Student Press Law Center

The end of a rugged Trail — a community-college adviser reflects on bringing journalism to the First Amendment wilderness

Posted: September 2, 2010 at 1:08 pm
by Frank LoMonte

It is difficult, under optimal conditions, for a student newspaper to publicize unflattering facts about the college that hosts and finances it. Ron Feemster did not work under optimal conditions.

In a detailed and riveting account published today on the website Inside Higher Ed, Feemster describes the daily struggles against adversity as journalism adviser to a feisty student publication, The Northwest Trail, that dared to take on entrenched interests at Wyoming’s Northwest College:

It is unlikely that there is an easy, comfortable place on campus for an empowered student press. Good student journalists, like the ones I advised, will uncover facts that make a college administration squirm. But if a strong press is sometimes a nuisance for administrators, a timid, self-censoring student paper is an educational fraud.

I won’t ruin the story — it’s a must-read — by detailing all of the ways in which Feemster describes the Northwest administration undermining the newspaper’s ability to get at the truth. All of the obstacles familiar to anyone who has ever worked at a campus news organization are present — administrators whose answer to every uncomfortable question is a bogus claim of “student confidentiality,” coaches and faculty members who confuse truthful reporting of the news with “disloyalty.” But they are exacerbated by the built-in adversity of working in a small, two-year college where newsroom staffs are young and turnover-prone, in a community unaccustomed to aggressive, take-no-prisoners journalism.

Feemster’s story ends, as so many strong-willed advisers’ do, with his firing from Northwest College. So his story, while in large part inspiring, is also cautionary. It reminds us that, unlike in the movies, the bad guys often win — they are the ones with the money and the authority, after all. Still, Feemster has ignited something powerful that is not so easily extinguished as his employment contract. Those at Northwest who oppose honest, truth-telling journalism may find that ideas are much harder to dispose of than people.

Posted in Advisers, Censorship, College Censorship | No Comments »

“If only someone would fix this … oh wait, that’s MY job.”

Posted: September 1, 2010 at 4:05 pm
by Frank LoMonte

“If it was up to me and the law allowed it, I would put out student attendance data and hold parents accountable. And while we’re at it, let’s put out funding and facilities data and hold school boards and politicians accountable.”

That would be an unremarkable quote if it came from some school-reform do-gooder, or a candidate for school board, or an editorial columnist.

But the quote is remarkable, because it came from the secretary of the U.S. Department of Education, Arne Duncan — who, while publicly stumping for greater transparency in school data, is running an agency that continually classifies more and more information essential for public accountability as “confidential.”

Left hand, meet right. Right, meet left.

Duncan’s agency is in charge of interpreting and enforcing FERPA, the Family Educational Rights and Privacy Act. FERPA was intended to safeguard the confidentiality of students’ individually identifiable “educational records.” But the Department has repeatedly defined “educational records” in an irrationally broad way, giving schools and colleges political cover to conceal information from the public that is neither “educational” nor confidential.

Just recently, a school district in Maine refused to release public records that would help journalists with Falmouth’s newspaper, The Forecaster, verify whether schools are excessively restraining unruly students. The newspaper wanted to know how often teachers use restraining holds to immobilize students, and whether the holds are being used only by properly trained and certified personnel — newsworthy information addressing a vital issue of student safety.

Anticipating a privacy objection, the newspaper agreed to accept reports of each restraining incident with all identifying information about the students blacked out.

Still, the school district — waving the FERPA flag — refused.

School attorneys claimed that even a statistical report that Miss Crabtree used restraining holds six times over the past school year might somehow be traced back to individual students and compromise their privacy. That, of course, ignores that the newspaper-reading public has no idea which students are assigned to Miss Crabtree. The only people in a position to know are (a) officials at the school, who are already privvy to the restraint reports or (b) the other kids in the class, who saw exactly who was being restrained before their very eyes.

Release of the information requested by The Forecaster has zero chance of giving away any confidential information. And the information is indispensable for parents to know whether the schools are doing their jobs properly — otherwise, accountability is replaced with “trust us.”

