INSIDE: ‘Bong Hits’ the Supreme Court: student expression case goes before justices, Page 8

Student Press Law Center EPORT R Spring 2007 VOL. XXVIII, NO. 2

Legislation on the move States enter race to pass anti-censorship laws Page 26

ALSO INSIDE: University of texas media board votes to shuck prior review requirement, page  AND: Presidential searches: Colleges claim closed searches bring better candidates, Page 20 Student Press Law Center EPORT INSIDE SPRING 2007 VOL. XXVIII, NO. 2 NEWSPAPER THEFT R Newspaper thefts level out......  PUBLICATIONS FELLOW: Scott Sternberg ......  REPORTERS: Erica Hudock, Brian Hudson, Jared Taylor Newspaper theft in brief CONTRIBUTORS: Adam Goldstein, Jay Hathaway COVER ART: Jack Dickason HIGH SCHOOL CENSORSHIP SENIOR CONTRIBUTING ARTIST: Melissa Malisia (rmali@ frontiernet.net) Adviser fi ghts for her job......  CONTRIBUTING ARTISTS: Hope Donovan (jetcake@gmail. Sex articles bring prior review......  com), Bob Gandy ([email protected]), Danny “Om” Jean Jacques (www.myspace.com/nftp), Eric Gapstur (eric.gapstur@ ‘Bong Hits’ the Supreme Court......  gmail.com), Brian Hudson ([email protected]). What could it mean?......  High school censorship and Internet in brief ...... 1

Th e Student Press Law CenterReport (ISSN 0160-3825), published three times each year by the Student Press Law Center, LIBEL & PRIVACY summarizes current cases and controversies involving the rights of the student press. Th e SPLC Report is researched, written and Abusing FERPA ...... 1 produced by journalism interns and SPLC staff . Taking on criminal libel ...... 1 Th e Student Press Law Center Report, Vol. XXVIII, No. 2, Spring 2007, is published by the Student Press Law Center Inc., 1101 Wilson Boulevard, Suite 1100, Arlington, VA 22209-2275, ACCESS (703) 807-1904. Copyright © 2007 Student Press Law Center. All rights reserved. Yearly subscriptions to the SPLC Report are Colleges close presidential searches ...... 20 $15. Contributions are tax-deductible. A membership form ap- Access in brief ...... 2 pears on page 47. Using open records ...... 2

CAMPUS CRIME U. of Tampa gets lesson in Clery Act ...... 2 EXECUTIVE DIRECTOR: Mark Goodman DEVELOPMENT DIRECTOR: Abbie Gibbs LEGAL ANALYSIS LEGAL CONSULTANT: Mike Hiestand ATTORNEY ADVOCATE: Adam Goldstein Open season: OUTREACH COORDINATOR: Sam Wilder Investigating athletic programs ...... 2

CORPORATE BOARD OF DIRECTORS LEGISLATION Javier J. Aldape � Hoy, Chicago, Ill. COVER STORY: Legislation on the move ...... 0 A.J. Bauer � University of Texas at Austin, Austin, Texas Jerry Ceppos � Knight Ridder (retired), San Jose, Calif. Illinois takes on Hosty ...... 1 Shawn Chen � National Journal’s Technology Daily, Washington, D.C. Bills target ‘cyber bullies’ ......  Virginia Edwards � Education Week, Bethesda, Md. Th e debate over academic freedom ......  Angela Filo � Eastside College Prepatory School, East Palo Alto, Calif. Robert Garcia � ABC News Radio, Washington, D.C. Richard Goehler, Esq. � Frost Brown Todd LLC, Cincinnati, Ohio Mark Goodman, Esq. � Student Press Law Center, Arlington, Va. COLLEGE CENSORSHIP Kathleen Kirby, Esq. � Wiley Rein & Fielding LLP, Washington, D.C. Tonda Rush, Esq. � American PressWorks Inc., Arlington, Va. U. of Texas-Austin fi nally free ...... 0 Rosalind Stark � Radio and Television News Directors Foundation (retired), College censorship in brief ...... 1 Washington, D.C. Prior review tussle at Grambling ......  Mark Stodder � Dolan Media, Minneapolis, Minn. Mark Witherspoon � Iowa State University, Ames, Iowa

Organizations for purposes of identifi cation only A message from the splc SPLC announces new student program, online Podcasts Your Voice, Your Freedom will give you a chance to tell your school Press Law Center! Help us make the Your and community about the work you do in Voice, Your Freedom a huge success in 2007. Support the Student Press Law Center serving your school through journalism and This is your chance to show that the by participating in a new program to defend that student free press and expression rights First Amendment belongs to you too. Vis- student voices! are important to you. it www.splc.org and learn more today! Protecting the free press rights of stu- The SPLC will provide all the tools you dent journalists is the number one priority need on our Web site at http://www.splc. Podcasts available now! of the SPLC, and now, for the first time, the org/yvyf/ to make this activity easy. You SPLC is launching a program to give high- will find posters, press releases and flyers to Plug in your digital music player and school and college students across the coun- help promote your event. Or, you can use download our new Podcast, available try a chance to work directly with us in the your Web know-how and, with a few clicks, monthly from the team at the Student Press effort to protect these rights. sign up on our site to host a virtual event. Law Center! Your Voice, Your Freedom is a chance to You can compete with classes and schools Thanks to a generous grant from the put your creative skills to work rallying sup- around the country to show your dedication Newspaper Association of America Founda- tion, the SPLC has made the leap into Pod- port in your community for a free student to the First Amendment. Top participants casting, which will allow students, faculty press. We are asking you to give people an will be recognized nationally on our Web and advocates to get their student press law opportunity to show their support for stu- site and in the SPLC Report. dent voices by making a contribution to news on the go. Your Voice, Your Freedom program will The Podcasts will be published every support our cause. All you have to do is put begin in the fall 2007, so stay tuned for month from September to May and will together a fund-raiser for your class, school additional information. In the meantime, provide legal insight into censorship issues, or community. visit our Web site www.splc.org for more in- legislative progress and court cases that af- Raising funds to support student press formation and to sign up to host a bake sale, fect the student press. freedom allows the SPLC to provide free car wash, penny war, or any other creative Podcasts are available now on our Web support to young journalists in their efforts event you can think of. site at www.splc.org/podcasts/ and on to report the news free from censorship. It’s a simple way to support your a free iTunes, just search for the Student Press Law But beyond that, these fundraising events student press and the work of the Student Center! n

Report staff Brian Hudson, spring 2007 Scripps How- ard Foundation Journalism Intern, graduated from the University of North Carolina at Cha- Scott Sternberg, Publications Fellow, pel Hill, where he majored in media production graduated from Louisiana State University’s and studies. While in college Brian worked in Manship School of Mass Communication in various capacities at The Daily Tar Heel, includ- May 2006 with a degree in print journalism. ing a stint as news editor. Brian covered college While at LSU, he was the editor in chief of the censorship, newspaper theft, college advisers, student newspaper, The Daily Reveille, where anti-censorship legislation and college adver- he led coverage in the aftermath of Hurricane tising for the Report. Katrina. Sternberg interned and freelanced for The Times-Picayune in New Orleans, La., and several other publications in Louisiana. Jared Taylor, spring 2007 Louis Ingelhart Journalism Intern, is a December 2006 gradu- Erica Hudock, spring 2007 Scripps How- ate of Iowa State University’s Greenlee School ard Foundation Journalism Intern, is a senior of Journalism and Mass Communication with at Mansfield University of Pennsylvania who a degree in print journalism. While at Iowa plans to graduate in May with a degree in Mass State, he held several reporting and editing po- Communication with a dual emphasis in jour- sitions at the student newspaper, The Iowa State nalism and public relations. At Mansfield, she Daily. Taylor has interned for the Scripps How- served as a reporter, copy editor, news co-edi- ard Foundation Wire in Washington, D.C., tor and editor in chief of the school’s student where he primarily covered the U.S. Congress. newspaper, The Flashlight. Erica covered high He also spent a semester studying at Universi- school censorship, anti-censorship legislation, dad Internacional in Cuernavaca, Mexico, where he studied Spanish. high school advisers and high school advertis- Taylor covered Internet issues, access, campus crime, libel, privacy ing for the Report. and confidentiality for theReport .

