The Student Press Law Center blog
A case that began with a series of Facebook posts and reached a court ruling that challenged First Amendment protections for students on social media is now making its way to the Supreme Court.
On Feb. 23, attorney Robert Corn-Revere entered a petition to the Supreme Court on behalf of Craig Keefe to appeal the decision of the Eighth Circuit U.S. Court of Appeals. In October 2016, the court ruled against Keefe, 2-1, in his lawsuit claiming that, in his expulsion from Central Lakes College, he was denied due process under the college’s disciplinary procedures.
In December 2012, Keefe was expelled from Central Lakes College’s nursing program for Facebook posts he made on his public personal account. Two fellow students showed some of the posts – that included describing a classmate as a “stupid bitch” – to an instructor, and the college determined that by posting these comments, Keefe had violated student handbook policy regarding professional behavior.
In February 2013, a month after his appeal against his expulsion was denied, Keefe filed a lawsuit against the dean of the college, Beth Adams, along with other college administrators.
The U.S. District Court of Minnesota dismissed his case in August 2014, so Keefe, with the support of advocacy groups including the SPLC, took the case to the Eighth Circuit. The author of the majority opinion, Judge James Loken, wrote that the court accepted the college’s argument that it had the legal authority to hold students to the standards of their intended profession.
In the opinion, Loken also wrote that this decision didn’t mean that unprofessional speech was prohibited, but that the university has a right to impose “adverse consequence on the student for exercising his right to speak at the wrong place and time, like the student who receives a failing grade for submitting a paper on the wrong subject."
Keefe’s petition challenges this notion, arguing that it misrepresents the student-school relationship, particularly where it involves public universities such as Central Lakes.
The petition separates the appeal into two issues: Whether a public community college has the authority to expel a student for posting comments on a personal Facebook account unrelated to the school’s curriculum, and whether that college may carry out such expulsions with “less rigorous due process procedures” in such cases.
In Keefe’s petition, his legal counsel writes that the case has identified four areas which now demand clarification about the limits of First Amendment application when professional standards are used to restrict non-curricular speech. The petition argues that under the Eighth Circuit ruling, public colleges and universities have been given undue ability to hold students to professional standards for speech that has no relation to the professional context.
“There is no suggestion that the Petitioner was unprofessional in his coursework or behavior in the clinical setting even if his Facebook etiquette left something to be desired. CLC violated the First Amendment when it expelled him for personal social media postings unconnected to any course requirement under conduct codes based on amorphous professional standards,” the petition states.
The petition also cites the Tinker v. Des Moines case, arguing that it remains unclear how the “Tinker test” applies to speech that was both originated and disseminated off-campus.
“In this case, the Eighth Circuit went in exactly the opposite direction, extending Tinker to college settings and interpreting static Facebook posts as being ‘directed to’ other students simply because they referred to them, and inflating oblique, disrespectful comments into ‘threats,’” the petition state.
The case is particularly pressing for student journalists, since the ruling cites the Supreme Court’s Hazelwood v. Kuhlmeier standard in concluding that colleges can penalize unprofessional speech created off-campus on personal time. In his majority opinion, Loken wrote that the “concept” of Hazelwood – that a school can regulate speech if it contravenes the school’s pedagogical concerns – “has broader relevance to student speech.”
This argument misapplies Hazelwood, which was not a disciplinary case, and which was concerned with a student spreading speech through a school conduit, risking conflating their views with the school’s own. These principles do not apply in Keefe’s situation, where there was no way to mistake his posts on his own Facebook account as representative of the school’s views, in a setting where (unlike in a K-12 newsroom setting) there are significant questions whether the institution has any authority at all.
The petition lists several complaints with the court’s use of Hazelwood, including that it “flies in the face of multiple circuit decisions that college students cannot be relegated to the First Amendment protections appropriate for younger children” and that it “only adds to the confusion by suggesting there is even more of an interest in applying Hazelwood to CLC’s professional degree program than to a high school newspaper.”
Corn-Revere cited the 2007 case of Morse v. Frederick, where the Supreme Court ruled that the First Amendment does not prevent educators from suppressing student speech that is viewed as promoting illegal drug use, but also said that additional First Amendment exceptions beyond promoting drug use would not be recognized. Judge Jane Kelly had cited the case in her dissenting opinion in the Eighth Court.