The Falmouth case, and other recent misuses of the statute, should trigger a four-alarm emergency signal that FERPA is not working. Because the only penalty for violating FERPA is financial sanctions from the Department of Education — a school cannot be sued for disclosing confidential FERPA information — the Department has the ability with a single public declaration to restore some sane balance between legitimate privacy interests and the public’s right to know. The declaration (got a No. 2 pencil, Secretary Duncan?) could say something like this:

“We will never, ever financially penalize any school or college that in good faith honors a legitimate public-records request for newsworthy information. If you ‘guess wrong’ and you release information that we later decide was FERPA information, we’ll issue a clarifying opinion so that the mistake doesn’t happen again, but we will of course not impose crushing financial penalties for making a gray judgment call. We interpret FERPA to apply only to information that (a) is not already widely known, (b) pertains directly — and not tangentially — to individually identified students, and (c) is kept in a central school records repository. Nothing else is a ‘FERPA record,’ and if your state’s public-records law applies to it, then you must disclose it.”

Secretary Duncan, it is “up to you.”

The courts have been abundantly clear — over and over — that the scope of FERPA is more limited than your agency acknowledges. The public is entitled to more information than schools and colleges are releasing. Your agency can fix this.

If your talk about accountability isn’t just talk, it is a short walk from your office to that of the DOE’s Office of Family Policy Compliance, the FERPA enforcement branch. Bring a copy of that August 25 “transparency” speech. It’s a beauty. Especially that part where you say, “The truth is always hard to swallow but it can only make us better, stronger and smarter. That’s what accountability is all about — facing the truth and taking responsibility and then taking action.” Make reading that speech a required homework assignment for everyone whose job is interpreting FERPA. Test them — rigorously — for reading comprehension. And expel the ones who fail.

Posted in FERPA, Freedom of Information | No Comments »

Back to School Checklist: Evaluating your staff’s ‘media-law radar’

Posted: August 31, 2010 at 7:13 pm
by Mike Hiestand

For better or worse, knowledge of the law continues to be an ever-growing part of the skill set required of all journalists, including students.

One fairly quick — and mostly painless/sometimes entertaining — way to check how much your students/staff know about media law as they head back to the newsroom is to direct them to the SPLC’s Test Your Knowledge of Student Media Law quiz series. Created with funding help from the Newspaper Association of America, our quizzes are one of our most popular Web resources.

In about 30 minutes, students are both quizzed and run through scenarios — many based on real-life situations for which students frequently seek our help – that should help them prepare for the bulk of legal issues they are likely to encounter this school year. And while they’re not going to become media-law experts in a half-hour’s time, the experience should activate their legal radar enough to alert them to problems of which they might not even be aware.

We still hope and strongly suggest that a staff devote at least a few classroom periods to a more thorough discussion of media-law topics. To help with that, we have designed a number of Media-Law Classroom Presentations that teachers or editors can use to talk about censorship, libel, privacy, copyright and other common legal topics. In the meantime, our online quizzes should provide a jump-start.

Posted in Censorship, Confidentiality, Copyright, Freedom of Information, Invasion of Privacy, Journalism/Civics Education, Libel | No Comments »

Back to School Checklist: Sometimes an adviser’s ignorance is bliss (or at least safer)

Posted: August 27, 2010 at 4:53 pm
by Mike Hiestand

In a previous blog post, we talked about the “facts of life” discussion that advisers and their students should have about the adviser’s limited ability to advocate publicly for her students’ interests without jeopardizing her own safety. Next on the list of things that need to be discussed NOW — before the first issue — is the newsroom policy regarding the handling of secret sources and confidential information.

This is not the bigger editorial/ethical discussion to be had regarding whether and/or how a news media organization uses anonymous sources. That is an important and debate-worthy topic that editors and advisers need to think about — but you’ve got a bit more time. (The Poynter Institute’s Al Tompkins has created a solid list of guidelines that make an excellent starting point for that discussion.) Rather, this Week 1 talk should address one thing: A student media adviser should not be told — or ask that her students reveal — the identity of a student reporter’s secret source.

Student advisers are in a precarious legal and ethical position. They are newsroom insiders and (hopefully) trusted allies to whom editors and staff can turn to for guidance. They are also school employees. We discussed earlier the problems that can arise when an adviser — however nobly — takes her role as student advocate too far, for example by leading the charge in a censorship battle.

Another danger zone involves confidential sources.

Using a confidential source is always a serious matter. First, a source usually wants to keep his or her name secret because serious problems might arise if their identity was to be revealed. For example, a football player willing to talk to a reporter about his use of performance enhancing drugs (and perhaps that of his teammates) may believe — and probably with good reason — that disclosing his identity would ostracize him from the team and jeopardize his future.

