The Student Press Law Center blog
An Illinois judge has ruled in favor of The Chicago Tribune, which sued the College of DuPage and the College of DuPage Foundation for access to records under the Freedom of Information Act.
Appellate courts in Pennsylvania and Iowa have ruled that nonprofit university foundations are subject to open records laws, and this decision was the first instance of a higher court in Illinois ruling that a college’s fundraising foundation was subject to open records requests.
The Tribune filed open records requests as part of an investigation into college administrators’ expenditures and contracts, and was refused access to a subpoena issued as part of a federal investigation.
The foundation argued that it was separate from the college and not bound by the statutory open government duties of public institutions.
The DuPage Circuit Court of Illinois rejected the foundation’s appeal of a lower court’s ruling which found that the foundation was subject to such requests under Section 7(2) of the state FOIA.
Subsection 2 of the FOI act says that records of agencies contracted to perform a governmental function for the public institution can be subject to open records requests when the records pertain to that function.
The Tribune argued that because the foundation solicited, accepted and managed the college’s private donations, it had been contracted to perform a governmental function for the college.
The college argued that the foundation was not fulfilling a governmental function and was not subject to Section 7(2).
“Defendants’ interpretation of section 7(2) has no basis in FOIA and, if accepted, would impermissibly narrow it,” Judge Robert Spence wrote in the May 9 opinion. “As the Tribune correctly points out, accepting defendants’ view would allow public bodies to shield records from public scrutiny simply by delegating to third parties those responsibilities that do not involve the exercise of exclusive governmental powers.”
The court found that the college’s argument that classifying the foundation as an agency that fulfills a governmental function would subject organizations like parent teacher associations, booster clubs and volunteer organizations to undue scrutiny was without merit.
Spence wrote that such organizations would be exempt because they, “...are often run by volunteers, are not under contract to manage a school’s entire endowment, and are not staffed by public employees who receive state health and retirement benefits.”
While each state’s courts consider a number of factors in deciding whether foundations qualify as entities of public institutions; sharing directors, employees, property, resources and state funding are general signs that the relationship is deep enough to qualify for the responsibilities of a public institution.
Speaking to those conditions, the appellate court’s decision points out that a memorandum of understanding was drawn up between the college and the foundation, outlining their relationship, and that the foundation’s executive director is also the college’s vice president for development.
The whole issue began in February of 2015, when the Illinois Senate Higher Education Committee requested “senior Leaders’ employment contracts, buyouts and severance agreements,” of the last 10 years in addition to all perks they received as part of their employment at Illinois public universities and community colleges, according to The Tribune.
This Senate committee investigation began after the College of DuPage trustees approved a controversial severance package for former president Robert Breuder, amounting to $762,867.77.
In light of the investigation, the Tribune filed three FOIA requests:
- April 1, 2015: It requested the DuPage County grand jury subpoena from the college.
- April 14, 2015: It requested, “documents regarding College administrators’ expenses that were reimbursed by the Foundation through the Foundation’s leadership cultivation account,” from the college and the foundation.
- April16, 2015: It requested, “all state and federal subpoenas received by the Foundation since April 1, 2015,” from the college and the foundation.
The college released the DuPage county subpoena requested by the Tribune, but not the federal subpoena, which it said it did not have in its possession or control. The college moved to dismiss the case because it could not be compelled to produce something it did not have in its possession.
The Tribune continued to report on issues surrounding college administrators’ expenses after the controversy with the president’s severance package, and found that over the course of three years, college administrators including former president Breuder racked up almost $200,000 in expenses at the upscale campus restaurant Waterleaf.
They also reported that members of the foundation board had business dealings with the college and may have benefitted from non-competitive contracts with the school. The Tribune found that between 2010 and 2015, the college incurred $200 million worth of expenses from businesses that had a member on the foundation board.
The foundation is the fundraising arm for the college, and while board members do not receive a salary, other employees are paid by the school, and receive other state employee benefits. The school receives more than $150 million a year from county property taxes and state funds, and serves 28,000 students.
In his decision, Judge Spence cites another recent ruling involving access to a nonprofit affiliate of educational institutions, Better Government Association v. Illinois High School Association. In that case, the Better Government Association requested records of “contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012 to 2013 and 2013 to 2014 fiscal years,” from the Illinois High School Association, which handles high school athletics, according to the court report.
When the IHSA said that it was not subject to these requests because it was a nonprofit, the BGA requested the documents from one of the association’s members, school district 230, which said it was not in possession of the documents.
The plaintiff, BGA, contends that IHSA fulfills a governmental function for the school districts and its records are therefore subject to public scrutiny.
The two lower court decisions both sided with the IHSA and the school district, but the case is awaiting a ruling from the state Supreme Court on appeal. In the DuPage ruling, however, Judge Spence questioned the district court’s findings in BGA.