“This is certainly significant for student journalists,” Corn-Revere said. “Given the Morse v. Frederick case in 2007, it is important to ask the court to clarify if that applies.”
Corn-Revere explained that it is now up to the court to decide whether to direct the college’s legal counsel to file an opposition. He anticipates that the court will determine this during the current term.
Tagged: blog, Blogroll, discipline for social-media posts, Keefe v. Adams et al, off-campus social-media use, recent-news, Supreme
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A mixture of positive and negative changes to state open records laws have slowly been making their way through state legislatures in the past few weeks.
In January, the SPLC reported on a bill in North Dakota that would exempt applicants for top positions at state universities from the state open records act. Since then, several states have filed legislation to change the operation of their respective open records laws.
Ranging from making violations of state open records law a misdemeanor offense, to allowing agencies the right to charge a maximum hourly search fee, here’s the latest on proposed changes in North Carolina, Colorado, Kansas, Indiana and Florida.
North Carolina legislators are considering a bill that would make violations of the state open meetings law and public records law a Class 3 misdemeanor, which can carry fines up to $200. Currently there are no penalties for agencies in the state that are found to have violated government transparency laws.
Senate Bill S77, sponsored by Sen. Bill Cook, R-Beaufort, is currently sitting in the Rules and Operations of the Senate Committee without a hearing date scheduled.
Senate Bill 17-40, sponsored by Sen. John Kefalas, D-Fort Collins and Rep. Dan Pabon, D-Denver, would require government agencies in the state to make data more accessible to requesters by ensuring easier manipulation. In other words, if someone were to request a list of employee salaries, the agency would be expected to maintain that data in an Excel spreadsheet, which could be given to the requester in a searchable Public Domain File.
The bill would also eliminate a provision of the current open records law that allows public records custodians to charge fees for requesters to make supervised copies or inspections of records.
However, in a reversal from North Carolina’s line of thinking, the bill would eliminate any tangible punishment for agencies who knowingly violate the current law. Any person who knowingly violates the Colorado Open Records Act is currently guilty of a misdemeanor.
The bill was scheduled to be heard on Feb. 15 in the Senate State, Veterans and Military Affairs Committee, but the chairman delayed a hearing for a second time due to a need for further amendments with stakeholders.
Kansas lawmakers are considering a bill that would drastically reduce the costs agencies can charge requesters for public records.
Senate Bill 86, sponsored by the Committee on Federal and State Affairs, would continue to allow agencies to charge $0.25 per page for hard copies of records, but would prohibit agencies from charging excessive search fees.
Under the proposed legislation, agencies could only charge for staff time required to produce records at the lowest hourly rate of a qualified staff member. Agencies can currently charge any fees they deem “reasonable” to requesters -- for instance, they can charge not just for the time it takes to search for documents but also the time a supervisor spends overseeing the search -- and the law does not include any fee waivers.
The Committee on Federal and State Affairs recommended on Feb. 15 that the bill be passed as amended. It is now up to the Speaker of the House to put the bill on the legislative docket for a full debate.
House Bill 1523 passed the Indiana House of Representatives on Feb. 16 by a count of 62-25. Introduced by Rep. Kathy Richardson, R-Noblesville, the legislation would grant state agencies the ability to charge a maximum hourly fee of $20 for any records search that takes over two hours.
Agencies in the state are currently not allowed to charge requesters for time spent retrieving records. According to the Indianapolis Star, similar legislation passed both houses of the Indiana Legislature in 2015, but then-Governor Mike Pence vetoed the bill.
“The cost of public records should never be a barrier to the public’s right to know,” he said at the time.
The bill does prohibit agencies from charging a separate fee for providing records via electronic communication.
The bill was referred to the Indiana Senate on Feb. 17 for further consideration.
Representatives in Florida introduced legislation that would retrench on the state’s historic commitment to open searches for top university leaders.
Rep. Bob Rommel, R-Collier, introduced House Bill 351, which would exempt records from applicants for presidential searches at Florida universities from state open records laws.
According to Florida’s local NPR affiliate, WGCU, Rommel’s bill is not the first time such legislation has been introduced – both Democrat and Republican representatives have unsuccessfully introduced similar bills in recent legislative cycles.
The current round of legislation has been in the House Post-Secondary Education Committee since Feb. 6. The committee is scheduled to meet again Thursday, but the bill is not currently on the docket for discussion.
