The Student Press Law Center blog

Protect students' right to display the American flag despite "hecklers," free-speech icons urge Supreme Court

Two generations after the Supreme Court recognized students’ right of free expression in the Tinker case, today’s Court is being asked to reaffirm that the Tinker ruling really means what it says – by the Tinker family itself.

Brother-and-sister plaintiffs John and Mary Beth Tinker filed a friend-of-the-court brief urging the Court to take up the case of  Dariano v. Morgan Hill Unified School District, in which students lost their First Amendment challenge to a school ban on American flag apparel during a Latino heritage event.

In a February 2014 ruling, three judges on the Ninth Circuit U.S. Court of Appeals found no First Amendment violation in a California school’s decision to order students to remove American flag apparel during a Cinco de Mayo celebration in 2010. The school justified the ban by pointing to a near-altercation at the same event a year earlier, when a Latino student felt white students were goading and taunting him by waving an American flag and chanting “U-S-A!”

Applying the 1969 Tinker case, which permits schools to restrict speech if it portends a “material and substantial” disruption on campus, the Ninth Circuit decided that the school acted lawfully. The history of racial tension, and the prospect that tensions might escalate in reaction to students’ American flag shirts “made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”

But two people who know the Tinker case better than anyone – the Tinkers themselves – say the Ninth Circuit got it wrong.

In their amicus brief, the Tinkers say schools shouldn’t be allowed to ban provocative speech just because people who disagree might try to silence the speaker by lashing out – what the Supreme Court has termed a “heckler’s veto.”

“This case is an ideal vehicle to clarify the holding of Tinker, to reaffirm the vitality of the ‘heckler’s veto’ doctrine, and to prevent students (both the potentially violent and the peaceful) from learning a message that is the very antithesis of the First Amendment: that speech can be effectively suppressed by threat of violence,” says the brief, which likens the Morgan Hill students’ flag apparel to the Tinkers’ own Vietnam war protest armbands, which also provoked harsh words from classmates yet were deemed constitutionally protected.

The brief was authored by a “dream team” of First Amendment litigators including Robert Corn-Revere of Davis Wright Tremaine LLP and Eugene Volokh of the UCLA School of Law.

The Court has hesitated to accept student-speech cases, rejecting several petitions in 2013 that asked for clarification of schools’ punitive authority over what students say on off-campus social media. Most recently, the Court  refused to consider a federal appeals court’s decision protecting the right to wear cancer-awareness wristbands bearing a word – “boobies” – that a Pennsylvania school tried to forbid as “lewd.”

But the Dariano case presents unusually tempting facts. It involves exactly the kind of speech – the American flag – that the Court’s Republican-appointed majority would be most inclined to regard as worthy of constitutional protection.

And there was substantial opposition to the Dariano outcome within the Ninth Circuit itself. When the court refused to accept the February 14 opinion for reconsideration by the full (“en banc”) lineup of Ninth Circuit judges, Judge Diarmuid O’Scannlian issued a resounding dissent joined by two colleagues.

Rebuking the court for refusing to rehear the case, O’Scannlian wrote that the Dariano ruling “permits the will of the mob to run our schools.” The entire dissenting opinion is well worth reading for its forceful defense of freedom of expression in schools, even when the expression is challenging and suppressing it would make life easier for school officials. But one passage in particular is the judicial equivalent of a mic-drop:

In this case, the disfavored speech was the display of an American flag. But let no one be fooled: by interpreting Tinker to permit the heckler's veto, the panel opens the door to the suppression of any viewpoint opposed by a vocal and violent band of students. The next case might be a student wearing a shirt bearing the image of Che Guevara, or Martin Luther King, Jr., or Pope Francis. It might be a student wearing a President Obama "Hope" shirt, or a shirt exclaiming "Stand with Rand!" It might be a shirt proclaiming the shahada, or a shirt announcing "Christ is risen!" It might be any viewpoint imaginable, but whatever it is, it will be vulnerable to the rule of the mob. The demands of bullies will become school policy. That is not the law.