“Respectfully, we believe that the First District misconstrued the statute when it stated that the requested records must independently satisfy the definition of “public records” under section 2(c) in order to trigger section 7(2),” Spence wrote. Later, he concludes, “Under a plain reading of section 2(c), records that qualify as “public records” remain “public records” if they are transferred to a nonpublic body.”
High school principals and other school employees make up the IHSA board of directors, but it does not require dues from member schools. It is funded by the events it hosts and business sponsorships.
IHSA also has an administrative staff and executive director that are not government employees.
SPLC staff writer Marjorie Kirk can be reached by email or (202) 974-6317
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Tagged: blog, Blogroll, court decision, lawsuit, recent-news, university foundations
UPDATE: The North Carolina Court of Appeals has ruled University of North Carolina must hand over student, faculty, and staff rape, sexual assault, and sexual misconduct records requested by the university's student newspaper, The Daily Tar Heel.
The April 17 decision reverses last year’s May 2017 ruling by Superior Court Judge Allen Baddour that sided with the university. The Tar Heel appealed in September 2017.
"We're happy to see the result of our appeal as we believe the information we fought for will help inform our community on campus safety and how the Title IX process works," Tar Heel Editor-in-Chief Tyler Fleming said in an email statement. "We understand the importance of what we're doing and hope to produce content that shapes conversations surrounding sexual assault on campus."
The Student Press Law Center filed a friend-of-the-court brief to the Court of Appeals in September 2017 arguing that UNC was inappropriately using federal privacy laws to restrict access to public records. The amicus brief was filed on SPLC’s behalf by Greensboro, N.C.-based media lawyer Elliot Engstrom, a volunteer with SPLC’s Attorney Referral Network.
Since the three judges in the appeal—John Tyson, Wanda Bryan, and Rick Elmore—voted unanimously in their decision, the university's last option to restrict the requested records from release is filing a petition to the North Carolina Supreme Court to counter the appellate ruling. If they do, and the petition is denied, UNC must turn the documents over to the Tar Heel.
While the court ruling says federal law does not protect the records the Tar Heel requested, the exact dates of the offenses in the documents will be redacted. According to the Family Educational Rights and Privacy Act, dates are not one of the categories of information that is allowed to be released. In addition, the names of complainants in the records will not be released without their permission.
UNC spokesman Joel Curran responded to the ruling in a statement posted to the university's website.
“We are disappointed with the N.C. Court of Appeals decision and are examining all legal options as we review the ruling...Our position is based on the principle that we must protect the identities of survivors and other parties who put their trust in the University’s Title IX process and their rights under federal privacy law."
Tar Heel attorney Hugh Stevens wasn't surprised with Curran's statement.
It's "the usual crybaby response from them," Stevens said. "We're delighted by the result."
The Daily Tar Heel has encountered a legal setback in its fight to obtain sexual misconduct records from the University of North Carolina–Chapel Hill in a case being watched nationally for its application of privacy laws.
The student newspaper filed an open records request Sept. 30, 2016, to obtain records detailing any incidents where students or faculty were found responsible for allegations of rape, sexual assault or sexual harassment. After the university refused to turn over documents, citing student and employee privacy, several local media outlets joined the Tar Heel in filing a lawsuit against UNC.
In the May 3 decision, Superior Court Judge Allen Baddour found that, while UNC does have records responsive to the request and that those records do qualify under state law as public documents, the university can withhold them on privacy grounds.
Of particular note, Baddour found that the federal Family Educational Rights and Privacy Act (FERPA) gives colleges discretion to release or withhold records of student criminal misconduct, and because of the Supremacy Clause to the Constitution, that federal discretion overrides state public-records law.
This decision strongly reflects the arguments laid out in UNC’s April 4 brief. There, Senior Deputy Attorney General Stephanie Brennan made the same argument that the college has a federally required duty to discretionarily assess each release of records, and that federal discretion supersedes North Carolina’s open records law.
Brennan dedicated a large portion of the university’s 27-page brief to describing the university’s Title IX and Clery Act procedures and reasons for denying the records request – including the privacy of the victims and the risk of discouraging later victims from coming forward. The court declined to address these assertions, with Judge Baddour writing:
“The reasons and justification for the University’s exercise of discretion are not considered -- and need not be considered -- by the Court in its determination of the legal issues at hand. In making these findings of fact and conclusions of law and arriving at this decision and Order, therefore, the Court has not considered the policy reasons for UNC’s exercise of discretion, UNC’s desire to protect and nurture its students or any other potentialities of disclosure.”
FERPA is the go-to defense for withholding records relating to campus wrongdoing that involves students. The law was intended to prevent the improper handling or purposeful dissemination of students’ private information, but only concerns itself with systemic university practices. No institution has faced loss of funding at any point in the law’s 43-year history, because none has been found to have a policy of non-confidentiality.