Tagged: blog, Blogroll, Colorado, Florida, Indiana, Kansas, legislation, North Carolina, open records, recent-news
Bills protecting student journalists against censorship took giant steps forward in Vermont, Indiana and Washington this week.
Though the bills are all slightly different, their common purpose is to limit the grounds on which a public college or high school can censor the content of school-sponsored media, and to protect faculty advisers against retaliatory personnel actions for their students' journalistic work. The bills also insulate schools and colleges against liability for what their students publish. Such statutes are already on the books in 10 states, three of them newly enacted since 2015.
Senate Bill 18 by Sen. Jeanette White passed the Vermont Senate Wednesday without opposition, and was sent to the House Education Committee. The bill has been relatively uncontroversial, and student journalists took a leading role in testifying before the Senate Education Committee in support of the measure. Newspapers across the state, including the Caledonian Record, have urged lawmakers to enact the bill, which also picked up an endorsement from the national board of the Journalism Education Association.
In Indiana, the House Education Committee voted 13-0 Thursday for HB 1130 by Reps. Ed Clere and Ed DeLaney, which largely tracks the New Voices of North Dakota Act that inspired the nationwide New Voices reform movement.
The vote followed supportive testimony from the Hoosier State Press Association, the state high-school and college press associations, and a string of college and high-school editors and advisers, including teacher Amy Sorrell, who recounted how a student's opinion column calling for greater tolerance for LGBT students led to her firing: "I lost my job defending my student. I printed that article 10 years ago. I would print it today."
Amendments were added in the Education Committee enabling K-12 schools to remove material from student media that is "gratuitously profane," and making clear that press freedom applies only at the middle- and high-school levels and not in elementary schools. With those changes, the bill passed the committee without objection and is headed to the House floor, although it faces continued opposition from the Indiana School Boards Association.
Meanwhile in Washington, Senate Bill 5064 by Sen. Joe Fain cleared the Senate Early Learning & K-12 Education Committee Thursday, just ahead of a drop-dead deadline that could have killed it for the year.
Lobbyists for the Washington State School Directors Association sought to amend the bill to allow school districts to essentially opt themselves out of press-freedom protection by local policy, a change opposed by the Washington Journalism Education Association. Instead, the committee settled on a more modest set of amendments clarifying the limits of students' rights, including specifying that student broadcasters must abide by FCC content regulations. The amendments also respond to a concern that editorial endorsements by student media might place school districts in violation of a state prohibition on using taxpayer money to support political causes, stating that "political expression by students in school sponsored media may not be deemed the use of public funds for political purposes."
The bill has picked up numerous endorsements from the professional media, including the Seattle Times, whose editors wrote: "Now more than ever the nation needs a vigorous press and smart, civically engaged young citizens." It now heads to the Senate Rules Committee, which determines the schedule for Senate floor votes.
A comparable bill died in committee in Washington last session.
New Voices bills also are advancing in Arizona and Missouri, and pending in Michigan and New Jersey, with new filings in Minnesota and Nevada expected shortly. The measures have been boosted by endorsements from the American Society of News Editors, the Society of Professional Journalists and other civic and educational organizations around the country.
To get involved in the New Voices movement, visit www.newvoicesus.com, with resources and contact information for each active state campaign.
Tagged: new voices, news, press freedom, recent-news
President Donald Trump has made it clear that he doesn’t really like the news media. He’s called the reporter pen out at campaign rallies and said CNN White House correspondent Jim Acosta was “fake news” at a press conference. Senior adviser Steve Bannon has called the media the “opposition,” and Sean Spicer opened up his tenure with a barrage of falsehoods aimed at the White House press corps.
So, it’s hard to blame anyone who sees the existence of journalists under threat, especially ones already having a tough go of it in high schools and universities. Where can reporters-in-training find hope in what Washington Post columnist Margaret Sullivan called a “hellscape of lies and distorted reality?”
Neil Gorsuch, the president’s Supreme Court nominee, might be your friend in a high place.
While the 49-year-old Gorsuch doesn’t have the largest body of work to draw from, he has given opinions on content creators’ side multiple times in libel cases. A report from the Reporters Committee for Freedom of the Press characterized his judgeship as a consistent force for application of the First Amendment.