Tagged: dariano v. morgan hill, First Amendment, Mary Beth Tinker, recent-news, tinker v. des moines

New Ill. law would not require school districts to monitor students' social media, press association director says

ILLINOIS — A letter from the Triad School District sent a community into a frenzy last week when it notified parents of an Illinois law requiring students to hand over their social media passwords to school administrators.

Multiple news outlets and blogs jumped on the story, including St. Louis television station Fox2Now and HLN, reporting on parents’ concern over their children’s privacy.

However, these outlets cited a 2014 law and misinterpreted the year-old law and a recent amendment to the Illinois school code, said Josh Sharp, the director of government affairs for the Illinois Press Association.

“Essentially, there is no requirement in the law that was passed earlier or the new law that anybody has to hand over a password,” Sharp said. “The law requires a school district to ask that they inform a parent or guardian if they’re requesting a password. There’s no penalty for saying no.”

Last year’s law required school districts to notify parents if they ask for a social media password to investigate cyberbullying. This year, lawmakers amended the school code to include cyberbullying in the language.

Rep. Laura Fine, who proposed the bill to amend the school code, said media outlets misinterpreted the law’s intent.

“There’s nowhere in the legislation that it says everybody has to give over their social network password,” Fine said. “Your password isn’t even mentioned in the legislation.”

Sharp said he believes Triad School District misinterpreted the law as well. He said if a parent or student didn’t give school administrators access to their social media accounts, they would not violate the law.

The amendment to the school code requires school boards to establish policies about investigating cyberbullying claims “but in terms of getting someone’s password, the law only requires school districts to inform parents or guardians that they are inquiring about a password,” Sharp said.

Statutes in 12 states protect students against demands for access to their social media accounts, and in some cases email accounts and other forms of electronic communication. However, many of these laws protect only college students and leave high school students vulnerable to violations of privacy by school officials.

Policies allowing school officials to search students’ social media accounts are not uncommon.

In 2012, the American Civil Liberties Union filed suit against a Minnesota school after administrators searched a student’s Facebook account because a parent complained the student had talked about sex with her son on the social-media platform. A settlement was reached and the school agreed to change its social media policy.

In October 2014, the ACLU of Tennessee and the Electronic Frontier Foundation called on the Williamson County School District to change its technology and internet policy, which allows administrators to examine electronic devices students bring from home and monitor communications or data transmitted on the district’s network. According to the letter, the policy violates students’ right to free speech and protection against “suspicionless searches.”

Tagged: cyberbullying, Fox2Now, HLN, Illinois, Illinois Press Association, news, recent-news, social media, Triad School District

LSU wins partial court victory in closed-door presidential search

Louisiana State University won't have to pay contempt fines for defying a judge's order to disclose the names of applicants in a secretive 2013 presidential search, under a state appeals court's ruling.

And instead of revealing the 35 semifinalists who received serious consideration for the presidency, LSU will have to identify only four people (including the winning candidate, F. King Alexander), who actually got as far as an interview.

The Louisiana Court of Appeal's Dec. 30 ruling is a holiday gift to the trustees of LSU, who were facing a $500-a-day fine for every day they refused to disclose the information requested by the student newspaper, The Daily Reveille, and two professional papers.

Instead, the court decided Tuesday in a 3-0 ruling, LSU will have to pay only $30,800 in attorney fees to the publishers of two newspapers, The Advocate and The Times-Picayune, who challenged the closed-door search under Louisiana's Public Records Act.

A 2006 Louisiana statute explicitly entitles the public to the names and backgrounds of "applicants" for executive positions such as college presidencies. The issue in the case, Capital City Press v. Louisiana State University Board of Supervisors, is when a potential candidate crosses the line from "just browsing" to "applying."

Like many across the country, LSU's presidential search was conducted largely by a private contractor, R. William Funk & Associates, that maintains a stable of would-be presidents who've agreed to have their resumes kept on file for consideration in future searches. From that stockpile, LSU's trustees focused in on 35 "wish list" names and eventually contacted five about being interviewed. One took another position and another withdrew before being interviewed, leaving three who went through with the entire process.