While cases involving FERPA and access to public records are nothing new, the invocation of the Supremacy Clause is a novel argument.
The court’s decision details the two conditions in which federal law wholly preempts state law. “Field preemption” exists when federal law directly addresses a specific subject area, and “conflict preemption” exists when state and federal law cannot both be satisfied simultaneously.
Baddour ruled that both types of preemption apply. Congress has occupied the “field” of student privacy by comprehensively legislating in a way that overrides state law, he wrote. And FERPA creates a conflict with state open-records law, he wrote, because state law requires releasing public records in every instance, while FERPA makes the release permissive rather than mandatory.
This is a novel interpretation of the FERPA statute, which states “nothing in this statute shall be construed to prohibit an institution of postsecondary education from disclosing” final dispensation records in sexual misconduct cases if the student is found at fault. Nothing in the statute refers to exercising discretion to assess the merits of a particular release.
The only way for a conflict to exist between the two laws is if FERPA affirmatively requires universities to exercise discretion in making disclosures -- something that is hard to reconcile with the Department of Education’s longstanding position that FERPA has nothing to do with disclosure. It’s also possible to read FERPA as the federal government withdrawing itself from involvement in that subcategory of records. In that case, there is no conflict and state law prevails.
Baddour goes on to address the disclosure of faculty records. The court recognizes that North Carolina’s Human Resources Act protects the confidentiality of state employee records except those documenting the dismissal, suspension, or demotion of an employee. Everything else, the act states, is confidential.
The Tar Heel’s request encompasses any student or faculty member found in violation of university codes. The court does order UNC to disclose the “‘date and type of each dismissal, suspension or demotion for disciplinary reasons’ for any employee found responsible under University policy for rape, sexual assault or any related or lesser included sexual misconduct…”
However, this finding by the court effectively means that any faculty found at fault in a sexual assault investigation enjoy confidentiality as long as they weren’t punished in a manner that altered their employment status.
This, again, was an affirmation of the argument presented by UNC in their brief.
Baddour’s name may sound familiar, because another Baddour – the judge’s uncle – was the defendant in a lawsuit against UNC brought by the Daily Tar Heel and other media organizations over the university’s misapplication of FERPA to public records, during the time Richard Baddour was UNC’s athletic director. In that previous case, The News & Observer Publishing Co. v. Baddour, news organizations won access to public records – including coaches’ cellphone bills and athletes’ parking tickets – that the UNC athletic department tried to categorize as confidential education records.
Richard Baddour stepped down in 2012 amid an athletics academic scandal and the school named the Carolina Leadership Academy in his honor.
Hugh Stevens, the attorney representing the Daily Tar Heel and assembled local media, said the plaintiffs plan to appeal.
Tagged: Daily Tar Heel, FERPA, FOIA, lawsuit, news, open records, public records, recent-news, Title IX, UNC
In the off-campus world, government authorities generally can’t interfere with citizens making recordings in public spaces. Whether a school building is a space where citizens have a right to record is uncertain.
Recently, a federal judge offered some helpful clarification in a favorable First Amendment ruling that student journalists may find useful in asserting their right to gather news during the school day.
The ruling, Pollack v. Region 1 School Unit, concludes that a Maine middle-school student had a constitutionally protected right to wear a recording device at school. The case has nothing to do with journalism – the child’s parents wanted to use the audio recorder to confirm their suspicions that their son, whose disability impairs his ability to communicate, was being mistreated – but its principles can be applied to newsgathering.
It is perhaps surprising that the First Amendment right to gather news remains poorly defined after centuries of legal precedent. It is clearly established that the Constitution protects the process of distributing information, but much less clear that it protects the ability to observe and record news.
At one extreme, the Supreme Court has said there is a constitutional right for public observers, and specifically journalists, to attend the key portions of criminal trials. At another extreme, the Court has found no constitutional right to obtain access to government documents (although agencies are free to create a statutory right of access). That leaves quite a lot of uncertain middle ground.
Into that unexplored space enters U.S. District Judge Nancy Torreson, chief judge for the district of Maine.
In the Pollack case, Torreson was asked to determine what level of constitutional protection, if any, applies when a student seeks to make audio recordings of events during the school day. The Pollack family asserted a right to equip their son, then enrolled in middle school under a special-education plan, with an audio recording device to help them understand why he was coming home emotionally distressed, which the child (referred to in court records by his initials, “B.P.”) was unable to describe himself.
While the judge did not find any guiding legal precedent in the context of a school building, she did find a growing consensus that the First Amendment protects the right to record audio and video as a necessary antecedent to expression. Specifically, the federal First Circuit U.S. Court of Appeals, which has jurisdiction over Maine, has found a constitutionally protected right to record the activity of police conducting official business in public places (Glik v. Cunniffe), a ruling that’s been followed by the federal Fifth and Seventh Circuits as well.