As a student at Columbia in New York, Gorsuch found himself a conservative in a deeply liberal urban campus. He remained active in student life on campus, running for student government, co-founding the The Federalist satirical newspaper and writing columns for the Columbia Daily Spectator.
The Spectator recently published a rundown of his experiences at Columbia, helpfully documented in the newspaper’s archives. One notable incident reported: Gorsuch threatened to sue a group of students who had put up a poster calling for a boycott of The Federalist for libel, saying the poster made an untrue allegation that The Fed was funded by The Heritage Foundation, and also that the poster’s creators hadn’t put their names on it, breaking university rules.
The judge’s most prominent experience with a student press law case comes in Mink v. Knox, a case of extreme student censorship at the University of Northern Colorado.
In 2003, Thomas Mink, then the producer of a satirical newsletter called The Howling Pig, introduced a KISS makeup-wearing character named “Junius Puke,” based on finance professor Junius Peake, to his publication.
Peake didn’t think it was very funny.
He called the police, who then searched Mink’s home and confiscated his computer in the course of an investigation into whether Mink had breached Colorado’s criminal libel statutes. That’s when Mink sued. The case made it all the way up to the 10th Circuit U.S. Court of Appeals, where Gorsuch has sat since his 2006 appointment.
Gorsuch concurred with the panel of judges that Mink’s parody didn’t constitute criminal libel. However, he noted a bit of caution, saying “reasonable minds can and do differ about the soundness of a rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern.” The case (eventually) ended with a $425k settlement between Mink and Susan Knox, the prosecutor he sued. In 2012, Colorado repealed criminal libel.
In another school-based case, Gorsuch took the extreme and unprecedented opinion that a 13-year-old student shouldn’t be arrested for burping in class.
A middle school student in Albuquerque had been making fake burps in P.E. class, as a middle schooler does. The student’s teacher decided to get on the radio and call in school police, who then arrested the teen for disrupting classroom proceedings.
The student’s parents sued the teacher, school and police officer, and the district court in New Mexico ruled the school was within its authority to arrest the student. In 2016, the case reached the 10th Circuit, based in Denver, and the appellate court confirmed the lower court’s decision.
Gorsuch was the lone dissenter.
“Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands – and in that I see the best of our profession and much to admire,” Gorsuch said in his written dissent.
The Republican Party retains a majority in the Senate, and Gorsuch has thus far proven popular with conservatives regardless of the man who nominated him. It’s safe to assume he will be confirmed to take the late Antonin Scalia’s place on the Supreme Court. There’s reason to be hopeful that he’ll stand up for student press freedoms if the issue comes up.
Tagged: 10th-Circuit-Court-of-Appeals, blog, Blogroll, Gorsuch, recent-news, Supreme
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The boards of directors of four journalism education organizations today released a statement to President Donald J. Trump advocating for continued First Amendment freedoms and news literacy education.
The Association for Education in Journalism and Mass Communication, in conjunction with the Student Press Law Center, the National Scholastic Press Association/Associated Collegiate Press, and the Journalism Education Association, authored the two-page letter, which urges the newly-sworn-in president to uphold the values of the First Amendment.
Outlining principles of freedom of speech, the news media as a government “watchdog”, as well as the importance of verification in journalism, the letter implores the Trump administration to defend the freedoms “threatened by the rhetoric of [the] administration.”
“We urge you and your administration vigorously to protect and preserve the First Amendment rights of journalists and all citizens – rights that are basic to democracy and an informed society. We will also continue vigorously to defend these principles,” the letter read in part.
“Ever since the election, given the heated rhetoric directed at journalists, we’ve had an explosion of calls from folks around the country concerned about the boundaries of government authority over newsgathering. All journalists, most especially students, would benefit from a clear declaration by the White House that reaffirms support for a free and independent press as an indispensable part of a functioning democracy,” said Frank LoMonte, executive director of the SPLC.
“Although student journalists don’t deal routinely with the federal government, the president can set a tone for state and local agencies to follow, and a tone of hostility will only embolden those agencies to escalate their aggression toward journalists, with students too often on the receiving end.”
Tagged: ACP, AEJMC, blog, blogrool, JEA, NSPA, recent-news
A new survey commissioned by the John S. and James L. Knight Foundation has found that support for First Amendment freedoms is at a 10-year high among high school students.
Despite continuing debate throughout the country on a multitude of free speech issues, the Future of the First Amendment Survey released Tuesday revealed that 91 percent of the 11,998 high school students questioned agreed that people should be able to openly express unpopular opinions – up from 83 percent since the survey was initially conducted in 2004.