Spring 2007 www.splc.org • splc report  NEWSPAPER THEFT Newspaper thefts level off Numbers show 2006-2007 to be an ‘average’ year mester shows how unpredictable newspaper y rian udson B B H Newspaper thefts reported to the SPLC thefts can be – and why it can be so difficult Liz Zelinksi could not ignore the strik- to prevent them. ingly high number: In just a few months, 2006-2007* “We’ve had as many as 40 in a school editorial staffs at more than a dozen college 2005-2006 year; Some years we’ve had as few as 12,” newspapers woke up to find distribution 2004-2005 said SPLC Executive Director Mark Good- boxes inexplicably empty, just hours after 2003-2004 man. “This reflects that the popularity of they were circulated. 2002-2003 this tactic ebbs and flows, but it doesn’t go So in light of the fall 2006 semester’s un- away.” 0 5 10 15 20 25 30 usually large number of college newspaper *Academic year ends August 2007 Only California, Maryland and Colo- thefts, the editor in chief of The Whit, the rado have laws that explicitly outlaw steal- student newspaper at New Jersey’s Rowan paper thefts reported to the Student Press ing free newspapers. Still, editors are not University, thought her paper should have Law Center in fall 2006. without options when they disappear from some sort of insurance against such a theft. After an incredibly active fall semester, stands. Goodman said general theft and de- Zelinksi established a policy in Decem- the number of newspaper thefts reported struction of property statutes have been used ber 2006 that stated additional copies of to the Student Press Law Center has leveled to prosecute newspaper thieves. the newspaper cost 40 cents. The policy was off, keeping the year’s totals in the median Four years ago, before California had a printed in each edition. of thefts reported in the previous five years. law that outlaws newspaper theft, the mayor Just three months later, the new policy Although it appeared the number was head- of Berkeley was charged with petty theft after proved useful, when hundreds of copies of ed for a record year — the highest number he was seen throwing copies of the The Daily The Whit were stolen from newsstands by since 2000 is 29 thefts in both 2000-2001 Californian into the trash. The University two students who later confessed. and 2001-2002 — it now appears the 2006- of California at Berkeley student newspaper But The Whit incident was just one of 2007 school year will remain decidedly aver- had endorsed an opposing candidate. only six instances of newspaper thefts this age when it ends after summer classes. The mayor pleaded guilty to the charge semester – a sharp decline from the 15 news- The inconsistency between this and last se- and paid a $100 dollar fine, and, under pub-

NEWSPAPER THEFT in brief

The University Times. We thought you Papers stolen, might like to make some corrections so Explicit magazine returned with note we decided to return them to you.” turns up missing The note was signed by “concerned from ‘alumni’ and wealthy alumni” of the university. NEW YORK — Hundreds of cop- NORTH CAROLINA — Campus po- Although campus police will con- ies of the Third Rail were stolen from lice say they found no instance of legal tinue to investigate the incident, they stands at the College of Staten Island in wrongdoing when thousands of copies are not considering it a criminal matter, late March after the regularly provoca- of the student newspaper at the Univer- said William Harper, assistant chief of tive political magazine featured a picture sity of North Carolina at Charlotte were police and public safety at the university. of a nude man and woman on its cover. taken from stands in March. The candidate who was omitted The magazine was distributed just After omitting the name of a student from the newspaper, Justin Ritchie, said before the school’s spring break, and edi- body president candidate in its pre-elec- that he had nothing to do with the in- tors say although some issues might have tion coverage, copies of the April 5 issue cident and that he was not upset about been taken legitimately, the estimated of The University Times were piled at the the error, which editors say stemmed 550 copies is a large number to be taken front door of the newspaper office. from a miscommunication among the during the class recess, when editors said Attached to the pile of newspaper staff. the public commuter campus is a “ghost was a note that read: “We noticed there Ritchie said that unruly supporters town.” were some important omissions from not affiliated with his campaign might Campus police confirmed that some your Thursday, April 5, publication of be responsible. n issues were disposed of in trash bins, but

 splc report • www.splc.org Spring 2007 NEWSPAPER THEFT lic scrutiny, he said he would propose a city That conversation with administrators ers have languished without any sort of ordinance and support state legislation that can be especially helpful, because schools progress in the investigation. would make it a crime to steal free newspa- can establish their own policies explicitly For the most part, newspapers that saw pers. prohibiting newspaper theft. Other admin- any sort of resolution saw it soon after the Goodman said the best way to fight istrators could be urged to consider newspa- theft. In the incidents in which there was no newspaper thefts is to take action before the per theft punishable under the school’s free immediate action or suspect, editors have crime occurs. speech or destruction of property policy. generally given up hope for a conclusion. The first thing editors should do, he says, Either way, Goodman said, the impor- Almost eight months after 1,200 copies is include a statement in the newspaper as- tant thing is to hold the conversation early of the GuardDawg were stolen and distribu- signing value to each issue. Such a statement and in the abstract, before the controversy tion boxes vandalized at the University of might read: “The first copy of this publica- of an actual newspaper theft. Georgia, the newspaper has realized that it tion is free, and subsequent copies can be “The problem is once they’re two sides, will likely never know who was involved. purchased for 25 cents. they might be pulled in two different direc- “There was very little hope to begin Also, Goodman said, editors should have tions,” he said. with,” said publisher David Kirby. n a conversation with campus security and ad- Last semester’s 15 thefts have proceeding Interested in newspaper thefts? Visit the ministrators before a theft to encourage an along varying paths: some have been solved SPLC’s Newspaper Theft Forum online: appropriate response if an incident occurs. and the perpetrators disciplined, while oth- http://www.splc.org/newspapertheft.asp