Second, telling a source that you will protect his anonymity is a binding promise both ethically and maybe legally. The source has voluntarily agreed to disclose information, but only if you keep his name out of it. You don’t have to accept those terms; he can keep his information to himself. But if you agree to his conditions and he talks, you must be prepared to keep your end of the bargain. Reporters go to jail to keep their promises to sources, and no reporter — students included — should ever promise their source anonymity source unless they have accepted such risks, too.

On the other hand, an adviser — as a school employee — often operates under a different set of rules. Pledges of secrecy notwithstanding, she may be legally bound to report what she knows about unlawful activity that occurs on school grounds (for instance, the identity of a known drug user).

There is simply no way to reconcile these obligations. In our example, an adviser who knows the identity of drug-using football player either breaks a serious promise not to reveal his identity or she keeps the secret and subjects herself to possible legal sanctions or punishment (including, presumably, the termination of employment). The only way to avoid such a legal and ethical quagmire is for the student staff to keep the identity of the source – and any confidential information obtained from the source – to themselves. (And part of this includes storing any information about confidential sources on secure, non-school computers.) An adviser can’t be held responsible for failing to reveal information she doesn’t have.

While an adviser can and usually should be involved in the requisite discussion about whether using an anonymous source in a particular story is justified (which should always include talk of whether there are alternative ways of telling the story), now is the time for advisers and their students to create a system that shields an adviser from the protected information itself. While keeping an adviser in the dark is not ideal, the lack of other viable options should make it an easy and necessary call.

Posted in Advisers, Confidentiality | No Comments »

Virginia alcohol advertising ban could be Supreme Court-bound

Posted: August 26, 2010 at 8:55 am
by Frank LoMonte

Two college newspapers are asking the U.S. Supreme Court to reverse a federal appeals-court ruling that upheld a Virginia regulation restricting what advertisers can say about alcoholic beverages in student publications.

Virginia Tech’s Collegiate Times and the University of Virginia’s Cavalier Daily, represented by counsel from the ACLU, filed a petition Aug. 23 asking the Court to hear the case of Educational Media Co. v. Swecker in its 2010-11 term.

The newspapers are challenging a 2-1 decision by the Fourth U.S. Circuit Court of Appeals that found no First Amendment violation in Virginia’s alcoholic beverage regulations directed at campus publications. Under the regulations, only restaurants are allowed to advertise alcoholic beverages in student-edited publications, and then only using generic terms such as “beer” and “wine,” with no reference to price. (The SPLC filed a brief in support of the student publications at the Fourth Circuit.)

The Supreme Court rarely grants petitions for review, but the possibility presents an interesting quandary for the status of Justice Samuel Alito, who is normally an outspoken defender of the First Amendment.

While on the Third Circuit, Justice Alito authored the 2004 opinion in Pitt News v. Pappert that struck down a similar Pennsylvania ban on First Amendment grounds. Although Pitt News never came before the Supreme Court, bringing Swecker to the Court could invite renewed scrutiny of the Third Circuit case. If Justice Alito concludes that the two cases are irreconcilable, and that the Swecker ruling can be affirmed only if the justices rule that Pitt News was wrongly decided, then he may feel compelled to refrain from voting. That would deprive First Amendment advocates of a valuable ally.

Besides pointing out the conflict between the Swecker and Pitt News cases, the ACLU petition also argues that the Fourth Circuit made two fundamental legal errors that justify Supreme Court review.

First, the Circuit’s two-judge majority did not require the state to prove that restricting ads only in student publications actually produces any significant improvement in underage drinking and binge drinking, which is the rationale the state gave for singling out student media. There was no evidence that drinking on campus is any less problematic in Virginia than in comparable states without advertising restrictions, and the state could produce no studies or expert testimony documenting any cause-and-effect link.

Second, the Circuit panel ignored the existence of alternative anti-alcohol-abuse measures – such as cautionary safe-drinking ads – that are proven to be more effective than an advertising ban, with no adverse First Amendment hangover. The majority judges concluded that the ban did little harm to First Amendment interests because it was “targeted” to publications read by those under 21, but (as the ACLU’s petition argues) the evidence in fact showed otherwise. At least half of the readers of the Collegiate Times and Cavalier Daily are of legal drinking age, meaning that Virginia’s restrictions are depriving thousands of readers of accurate information about a product that is legal for them to purchase.

The Court is under no immediate time constraint to decide whether to take the case, which would be heard, if at all, sometime in early 2011.