“The report reveals how student perspectives are changing in a new media environment and
opens opportunities for educators, journalists and defenders of the First Amendment to
anticipate and address the challenges that may affect our most fundamental rights,”
Jennifer Preston, Knight Foundation vice president for journalism, said in a press release.
While 91 percent of students support the open expression of unpopular opinions, their thoughts became more muddled when the type of unpopular opinion changed. Only 45 percent of students agreed that people should be able to express unpopular opinions if they offended others, and 43 percent agreed that people should be able to express unpopular opinions on social media even if the speech could offend others.
Among the other notable findings in the survey include a correlation between the amount of news a student consumes and the chance they support First Amendment freedoms. Sixty-two percent of students who consumed news on mobile devices supported the right to express unpopular opinions, while only 52 percent of students who did not consume news on a mobile device supported the right to express unpopular opinions.
As New Voices press-freedom legislation continues to make its way through various state legislatures, the survey revealed a majority of high school teachers still do not support freedom of expression for students creating content about their schools – a somewhat concerning trend for the future autonomy of student journalism.
Sixty-one percent of teachers believe that students should not be allowed to report on controversial issues in student newspapers without the approval of school authorities, while 66 percent believe students should be punished for expressing their opinions about teachers and school administrators on social media.
Conversely, 63 percent of students felt they should be allowed to publish controversial stories without prior approval from school authorities.
Despite a few discrepancies, Kenneth Dautrich, who authored the study, said the results were a victory for First Amendment freedoms.
“This year’s study paints a very favorable picture of the future of the First Amendment. Today’s
high school students are more supportive of free expression rights than any we’ve surveyed in
the past,” he said in a press release. The most supportive students are also heavy news and digital media consumers, those that regularly see First Amendment freedoms play out as producers or consumers of information.”
Tagged: blog, Blogroll, First
Amendment, First Amendment, first-amendment, Knight Foundation, recent-news, survey
Federal regulators have served notice on the nation's largest private universities that football players have legally protected rights comparable to other college employees, including the right to speak freely on social media and give interviews to journalists without needed institutional permission.
A Jan. 31 report from the National Labor Relations Board answers the question left hanging in an inconclusive September 2016 NLRB decision involving the Northwestern University football team: Are college athletes "employees" for purposes of federal labor law?
The answer from the NLRB's chief legal counsel: Yes, if they work and receive compensation comparable to that of traditional college employees.
The opinion letter from General Counsel Richard F. Griffin Jr. extends only to the 17 private colleges playing football at the NCAA's highest level of competition, the Division I Football Bowl Subdivision. They include:
Baylor, Boston College, Brigham Young, Duke, Miami, Northwestern, Notre Dame, Rice, Southern Cal, SMU, Stanford, Syracuse, TCU, Tulane, Tulsa, Vanderbilt and Wake Forest.
For those 17 institutions, blanket restrictions on athletes' ability to communicate with the public, including through media interviews or on social networking sites, are now presumptively unlawful and subject to challenge under the National Labor Relations Act (NLRA). That's welcome news for journalists, who should now have greatly improved access to players at USC, Notre Dame and some other traditional football powers.
Griffin's interpretation is a narrow one, and offers no relief at the vast majority of other athletic programs. State institutions aren't subject to the NLRA, and Griffin didn't analyze whether the workload and compensation is comparable in sports beyond football or in colleges below Division 1 (though it's a fair supposition that his logic would extend to basketball at a school like Georgetown or Duke, where the season is even longer than football with greater travel demands).
Griffin left that door open to further investigation, writing that "we cannot conclusively determine the employee status of other kinds of student athletes in cases that may arise in the future."
To understand how we got here, it's helpful first to understand that the NLRA exists largely to protect the rights of private-sector workers to "organize" to improve working conditions, and that the NLRB has broadly interpreted "organize" to include any type of complaint, including a public one, that appears to be a step toward collectively agitating for better pay or benefits.
In a Sept. 22, 2016, opinion letter, the NLRB stated that the following workplace practices would violate the NLRA if applied to employees:
- Prohibiting interviews with the news media without advance approval of a public-relations officer.
- Direct employees to say only "positive" things to the news media and to avoid "negative" comments.