NEWSPAPER THEFT in brief

a review of campus security cameras did Editors initially pegged the theft and estimate the theft in the thousands. not revealed anything out of the ordi- at 600 copies, but the two students In addition to the apology, Schaaf nary, a university spokesman said. admitted to stealing just 44 copies. has said he will accept any punishment Administrators issued a campus- When caught they still possessed about for the theft, and volunteered to deliver wide e-mail notifying students of the a dozen copies of the paper, which were the newspapers to the stands each week incident and emphasizing that news- returned, Zelinski said. for the remainder of the school year. paper theft is punishable according to Zelinski was unconcerned about the After the last newspaper theft at school policy. n discrepancy about the number of issues the university in 2003, the student stolen, and she said that more than held responsible received non-academic anything she is glad that the clamor over probation for a semester and 10 hours of Students steal paper n n to cover up friend’s the incident has dissipated. community service. drug charge Student leader uses Papers missing after papers for bonfire student charged with NEW JERSEY — Two students con- fessed to stealing copies of the Rowan WISCONSIN — A student leader at the rape’s photo printed University campus newspaper, The Whit, University of Wisconsin at River Falls ad- in March to prevent students from read- mitted to stealing and burning hundreds MISSOURI — Campus police at Tru- ing about a friend’s drug charge. of copies of the weekly student newspa- man State University are investigating a The two female suspects were per in March after it reported he received March theft of about 2,300 copies of the brought in for questioning in about two an underage drinking citation. student newspaper, which editors suspect weeks after the theft and “confessed im- Tory Schaaf, who is director of the was a retaliation for an article that identi- mediately,” the university’s public safety school’s Student Senate, took the issues fied a student charged with rape. director said. of the Student Voice from stands soon Index editors reported the March 2 Whit Editor in Chief Liz Zelinski after its March 22 distribution, and he theft to campus police, who have since said the two students, who have not used them as kindling for a bonfire. conducted an investigation that has been publicly identified, received com- Police still are investigating the inci- neither identified a suspect nor conclu- munity service as a penalty. They will dent, for which Schaaf has apologized. sively ruled anyone out, said a public not be charged for stealing newspapers, He said he did not take the newspapers safety official. which cost 40 cents for each additional intending to burn them, but rather to Sara DeGonia, editor in chief of the copy taken, according to a statement show off that his name was in the paper. Index, conjectured that whoever took printed in each issue of the newspaper. He said he did not want to prevent the newspapers might have been re- “They didn’t think about it as a det- any students from reading the paper, sponding to the article, which included riment to freedom of speech or stealing and he said he took only “200” newspa- a mug shot, about a student who was property,” Zelinski said. pers, although editors dispute that claim charged with sexual assault. n

Spring 2007 www.splc.org • splc report  HIGHCOLLEGE SCHOOL Ce CEnsorshipNSORSHIP Worth fighting for A column advocating tolerance for homosexuality turned adviser Amy Sorrell’s year upside down By Erica Hudock school officials. There are no requirements legal questions be answered by the district’s for prior review. Melin and school district attorney. hen Megan Chase wrote her first Attorney Tim McCaulay contended that it “That’s the scary part,” Sorrel said. “Stu- opinion column, calling for toler- was Sorrell’s duty to note the column’s sen- dents have no power to appeal anything.” Wance of homosexuality, she never sitivity. To maintain consistency among the imagined it would trigger a war that would “The principal had adopted a strategy district, Melin said he required all student take the job of her newspaper adviser. for the adviser to bring articles to him that publications in early March to publish his Amy Sorrell, former English teacher and might be controversial,” McCaulay said. “It’s revised policy, marking the breaking point adviser for Woodlan Junior-Senior for the Tomahawk staff. High School’s student newspaper, Tomahawk Editor Cortney Car- The Tomahawk, recently signed penter she and her staff agreed on a settlement agreement with the March 12 to stop publication in school district after being placed on protest of Melin’s policy. administrative leave. Her punish- Supporting her students’ deci- ment followed nearly four months sion, Sorrell used class time to teach of controversy that began after First Amendment court cases that Chase’s article ran in the Jan. 19 is- she said would help them offer edu- sue of the Tomahawk. cated policy suggestions to Melin. “I can only imagine how hard it Sorrell’s free speech teachings led would be to come out as homosex- to her being placed on administra- ual in today’s society,” Chase wrote. tive leave March 19, with a threat of “I think it is so wrong to look down contract termination. on those people, or to make fun of Further explanation came 10 them, just because they have a dif- days later from the district, listing ferent sexuality than you. There is seven violations she allegedly com- nothing wrong with them or their mitted, such as insubordination, brain; they’re just different than neglect of duty and engaging in “a you.” campaign to cast East Allen County Chase’s attack on discrimina- Schools and Dr. Edwin Yoder…in a tion caught the attention of Prin- false light.” cipal Edwin Yoder, who called the In the shadow of national me- article “inappropriate” for younger dia reports detailing her situation, students. One week later, he issued Sorrell requested a public hearing a prior review requirement for the of her case by the school board. But entire newspaper. the hearing was later cancelled in On Feb. 12, Sorrell received a light of the settlement, which states letter from Yoder that addressed her “insub- more a personnel issue than a First Amend- that Sorrell will continue to teach English at ordination” and threatened future termina- ment issue.” a different school in the district, but will not tion, according to Assistant Superintendent Sorrell and her students appealed the be permitted to teach journalism for three Andy Melin, who said that it was not the conflict to the school board on Feb. 20, but years. content that prompted the letter, but that the superintendent suggested they resolve Attorney Jim Fenton, a lawyer repre- Sorrell did not advise the principal of the the situation with Melin. senting Sorrell, said she decided to settle af- column. Melin met with students and “revised” a ter a board member’s e-mail surfaced, dem- According to the district’s student pub- district policy that was originally established onstrating the board’s opposition to Sorrell lications policy, school-sponsored media are in 2003. The amendments give the building and suggested that an unfair hearing would not public forums and “socially inappropri- principal full authority over student publi- take place. ate” material can be edited or deleted by cations as “publisher” and required that any The e-mail was in regard to Sorrell’s brief

 splc report • www.splc.org Spring 2007 HIGH SCHOOL CENSORSHIP Censorship case becomes open meetings suit Sex topics lead to executive Had it been released, there wouldn’t have TheFacts filed an open meetings lawsuit been any consequences.” against the district that claimed their actions session at school board hearing; Although the district’s policy states that were protected by Section 551-074 of the local newspaper sues all approved publications “shall be under Texas Open Meetings Act that deals with By Erica Hudock the control of the school administration and personnel issues, according to Cornwell. the Board,” there is no requirement for prior Because the students were specifically any aspiring journalists learn review. addressing the newspaper conflict, Corn- about press censorship laws in a Three students filed a formal complaint well argued that the specified section does textbook or the national news, to the principal, which was denied. These not protect the district. Mbut students at Danbury High School wit- were appealed through the district’s appeals “You can only go into executive session nessed it live when their newspapers were process to the school board where the stu- if you’re discussing some type of legal ac- locked up and they were locked out of a dents were scheduled to read their appeals at tion, personnel matter or property issue,” public school board meeting. the March 19 meeting, Piper said. Cornwell said. “We feel like that what they Danbury High School’s student news- Several parents and students joined did was…well, they broke the law.” paper, The D-Town Press, was censored by Piper in attending the meeting, but were Superintendent Eric Grimmett did not school officials for its December 2006 issue unexpectedly asked to leave the room so the return a phone call for comment, but he did devoted to topics on sex. board could “set up,” Piper said. Superin- release a statement to the Facts, saying, “We The D-Town Press chose to devote its tendent Eric Grimmett then asked the two believe the district acted in accordance with December issue to sex because, according to students who arrived to read their appeal the law in all respects. In light of pending a survey the staff conducted, 51 percent of to enter, restricting access to all audience litigation, no further comment is appropri- students at the Danbury, Texas high school members, including a reporter from the ate.” are sexually active, according to adviser Brazosport Facts, a local newspaper in Clute, The school board approved a motion Kristi Piper. Texas. April 16 to counter-sue the newspaper for Little did they realize, school officials Facts Editor and Publisher Bill Cornwell any attorney’s fees should the lawsuit be re- had a much different conception of what said his reporter informed the board twice solved in the district’s favor. pertinent high school issues are, Piper said. that the closed meeting was not legal, but In regards to the withheld newspapers, School officials contacted Piper and told the board cited a state provision on per- Piper said the Press might attempt to run the her the content was “not age appropriate” sonnel issues as its protection and contin- articles separately in future editions of the and that the principal needed to review the ued with the executive session, voting 5-1 newspaper. newspaper prior to publication, even though against the students’ appeal. “I kind of sense that they’re not through,” she said she had never submitted the news- “I was more shocked than upset,” Piper Piper said. n paper for prior review in her eight years of said. “I didn’t really know much about this advising. process. Now having looked at the open Case: Brazosport Facts v. Danbury Indep. “I regret that it came to this,” Piper said. meetings act, this was clearly not a person- Sch. Dist., No. 42094, (Tex. Dist. Ct. Bra- “There was nothing offensive in the paper. nel matter.” zoria Co. filed Mar. 31, 2007). communication with a gay and lesbian group, who had praised her efforts. The board member wrote that he wanted school officials to see “what Amy is sending out to gay/les websites” and suggested that the district “may want to address [the matter].” Fenton also said that although he believed she could have won the fight eventually, she was concerned about the financial strain of being unemployed. McCaulay and Melin did not return phone calls for comment on the settlement. Fenton said that although Sorrell does not agree with the dis- trict’s disciplinary actions, she had little choice in signing the settle- ment. “They were threatening to take her job,” Fenton said. “That’s a death sentence. As a teacher with a record of alleged misconduct — what would you do? It would have probably been the end of her career. It’s just another example of a school district abusing their Embattled adviser Amy Sorrell has settled with her school district and plans n power over restricting freedom of speech,” Fenton said. to teach at another school. PHOTO BY DEAN MUSSER JR./The (Fort Wayne, Ind.) Journal Gazette