Posted in Advertising, Censorship, College Censorship | No Comments »

Back to School Checklist: “The Talk”

Posted: August 25, 2010 at 1:42 pm
by Mike Hiestand

A fresh, new school year is upon us. The newsroom is tidy. The floor recently waxed, the cabinets and drawers are in apple-pie order and the story files nicely organized. The production schedule is taking shape and your students haven’t missed a deadline. Story ideas and yearbook themes flow freely, having had a full summer to simmer. No one is mad at you (yet).

But as we’re told, the time to prepare for an earthquake is before it hits. So along with enjoying the relative peace that August/September brings, this is also the time to lay some groundwork and prepare for the nine or so months that follow and the possibility of the Big One (or Big Two or Three or Four) that might follow a controversial story that riles a group of parents or a dust-up with the school board or basketball coach. Unfortunately, as any veteran student media adviser knows, dealing with Big Ones is part of the job. Preparing your students for such events before they happen should be a regular part of your back-to-school ritual.

As we ease into 2010-11, we’ll use this space to briefly discuss some issues and potential trouble spots we’ve seen over the years, and to point out some SPLC resources of which you may be unaware that may help you and your students avoid the Big One (or at least be sufficiently prepared so that it perhaps it stays a “Little One”).

First on our Back to School Checklist: “The Talk.”

At the start of each year, not long after handing out the course syllabus, it is important to have a frank conversation with your students about the position in which you, as adviser, operate. You support them; you believe in them; you will always strive to do your best by them. But you — unlike the students themselves — are also a school employee. And you need to remind them that sometimes an employee has to do things they’d rather not (or not do things they’d like to do) simply because their employer tells them to. It’s important that students understand now — before the heat and emotion that comes with a censorship fight or some other big blow-up with school officials — that they must be willing and able to take the leadership role should it be necessary to challenge administrative action. It’s their publication. Courts have made clear that it is their legal rights — not the adviser’s — that are at stake. If a fight must be fought, it must be their fight.

Remind them, too, that employees often have to bite their lip. If a protest is to be staged, if parents are going to be asked to call district officials or if calls from local news media returned need to returned ,that’s not something you, as an employee, can do (or even encourage).

As part of this discussion (and — intentionally — at a time when there are no actual flames that your boss can accuse you of fanning) provide your students with a list of student media resources to which they can turn for help should you be required to take a step back. Give them contact information for your state student journalism group, the national Journalism Education Association, local newspaper editors or reporters. Make sure they have the number of the SPLC and understand that we can provide free legal assistance and guidance not only for help on a censorship matter but for any media-law question that might come up during the year. Pass on the link for the Censorship Checklist.

The bottom line is that having you fired for insubordination does no one any good. (And frankly, if the students aren’t willing to go to bat to protect their own free-speech rights, it’s probably not something worth sticking your neck out for, anyway.)

Posted in Advisers, High School Censorship | No Comments »

New look, new features, same values — hello, world, and welcome to SPLC 2.0

Posted: August 25, 2010 at 8:31 am
by Frank LoMonte

Do not adjust your set. Your bookmarks are not deceiving you. You’ve arrived at the new-and-much-improved online home of the Student Press Law Center, your destination for news, information and teaching materials about the law of gathering and distributing information – in all forms, across all media.

The SPLC spent 2009 gathering input from hundreds of students, educators and other users of SPLC services. The website you’re seeing today is the website you told us you wanted.

You wanted a more pro-active SPLC that actually helps head off problems instead of just parachuting in during an emergency. We heard you, and we’re providing greatly beefed-up educational content to help students understand their legal limits and assert their rights intelligently. And for those who want to get directly involved, we’re providing a one-stop source of tips and training to help jump-start grassroots campaigns for better state laws.

You wanted a more modern SPLC that responds to the way students are living and learning in the 21^st century. We listened, and we’re adding new video content to the site to make learning the law less of a grind.

You wanted a more visible SPLC that effectively tells the story of the human toll that censorship takes every day in our schools. We responded. That’s one reason you’ll see, front-and-center, a “Report Censorship” button leading directly to a fill-in-the-blanks contact form. Because we know that censorship is pervasive on our campuses, and that fear and intimidation keep most of it hidden. Helping the public understand how pervasive is the first step toward changing minds and creating a safer climate for students and teachers to practice their craft.