The case presented a potential choice between two extremes. If the Glik line of cases applies inside schools, then the First Amendment applies with full force and school authorities may not restrict recording absent the most compelling of justifications. If no First Amendment protections apply at all, then the school may regulate the use of the space in any reasonable manner.
The judge settled on a well-traveled middle ground, the Supreme Court’s Tinker standard, created in the landmark 1969 ruling Tinker v. Des Moines Independent Community School District. There, the justices held that First Amendment rights forcefully protect student expression, but with the caveat that school authorities may prohibit or punish speech if they determine it will imminently lead to a material and substantial disruption.
In her April 28 opinion, Torreson emphasized that the First Amendment would not permit the school to enforce even a purportedly “neutral” ban on electronic devices in a viewpoint-discriminatory way – in this case, because the parents wanted to gather evidence of suspected wrongdoing by school employees.
Torreson’s ruling is an encouraging one for student newsgatherers. It suggests that a categorical ban on recording on school grounds during school time would be difficult to justify. Rather, schools will have to point to specific facts indicating that recording is disruptive under particular circumstances – and the burden is on the school to present that justification.
Presumably, schools will be able to justify bans on recording where necessary to keep order during class or protect student privacy in sensitive situations. And the Maine school district could still prevail at trial under a Tinker analysis, if it's shown that "B.P." could not have recorded school employees' behavior without interfering with classroom teaching or compromising classmates' privacy.
The Pollack ruling has significant potential applications beyond journalism. Recall the alarming video that led to the firing of a school police officer in Richland County, S.C., after he injured a student by wrestling her out of her desk and slamming her to the floor. The student who shot that nationally publicized video was threatened with serious disciplinary charges – charges that, under the Pollack ruling, would be subject to challenge on First Amendment grounds.
The Pollack case is not yet ripe for appeal because it has not reached a final judgment. If and when it goes before the First Circuit, the ability of student journalists to gather news safely and without fear on school property will be hanging in the balance.
Amendment, First Amendment, first-amendment, news, recent-news, right to record, Tinker v. Des Moines Independent Community School District
For those still nursing the taste of disappointment after Indiana’s legislature adjourned without passing a promising New Voices press-freedom bill, there’s a palate-cleanser: Bills are advancing in states across the country, including a newly filed one that just debuted this week.
Here’s where the bills stand.
In a positive (and efficient) development on Tuesday, SB 420 was read, debated, and approved 21-0 in the span of about five minutes. Patrick File, an assistant professor in media law at the University of Nevada-Reno who has helped organize the New Voices movement in his state, attributes the efficiency to necessity.
“That was the last day that bills could pass through either the Senate or the Assembly,” File said. “And so basically any bill that was introduced in the Senate had to pass the Senate by that time and the same went for the Assembly. That's part of why the president and all of the Senators standing up to speak were sounding sort of like auctioneers.”
The Silver State tried once before to pass similar legislation – in 1989, the year after Hazelwood v. Kuhlmeier was decided. The Nevada House Education Committee now has until May 19 to act on the bill. Student journalism advocates are still hoping to work toward improving the bill as it works through the House, including removing a provision that could be read as requiring schools to adopt prior-approval policies rather than making the practice optional.
The Green Mountain State is marching along with HB 513 – an omnibus education bill that now includes a provision protecting student press rights in public grade schools and colleges. Friday, the House approved several additions to the bill and passed the whole shebang on to the Senate.
If you’re feeling lost (because we’ve been here before), HB 513 became the vehicle carrying student press-rights protections after a standalone New Voices bill (SB 18) got bogged down in the House committee process.
The House made changes to the version of HB 513 that had been sent over from the Senate, so it’s back to the Senate to approve those changes.
On a parallel track, the original version of the press-freedom bill, Sen. Jeanette White’s SB 18, cleared the House Judiciary Committee on a vote of 8-0 Thursday with one abstention. It is being sent back to the House Education Committee for its concurrence, though that bill could be rendered moot if HB 513 becomes law first.
Last week, the prospects for Sen. Kimberly Yee’s SB 1384 looked dicey, as the bill was held on the House calendar, postponing a vote under concerns of possible opposition by Democrats who unsuccessfully tried to amend the bill.
That amendment sought to extend press freedom to any schools that accepted students under the state-funded empowerment scholarship program, a school-choice voucher that many Democrats oppose.
On Thursday, the bill was brought to the House floor again, where an amendment prohibiting lewd and obscene language in journalistic publications in K-12 schools was added. House members also clarified that only high schools, not colleges, may exercise a brief prior-review period to check for legally unprotected content.
With those changes, the bill passed on a voice vote. It still requires a formal vote to return to the Senate for approval. The legislature is scheduled to adjourn May 5, so the bill must pass next week or it’s defunct for the year.