The appeals court concluded that "applicant" means "an individual who has expressed his or her desire through words or actions to be considered for the position in question." In the case of LSU's presidency, that means not just asking for information about the position but affirmatively expressing willingness to be considered -- which, the court held, only four candidates did: the three who interviewed and the one who withdrew. The public is entitled to their names.

In a separate ruling, the court also threw out contempt fines against LSU, finding that the university did not act unreasonably in refusing to comply with District Judge Janice Clark's April 2013 disclosure order.

Tuesday's decision largely reverses a pro-transparency decision by Clark, who slapped LSU with contempt-of-court fines -- which ultimately totaled more than $46,000 -- after the university defied her order to surrender the resumes of the 35 candidates the trustees seriously discussed.

Lawyers for both LSU and the newspapers told The Advocate that an appeal is possible, since neither side won a complete victory. To appeal, either side would have to file a petition with the Louisiana Supreme Court within 30 days of the time the notice of the appeals court's decision was mailed.

Tagged: louisiana-court-of-appeals, lsu, news, presidential search, recent-news, search committee, search-committee

Searching professor's house for guns based on Facebook joke was unreasonable, appeals court rules

In a fittingly bizarre end to a case of police ineptitude too implausible for an episode of "Brooklyn Nine-Nine," prosecutors won't be able to use illegally seized drugs they found in a Missouri professor's home while searching for the guns he joked on Facebook about having.

A state appeals court threw out the evidence found at former Northwest Missouri State journalism professor Matthew Rouch's house, finding that the search warrant was so baseless that police could not even have been honestly mistaken in relying on it.

Remarkably, the case involved an illegal search for evidence that was then used to support a second illegal search, only the latter of which was at issue in Rouch's case.

Rouch was arrested in September 2013 when police -- while searching his house for guns -- instead found marijuana-growing supplies. 

The Keystone Kops case began when the student newspaper, The Northwest Missourian, published an article mentioning a remark that an NMSU professor posted on Facebook, in which he joked about becoming so frustrated with students that he would "be wanting to get to the top of the bell tower with a high powered rifle" later in the semester. The professor wasn't named in the column.

After an editor mentioned the column in a conversation with NMSU's police chief, campus officers showed up at the newsroom with a search warrant and demanded the original screenshot of the Facebook post, which the editor surrendered.

That was illegal search #1.

The federal Privacy Protection Act, a 1980 statute that was specifically enacted to outlaw police searches of college newsrooms after a particularly egregious case at California's Stanford Daily, makes it illegal to search or seize property where a journalist stores unpublished newsgathering material. A warrant isn't good enough -- a search can take place only after a court hearing at which the journalist is represented. That didn't happen at NMSU.

But that wasn't the illegal search on which Rouch won his case. 

In July, a Missouri circuit judge threw out the drugs and paraphernalia found at Rouch's home, on the grounds that an obviously joking Facebook post did not provide probable cause justifying a search warrant.

On Dec. 16, a three-judge panel of the Missouri Court of Appeals agreed:

[I]t is readily apparent on the face of the warrant and affidavit that the items subject to the warrant were not contraband or evidence of a crime. The clear reason for which the warrant was sought was to assess Rouch's capability to commit a violent crime in the future. 

The judges found that the search-warrant affidavit executed by the campus police chief was misleading, because it omitted the chief's interviews with Rouch and others on the faculty who read the Facebook post, each of whom considered it a harmless joke and none of whom took it seriously. Even if the search had turned up guns, the judges wrote, it was legal for Rouch to own firearms and the mere presence of weapons in the house would not have supported the leap that he intended to shoot up the campus.

Because the search for weapons was unsupported by probable cause, the marijuana plants and growing equipment serendipitously found during the search cannot be used against Rouch, likely ending any attempt to prosecute him for the drug charges. And reaffirming the adage that two wrong searches don't make a right.  

Tagged: facebook, Fourth Amendment, news, recent-news, reporter's privilege, threat speech

SPLC urges Education Secretary to side with transparency, not concealment, in Montana sexual assault investigation

It's painfully well-established that colleges lie about student privacy to conceal public records they'd rather not disclose. When the Family Educational Rights and Privacy Act ("FERPA") is misused to withhold information about athletic scandals or employee misconduct, it's aggravating.