All of the features that you told us you value most – our automated open-records letter generator, our legal quizzes – are still here. And we haven’t changed our essential values and priorities, which will always be to provide responsive, reliable service to young people who face legal obstructions, threats and uncertainties.

What we have changed is the “cartoony” look of our circa-2001 site. These are serious times, and students and teachers are facing serious threats to their freedom and their futures. The young people who work in journalism are mature, dedicated and professional, and they are sophisticated consumers of media. The SPLC has always kept pace – in its advocacy and in its legal reference guides – with the newest ways of delivering information. Today, appearance finally catches up to reality.

Elsewhere on the site, you will see thank-you’s to our benefactors, the Philip L. Graham Fund and the Taproot Foundation, whose funding and volunteer labor got this project started. But to get it finished took the superhuman efforts of some immensely talented and dedicated SPLC staffers – Adam Goldstein, Brian Schraum and Julia Chapman. If you like what you are seeing, the credit is theirs.

What you see today on August 25 is wonderful, but it’s only a beginning. In the months to come, you’ll find a much greater variety of video Q-and-A’s, classroom teaching aids, and other fresh content that will make splc.org an essential tool for teaching and learning journalism, media literacy, and First Amendment law.

The ultimate goal of the redesign is to transform the SPLC website from an occasional stop for those facing legal emergencies into a daily go-to destination. We hope you’ll incorporate the splc.org site into the routine of your classroom, your newsroom, your studio, or your law practice.

Look around and get comfortable. Check back often. If you see something you like, forward and share it. If you really like what you see, visit our “Get Involved” page — that’s new, too — and become an SPLC foot-soldier by publishing a public-service ad, posting a website badge, or giving a surrogate speech using our talking points.

And if you aren’t finding everything you need, or you’ve got a way to improve the site — or if you just really miss those cartoons — write to me personally at director@splc.org and let me know.

Posted in SPLC News | No Comments »

Former Northwestern student journalist wins significant reporter’s privilege victory

Posted: August 23, 2010 at 8:59 am
by Frank LoMonte

A former student journalist at Northwestern University’s Medill School of Journalism does not have to reveal documents or give testimony about her investigative reporting that helped free a wrongfully convicted man from prison, a federal judge has ruled.

The ruling in favor of Carolyn Nielsen — who now teaches journalism at Western Washington University in Bellingham — is significant because it recognizes no distinction between the ability of a student journalist versus a professional journalist to claim the protection of the reporter’s privilege.

The case involves a lawsuit by Thaddeus Jimenez, who was freed from prison in May 2009 — after serving 16 years of a 45-year sentence — with the help of a Northwestern University legal clinic and evidence gathered by Nielsen in her reporting. Jimenez filed a suit in December 2009 in federal court in Illinois, alleging that Chicago police violated his civil rights by manipulating evidence to incriminate him.

Attorneys for the City of Chicago subpoenaed Nielsen to obtain correspondence and records of phone conversations with Jimenez and to take her testimony. She responded by asserting the protection of the reporter’s privilege, which enables journalists to keep their unpublished newsgathering materials confidential when faced with a demand in a legal proceeding.

In an August 18 order in the case of Jimenez v. City of Chicago, U.S. District Judge Marsha J. Pechman of the Western District of Washington ruled that the reporter’s privilege applies to Nielsen even though she was working as a graduate student for a campus newsmagazine:

All of the documents were created with journalistic intent from inception, and culminated or are intended to culminate in publicly-consumable publication. Given that other circuits have not differentiated professional journalists from students in this context, this Court finds no reason to deny her standing simply because she was a student when some of the documents were created. Nielsen is eligible for journalist’s privilege.

Having found that the privilege applies, the judge then found that the City’s lawyers had failed to overcome the privilege by demonstrating that Nielsen’s evidence was urgently needed and available nowhere else. Nielsen told Tacoma’s News-Tribune that the ruling represents “a win for journalists who are still in the field and for the students I teach who hope to be journalists someday.”

The Nielsen case is reminiscent of a still-ongoing dispute that also involves a reopened murder case and Northwestern student journalists. In that case, Chicago prosecutors are demanding to see all of the materials underlying Medill students’ investigation into the murder conviction of Anthony McKinney. McKinney is seeking a new trial based on exculpatory evidence gathered by students working for the Medill Innocence Project as part of an investigative reporting class.

