Momentous advances in free-speech law don’t always involve historic acts of journalistic courage. Sometimes they start with something as tiny as a kid who doesn’t want a haircut.

That’s what led a Chicago-based federal appeals court to conclude that it can be unlawful gender discrimination to make male high-school athletes, but not female ones, wear their hair short.

In a 2-1 ruling issued in February, the federal Seventh Circuit decided that gender-based dress and grooming codes can violate both the federal Title IX gender discrimination statute as well as the Equal Protection Clause of the Fourteenth Amendment.

In sending the case back for trial, the appeals court in Hayden v. Greensburg Community School Corp. indicated that the school can still prevail if it shows that a school rule — requiring only boys, but not girls, to cut their hair short to play basketball or baseball — is part of a comprehensive grooming code that, while not necessarily equivalent across the sexes, is at least comparable.

The Hayden case provides interesting new avenues for challenging dress codes such as the “no leggings” rule that’s currently provoking protests at a middle school in Evanston, Ill. (The school has attempted to justify the rule by arguing that girls’  leggings are distracting boys from concentrating on schoolwork, a rationale that some critics have labeled the tween equivalent of “slut shaming.”)

As Time‘s Eliana Dockterman wrote in recounting her own experience with dress-code banishment — punishment that almost always is counterproductively more distracting than any outfit could be — disciplining girls because boys can’t stop staring at them seems to misplace responsibility for behaving professionally in a work-like setting. (It’s also a form of the same faulty logic that prompts colleges to ban or disinvite guest speakers because some audience members won’t be able to restrain themselves from acting disruptively.)

While schools can lawfully enforce gender-based dress and grooming requirements consistent with common social norms (e.g., that boys can play basketball shirtless but girls can’t), differential treatment based on gender must be justified by some reasonable basis beyond the subjective style preferences of the decisionmaker. (As the court in the Hayden case pointed out, female basketball players need their hair out of their eyes just as much as males, so there seems to be no athletically based need for the boys-haircut rule.)

As we reported in February, a panel of the California-based federal Ninth Circuit recently decided that requiring students to wear clothing with a disagreeable school motto can violate the First Amendment as a form of “compelled speech.”

The takeaway from these cases is that, while judges are strongly inclined to defer to schools in matters of fashion and grooming, it’s still quite possible to win a constitutional challenge if the school’s justification for limiting (or compelling) speech is a weak one.

Exciting news today for Mary Beth Tinker and Mike Hiestand, who are among the recipients of this year’s Hugh M. Hefner First Amendment Awards. Tinker and Hiestand were recognized for their work organizing and launching the Tinker Tour, which by May 1 will have covered 31 states and the District of Columbia. Last fall, the tour returned to the middle school and high school that Tinker and her brother, John, were suspended from in 1965, when they wore black armbands to protest the Vietnam War. The tour is a special project of the Student Press Law Center.

Last fall, the Tinker Tour visited Warren G. Harding Middle School, the school that suspended Mary Beth Tinker for wearing her black armband. The school dedicated a locker in her honor.

Last fall, the Tinker Tour visited Warren G. Harding Middle School, the school that suspended Mary Beth Tinker for wearing her black armband. The school dedicated a locker in her honor. Photo courtesy of Mike Hiestand.

Students have told us that the tour inspired them to speak out about issues that matter most to them. A few weeks after the tour stopped at Cardozo High School in New York, students protested budget cuts. Mary-Ann Kendall, a junior at the school, told reporter Sara Tirrito that hearing Tinker’s story inspired her to speak up.

The second and final leg of the tour, along the West Coast and midwest, is winding down, but you can follow their visits on the Tinker Tour’s blog or on Twitter.

The Hugh M. Hefner Foundation supports organizations that advocate for civil rights, especially First Amendment rights. Other 2014 Hefner awardees include Guardian journalist Glenn Greenwald, for his groundbreaking coverage of U.S. intelligence surveillance practices based on documents obtained from leaker Edward Snowden, and free-speech advocate Chris Finan, longtime president of the American Booksellers’ Foundation for Free Expression. The SPLC is a past recipient of Hefner Foundation grants.