Spring 2007 www.splc.org • splc report  HIGH SCHOOL CENSORSHIP

Landmark student expression case ‘Hits’ U.S. Supreme Court Morse v. Frederick’s last stand Decision expected this summer By Erica Hudock He was rushing to school that January morning after digging his car out of 10 inch- es of accumulated snow and ice. Somehow, his car started despite the below-zero tem- peratures. No matter, it was not the tardy bell he was worried about; he just wanted to make it to town in time for the parade. Once he reached the crowds, he found a spot on a sidewalk along the parade route. Down the road, he caught a glimpse of the torchbearer heading right toward him, fol- lowed closely by the television cameras. As the torch closed in on him, he and his friends unrolled a banner with a special message for the crowd and camera: Bong Hits 4 Jesus. This “absurdly funny” phrase was stripped from the hands of a high school stu- dent in 2002, quickly turning his prank into Protestors hold a ‘Free Speech 4 Students’ banner as the court prepared to hear oral arguments a censorship case. The lawsuit was thrust in the ‘Bong Hits 4 Jesus’ case outside the U.S. Supreme Court Building March 16, 2007. into the national spotlight after a high-pro- PHOTO BY JARED TAYLOR file defense lawyer signed on and the U.S. Supreme Court heard oral arguments last his punishment through the administrative trict, which established that students’ free March for the case now known as Morse v. ranks, Morse persisted that Frederick’s mes- expression rights do not end at the “school- Frederick. sage was in strict violation of the school’s house gate” and school officials can only educational mission to prevent illegal drug censor students if their actions are substan- use. tially disruptive or infringe on the rights of Making a statement After failing to find support within the others. The day the 2002 Winter Olympics school district, Frederick filed a lawsuit Unsatisfied with the decision, the school Torch Relay traveled through Juneau, against Morse and the Juneau School Board district took the case to the U.S. Supreme Alaska, Joseph Frederick, then an 18-year- for allegedly violating his First Amendment Court where justices heard oral arguments old senior at Juneau-Douglas High School, rights and requested an injunction to have on March 19. Former Independent Coun- planted himself on a public sidewalk across the suspension removed from his record. sel Kenneth Starr signed on as the school the street from his school where he displayed A federal district court ruled in favor district’s lawyer, working for free. his 14-foot, paper banner with “Bong Hits 4 of the school district on the grounds that Now 23 years old, Frederick has moved Jesus” crudely scripted on it from a $3 roll the event was “school-sponsored,” which it on from what he called his “free speech ex- of Duct Tape. claimed gave school officials the authority to periment” and is now studying Mandarin Standing across the street was his prin- oversee and punish the actions of students in and Chinese history in China and teaching cipal, Deborah Morse, along with other violation of school policies. English to Chinese high school students. In students who were released from school that But Frederick did not stop there. He a phone news conference held by the Ameri- day to attend the event. She crossed the road appealed his case to the Ninth U.S. Circuit can Civil Liberties Union, which is provid- and demanded Frederick take down the Court of Appeals where the lower court’s de- ing his legal representation, he explained that banner. When he refused, she took the sign cision was reversed in a unanimous ruling, he stopped his education at the University from him and gave him a 10-day suspen- stating that Frederick’s rights were violated. of Idaho just short of graduation to take the sion, five for his banner and five for quoting That decision was based on the 1969 one-year contract offer that began in August, Thomas Jefferson: “Speech limited is speech U.S. Supreme Court ruling in Tinker v. Des an obligation that kept him from attending lost,” Frederick said. Even after he appealed Moines Independent Community School Dis- the Supreme Court oral arguments. Freder-

 splc report • www.splc.org Spring 2007 HIGH SCHOOL CENSORSHIP ick also did not want to share his experiences in China as an American, despite the obvious political differences of individual rights. “I sort of have a nice quiet life…it’s sort of separate from the banner Decision could incident here, and I don’t want to mix it up,” Frederick said.

Motive behind the words curb student With a message so vague as “Bong Hits 4 Jesus,” it may have ap- peared to be an impulsive act to display the banner. But Frederick ex- plained that it was not a spur-of-the-moment demonstration. He said he expression became interested in First Amendment rights while studying American law and government in high school, leading him to begin a “free speech Banner’s message, experiment” that began with his refusal to stand for the morning Pledge of Allegiance and ended with a continuous conflict with the principal. location contested “I found the Bill of Rights to be very interesting and important,” y rian udson Frederick said. “I began to realize that it was not as clear-cut as it seems. B B H I encountered a few contradictions in my life with what I’d studied in books.” Frederick said he purposefully stood where he could be seen What I was really saying was, by television cameras, ‘Look here. I have the right to free assuming that school speech. I am asserting it, I have it officials would not - at and I’m using it.’” tempt to inhibit his “ Joseph Frederick rights in view of the Photo courtesy ACLU camera lens. early 40 years have passed since Mary Beth Tinker He was wrong. first entered the vaunted halls of the U.S. Supreme As for his message, Frederick said that it was never meant to have Court. Since then, the plaintiff in the landmark stu- a serious meaning. It was a phrase he had seen on bumper stickers and Ndent expression case Tinker v. Des Moines Independent Com- found “absurdly funny.” munity School District has heard her name invoked countless “The phrase…was never meant to have any substantive meaning and times as the gold standard protecting students’ free expression it certainly wasn’t intended as a drug or religious message,” Frederick rights. said. “It’s not even a complete statement or thought.” Rather than looking at the cryptic message, Frederick said people Since the 1969 ruling, the “Tinker standard” has been the should see the expression in his action. As a high school senior, he said he foundation upon which all student free speech cases have relied. felt the school did not believe in First Amendment rights for its students The phrase was again cited before the high court in March, and he wanted to prove his inalienable rights. during oral arguments for what could be one of a select few “If you really want to know what I meant you’ve got to consider definitive student speech cases since the Supreme Court ruled then scenario,” Frederick said. “I stood there until the perfect moment in Tinker’s favor 38 years ago. to reveal my banner. As the public eye, the TV cameras, passed by, I The pending ruling in Morse v. Frederick will determine if knew that if I held up the banner while in front of the camera, there was a school had the right to discipline a student, Joseph Freder- nothing the school administrators could do about it. What I was really ick, after he held up a 14-foot banner reading “Bong Hits 4 saying was, ‘Look here. I have the right to free speech. I am asserting it, Jesus” across the street from his school. I have it and I’m using it.’ “ But more importantly, the outcome of the case could set an important standard for regulating student speech that ‘Strange bedfellows’ support First Amendment would be applicable to schools across the country. Lawsuits dealing with student free expression rights have claim rarely been argued before the Supreme Court. Only a handful As the case progressed, public support for the rights Frederick was as- have reached the Court since Tinker v. Des Moines. serting increased as demonstrated by the 16 organizations of varied mis- Depending on how the justices rule, Frederick could have sions and values that filed the 12 amicus curiae, or friend-of-the-court, a substantial impact on student speech, either by reaffirming briefs on behalf of his First Amendment claim before the Supreme Court. the Tinker standard or repealing some of its protections. It is the idea of protecting free expression that has brought conservative, In Tinker, justices famously declared that “students do religious liberty groups such as the Alliance Defense Fund and the Lib- not shed their constitutional rights to freedom of speech at erty Counsel together with liberal-minded groups like the National Co- the schoolhouse gate.” The suit originated when Tinker, her