- Telling employees that their speech on social media will be "regularly monitored" by supervisors.
- Ordering employees to refrain from "inappropriate" or "embarrassing" posts on social media that injure the "image and reputation" of the employer.
- Telling employees that all aspects of their work are confidential and must "stay within the family."
Now, it is the agency's position that all of these restrictions can't lawfully be enforced against football players at the 17 major private institutions.
As Griffin wrote in last week's memo: "[S]cholarship football players at Northwestern and other Division I FBS private colleges and universities are employees under the NLRA because they perform services for their colleges and the NCAA, subject to their control, in return for compensation."
While the new NLRB guidance applies to a relative few of the 128 teams in the FBS, the pressure will now be on the NCAA to come up with consistent rules that extend comparable protections to athletes at public institutions. Since private colleges play most of their games against public colleges, it would be anomalous to have athletes governed by two greatly different sets of standards while playing each other (e.g., one team's players fully accessible for pregame media interviews and the other team's players off-limits), particularly in the bowl season where media interest is at its highest and where the NCAA takes over primary responsibility from the regional athletic conferences.
(It's already deeply questionable whether state colleges can, constitutionally, gag their athletes without running afoul of the First Amendment, which at a minimum gives all students at public institutions the right to speak freely up to the point where their speech substantially disrupts school activities. Blanket restrictions on media interviews – or on the use of social media platforms – may already be unconstitutional at state institutions, just waiting for a sufficiently motivated player to bring a challenge.)
Now, it's up to journalists at those 17 colleges to get hold of the handbooks and manuals that govern football players' interactions with the public. Each one of those institutions should be asked how it plans to adapt to the NLRB's interpretation and how it is letting players know that their tongues have been untied.
Tagged: College athletics, news, NLRB, recent-news
Days before the end of his tenure as a regent of the University of Texas, Wallace L. Hall saw his request for documents related to a university scandal denied by the Texas Supreme Court.
The ruling marked another missed opportunity by the courts to better define the boundaries of FERPA for universities. For Hall, who filed the lawsuit against UT Chancellor William H. McRaven, it also marked the end of a turbulent career.
It’s a case that goes back years.
In February 2015, then-Chancellor Francisco Cigarroa ordered an independent investigation into practices of then-University of Texas President Bill Powers and his administration. Among the findings was the revelation that Powers had used his authority to overstep the admissions process to obtain places for certain applicants in both the undergraduate college and the UT law school.
Investigative firm Kroll found that while Powers never obtained admittance for an applicant as a result of quid pro quo, he frequently intervened on behalf of “must have” applicants — normally those supported by powerful political figures, including legislators.
Hall, who first charged Powers in 2013 with the accusations, later corroborated by the investigation, requested the documents from the investigation from the new Chancellor McRaven. The findings of the Kroll report were public, but excluded hundreds of thousands of documents that Kroll had reviewed to reach its conclusions, namely because they included private student information.
According to the supreme court decision, “Hall wanted to review those underlying records to, among other things, assess the involvement of specific school officials, identify pressures put on admissions officials, and determine whether Kroll omitted any significant information from the report.” But McRaven refused to provide them.
In June 2015, Hall filed a lawsuit against McRaven to obtain the records, stating that “legitimate educational concerns” outweighed those about privacy. McRaven offered Hall access to the documents with the confidential student information redacted, but Hall insisted on the need to see the documents in their entirety.
The Texas Supreme Court took up the case, Hall v. McRaven, in December and held oral arguments in January. On Friday, the court ruled against Hall, whose six-year term as regent ends Wednesday.
The court decision from Justice John Devine explained that there “are concrete limits on Hall's claimed right to complete access” – but that those limits are set by the Board of Regents, not McRaven, who executes their directives.
Hall’s error then, seems to not be with the substance of his case, but his choice of defendant.
In his decision, Devine wrote that McRaven was simply exercising his legal authority to block Hall at the Board’s instruction.
The "board instructed him to redact information he determined protected... and he did just that," Devine wrote.
In his concurring opinion, Justice Willett seems to also suggest that Hall’s crucial error was in suing McRaven.
“We take suits as we find them, and this one, ably argued by both sides, named the chancellor who enforced the Regents access rather than the Regents who enacted them,” Willett wrote.
