault cases -- documents that are expressly made available to the public under federal law -- more than 75 percent of institutions produced nothing.
Colleges' insistence on withholding information about law-school admissions practices is especially difficult to defend because the exact issue has already been litigated before the Wisconsin Supreme Court.
In 2002, the Wisconsin court ruled that records reflecting admissions patterns at the University of Wisconsin, minus identifiable personal information about individual applicants, are public records and cannot be withheld on the grounds of student confidentiality.
In the Fisher case, which challenges whether colleges may consider race as part of a subjective assessment of applicants' personal qualities and experiences, state institutions shouldn't be allowed to argue before the Court that they have considered alternative admission strategies if they're unwilling to produce documentation when presented with a valid public-records request.
Tagged: Fisher v. University of Texas, news-recent, public records, recent-news, Supreme
Court, Supreme Court