See Bong hits, Page 10 See Impact, Page 12

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From Bong hits, Page 9 Brandeis’ counterpart at the American Civil Liberties Union, Steve Shapiro, agreed alition Against Censorship and Students for in that the briefs also address the “extraordi- The problem, Mr. Starr, is that Sensible Drug Policy. Alaska Civil Liberties narily broad claim of authority” the school school boards these days take it Union Director Jason Brandeis pointed out district says should permit school officials upon themselves to broaden their that the number of briefs filed in the case to censor any expression that opposes the reveals that his “humorous” message bears a mission well beyond education.” school’s educational mission. “ John Roberts serious side as well. The American Center for Law and Jus- Chief Justice of the United States “We feel that bolsters Joe’s claims here,” tice is one of a few organizations that claim Brandeis said, “and supports the notion Frederick’s “incoherent” message should not that this case is about free speech first and be the focus for a case that could set a seri- Starr pursued the argument that Freder- foremost and it really illustrates the need to ous precedent for future student expression ick’s message was disruptive because it un- support all viewpoints that students seek to cases, but Jordan Lorence, senior counsel for dermined the school’s educational mission express, whether those views are political, re- the Alliance Defense Fund, is especially con- and anti-drug policy, saying Tinker support- ligious or in this case, merely humorous or cerned about a ruling for the school district. ed the school’s authority. provocative.” “Weighing in totally on the side of the “The problem, Mr. Starr, is that school public schools would give carte blanche to boards these days take it upon themselves to school officials…and the First Amendment broaden their mission well beyond educa- tion or protection from illegal substances, Amicus briefs filed [would be] meaningless [to students],” Lor- ence said. and several briefs have pointed out school boards have adopted policies taking on the The following organizations either He also pointed out that every group whole range of political issues,” Chief Justice filed or participated in filing anamicus that filed a brief has at some point represent- John Roberts responded. curiae, or friend-of-the-court brief, in ed students with “controversial ideas.” Associate Justice Ruth Bader Ginsburg the Morse v. Frederick case : The organizations are also concerned about the exceedingly broad consequences also pursued Morse’s interpretation of the For Frederick: in a ruling against Frederick, which would message and how, despite its reference to Alliance Defense Fund allow school officials the ability to censor drugs, it does not clearly endorse drug use. American Booksellers Foundation for Free student expression that takes place off school “But here one could look at these words Expression grounds. Even though they may not approve and say it’s just nonsense,” Ginsburg said. “It American Center for Law and Justice of the message’s allusion to illegal drug use, isn’t clear that this is ‘smoke pot.’ “ Christian Legal Society organizations like the Liberty Counsel, a Edwin Kneedler, deputy solicitor gen- Drug Policy Alliance Christian legal organization devoted to re- eral for the U.S. Department of Justice, ar- Lambda Legal Defense and Education Fund, Inc. ligious freedom, make it its mission to see gued in support of the school, saying that Liberty Counsel that expressive, constitutional rights are pro- whether or not Frederick was displaying an The Liberty Legal Institute tected from overreaching officials, according illegal, drug-endorsing message, it is the po- The First Amendment Project to Liberty Counsel Founder and Chairman tential public interpretation that needs to be Feminists for Free Expression Mathew Staver. considered. The Freedom to Read Foundation Jon Davidson of the Lambda Legal De- Representing Frederick, Attorney Doug- National Coalition Against Censorship fense and Education Fund, Inc., an organi- las Mertz began his argument by reiterating The Rutherford Institute zation that seeks to protect the civil rights Frederick’s First Amendment claim and the Student Press Law Center of lesbians, gay men, bisexuals, transgender school’s wrongful jurisdiction over non-dis- Students for Sensible Drug Policy people and those with HIV, agreed that this ruptive, off-campus student expression. The Thomas Jefferson Center for the shared view by different organizations is not Whether or not Frederick’s message was Protection of Free Expression unusual for a First Amendment case. political, Roberts argued that it “under- “It’s not about a particular position,” mined” the school’s mission and questioned For Morse: Davidson said. “It’s about the right to ex- whether schools need authority over class- American Association of School Administrators press the side of any position. And in that rooms, field trips and activities that students DARE America way it can make strange bedfellows.” are trying to use as open forums. Drug Free America Foundation, Inc. Mertz also said that expression contra- General Barry R. McCaffrey dictory to what the school deems appropri- Hon. William J. Bennett Arguing interpretation ate can take place so as long as it does not National Association of Secondary School As adamant were the amicus briefs, the “interfere with the school’s own presenta- Principals oral arguments were even more contentious. tion of its viewpoint,” to which justices National Families in Action The hour-long session at the Supreme Court tested phrases like “Rape is fun” and “Ex- National School Boards Association became an interrogation session for the jus- tortion is profitable” with Mertz’s claim. But Save Our Society from Drugs tices, some of whom visibly struggled to de- Mertz said those examples do not apply to United States of America termine the approach necessary to make a the case. fair ruling. “What it was was a person displaying