The Thomas Jefferson Center for the Protection of Free Expression is out with its 2014 Jefferson Muzzles, the annual award it presents to those that “forgot or disregarded Mr. Jefferson’s admonition that freedom of speech ‘cannot be limited without being lost.’” As usual, quite a few schools and administrators were recognized with awards. Among the honorees:

  • The University of Kansas board of regents: After a journalism professor tweeted about the National Rifle Association following the September 2013 Naval Yard shooting, he was placed on administrative leave by the university. In response, the board of regents voted to impose a social media policy that allows the university to discipline faculty and staff for “improper use of social media.” Amid faculty outcry, that policy is presently being revisited.
  • Modesto Junior College: This California college told a student who was handing out copies of the Constitution (on Constitution Day, no less), that he couldn’t distribute outside the student center. The only place he was allowed to pass it out was in a small “free speech zone.” With help from the Foundation for Individual Rights in Education, the student sued and ultimately settled with the college earlier this year.
  • Wharton High School Principal Brad Woods: High school salutatorian Harold Shaw Jr. originally wrote a graduation speech that made a reference to what he viewed as unsanitary bathroom conditions. Administrators told him he couldn’t discuss the topic, and he revised his speech so it would be approved, omitting the bathroom references. At the graduation ceremony however, Shaw stumbled midway through his speech — and in the pause, Principal Brad Woods had Shaw’s microphone cut off and then had the student escorted out of the ceremony entirely, presumably fearing the student was about to go off-message.
  • Pemberton Township High School Principal Ida Smith: Smith censored the school’s student newspaper, The Stingerafter objecting to several stories. Kylie Sposato, whose story about students smoking in the school bathrooms was censored , said Smith told her the topic was “inappropriate.” Later, when students tried to write about the censorship, they were told that topic was off-limits as well.

You can view the full list of winners on the Center’s website.

Larissa Mark, Trumbull High School

At SPLC, we often call attention to expression issues as they relate to student media. But the cast and crew of Trumbull High School’s spring musical demonstrated this year that free expression is a powerful tool for all students, not just journalists.

When Larissa Mark and her peers found out last August that their high school would be performing “Rent: School Edition” — an adaptation of the popular show by Jonathan Larson, which addresses issues related to sexuality, drug use and HIV/AIDS  — as its spring musical, they were ecstatic. A few months later, though, Principal Mark Guarino informed students that the show would be put on hold because of concerns about its content.

Mark (a senior who’s been involved with Trumbull’s theater program throughout high school and who serves as the president of its Thespian Society) and other students channeled their disappointment into an effort to get the administration to reconsider its position. Their work paid off: The show debuted on schedule this week, running Thursday through Sunday.

The students’ campaign gained national attention, and those involved have been praised for their mature, levelheaded approach in response to initial opposition. Mark has also since been honored with an inaugural “DLDF Defender Award” from the Dramatists Legal Defense Fund for her role in reinstating the show.

We caught up with Mark (the show’s assistant director and stage manager) a few weeks ago at an after-school rehearsal to discuss the students’ approach to the campaign, what theater taught her about being a good citizen and more.

(This interview has been edited for clarity and length.)

When you were first told that you wouldn’t be allowed to perform the show, did that come as a shock to you?

LM: I think it was a shock to all of us, because none of us really saw it as being something very avant-garde or trying to make a statement — well, it was making a different kind of statement. It wasn’t a “push the buttons” kind of statement, it was more of: These are real problems that occur, and we want to explore them.

So what was your next step from there?

LM: Well, when I was in the room and I saw around 50 thespians who were devastated by being told that they wouldn’t be allowed to do this show [and] wouldn’t be allowed to talk about these issues because they were apparently considered controversial, I couldn’t just sit back and let that happen. And that was a common sentiment among most of the thespians. No one wanted to really just let it go by.

(From there, Mark said, the students circulated an online survey and a petition to gauge how Trumbull community felt about students performing the show. They also used social media spread the word about their efforts. Parents and other community members were also instrumental throughout the process, Mark said. Based on the feedback they received, the public was overwhelmingly supportive of the production.)

What was the most common kind of objection that you heard?

LM: Some people said that we were too young to do it, some said things I’d rather not repeat.

How did you then approach trying to initiate a dialogue with your administrators about this?