But the Jimenez ruling is not conclusive in the McKinney case, for several reasons. First, Judge Fechman was applying federal, not state, privilege law based on legal precedent that applies in the federal Ninth Circuit. Second, the Jimenez case is a civil case about Jimenez’s entitlement to money damages, not a criminal case about a person’s freedom.

Nielsen’s case also highlights the need for Congress to put in place a nationally uniform federal privilege, so that journalists need not base their living arrangements on the whims of the federal courts. (Although courts and legislatures in every state except Wyoming have enacted a reporter’s privilege, Congress has been unable to agree on the details of a shield law, and a Senate bill that appeared close to enactment in 2009 is languishing.)

As Judge Pechman noted in her ruling, Nielsen was covered by privilege because she had the good fortune to move to a jurisdiction (the Ninth Circuit) where judges have created a common-law reporter’s shield in the absence of a federal statute. Had Nielsen remained in Illinois, she would have been subject to the law of the Seventh Circuit, which has refused to recognize any such privilege. It makes no sense that identical subpoenas issued to identical journalists in the same court case might be treated differently based on where the journalist happens to live, and Congress has the opportunity to correct the inequity and offer clarity to this unsettled area of the law.

Posted in Confidentiality, Reporter Shield | No Comments »

It creeps! It leaps! Hazelwood Blob finally frozen in its tracks — in a Texas courtroom

Posted: August 20, 2010 at 7:24 pm
by Frank LoMonte

The original 1958 Steve McQueen version of “The Blob” is a classic of schlock-horror cinema. Although the film has been sequelized and remade, the central construct — an amoeba-like alien slime creature that gets larger as it absorbs everything in its path — enduringly terrifies.

The way that federal courts have applied the Supreme Court’s 1988 Hazelwood standard to restrict First Amendment rights in public schools is straight out of the script of “The Blob,” and equally horrifying. (That is, assuming “The Blob” actually had a script.)

From its judicial petri dish, Hazelwood School District v. Kuhlmeier — which reduced the First Amendment protections afforded to students when they speak in “curricular” settings such as the pages of an in-class laboratory newspaper — has bloated into a monstrosity, gobbling up chunks of public schools in its path.

The Hazelwood opinion appeared quite clearly to be limited to “curricular” speech — that is, speech presented as part of a school-directed class activity for credit — but, like the Hollywood Blob, the Hazelwood Blob quickly outgrew those confines.

In recent years, courts have decided that just about everything that takes place inside of a school building — unless it is physically a part of a student’s person, such as a T-shirt message or a hairstyle — is Hazelwood “curricular” speech. This includes such dubiously curriculum-related outlets as student-painted tiles on the walls of Columbine High School, and commemorative bricks purchased by community members in a school’s walkway. Indeed, it rarely seems that any square inch of school, no matter how tenuously connected with curriculum, is safe from being sucked into Hazelwood‘s freedom-devouring gullet.

In a recently issued ruling, a U.S. district judge in the Southern District of Texas finally halted Hazelwood‘s path of destruction, at least for the moment.

In his July 30 ruling in Pounds v. Katy Independent School District, Judge Lee H. Rosenthal decided that the messages in holiday cards ordered through a Texas elementary school were not Hazelwood speech. Consequently, the school violated the First Amendment by scratching out an overtly Christian message from the choices of cards available to students’ families.

Attorneys for Pattison Elementary School tried to argue that Hazelwood allowed the school to do what the First Amendment almost never allows a government agency to do: discriminate for or against certain viewpoints. The school conceded that forbidding the vendor from offering a Christian message was viewpoint discrimination, but argued that viewpoint discrimination is permissible where the speech is directly attributable to the school, i.e., curricular.

But the judge found otherwise. Although the cards were ordered through the school as part of a fundraiser for art supplies, that was the end of the school connection. The messages on the cards were not chosen by the school, the cards were to be delivered to parents’ homes by a private vendor, and teachers were not supervising the selection of the cards or incorporating them into lessons. Therefore, the speech was too distantly removed from school to be Hazelwood curricular speech.

Perhaps even more remarkably, Judge Rosenthal strongly hinted that the school’s rationale for censoring the Christmas card offerings — to disassociate itself from religious proselytizing — would not even satisfy the rather minimal justification that Hazelwood requires. The Hazelwood standard requires only that the school point to some valid educational purpose for its actions, but the judge — noting that the cards were to be distributed and viewed off school premises — said the school presented nothing to connect the cards with “disruption of the learning environment.”