10 splc report • www.splc.org Spring 2007 HIGH SCHOOL CENSORSHIP this banner in a quiet, passive manner that didn’t interfere with anybody’s observation,” Mertz said. “The fact that he was not there Overheard in the Supreme Court... in school…turns this into a pure free speech SPLC reporters were present at the oral argument and recorded some of the case where you have a citizen in a public place more memorable moments... event who was not acting as a student.” “Can the student be allowed to wear a button that says ‘Rape Is Fun’...’Extortion A looming precedent is Profitable,’ that’s okay?” During the arguments, Mertz alluded to Anthony Kennedy, Associate Justice the strength of the Tinker decision, which has been a legal standard for student speech cases for nearly 40 years. Now with “Bong “If the kids look around and they say, well, so and so has got his bong sign again. Hits” awaiting a ruling, attorneys, admin- They then return to Macbeth.” istrators and advocates are holding their breath for a possible new precedent and the David Souter, Associate Justice effects to follow. The Liberty Counsel’s Staver said the fact that Frederick’s off-campus speech could Naomi Gittens, an attorney with the gan five years ago, Frederick said he has no be prohibited is the “devastating part of this National School Boards Association and regrets. Maturity and a better understanding case,” which is why his organization took contributor to the organization’s amicus of civil liberty and freedom are two out- interest and filed an brief in favor of the school district, said that comes Frederick has seen within himself, de- amicus brief. students should not be “overly concerned” spite the question of his “drug message.” The court could about the court’s ruling. “I’ve never professed to be perfect or to establish a much She anticipates a “narrow” ruling, a for- be a saint,” Frederick said. “This case is about narrower ruling, and mat typically favored by Roberts. Associate integrity and maintaining the civil rights in add “drug speech” Justice Antonin Scalia also suggested during the United States Constitution and the Bill to the list of un- the arguments a “narrow enough” ruling for of Rights. And to reduce this to some sort of protected student a school to be able to “suppress speech that mudslinging or personal character assassina- speech although that advocates violation of the law” whether or tion is just wrong.” is unlikely, said Da- Joseph Frederick not they have an established student expres- Mertz said the allusion to drugs is far vid Greene, execu- sion policy. from the point of the case and that critics PHOTO COURTESY OF ACLU tive director of First One way Gittens said a narrow decision need to look beyond the sign. Amendment Project, could be made would be to limit the school’s “Debate by students on an issue of a nonprofit free speech law firm that also authority in censoring any disruptive expres- importance to them, importance to their joined a brief in support of Frederick. sion on campus and school-run activities or school, importance to their country should A current debate over drug possession in trips such as field trips or sporting events. not be cut off, should not be punished sim- Alaska, a matter regularly brought before its “Schools have two things in mind con- ply because school officials have a contrary state legislature, was mentioned by Shapiro cerning their students: effective learning and viewpoint,” Mertz said. “Free speech is a of the American Civil Liberties Union as an school safety,” Gittens said. She added that true core American value that everyone be- example of civic, drug-related discussion for schools are a place for learning, “not a free- lieves in and we’re hoping that includes the which students could be censored on or off for-all.” members of this court.” school grounds because of the topic’s con- In any situation, she said that no school Ultimately, Frederick’s efforts have prov- flict with the school’s strict anti-drug policy. administrator should be held liable for the en successful in raising questions in the First The Alaska Supreme Court is currently actions of students because of the way the Amendment’s ability to protect students. reviewing a bill that would permit adults to message was interpreted, with which Associ- His experiment is not only pending a deci- possess small amounts of marijuana. Shapiro ate Justice Stephen Breyer agreed. sion for what he claims to be a violation of said that as young adults, students should be “[The principal’s] job is to run the his speech rights, but also a precedent that actively taking part in political debate and school,” Breyer said. “What I’m worried could make or break the outcome of similar must be permitted to do so without regula- about is a rule that…takes [Frederick’s] side. cases in the future. tion from schools. We’ll suddenly see people testing limits all Frederick said that his journey helped “The way we do that in our system is over the place in the high schools. But a rule him “mature” and become more aware of his by providing students with the information that against [the school’s] side may really civic responsibilities. they need to be informed citizens and not limit people’s rights on free speech.” “I was skeptical of my own free speech by teaching them the worst civic lesson pos- rights and I…wanted to know more pre- sible, namely that any speech that disagrees For the record cisely the boundaries of my freedom, and I with the officials’ speech can lead to punish- guess we’ll get to find out that soon,” Fred- ment,” Shapiro said. Nearing the finish line in a case that be- erick said. n

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him, Deborah Morse, believes it was encour- other pending court case which could be aging drug use. weighing on the justices’ minds. The case, Did you know? It is that interpretation which is the crux Guiles v. Marineau, also deals with student • The Olympic Torch Relay was held Jan. of the disagreement over what is a “substan- expression and has been appealed to the 24, 2002, in Juneau, Alaska. tial disruption,” as the Tinker standard re- Supreme Court, although justices have not quires. Morse’s lawyers argue that a school’s ruled on whether they will hear it. • The Coca-Cola Company was the educational process is broader than class- Goldstein said it is possible that justices official sponsor of the relay room activity and includes instilling “the are taking the Guiles case and other pend- values of citizenship.” In this case, they say, ing cases into consideration, and the Court’s •Frederick made his banner with a 14- the school is dedicated to teaching an anti- ruling in Frederick could be written so that it foot sheet of white paper and wrote the drug message, which Frederick undermined also address Guiles. words “Bong Hits 4 Jesus” with a $3 roll with his banner. The tactic is known as stacking, and it is of Duct tape. “There is an effort to prevent a message not uncommon for the high court, he said. that is inconsistent with a fundamental mes- “They have cases pending that are all • He maintains to this day he does not sage of the schools – which is the use of il- kind of on the same topic, sort of, in a way. know what ‘Bong Hits 4 Jesus’ means legal drugs is simply verboten – and we be- They decide one then reverse and remand lieve that is permitted under Tinker,” Ken the others,” Goldstein said. • He says quoting Thomas Jefferson to Starr, who is representing Morse, said in the An analysis of the Guiles case, therefore, his principal —“Speech limited is speech lost” — lengthened his suspension. courtroom. perhaps could offer insight into what facets If a majority of the justices agree, the no- justices are focusing on during their delib- • Frederick went on to the University of tion of “substantial disruption” laid out 38 erations in Frederick. Idaho, but is just a few credits short of years ago in Tinker could be expanded to in- Guiles v. Marineau originated when his degree. He is currently in China study- clude speech that dissents from school pol- Zachary Guiles, a student at Williamstown ing and teaching English icy. In that case, schools across the country Middle School in Williamstown, Vt., wore could have a broader ability to ban indepen- a shirt that lampooned President Bush, re- From Impact, Page 9 dent student speech, said Adam Goldstein, ferring to him as “Chicken-Hawk-in-Chief” attorney advocate for the Student Press Law and featuring text and drawings that alluded brother and a friend wore black armbands to Center. to his alleged past drug and alcohol abuse. school to protest the Vietnam War. The rul- The justices’ comments during the argu- In this case, the school argued it was ing states that school officials may not pun- ment revealed possible directions the rul- compelled to act because the shirt was coun- ish or prohibit student speech unless they ing could take on this argument, legal ex- ter to the school’s anti-drug message and can reasonably forecast that it will result in a perts familiar with the proceeding said, but material and substantial disruption of school it would be difficult to draw a conclusion See Decision, Next page activities or invade the rights of others. strictly from them. While the Frederick case contains myr- There is, however, at least one iad facets that might drive the Supreme Court’s decision, there are two aspects of the arguments that are direct descendents from the ruling in Tinker: the definition of “sub- stantial disruption” and the concept of the “schoolhouse gate.” Should the justices’ ruling concern either of these two aspects, Frederick’s name soon could, like Tinker’s, be invoked as a standard in student free speech rights. In that scenar- io, the Frederick case could become the most important ruling regarding the student press since 1988, when the court levied restric- tions against many high school publications in Hazelwood School District v. Kuhlmeier. What it said Frederick has maintained that the phrase “Bong Hits 4 Jesus” was purposefully non- sensical, while the principal who disciplined