And finally, a House Democrat from the Great Lakes State introduced legislation to protect student press freedoms Thursday. HB 4551, titled the Student Free Press Act, is sponsored by Rep. Darrin Camilleri, D-Brownstown Township.
In a statement, Camilleri echoed the words of U.S. Supreme Court Justice Abe Fortas in deciding Tinker v. Des Moines, the ruling that Hazelwood weakened 19 years later:
“The protections of the First Amendment shouldn’t stop at the school doors,” Camilleri said. “Not only do student publications teach valuable skills that young people can use later in their education or in their professional life, but they also instill a core American value of a free and open press as a vital part of a functioning democracy.”
Tagged: Arizona, blog, Blogroll, Cure-Hazelwood, legislation, Michigan, Nevada, new voices, recent-news, Vermont
Rumors of New Voices legislation's death in Indiana may have been exaggerated.
In a plot twist derived from the most daring daytime television, sponsors of HB 1130 proposed adding the language of the bill – protecting student journalists in high school and college from censorship – as an amendment to appropriations bill, HB 1043.
The original bill was
pulled from Senate consideration in light of last-minute opposition from the state Department of Education.
On Monday, a joint House-Senate conference committee held public testimony on proposed changes to HB 1043, where a number of witnesses presented their arguments on both sides.
Austin Hood, a senior at Warren Central High School and student newspaper editor, brought a larger view of journalism to his testimony.
"Writers learn from the first story that no institution is too big to question, no individual is too powerful to avoid scrutiny,” Hood said. "What we are arguing is that we as student journalists should not live in fear of punishment for practicing good citizenship."
His argument was backed up by journalists and journalism advisers, including Ruth Witmer, the student media director at Indiana University Bloomington; and Diana Hadley, executive director of the Indiana High School Press Association.
"Students who have the ability to decide content produce much better content," Hadley said.
Steve Key, executive director of the Hoosier State Press Association, called attention to language in the bill that entrusts responsibility with students for establishing editorial guidelines for student media in accordance with community standards. Lobbyists for school administrators had pushed to be the ones setting those standards, a proposal that proponents considered fatal to the bill.
“Who sets those community standards?” Key asked after pointing out that indefensible policies such as Jim Crow laws and segregation used to be considered “standard” in their day.
“If this is your voice and your community, shouldn’t you be setting those standards?”
This “community standards” provision has been a sticking point for organizations representing principals and school boards. When asked, associate director for the Association of High School Principals, Tim McRoberts, said he would like to see language including the administration in defining community standards.
McRoberts proudly declared that, in his 11 years as a high school principal, he was approached to approve numerous articles and never censored a single one. He argued that censorship isn’t a widespread issue in Indiana, and that any bad actors should instead be approached individually to educate them on journalistic practices.
In closing testimony, SPLC’s executive director, Frank LoMonte, testified to his years advocating for student journalists and their advisers. He highlighted the fact that similar laws or administrative codes exist in 11 other states and the District of Columbia for a combined 180 years of experience with student journalism under free press statutes.
Despite similar hand-wringing during the legislative process, those states have not seen any of the predicted "horribles" materialize and have quickly adjusted to the new standard.
For his part, Rep. Clere was grateful for the time given to present comprehensive testimony. Indiana’s legislature adjourns Friday, and this addition was only part of the changes made to HB 1043. The clock is ticking for the appropriations bill to pass the legislature.
“There’s quite a bit of process still to go,” Clere said. And, indeed, the committee did not take action on the proposed changes at Monday’s hearing
“There usually is not much testimony in conference committee,” Clere said. “And Representative [Jeff] Thompson is a good friend, and he was more than gracious to allow, I think about an hour of testimony on this journalism provision which is almost unheard of.”
“We are very grateful to him for his willingness to entertain it.”
Tagged: blog, Blogroll, Indiana, legislation, new voices, recent-news
You’re a journalist needing access to emails between officials in a school district that might shed light on a story of public importance. One problem: The emails mention a student in an identifiable way, and that means the school’s lawyer will classify them all as “confidential education records” and refuse to produce them.
Can anything be done? Increasingly, the answer is “yes.”
A recent Pennsylvania court ruling adds to the growing national consensus that internal agency correspondence can’t be categorized as an “education record” under the Family Educational Rights and Privacy Act unless it is centrally maintained in a file corresponding to a specific student.
This interpretation – that FERPA means what it says, and that records aren’t covered by FERPA privacy unless they are “maintained” in a student’s central file – comports both with common sense and with U.S. Supreme Court precedent. Yet school and college lawyers remain largely in denial, insisting that any record even tangentially referencing a student can be withheld from disclosure – a position that enables educational institutions to conceal scandal and evade oversight.