LM: We wanted to keep a very open policy with them. The first day when I was handing out petitions, I went up to our principal in our school commons and showed him the petition, what we were doing, so that he knew that we were just trying to gain facts and trying to see what the general opinion was — in case he wasn’t aware and had only heard one side of the argument. We weren’t trying to say, “Hey, we want our show back. Do this.” We were just trying to give him more information that could maybe ask him to at least reconsider his decision — which he was open to doing.

Along the way, what did you tell your Board of Education and others to explain why you felt strongly about the importance of performing this show?

LM: I think a common sentiment among us was that these issues weren’t considered fictional, a fantasy or a controversial topic for us. They were a reality that people are living every day in Trumbull High. There are kids who, sadly, struggle with drug addiction. There are kids who are dealing with their sexuality and their personal preferences, and while I may not know specifically a case of AIDS, there are kids who do suffer from different diseases in the school — and in the community at large. And for us it wasn’t something that we felt should go unheard.

(The campaign, Mark said, soon “got a lot bigger than we ever expected it would.” Major news outlets reported on the stalled performance, and the Dramatists’ Guild also reached out to support the production. Responding to students’ efforts, Mark said, Mr. Guarino proposed several alternatives — holding off a year, or postponing the show until later this year — but eventually, in December, he told students the show could go on in March as originally scheduled.)

At a rehearsal earlier this month, principal characters in Trumbull High School’s production of “Rent” practice songs from Act II of the show.

To what extent do you feel like you have bonded as a cast and crew throughout this whole process?

LM: I think it was a very just incredible experience for a lot of us, and not necessarily incredible in a good way — but just how… I would say about 90 percent of us were going toward the same goal where we wanted to do this show and we felt very passionate about it. To hear kids get up, especially at the Board of Ed. meeting, and speak so much from the heart about the issues that they face and why this show was important and relevant to their lives.

This is your final high school show, how do you feel about that?

LM: Like I don’t quite want to leave yet. I know I do have to — I have to say this program has been the most life-changing thing I’ve done so far. If you saw me as a shy little freshman, you wouldn’t believe what theater has done.

Your involvement in theater and the thespian program, do you feel like it’s helped you to find a voice?

LM: Being in theater is the first time where I’ve really had to take on responsibility — not only for myself, but something larger than me. And that goes a lot into civic virtue and being an active citizen. While I might be active in this community here, eventually I’m going to want to be active in a larger one, as well. While our change might just be producing an art that can create social commentary and create a message for an audience, I think that is an idea of expression in general and of our First Amendment rights: We’re given the ability to produce material that can create change and be a part of our society. And the thespian society, without them, I never would be able to speak in public as well as I can. I never would have made the step to growing up so fast.

What was it like for you, then, to see your efforts and your peers’ efforts get such widespread national attention?

LM: We were so grateful. I say that in the plural because all of our thespian society members were shocked at how much people cared about this. As a lot of the theater professionals have told me, you hear about cases like this not having a happy ending all the time — they get the coverage, and the administration still doesn’t change their mind. But for us to have so many people support us and show that the world out there is in favor of us doing “Rent” and doesn’t think that these issues that our administration has declared are too controversial are [too controversial]… It was very hopeful to us to see that the larger community did not have an issue with it.

The two CNN journalists who were arrested Tuesday for trespassing on the World Trade Center site illustrate a recurring theme in journalism — one that student journalists struggle with, too. In the video below, attorney Adam Goldstein explains where journalists can — and can’t — go legally:

Earlier this week, the Department of Education released data compiled through its Civil Rights Data Collection program. For the first time since 2000, every public school in the country was surveyed, and for the first time ever, the results of the survey are being made public in a searchable database.

The database has the potential to be a great resource for student journalists who want to learn more about their schools. According to the Department of Education’s website, the survey collects information on the educational programs and services offered and breaks it down by race/ethnicity, sex, limited English proficiency and disability. The survey also provides data on high school retention, suspension rates and teacher pay.

To look up your own school, go to the Department’s Civil Rights Data Collection website and click “find school- or district-level summaries.” Type in the name of your school (in the example below, I looked up my high school – go Eagles!), and then select your school from the results.