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From Decision, Page 12 important boundary for student expression. in many contexts could face tighter restric- The court made clear that its protection of tions on their ability to criticize the school, therefore was “inconsistent with the district’s student rights is in effect when students he said. basic educational mission.” cross that threshold. Alternatively, should the Court deter- “Schools are arguing that they have What is not clear is what rights students mine that Morse had the right to discipline important missions – tolerance, anti-drug have before they cross the schoolhouse gate. Frederick for his off-campus speech, school message, or whatever other messages they Lower courts have traditionally split on what officials across the country would have com- happen to define for themselves – and that authority administrators have over off-cam- mand of speech produced even while stu- those missions are so important they trump pus speech, dents are not in school – possibly including the Constitution,” Goldstein said. “And at Some simply have ruled that anything independent student publications. least some of the justices seem inclined to off school grounds is beyond of officials’ During the arguments, Morse’s attor- agree with them, based on the oral argument oversight, while others have said that offi- neys invoked the notion of a “school-sanc- in Frederick.” cials have jurisdiction over “conduct that is tioned event.” The parade outside the school directed at the school,” Goldstein said. was not financially sponsored by the school. Where it was A ruling in Frederick that addresses the However, Morse’s attorneys argued, it was a off-campus question would set a nationwide sanctioned event because students were re- The court very well could completely precedent. If the court rules for Frederick leased from class to attend, and therefore the overlook the banner’s message in its ruling on the grounds that he was off campus and school maintains authority over it – even the and instead focus on its location – specifi- therefore out of the control of administrators, parts off campus. cally, where Frederick physically was on that student rights could largely be unabridged The concept of “school-sanctioned event” January morning. while not on campus or at school-sponsored is not new, said Sonja West, a law professor When Frederick unfurled the banner as events such as field trips, Goldstein said. at the University of Georgia. However, she the torch passed, he was standing on a public But the Court could determine that ad- said, this is the first time that, according to sidewalk across from the school, and Morse ministrators can regulate speech off campus. her research, it has been invoked during a had to cross a public street to discipline him. Rebecca Zeidel, a research assistant with the student free speech case. The Supreme Court has never specifically National Coalition Against Censorship, pre- Previously, “school-sanctioned events” addressed the rights of students off campus, dicted that in that case the Internet could was a concept indigenous to student reli- and the justices might elect to confront the become an area where school officials look gious expression cases, said West, who draft- issue in the Frederick ruling. to exert authority over what students say ed a friend-of-the-court brief in support of The majority opinion in the Tinker rul- or write. She cited social networking Web Frederick’s claim for the SPLC and other ing deemed “the schoolhouse gate” as an sites such as MySpace and Facebook as ex- First Amendment advocacy organizations. amples. If the Court agrees with the argument “Our fear is how far they can then go,” and rules that administrators have authority Tinker returns... she said. over whatever is “school-sanctioned” it could Among the hundreds of visitors extend the damage to the student press that to the Supreme Court on the morning Student publications was first levied with 1988’sHazelwood School of March 19 was Mary Beth Tin- District v. Kuhlmeier. ker, almost 40 years after her lawsuit During the March 19 hearing, justices The court ruled then that a high-school established a foundation for student and lawyers debated the case for more than sponsored student newspaper produced as expression rights. an hour, but at no point did anyone men- part of a class and without a “policy or prac- Tinker compared her message in tion the student press. Still, a ruling in the 1965 to Frederick’s banner: tice” establishing it as a public forum for stu- case has the incredible potential to affect the “We were speaking up for peace, dent expression could be censored – as long rights of student publications. and our message was very meaningful as school officials demonstrated a reasonable and important to us as students because While a decision favoring Frederick likely educational justification and that their cen- we were raised in the church, and we will reaffirm the rights of student media, a rul- sorship was viewpoint neutral. believed in peace,” she said. “Joe Fred- ing for Morse could have an adverse affect. erick has a very first important message If the Supreme Court rules for Morse In essence, the Hazelwood ruling pro- also: It’s the First Amendment. And vided high schools with more authority over that’s something that we need to teach based on the content of the banner, school officials could have much broader ability context that they sponsored. If Frederick in- students about on a daily basis – not troduces “school-sanctioned” into the lexi- just in books but in practice. to censor content they believe undermines “And that’s what his message was; their mission – whether that message comes con, independently produced student publi- He wanted to see in fact if in fact he in a student newspaper or a student-distrib- cations could face oversight, Goldstein said. had free speech rights or if it was just uted pamphlet, Goldstein said. “They said the parade watching was something that he learned on paper. If the Court rules that school officials sanctioned,” he said. “So if lunch is a school- And so the messages are equally impor- sanctioned even, you can’t hand out your tant.” n have the right to suppress speech that di- verges with school policy, student journalists pamphlet during lunch.” n

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PRIOR REVIEW The Meteor Chronicle published an Gordon said the panel is to offer article titled “Not Everyone Thinks “support” to journalism advisers who are ‘Friends’ Have ‘Benefits’” that raised the primary supervisors of the publica- School forms concerns from parents. In response, tions. He said that both high schools will committee to review school officials decided to postpone dis- have a panel, consisting of the building tribution of the newspaper’s March issue principal, journalism teachers, a sopho- publication policy while the district’s student publications more and senior journalism student policy was reviewed. and a professional reporter, that review MINNESOTA — A committee to re- A public meeting to discuss the pol- the other school’s publication prior to view the St. Francis High School student icy was held two weeks after the article publication. The school board president publications policy was formed after was published, but the board decided to and vice president are also serving as a photo of what appeared to be a torn maintain its current policy on March 19, temporary members of the panel. American flag was censored from the with one slight change. Gordon said although students will student newspaper, The Crier. School officials requested that in not have to adhere to the criticism, he The flag in the photo, which was addition to the early distribution of the is content with offering the school and actually a patterned tablecloth, became newspaper to the superintendent and surrounding community a voice in the the center of controversy because of school board, as done in the past, the publications’ content. n its potential to offend the community, newspaper is required to send a copy to according to Principal Paul Neubauer, all school administrators throughout the Magazine escapes who told the Crier it could not run the district to “make them aware” of what image. He also froze the newspaper’s stories are being covered, Superintendent new prior review funds and threatened legal action if the Mike Ognosky said. n photo was printed. restrictions The photo was taken during the school’s production of “The Children’s Ohio students now OHIO — Journalists at the Princeton Story,” a political story in which a subject to panel’s High School student magazine escaped communist government takes over the specter of prior review when the su- the United States. The play includes a criticism perintendent decided instead to change scene where students vote to cut up the the magazine’s publication policy. OHIO American flag. — A central Ohio school district The ordeal began in December 2006 The students conceded to the is now subject to non-binding criticism when the principal censored an article principal’s demand, but in protest, ran of an advisory panel after its two high in the Odin’s Word that criticized the a blue box where the photo would have school student newspapers received nega- football team for its losing record. The been and printed a message for its read- tive feedback over their articles on sex. staff had to physically remove the two ers: “Originally a photo was to be placed The advisory panel is a “short-term” pages containing the column, written by here, but was censored by the adminis- plan put in place by administrators and junior Evan Payne, from the 2,100 cop- tration.” teachers in the Olentangy School Dis- ies of the magazine before distribution. The district’s current policy on stu- trict at an April 12 meeting to address Superintendent Aaron Mackey dent publications states, “Official school community concerns, according to Ex- said the principal, who has declined to publications are free from prior restraint ecutive Director of Secondary Education comment publicly about the incident, by officials except as provided by law.” Eric Gordon. believed that the article was journalisti- Some discussion of policy amend- The Cannon, the student newspaper cally unsound and that it could incite ments has taken place, but no major at Olentangy Liberty High School, ran conflict between the football team and changes have been made. n a satirical piece on teenage sexuality that the magazine’s staff. was supposed to point out that girls are Mackey pointed out that the article, offended by the way they are perceived which did not single out any player by Student paper by boys, according to adviser Catherine name, did not include rebuttal from escapes prior review Boone. The article used “pop culture” the football team. The article largely terms that parents found inappropriate, criticized coaching strategy, such as the policy change Gordon said. decision to employ a passing strategy The Beacon, the student news maga- that relied on an untested freshman PENNSYLVANIA — The student news- zine at Olentangy High School, another quarterback. paper at Montrose High School escaped high school in the district, received Mackey introduced a prior review a drastic publications policy change at a similar feedback on its February issue policy after the article was censored. March 19 school board meeting after an devoted to articles on sex that discussed After some administrators disapproved, article on sex was published in its Febru- sexually transmitted diseases and oral he scrapped his decision in favor of ary issue. sex. merely revising the magazine’s publica-