Ultimately, then, because the Board endorsed McRaven’s process, and because McRaven serves at the behest of the Board, McRaven was within his authority in refusing full access to Hall. The question then remains – should Hall have sued the regents instead of McRaven and, if he had, would the court have interpreted FERPA laws differently?
This case marks a dramatic end to a tumultuous tenure for Hall, who was cast as a divisive figure in Texas for what critics saw as his “witch-hunt” against Powers. In 2013, Hall first made his charge that Powers was giving special preference to the children of the state’s prominent legislators and their benefactors to obtain placement at the university, even if they didn’t meet the institution’s academic standards.
In response, Speaker of the House Joe Straus empowered the Select Committee on Transparency in State Agency Operations to investigate Hall’s conduct. Among the complaints levied against Hall in a 174-page report produced by the committee’s “special counsel,” was one that he was “burdening UT-Austin with impossible document production demands.”
Prior to this case, Hall requested thousands of documents during his tenure to investigate Powers’ administration.
In an August 2014 interview for a profile in Texas Monthly – rather dramatically titled “Is This the Most Dangerous Man in Texas?” – Hall insisted he was pursuing such investigations into Powers’ administration for public good.
“I’m supposed to be anxious because I’m asking tough questions? Because I’m doing the right thing?” he said.
Yet, beyond the symbolism of this case for Hall’s legacy and position in Austin’s education community, is its importance in marking yet another questionable use of FERPA by university bodies to avoid providing access to documents.
During the supreme court testimony, McRaven’s attorney Wallace Jefferson cited FERPA to defend McRaven’s refusal to provide the documents – despite the fact his use of FERPA in this case directly countered testimony UT System Board of Regents’ top FERPA authority, Barbara Holthaus, and the board’s general counsel Francie Frederick provided during a 2013 select committee hearing concerning Hall’s potential impeachment.
According to a Watchdog article, a university cannot be found responsible for violating FERPA so long as those given access to student records have a “legitimate educational interest” in seeing them.
During her testimony, Frederick noted that Hall had expressed surprise when she had suggested that his request to see emails from the investigation might be covered by FERPA.
“He was surprised that it was FERPA because there had been a previous opinion, kind of a casual opinion from the Office of General Counsel earlier, that generally summarized and said regents are entitled to see FERPA information.”
In other words, the chief attorney for the UT System Board of Regents confirmed during the hearing against Hall in 2013 that university regents had a right to see FERPA information.
As Justice Willett wrote in his opinion, “Everything is bigger in Texas, including political theater, and the odyssey of Wallace Hall is, like most Texas tales, filled with outsized personalities.” In this case, though, Hall was caught out by a crucial strategic error and the still-unchecked freedom of universities to interpret FERPA at will.
Tagged: blog, blogrool, FERPA, lawsuit, open records, recent-news, Texas
For a long time, Erin McNeill, president of Media Literacy Now, a group advocating for media literacy education policies, has had difficulty getting policymakers onboard. In the wake of a presidential election cycle where “fake news” was a major talking point, she says her job will get a lot easier.
“I think with the renewed attention, we have a much better chance of seeing some action in terms of media literacy policy. It’s been very hard to get anybody’s attention for years because I think it’s a complicated subject,” McNeill says. “[Media] affects so much of our lives; it’s like the fish swimming in the ocean: they don’t really notice the water.”
A number of states, working with the education advocacy organization, have proposed and pushed through media literacy initiatives. Legislators in California, though not directly working with Media Literacy Now, are the latest to have proposed curriculum changes in order to educate students about the media they consume every minute of every day. The suggested changes have manifested in two bills: Senate Bill 135, and Assembly Bill 155.
Both proposals use the spread of false and misleading media during the 2016 presidential election as a springboard. The Senate bill, introduced by Sen. Bill Dodd (D-Napa) and titled “Pupil instruction: media literacy,” seeks to educate California students on the inner workings of media, and how to decipher the signal from the noise. Dodd said the proposal would also make media literacy resources and training available to educators.
“People may be getting the same fake news, but they’ll know when it’s fake and when it’s real,” Dodd said.
The Assembly bill, sponsored by Assemblyman Jimmy Gomez (D-Los Angeles), uses the spread of false and misleading articles and news outlets as a springboard to take action for media literacy, saying “the inability of young people to distinguish between real news and fake news makes them less informed about important civic issues and poses a direct threat to our democracy.”