CRDC search results

Clicking on the name of your school takes you to a summary page, but you can also download the results to Excel by clicking “Export to Excel.” On the summary page, information is broken down into several categories that look at school makeup, teacher pay, college and career readiness, and discipline.

Among the statistics you can look up:

— Teacher experience, absences and pay:

East Meck teacher experience

 

— The race/ethnicity of students enrolled in Calculus, Chemistry or Physics:

East Meck college readiness

 

— The race/ethnicity of students who took the SAT or ACT tests, compared with the school enrollment: 

East Meck SAT/ACT enrollment

 

— The race/ethnicity of students who received in-school suspensions, out-of-school suspensions, or expulsions:

East Meck discipline

 

— The number of students referred to law enforcement, or with school related arrests, or with expulsions under zero-tolerance policies:

East Meck arrests

— The number of students enrolled in Advanced Placement or International Baccalaureate classes, broken down by race/ethnicity:

East Meck AP enrollment

As with any statistics, this report won’t tell the whole story, and it might not even be reflective of the school currently, since policies and programs may have changed since the survey year (in this case, 2011). But it’s a good starting point for student journalists who want to learn more about the inner-workings of their school, and it could prompt further reporting. If you run into trouble understanding the results, feel free to contact SPLC.

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In a new law journal article, Frank LoMonte, executive director of the Student Press Law Center, makes a case for why universities shouldn’t regulate student-athletes’ social media accounts and online speech.

“What makes social media novel and empowering — that it is an immediate, unfiltered way to ‘speak’ with thousands of people — is also what makes it frightening to campus regulators,” LoMonte writes.

At a public institution, the First Amendment protects students’ ability to express themselves free from government sanction, and the Due Process Clause protects against the removal of public benefits in an arbitrary way or without adequate notice. Outside the realm of athletics, a public university would be constitutionally stopped from penalizing speech — especially speech that takes place on the personal computer on personal time — merely because it projects an unfavorable image of the student or the school. Is there something so unique about the college/athlete relationship that it justifies discarding well-established constitutional principles?

Colleges point to several justifications for assuming authority over student-athletes’ off-campus speech: (1) that a student-athlete is the functional equivalent of an employee because of the exchange of personal services
for financial benefits, and like an employee ‘represents’ the school to the public, and (2) that voluntary participation in athletics waives — either implicitly or by written agreement — a degree of individual freedom in exchange for the ‘privilege’ of participation.

These justifications at best are legally suspect and at worst — depending on the intensity of control that schools exercise and the measure of punishment they impose — are wholly without constitutional grounding. Heavy-handed restraints on student-athletes’ ability to express themselves are inconsistent with concern for public safety and with sound educational policy. Narrower and more educationally productive alternatives exist to maintain team discipline while teaching ‘best practices’  in the use of online media. Where a more limited incursion into free expression would fulfill the government’s legitimate objectives, the Constitution requires taking that path.

LoMonte concludes that universities’ fears of reputational harm or “locker-room dissent,” among others concerns, do not outweigh fundamental freedoms offered by the First Amendment.

“Fouling the First Amendment: Why Colleges Can’t, and Shouldn’t, Control Student Athletes’ Speech on Social Media” is available through the University of Maryland’s Journal of Business & Technology Law.

To read more about the legal implications of colleges’ regulation of what athletes say on social media — and how to “audit” your own college’s social-media regulations, see the SPLC’s public-records audit, created in partnership with students from the University of Maryland’s Merrill College of Journalism. The two-part report was released in conjunction with Sunshine Week 2014 and is free to republish under Creative Commons license. 

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A trio of student journalists who fought to protect confidential sources while investigating events surrounding a peer’s suicide earned recognition this month from the Northern California chapter of the Society of Professional Journalists.

The team from Saratoga High School’s The Saratoga Falcon — Samuel Liu, Sabrina Chen and Cristina Curcelli — were honored in the high school category of the James Madison Freedom of Information Awards. They’ll be formally recognized alongside other winners at an upcoming banquet, according to an online announcement.

But, as Liu stressed in a recent interview with The San Jose Mercury News, the students are trying to handle this honor sensitively because of the nature of the issues involved in their reporting.