 But when FERPA is misused to withhold information about campus sexual assaults, it's disgraceful.

Last Friday, the U.S. Department of Education, through legal counsel with the Justice Department, served notice that it would be joining the University of Montana's appeal of a district-court order requiring the disclosure of public records about how the university system handed a star football player's disciplinary appeal in a sexual assault case.

Despite the Obama administration's lip service to improving the transparency of how colleges deal with sexual assault, at the first opportunity to put that resolve to the test, the federal government is throwing its weight behind continued concealment.

Today, the SPLC sent a letter to Education Secretary Arne Duncan urging him to pull the plug on this misguided use of federal resources. As the letter points out, the Department rarely intercedes in legal disputes involving FERPA and access to public records -- and has never done so on the side of disclosure -- and to decide that this case merits an exception to the Department's normal practice of abstention is, to say the least, tone-deaf.

We hope that Secretary Duncan and the White House will do the right thing and rescind the Department's Dec. 12 motion to join the Krakauer case. 

Tagged: Arne Duncan, FERPA, Jon Krakauer, news, recent-news, sexual assaults, University of Montana

Private college sent you to the dungeon? The Constitution won't help. Contract law might.

"Campus safety" officers on private college campuses exist in a legal gray zone, walking the line between "security guard" and "police officer" -- at times with all the power but none of the accountability of the latter. 

If a New York judge's ruling stands, security officers at Colgate University can't be held responsible for violating a student's constitutional rights when (according to a federal lawsuit) they confined him in the basement "holding cell" of a campus building in advance of a disciplinary hearing that was at least nine days away.

Abrar Faiaz claimed in a federal civil-rights suit that, when questioning him about a disciplinary complaint of dating violence, Colgate engaged in coercive interrogation techniques including depriving him of food and pressuring him to accept a one-way ticket home to Bangladesh. 

Even after the interrogation ended, the suit alleged, a Colgate administrator told Faiaz he would be "detained" in the basement of a residence hall for at least nine days pending a disciplinary hearing. (He ended up staying only a day-and-a-half before a sympathetic faculty sponsor took him home.)  

At a state institution, such behavior (if proven at trial) would violate multiple constitutional guarantees (due process and unlawful seizure, for starters), entitling the student to damages from any individual responsible for the infringement.

But because Colgate isn't a state institution, a federal magistrate judge threw out Faiaz's civil-rights claims last Monday.

In a Nov. 24 order, U.S. Magistrate Judge Andrew T. Baxter decided that Colgate public safety officers could not be held responsible under federal civil-rights law even if they did everything they're accused of, because Colgate police aren't state authorities:

The entire investigation was internal and led only to university disciplinary proceedings. The defendants did not exercise power possessed by virtue of state law and made possible only because they were clothed with the authority of state law.

The judge differentiated Colgate's police force from campus cops at Cornell University and at the University of Pennsylvania, where federal judges have decided that officers at private colleges who carry state arrest authority can be held liable for constitutional violations.

While Judge Baxter's ruling is a defensibly straightforward view of the law -- if you're not a state official, you're not liable for misusing state governmental authority -- it also leaves a troubling gap: A campus police officer can act like he has arrest powers, but not be accountable for exercising those nonexistent powers. 

The disciplinary context removed Faiaz's case from the clearer scenario in which, when campus police act like "real" police -- making traffic stops or arrests -- courts have held them to the same constitutional standards as city or county officers. 

The Indiana Supreme Court, for instance, has ruled that Butler University's police are subject to the same Fourth Amendment constraints as city or county police when conducting a traffic stop, because "[a] private entity is deemed a state actor when the state delegates to it a traditionally public function."

The Faiaz ruling doesn't leave students entirely defenseless. The judge allowed Faiaz to go forward on a state-law claim of false imprisonment -- rejecting the university's "did they SERIOUSLY say that" defense that Faiaz was not coercively imprisoned because he freely chose to stay. 

When given the "choice" between the basement and the one-way ticket to Bangladesh. 