That misapplication of FERPA got a bit easier to challenge with a U.S. district court’s March 31 decision (E.D. v. Colonial School District) in a dispute over the adequacy of special-ed services provided by a Pennsylvania elementary school.
The parents of a first-grader sued Pennsylvania’s Colonial School District claiming that their daughter was refused federally required services to accommodate her speech and language impairments. As part of their claim, the family also alleged that the district violated FERPA by refusing to turn over education records corresponding to their child – a draft report of a school psychologist’s evaluation, and emails between school administrators discussing their plans to retain the child rather than advancing her to second grade.
FERPA is both a privacy statute and an access statute, and when a document is classified as an “education record,” that means a student’s parents have an absolute right to inspect and correct it, and that the school must enforce policies to keep the record from being publicly released.
Contrary to what schools have been arguing in court for decades, attorneys for the Colonial School District argued that FERPA is in fact a narrow statute applying only to centrally maintained records held with some degree of permanence, which is exactly how the U.S. Supreme Court defined the scope of FERPA in its 2002 ruling, Owasso Independent School District v. Falvo.
U.S. District Judge R. Barclay Surrick agreed with the school district that the requested documents did not qualify as “education records,” meaning the school had no duty under FERPA to produce them.
As to the emails, Surrick found that email messages -- even when they refer to a specific student -- do not generally meet the statutory definition to be covered by FERPA, because emails are not "maintained" by the institution and may be deleted by the recipients at any time.
Unless Defendant kept copies of e-mails related to E.D. as part of its record filing system with the intention of maintaining them, we cannot reach the conclusion that every e-mail which mentions E.D. is a bona fide education record within the statutory definition. These e-mails appear to be casual discussions, not records maintained by Defendant.
Likewise, Surrick found that the psychologist's preliminary report did not qualify as an "education record" because it was retained by the psychologist and not filed away for the school's use in making decisions about the student.
The draft report does not fit within the statutory definition of education records. There is no reason to believe that the draft report is in fact "maintained" by Defendant or any of its employees in any meaningful way. It was not circulated among staff, nor were any decisions in regard to E.D.'s educational accommodations made in reliance on the draft report.
This ruling is true to the purpose and intent of FERPA, which was always meant to be primarily about protecting parents' rights to see the documents on which schools rely in making decisions about their children, and to correct any errors in those documents. The contemporary notion of FERPA as an all-encompassing secrecy blanket is a fiction that exists in the minds of school attorneys and, regrettably, in the rulings of some lackadaisical judges who've deferred to schools' wishful thinking.
Surrick's ruling echoed, and relied on, a California judge’s similar 2009 decision (S.A. v. Tulare County Office of Education), which rejected a family's contention that all emails mentioning their child were subject to parental access as FERPA education records.
To the contrary, the judge ruled in the Tulare County case, only emails that are actually filed with a student's permanent record are covered by FERPA:
Emails, like assignments passed through the hands of students, have a fleeting nature. An email may be sent, received, read and deleted within moments. As such, [plaintiff's] assertion - that all emails that identify [students], whether in individual inboxes or the retrievable electronic database, are maintained 'in the same way the registrar maintains a student's folder in a permanent file' - is 'fanciful.' Like individual assignments that are handled by many student graders, emails may appear in the inboxes of many individuals at the educational institution. FERPA does not contemplate that education records are maintained in numerous places.
The takeaway for journalists is never to accept a claim of FERPA secrecy at face value, because the statute applies to a limited range of records, almost none of which a journalist would ever legitimately need or ask for (grades, transcripts, standardized test scores and the like). In particular, emails exchanged by government officials should never be withheld on FERPA grounds unless the institution is being asked to produce them from a student’s central file, which rarely if ever will be the case.
Confused about your right of access under FERPA? Consult the SPLC's widely used FERPA White Paper, and if you're still getting the runaround, submit your access problem to the SPLC's award-winning "FERPA Fact" blog for our assessment.
Tagged: Family Educational Records and Privacy Act, FERPA, news, recent-news
This weekend's editorial pages overflowed with praise for a groundbreaking piece of student reporting by journalists whose newspaper, The Booster Redux, now has more online reads (29,457 and growing) than their town has people (20,398).
The headline heard 'round the world -- District hires new principal; Background called into question after discrepancies arise -- even garnered two Pittsburg High School editors a featured segment with CNN's Jake Tapper, a former Philadelphia-area student journalist whose editorship was memorable for a different reason (resulting in suspension and community service).
The Booster Redux story has been hailed as validation of the civic value of student journalism and of the importance of state statutes like the Kansas Student Publications Act, which enabled Pittsburg journalists to take on a powerful authority figure with confidence that the law would be on their side.
This from columnist Jason Probst at Kansas' Hutchison News:
The journalists at the Booster Redux deserve all the credit and praise that’s being sent their way - as well as administrators who encouraged their work rather than attempt to silence the students’ questions. They have demonstrated the sort of tenacity and dedication to truth that’s critical for a strong democracy, a vibrant community and hopeful future.