“You don’t come out of this with a badge or an award,” Liu told the newspaper. “It was such a serious issue, to say we came out triumphant would be inappropriate and offensive because there are no winners.”

The sources the student journalists fought to protect, in this case, were other students who spoke on the condition of anonymity about events surrounding a classmate’s suicide. In 2012, Audrie Pott committed suicide after attending “an unsupervised house party” at which she was assaulted and photographed while unconscious, according to the Falcon’s reports. Three boys who were accused of sexually assaulting her would later admit to doing so, the Mercury News reported last month.

Initially, the virality of the photos was also a central question. Narratives in national media outlets following Pott’s death perpetuated the notion that illicit photos of of her “went ‘viral’ among students at the school,” as explained in an April 2013 Falcon story. But the Falcon reporters’ interviews with a handful of students close to the situation (who asked to remain anonymous) suggested that this was an exaggeration. According to the Mercury News, it was eventually determined that “prosecutors did not have enough evidence to prove the boys circulated the photos widely.”

Several months after the Falcon’s story with the anonymous interviews was published — on their first day back from summer vacation, in fact — the students were served subpoenas. They successfully held their ground on protecting their sources’ identities with the help of the Student Press Law Center and its volunteer attorney referral network, as previously reported when the subpoenas were withdrawn later that month.

Talking to the Mercury News, Liu said the students tried to handle both the subpoena and their initial reporting on their classmate’s death carefully. The editorial decisions surrounding their coverage required “a lot of second-guessing and introspection,” Liu said, adding that criticism that the reporters were being insensitive to the Pott family left him “completely wracked with self-doubt.”

“We felt beyond terrible for this family and how they suffered,” Liu told the Mercury News. “In our stories we published, we realized we were in some ways refuting their claims and we were bringing more trouble to a family that had suffered so much already.”

In their efforts to correct a misleading narrative — and to protect their sources in the process — they helped to establish an important protection for their state’s student and professional media alike.

“All three successfully resisted the subpoenas by invoking California’s reporter Shield Law,” the SPJ chapter explained in its announcement of the award. “In so doing, they highlighted that the Shield Law is for all journalists, not just those working for pay.”

More information on the legal guidelines surrounding the protection of journalists’ sources and information can be found here.

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Mazie Bryant and Jillian Beck — editors of The Crimson White and The Daily Bruin, respectively — know how frustrating it can be to get answers out of their universities.

So after running into repeated reporting roadblocks, they’ve decided to call attention to their universities’ public records responsiveness by making their records requests more transparent.

In newly debuted trackers, The Crimson White and The Daily Bruin now publicize details of the requests they’ve submitted to their institutions. Each outlines the nature of a given request, when it was submitted and other details. (The Crimson White got its inspiration from a similar feature in The Oklahoma Daily and The Daily Bruin from The Daily Tar Heel, according to Bryant and Beck.)

For Bryant, the tracker’s been a goal since she became editor. In the last year, as in the past, she said The Crimson White staff has “had problems just getting basic information from Media Relations.”

Now, according to a recent editorial criticizing a lack of institutional transparency, the online tracker and an accompanying “Open Records Requests” feature on page two of the print edition “will become a permanent fixture in The Crimson White.” The editorial board views it as both an accountability tool and a way to practice what the newspaper is preaching.

“Unmonitored decision-making and unanswered questions will no longer be acceptable,” the editorial explained. “In our demand for University transparency, we, too, must be transparent. By rolling out this new system of records requests, we seek timely University compliance and openness to meet our own.”

So far, Bryant said, the response to the feature has been mostly positive — though some have questioned whether it will really spur change from university officials. But even if it doesn’t create a major shift in responsiveness, Bryant said the feature’s still important.

At UCLA, Beck and her staff have faced similar obstacles to getting answers out of their administration: “It’s not a new thing — that’s been happening for a very, very long time.”

This year, for example, she said Bruin staffers have struggled to get information about hiring practices in the business school, among other things. (The Daily Bruin is planning a short story about those challenges to be published soon, too.)

She views the tracker as an important tool for holding the university accountable, especially when delayed requests can stall the Bruin’s attempts to do.

And their advice to student journalists considering a similar project?