Dodd said there is precedent for the California legislature proposing and passing curriculum legislation like this, and that these types of bills are meant to build a framework that the state Board of Education can work around.
“We’re not mandating lesson plans … there’s absolute precedent where the legislature can direct this kind of legislation.”
Lisa Levine, a photography professor at Academy of Art University San Francisco and co-president of Media Literacy Now’s California chapter, said although she had not been a part of the drafting process for either bill, she looked forward to tracking their progress and working with lawmakers. She said her own experience with students is what led her to be active in advocating for media literacy education.
“It’s been alarming to me that in a college classroom, it’s the first time students are being asked to think critically about media, which is their landscape. We talk about it as a landscape and I say to my students ‘this is not the 19th century, you can’t go out and paint a bucolic landscape. Your landscape is the media,’” Levine said.
Studies have shown students who participate in scholastic journalism are more likely to be civically engaged in the future. Media literacy and civic reasoning education go hand-in-hand with the kinds of topics covered in journalism classes, encouraging students to think critically about the role of journalism, and the information they consume and share.
Additionally, publications often face pushback from their fellow students – just look at Wesleyan, where peer-generated complaints put a newspaper’s funding in peril. This curriculum could also serve to educate students not participating in journalism about the newsgathering process, and encourage readers to participate in the media dialogue instead of battling their publications.
Tagged: blog, Blogroll, California, fake-news, legislation, media-literacy-education, recent-news
State senators in Wyoming last week voted to indefinitely postpone a bill that would have given students a heightened sense of digital privacy.
Senate File 20 was introduced and sponsored by the Wyoming Joint Education Interim Committee, and would have prohibited school officials from requiring access to a student’s personal digital account. The bill also included provisions prohibiting school officials from requiring students to log into personal accounts in the presence of a school employee, and from asking students for devices to inspect their contents.
School officials also would have been prohibited from disciplining students who declined to disclose personal digital information.
The Joint Education Interim Committee voted 4-1 on Jan. 12 to send the bill on to the full Wyoming Senate, where it was postponed indefinitely by a 12-18 vote.
Sen. Jeff Wasserburger, R-Gillette, was the one ‘no’ vote when the bill was in committee. He questioned the necessity of the bill, saying there had been no questions raised or incidents regarding student digital privacy in the state.
This attitude is emblematic of many laws, or lack thereof, relating to issues of student privacy. To say privacy legislation isn’t necessary until an incident catalyzes a response highlights the overarching issue with state legislatures: a tendency to be reactive instead of proactive.
This was the second consecutive year a privacy bill had been drafted, Wasserburger said — last year’s bill passed the Senate but failed the House.
Wasserburger also cited the need for principals to move quickly in the modern world in terms of combatting bullying and promoting a positive culture in schools.
“It’s a huge change from what we’ve done in our schools in years past,” he said. “Essentially what that bill would’ve done is give students full Fourth Amendment rights and required principals to get search warrants to look at [student’s] phones, which I think would’ve caused a backlog in the judicial system.”
The debate over school cellphone searches has been ongoing in the legal system for years. In 2009, a Safford Unified School District v. April Redding Supreme Court decision concluded that school searches can go too far if there are no reasonable grounds for suspicion.
There is somewhat of a gray area between a school’s authority and a student’s privacy, which is why laws protecting digital privacy are necessary. New Hampshire, Wisconsin and Michigan have actually passed similar laws within the last several years, bringing the number of states with some form of privacy protection to 15. The protections mostly cover students in college, but some states have extended the protection to K-12 students as well.
The intention of digital privacy laws is not to backlog a judicial system by flooding it with requests, but rather to preemptively protect a student’s right to not have to hand over social media logins and cell phones without proper justification to do so.
This becomes relevant to student media, who may face confiscation of their mobile devices in the course of their reporting. Additionally, the prevalence of social media as a reporting tool – from live-tweeting to Periscope to Snapchat – has increasingly blurred the lines in publishing news.
WIthout clear-cut limits on school authority, the instinct to restrict publishing can easily migrate to restricting stories posted on social media, regardless of whether they were reported on school grounds or during official instruction time.
Despite this, Wasserberger said he hoped Wyoming wouldn’t see privacy legislation on the legislative docket any time soon.
“I’m hoping this is the last time we see it,” he said.
Tagged: blog, Blogroll, law, legislation, online-privacy, recent-news, student privacy, Wyoming