Calkins Media columnist Phil Gianficaro, arguably the professional media's most reliable champion of student journalism, pulled no punches in observing that many New Jersey schools would have fired a teacher as capable as Pittsburg adviser Emily Smith for teaching students professional-caliber skills and values:
What happened at Pittsburg High School illustrates the type of impressive journalism that can be accomplished when a school doesn't view its student newspaper as little more than the chess club. It's the kind of greatness that can happen when the shackles come off.
As far away as Bend, Ore., the work of the Pittsburg staff was acclaimed as proof that students can produce serious public-service journalism when supported by administrators who value their work and respect the law:
In an era of “alternative facts,” the journalists at Pittsburg High serve as a reminder that there’s more to news than eye-grabbing headlines. There’s hard work, and a belief that readers have a right to know the truth. There’s a belief that truth matters, even when it’s uncomfortable. Good journalism, as practiced by these students, beats alternative facts every time.
Regrettably, some school authority figures looked at the Booster Redux and, instead of seeing an exemplary act of engaged citizenship, saw a threat -- the threat that their own incompetence and mismanagement might be next in the spotlight.
In Indiana, lobbyists for school administrators sidetracked a state Senate vote to approve expanded press freedom for student journalists by claiming that the bill would lead to Pittsburg-style investigations in their own state. Obviously, these lobbyists and their Senate allies must know there are any number of Indiana school officials whose backgrounds won't withstand checking, and unless state Rep. Ed Clere is able to pull off a miracle to resuscitate HB 1134, principals will retain the ability to intimidate students who question their qualifications and fire the teachers who support them.
Amendment, Kansas Student Publications Act, news, Pittsburg High School, recent-news
Daniel Libit is a political journalism veteran based in Chicago with no experience in traditional sports reporting.
That’s not stopping him from shining a spotlight on the University of New Mexico athletics department through NMFishbowl.com, a “passion project” where Libit plans to bring accountability journalism to the world of collegiate athletics.
“I wanted to conduct this experiment on how I think college athletics should be covered if you were actually covering it like the public institution that it is,” Libit said. “I wanted to sort of find ways of using public records and sort of a philosophy of public accountability and target a single college athletics department.”
Utilizing records requests
Libit is suing the UNM Foundation, UNM’s nonprofit conduit for donated funds. The Foundation maintains it is a private, nonprofit entity and thus not subject to New Mexico’s Inspection of Public Records Act (IPRA). Libit contends that since the UNM Foundation exists primarily to serve a public institution and thus should be held to the same level of transparency as the institution it serves.
Libit said he is seeking emails related to a deal struck between the Foundation and local business, WisePies. The deal resulted in a ten-year, $5 million gift to the Foundation and the renaming of New Mexico’s famed basketball arena, “The Pit,” to “WisePies Arena aka The Pit.”
The arena’s new namesake is a regional pizza franchise with locations in New Mexico and Arizona.
There have been persistent questions about the nature of the deal and the university’s confidence that WisePies will follow through, which Libit has documented in his “Money Pit” series.
“The university foundation can’t get away with what I’ve described as a public records avoidance scheme, that is to say finding some mere technicality in different domains where they can claim certain acts of their business, the public business, is really the Foundation’s business and therefore can’t be seen by the public,” Libit said.
Attorney Randy S. Bartell, who is representing the UNM Foundation in the lawsuit, declined to comment.
A “test tube”
UNM’s athletics department might seem like an odd choice for an experiment like this. According to USA TODAY, the Lobos ranked 67th among D-1 athletic programs for revenue from 2014-2015. And, not being in one of the Power Five conferences, it rarely enters the national college sports conversation unless the men’s basketball team makes a run in March (with some assistance from The Pit, consistently one of the most effective home court advantages in the sport).
Libit, a New Mexico native and University of Wisconsin graduate, said having no intention of writing gamers or features on UNM athletics has had an interesting effect on how the department reacts to the scrutiny of NM Fishbowl, since the normal rules of access journalism don’t apply.
“I think what they recognize is the carrot and sticks they are normally able to use to cow the few reporters they have who actually cover them don’t apply to somebody who’s not looking for press credentials or friendly interviews with the coaches...they don’t exactly know what to do with me,” he said.
In one story, Libit submitted IPRA requests to UNM asking for records of exit interviews conducted with student athletes who are leaving the program. The piece revealed much of what goes on in the department, including allegations of harassment of female athletes and NCAA and academic violations.
Libit, a survivor of the 2016 presidential campaign and veteran of publications like POLITICO, MSNBC and the National Journal, said student journalists should try incorporating elements of political journalism into the sports beat.