“Just to do it,” Bryant said. She was initially hesitant to get the feature up and running because she was worried that she didn’t fully understand the logistics required or the intricacies of public records reporting. Now, she realizes it was important to just get it started and learn from it along the way.

“There’s a lot of room for progress,” Bryant said, adding that she hopes to couple the feature with an increased emphasis on public records training for reporters and editors. “This is just the start of kind of changing what we report on and how we report on it.”

Beck echoed a similar sentiment, stressing that students shouldn’t be discouraged from pursuing this kind of project because their institutions have been unresponsive in the past.

“I would really encourage any student journalist, any student newspaper, to implement something like this,” Beck said. “It’s important to continue to submit these records requests because we’re entitled to them and the public’s entitled to them.”

 

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Can derogatory remarks about a teacher be both constitutionally protected speech and also punishable as harassment?

A Wisconsin appeals court appears to believe so.

The Wisconsin Supreme Court is being asked to take up the case of “Kaleb K.,” a 15-year-old student from Stevens Point, Wisc., who was arrested after posting a homemade rap on YouTube filled with profane, degrading language about his Spanish teacher.

In September 2012, a juvenile-court judge declared Kaleb delinquent on the grounds of violating state criminal statutes against disorderly conduct and unlawful use of a computer communications system.

In a ruling last November, the state Court of Appeals threw out the disorderly conduct charge, finding that Kaleb’s lyrics, though distasteful, were not threatening, obscene or otherwise outside the boundaries of the First Amendment.

But the court then went on to uphold the conviction under the state’s computer-harassment law, which makes it a misdemeanor if a speaker “sends a message to [a] person on an electronic mail or other computerized communication system” that contains lewd or profane language “with the intent to harass, annoy, or offend.”

It’s possible to harass someone even with a constitutionally protected message if the speech is delivered in an especially harassing manner. For instance, placing unwanted calls to a person’s home every night at 2 a.m. can be harassment whether the caller is shouting threats or is singing lullabies. In that situation, the punishment is “content-neutral,” directed entirely to the method of delivery without regard to the message.

That’s not what was going on in Kaleb’s case. Since posting a video on YouTube is not an especially intrusive method of speaking — indeed, there is no indication in the case that the teacher herself ever found the video on YouTube, and there is testimony that Kaleb specifically urged his friends not to show it to her — the court’s decision that Kaleb violated the computer harassment law has everything to do with the message. A message that the Court of Appeals just finished telling us cannot be punished, because it’s constitutionally protected speech.

The appeals court tried to paper over this internal contradiction by claiming that Kaleb’s unlawful act of computer misuse wasn’t his choice of words, but his act of transmitting the message. That just makes the ruling even more muddled. As UCLA law professor Eugene Volokh ably explained in a friend-of-the-court brief urging the Wisconsin Supreme Court to hear the case, speech is worthless if not transmitted. A constitutionally protected message cannot become a crime just by being shared on a widely viewable platform like YouTube.

It’s hard to work up much sympathy for Kaleb, since his video sounds like a mean-spirited rant with little to redeem it. But larger legal principles are at stake. If it is illegal to “annoy” or “offend” someone with speech on YouTube that uses profanity, then a strongly worded editorial commentary about a prominent political figure (“kiss my ass, Governor!”) would expose the speaker to arrest and jail time.

If the YouTube video credibly suggests, without factual basis, that the teacher behaved unprofessionally, the legal system gives her a civil claim for defamation — just as if any non-student made the same statements. If the statements are not defamatory but are just annoying, the justice system doesn’t exist to remedy annoyances. A “what-were-you-thinking?” conversation with the principal, followed by the student apologizing and pulling the video down (and being punished amply by his parents), would accomplish as much as a prosecution at a fraction of the cost.

Meanwhile, a bill pending in the Wisconsin Senate would revise the anti-harassment law under which Kaleb was convicted, extending the statute to cover not just one-to-one messages, but also postings on publicly viewable websites. It’s unclear whether such a revised law would survive a First Amendment challenge, since as proposed there would be no requirement that the speaker anticipate or intend that the victim even see the message, which is pretty much the essence of unlawful harassment. But it’s clear that Wisconsin legislators recognize their current statute is vulnerable to challenge if misapplied in cases like Kaleb’s where the “harassment” takes place over a mass medium.