Which Colgate's lawyers expansively described, in terms more suited to an announcer on "The Price is Right," as "a free trip to the comfort of his home and family." Judge Baxter wasn't buying. Colgate will have to answer to the claim.

Of broader significance to all students, the judge recognized that it's possible to hold a private college contractually responsible for the bargain struck when a student enrolls and is promised benefits set forth in the college's "bulletins, circulars, and regulations."

But apparently, nothing in the Colgate student handbook says, "We won't lock you in a basement," a buyer-beware tip for those choosing among colleges in the future. Because the judge dismissed Faiaz's breach-of-contract claim, finding that a student is owed no more than "substantial compliance" with the procedural formalities in a college's disciplinary code. Promises that a disciplinary system will be "fair" or produce "equal treatment" are just platitudes and are too indefinite to be contractually enforceable, the judge decided.

The Faiaz case, assuming it's not successfully appealed, is a cautionary tale for any student considering a private college. Along with asking how late the make-your-own-pizza bar is open and how many rock-climbing walls the gym has, prospective students and their families should ask demanding questions about what safeguards protect students against abuses by secretive police and disciplinary authorities. And if the answers aren't reassuring, take your business elsewhere.

Tagged: colgate, discipline, due process, Due Process-Discipline, faiaz, private college

Connecticut joins consensus that school security videos are not confidential FERPA records

An elementary-school principal is suspended from her job after accusations surface that she abused two kindergartners by dragging them down a hallway. When a reporter tries to review the most reliable evidence -- footage from a surveillance camera -- the school district claims that the video is a "confidential education record."

That, of course, makes no sense -- and now a state open-records panel has said so.

In an Oct. 22 ruling, the Connecticut Freedom of Information Commission decided that reporter Linda Lambeck of the Connecticut Post newspaper could have access to videos of the dragging incidents. 

Complaints about mistreatment of the two children led Bridgeport's Board of Education to suspend Principal Carmen Perez Dickson, who retired rather than accept a transfer to a desk job with the district. 

By the time Lambeck made her request under the Connecticut Freedom of Information Act, the videos were already in the hands of concerned parents and widely circulating around the district and online. 

But -- in a refrain familiar to education reporters everywhere -- the school district cited the Family Educational Rights and Privacy Act and denied the newspaper's request.

FERPA is a narrow privacy statute that applies only to records that, as the Supreme Court clarified in 2002, are "kept by a single central custodian, such as a registrar" and that "directly" pertain to an individual student. 

School lawyers largely don't -- or won't -- understand this. The Connecticut FOI Commission did.

The Commission cited two reasons for refusing to classify the videos as confidential FERPA records. Both reasons are noteworthy because they add to the growing consensus that FERPA must be applied in a common-sense manner as its authors intended

First, the videos are blurry enough that the children in them can't be readily identified. This is yet another rebuke to the U.S. Department of Education's irrational view that a record even with identifying information removed can still be a FERPA record if the requester knows, or can figure out, to which student the record pertains. The Post obviously can figure out the identity of the dragged children, because at least one of the parents has come forward publicly and identified herself. Yet that, properly, did not factor into the Commission's thinking.

Second, the Commission ruled, the videos "directly relate to the conduct of the school principal and not to the students who appear in them." This is important. Schools and colleges frequently conceal information about misconduct accusations against their employees by mis-categorizing a complaint involving the mistreatment of students as a "student record," an issue central to an ongoing complaint against the University of Iowa, which refuses to explain the removal of its women's field-hockey coach.

The FOI Commission's unanimous ruling brings Connecticut in line with New York and Louisiana, where judges likewise have refused to classify surveillance videos as FERPA records.

The school district could appeal the decision, but has given no indication it will do so.

Have you run into a questionable use of FERPA to deny a request for access to government records? Report it to FERPA Fact and we'll see rate the accuracy of the agency's claim on the Arne Meter. 

Tagged: Connecticut Freedom of Information Act, Connecticut Freedom of Information Commission, FERPA, open-records, public records, surveillance video

Fla. community college president discredits student newspaper’s reporting, gags faculty

FLORIDA — The president of a Florida community college is attempting to bar the student newspaper from reporting on faculty contract negotiations and is accusing the faculty union of breaking a state law by speaking to the student press about the negotiations.