That is a sound and a faithful application of the Hazelwood standard, but not one that the courts unanimously share. Hazelwood should be a meaningful and demanding check on schools’ censorship authority, as Judge Rosenthal understood, and not an invitation to censor first and slap together a justification afterward.

The Hollywood Blob was defeated (though with a foreboding postscript hinting at a sequel) by being immobilized with fire extinguishers. The Hazelwood Blob has proven more resistant, but there are at least some indications that it too is being frozen in its destructive path, sparing some of its would-be victims from the monster that a tragic Supreme Court misjudgment unleashed.

Posted in Censorship, High School Censorship | No Comments »

McCormick protocol forces schools to confront the educational costs of censorship

Posted: August 13, 2010 at 4:26 pm
by Frank LoMonte

On a snowy February day at Chicago’s Cantigny Park, the McCormick Foundation brought together 50 experts — teachers, lawyers, school administrators, students — with a blank easel pad and a mission: to fix the flawed way that schools oversee what students publish.

Far too many school districts impose retaliatory governance policies over student media in crisis-hysteria mode (or punishment mode) without careful deliberation. The result of these ill-considered policies invariably is the opposite of what is intended — more controversy, more wasted time, and more attention to the “negative” stories that the policies are intended to suppress.

The charge from the McCormick Foundation (a philanthrophic funder of many journalism initiatives, including the SPLC) was to come up with a better system, and to arrive at a set of universal guiding principles that should inform any school’s or district’s governance of its student media.

Chicago-based McCormick convened the conference not far (in time or in distance) from the scene of one of the most shameful censorship episodes in American history, Stevenson High School. Administrators at Stevenson destroyed their school’s formerly award-winning journalism program in 2009 with an escalating drumbeat of censorship that included forcing students to put their bylines on stories sanitized by the administration, and to hand-deliver censored newspapers with which they disagreed.

So it was timely and appropriate to call together those concerned for the well-being of student journalism in Chicago, to try to make sure that a tragedy like Stevenson never happens again.

The result of two days of intensive brainstorming at Cantigny appears in McCormick’s newly published, “Protocol for Free & Responsible Student News Media.” (The report, available online now, will be formally released in September in conjunction with Constitution Day.)

Compiled by veteran Illinois journalism educator Randy Swikle, the report begins with a stirring quote from U.S. District Judge Arthur Tarnow’s 2004 ruling in Dean v. Utica, a case reaffirming that student journalists retain First Amendment rights even when writing for school-funded, on-campus publications:

[I]f the role of the press in a democratic society is to have any value, all journalists – including student journalists – must be allowed to publish viewpoints contrary to those of state authorities without censorship by the authorities themselves. Without protection, the freedoms of speech and press are meaningless and the press becomes a mere channel for official thought.

The report lays out a model of ethical and responsible decision-making for resolving difficult news judgments, as an alternative to coercive school administrator control. It urges administrators to relinquish authoritarian, “because-I-said-so” control over the content of student publications in favor of shared power and shared responsibility: “[T]he practice of prior review tends to be an inconsistent process of micromanagement, controlling the school image, dictating ethics on controversial issues, arbitrary censorship and even intimidation. School authorities often become editors rather than overseers, thereby undermining the responsibility of student editors and their trained journalism teachers.”

Journalism educators don’t get a free pass in the McCormick report. The report admonishes that a failure to steer students away from sensationalistic journalism too often plays into the hands of censors.

There are, unfortunately, businesses with a discernible anti-student agenda (and no journalism expertise) marketing so-called “model” journalism governance policies that tilt lopsidedly toward heavy-handed control, ignoring the detrimental impact on learning. The McCormick protocol actually is a model policy. It incorporates the input of the people who know journalism education best. It is not driven by an overriding imperative to minimize controversy — that is a valid consideration, but it is not an educational imperative, and when minimizing controversy conflicts with providing a sound educational experience, then minimizing controversy must yield.

But even if school districts do not adopt the conclusions of the McCormick report, the report sets forth a thought process that is designed to force consideration of all of the consequences of enacting or revising a publications policy. This is the first time any institution has authoritatively captured in one place all of the trade-offs involved in setting standards for student publications.

If the McCormick protocol can prompt better-educated and more substantive conversations — if publications policies can be enacted after informed deliberation — then the outcomes will almost necessarily be better. And McCormick will have contributed greatly to the advancement of a safer climate for students, and teachers, to practice their craft.