“So, I’m covering this in some ways like you’d cover national politics or how you would cover a statehouse, that’s sort of the attitude I’m trying to bring in covering an athletics department … there is a discomfort because of just the nature of the beat, the people who have the most access and insight in the program are also the people who are traveling with the team on the road.”
Tagged: blog, Blogroll, College athletics, college-basketball, recent-news, University of New Mexico
BONUS: Listen to the extended interview with Daniel Libit on our bonus Podcast.
This week, a group of student journalists in Pittsburg, Kan. achieved something that many their age only dream of: affecting real, tangible change in their community.
The Pittsburg High School Booster Redux investigation into the academic credentials of Amy Robertson, a newly-hired principal, resulted in the revelation that there was no evidence the institution from which she claimed to hold two advanced degrees actually existed. This week, she resigned.
First, the professionals at the Kansas City Star -- located 90 minutes north on U.S. 69 -- took notice.
Then, the assorted Twitter media zeitgeist which student journalists might be familiar with.
Then, the Washington Post.
Then, the New York Times.
Thursday morning, they even appeared on Good Morning America.
The local newspaper, the Morning Sun, cited the Booster Redux in its coverage of the resignation on Wednesday.
The collective reaction of national commentators ran the range from “how could teenagers do such professional reporting?” to “how could students get away with publishing an article making their own district’s hiring practices look so sloppy?”
Had this story occurred in a state without laws protecting high school journalists, this story might never have seen the light of day. The Kansas Student Publications Act, signed into law in 1992, stands among the elders of today’s New Voices laws and legislation the SPLC has advocated in dozens of states.
The Kansas law gives high school journalists considerable control over the content of their publications, including editorial and advertising elements. School administration can only legally intervene if the content is judged to be illegal in some way or disruptive to the school.
Student journalists have the ability to own the stories that go on in their hallways, classrooms and locker rooms in a way that professional news organizations often can’t. We can only hope more states will implement New Voices laws and join the ranks of places like Kansas which enable and encourage their students to hold their officials accountable.
Tagged: Anti-Hazelwood, blog, Blogroll, booster-redux, Cure-Hazelwood, Kansas, new voices, recent-news
Tuesday came with a flurry of activity for states considering New Voices press freedom bills, including Vermont, Rhode Island and Missouri. While each bill has slightly difference features, all share the common objective of fortifying the rights of student journalists in public colleges and high schools to publish the lawful material of their choosing.
Senate Bill 18 enjoyed a mostly positive hearing in Montpelier, though representatives of state school administrators raised concerns about the omission of liability protection for teachers and school districts. Bill proponent Chris Evans, a journalism lecturer at the University of Vermont, said the bill faces several other pressures as it makes its way to the House floor.
Evans said there is a possibility the bill could be handed off to the House Judiciary Committee, slowing its progress and potentially stalling it before the end of the session in July. Another concern was one speaker’s proposal to require training for school journalism advisers, which would place an unfunded mandate on state school districts to adopt training programs and leave students in cash-poor districts with lesser legally protected press freedom.
Barring any stumbles in the committee and if amendments can be implemented smoothly, Evans said he’s confident the bill will be able to make it through to the governor’s desk.
In Providence, Rhode Island’s fledgling
House Bill 5550 received a unanimous chorus of support from student journalists, representatives of the Providence Student Union, and the American Civil Liberties Union. Rhode Island ACLU Executive Director Steven Brown said H 5550 is still early in its lifespan, but early signs are promising.
No further actions are scheduled at this time, but New Voices advocates will have ample room to maneuver before the session ends in June.
The effort to pass the
Walter Cronkite New Voices Act in Jefferson City is now a race against time. Bill proponent Bob Bergland said no one spoke in opposition to HB 441 in Tuesday’s Senate Education Committee hearing, while student journalist representatives, journalism advisers and school administration representatives lined up to speak in support of the bill.
The next step for the bill will be to push it through to a vote on the Senate floor, where last year’s bill stumbled. Advocates want to make sure HB 441 doesn’t get lost in the shuffle, as happened in 2016.
Bergland said the Missouri Association of School Administrators raised concerns about some of the technical language of the bill but stopped short of urging the bill’s defeat.
House Bill 1130 is teed up for a Senate floor vote minus some baggage that had been tacked on earlier in March.
Previous amendments to the bill would have removed advertising from protection as well as giving school districts leeway to create policies that would have allowed them to circumvent the bill’s protections. But sponsors managed to shake off those adverse amendments on a voice vote Tuesday on the Senate floor.
The bill now has 13 Senate sponsors from among the chamber’s 34 members, with eight joining this week.
HB 1130 now needs only a vote of the full Senate, which could come as soon as Thursday, and then the concurrence of the House in Senate amendments to attain final passage.
Tagged: blog, Blogroll, Indiana, Missouri, new voices, recent-news, Rhode Island, Vermont