Ed Meadows, president of Pensacola State College, claims the student newspaper, The Corsair, would not have known about the non-student issue if faculty had not approached them with the idea and that they should not report on this issue because it isn’t about students, according to an Inside Higher Ed story. Editor-in-Chief Spenser Garber dismissed both of Meadows’ claims.

Faculty members were told that communicating with the student press about the contracts violates a state law that prohibits union members from “instigating or advocating” support from students, according to a letter from college attorney Michael Mattimore sent to the faculty union on Oct. 31.

The faculty union responded, claiming that the interpretation of the law was invalid and that the administration has been lying about the newspaper’s reporting.

The Corsair has published one story related to the contract negotiations so far. The student newspaper reported on Oct. 31 that 34 of 35 Pensacola State Faculty Association members who voted at an Oct. 9 meeting voted no confidence in Meadows.

“The constant bargaining has made the faculty feel that the administration does not have the faculty’s best interests at heart,” The Corsair reported. “This has caused a feeling of distrust in President Meadows and other members of the administration.”

Contract negations for faculty were sent back to the bargaining stage earlier this year after the proposed contract from administration was voted down by faculty, The Corsair reported in the same article.

Tagged: Florida, news, Pensacola State College, recent-news, The Corsair

Most college police agencies in Texas do not have guidelines for stalking cases, report shows

One in five women will experience stalking in college and are hesitant to report the incident to police — especially campus police — according to a new study from the Crime Victims’ Institute at Sam Houston University.

According to the study, fewer than 20 percent of those women who say they experienced stalking while enrolled in college reported it to the police. Of the group who did report, 56.7 percent reported their claim to local police, while only 30.3 percent decided to go to campus police.

The study also published survey results of 56 police officers from Texas colleges responding to questions related to their understanding of stalking and official procedures to address it. The answers from respondents — most of them identified as police chiefs — show that seven out of 10 did not have specific guidelines at their institution for dealing with stalking cases, and that few of them work with off-campus organizations that help victims of stalking.

According to Texas law, stalking occurs when a person engages in potentially threatening conduct directed toward another person on more than one occasion that could lead to bodily harm or damage. Stalking can lead to a third- or second-degree felony charge, depending on the circumstances.

When asked if they understood federal mandates related to gender-specific issues, the majority reported they understood how the Clery Act and Title IX would be applied to cases of stalking, while only 48 percent said they understood how to apply the Campus Sexual Violence Elimination Act to stalking cases.

The study concluded that campus police could improve their practices and approaches to dealing with stalking by consulting outside groups, and that government officials, local communities and victim support services should “consider the needs of campus police departments and ways in which campuses can collaborate with and be supported by these agencies in their efforts to effectively prevent and respond to stalking on campus.”

The study’s suggests that universities in Texas struggle to address reports of stalking. How does your institution address similar reports?

Talk with your university or college police department and ask them the same questions in the survey related to their understanding of stalking and what procedures they have in place. Likewise, it would be helpful to speak to on- and off-campus support groups, as well as local police.

And as far as the statistics go, this study does include national figures that could be beneficial to your reporting.

Tagged: campus crime, Campus Sexual Violence Elimination Act, Clery Act, Texas, Title IX

New federal regulations on campus crime increase transparency

New rules that change what colleges have to do under the Clery Act were published Monday. The new regulations — the result of months of discussions and negotiations following the 2013 passage of the federal Violence Against Women Reauthorization Act — are designed to lend greater transparency to the process by which colleges respond to crimes of sexual violence affecting students. 

Here's the new information you'll have access to under the regulations:

The new regulations go into effect July 1, 2015. However, the statutory provisions are already in effect, and the Department of Education has instructed colleges to make a "good faith effort" to comply right away. 

A good story idea for student journalists is to ask colleges how they are complying with the new law and how they will incorporate the new regulations. (A look at the #SaVEOurCampuses hashtag turns up many complaints about colleges failing to disclose statistics about stalking, dating violence or domestic violence.)

To see all of the changes, read the final regulations.

Tagged: campus crime, Clery Act, recent-news