14 splc report • www.splc.org Spring 2007 High School Censorship in brief

tion statement. case of a student who was censored for on preliminary injunction with orders to In 2005, the editorial adviser wearing a T-shirt with an anti-gay mes- dismiss as moot); see also Harper v. Poway changed the statement to designate the sage. Unified Sch. Dist.,No. CV-04-01103- Odin’s Word as an open forum. Admin- Tyler Chase Harper filed a lawsuit JAH (S.D. Cal. Jan. 24, 2007) (granting istrators reinstated the previous policy, against the Poway School District in in part district’s motion for summary which does not include the public forum June 2004 after school administrators judgment), appeal docketed, No. 07- statement. n told him to remove his shirt that said, 55224 (9th Cir. Feb. 21, 2007). “Be ashamed, our school embraced what IN THE COURTS God has condemned” on the front and Court rules middle “Homosexuality is shameful ‘Romans Supreme Court 1:27’” on the back. According to schooler could hold Harper, the school had violated his free denies hearing to expression and religious freedom rights, silent protest horror story case and subsequently asked for a preliminary MICHIGAN — A federal district court injunction against the school’s dress code granted a permanent injunction March NEW YORK — Review was denied policy so he could be permitted to wear 26, allowing a Jefferson Middle School by the U.S. Supreme Court Jan. 22 in his T-shirt. student and his classmates to engage in a the case of a sixth-grader at Thompson A federal district court denied the silent protest against abortion. Middle School, who was suspended injunction request, prompting Harper to Michael Amble-Lucas was prohib- because of a fictional horror story he appeal to the Ninth U.S. Circuit Court ited from wearing his pro-life T-shirt wrote that included the names of fellow of Appeals, where his request was also and putting tape across his mouth for students. denied. the Pro-Life Day of Silent Solidarity Dylan Finkle wrote a story for class A final appeal was made in Octo- protest, a nationally recognized day that titled “Costume Party” that included ber 2006 to the U.S. Supreme Court. is sponsored by the Christian pro-life violent, sexually explicit material and As that request was pending, a federal organization, Stand True. School officials was modeled after the popular Halloween district court was reviewing Harper’s told him his expression “was not ‘age- movies. Finkle was suspended for a total permanent injunction request and First appropriate,’ it was ‘disruptive’ and that of 35 days, which led to an appeal by Amendment claims, and ruled in Janu- it was not suitable [for him] to express his parents that was denied by both the ary that the claims were moot because he a pro-life message,” according to the school board and state commissioner of was no longer in school. Harper gradu- complaint. education. ated in June 2006. Amble-Lucas’ mother filed a lawsuit A lawsuit was filed against the The court did consider the claims of on behalf of her son, claiming that his district, but a federal district court ruled Harper’s younger sister, Kelsie, who was First Amendment rights were violated in favor of the school district, a decision added to the case in November 2004, and requested a preliminary injunction that was affirmed by the Second U.S. but still ruled in favor of the school against the school, which was granted on Circuit Court of Appeals in May 2006. district. Jan. 31. The federal district court ruled Finkle’s attorney said the decision With that ruling, the U.S. Supreme on the basis on the 1969 U.S. Supreme by the U.S. Supreme Court to deny the Court ordered the Ninth Circuit’s Court decision in Tinker v. Des Moines student’s final appeal was “unfortunate” decision on the preliminary injunction Independent School District, which pro- and there is no other legal opportunity request vacated. The federal district hibits censorship of student expression to challenge the school’s actions. n court’s ruling can, however, be appealed unless it creates a substantial disruption by Harper and his sister, who is still a or infringes on the rights of others. Case: D.F. v. Board of Educ. of Syosset student in the school district. The school district has filed an -ap Cent. Sch. Dist., 386 F.Supp.2d 119 Kevin Theriot, Harper’s attorney peal with the Sixth U.S. Circuit Court (E.D.N.Y. 2005), aff’d, 213 Ed. Law from the Alliance Defense Fund, a of Appeals, but Alliance Defense Fund Rep. 154 (2d Cir. 2006), cert. denied, Christian civil rights organization, said attorneys representing Amble-Lucas are 127 S.Ct. 1170 (Jan. 22, 2007). he has requested the federal district court “confident” that the students’ rights will to also reconsider its January ruling in be “retained” by the court’s decision. The U.S. Supreme Court light of the Supreme Court decision, and Alliance Defense Fund is a Christian has filed an appeal to the federal appeals civil rights organization. n rules in anti-gay court for the Harpers’ First Amendment T-shirt case claims. n Case: M.A.L. v. Kinsland, No. 07- 10391, 2007 WL 313283 (E.D. Mich. WASHINGTON, D.C. — The U.S. Case: Harper v. Poway Unified Sch. Dist., Mar. 19, 2007), appeal filed, No. 07- Supreme Court vacated a federal appeals 127 S.Ct. 1484 (Mar. 5, 2007) (granting 1409 (6th Cir. docketed April 4, 2007). decision March 5 by an 8-1 vote in the cert., vacating, and remanding decision

Spring 2007 www.splc.org • splc report 15 High School Censorship in brief

meaning of the law. Union dropping the lawsuit, the school Seven-year-old The appellate court reaffirmed its would publish the photo and not appeal harassment lawsuit previous ruling for a retrial on Jan. 11, the commissioner’s ruling. n 2007, to better justify that the 2002 fed- gets new trial eral district court’s ruling was flawed as Case: Agin v. Portsmouth Sch. Comm., CALIFORNIA — An appeal by a a result of the amended law and a retrial No. 06-01691 (E.D. Mo. filed Nov. 21, former Palisades High School teacher would be necessary. 2006). was denied March 28 by the California After review for the second time by Supreme Court in her a lawsuit against the state Supreme Court, Adams’ appeal Injunction denied in the school district that she claims is was denied on March 28, sending the case to the trial court level again for T-shirt case involving responsible for an underground student n newspaper article claiming she was a review. ‘Be happy, not gay’ porn star. Case: Teacher Janis Adams was a subject Adams v. Los Angeles Unified Sch. ILLINOIS — A preliminary injunction in an underground newspaper published Dist., 2007 WL 68104, No. B159310 request was denied April 17 by a federal in 2000 called “The Occasional Blow (Cal. App. Jan. 11, 2007) (unpublished/ district court in the case of a student who Job” that mocked her intelligence and nonciteable). was prevented from wearing a T-shirt that said she was once an actress in pornog- said, “Be happy, not gay” just two days raphy films. As a result, 11 high school Student’s medieval before the “Day of Truth,” a nationwide students suspected to be involved with anti-gay protest in which the student the newspaper were suspended in March photo to be published wanted permission to participate. 2000. after settlement Heidi Zamecnik wore her T-shirt on Adams claimed in her lawsuit that April 20, 2006, for the “Day of Truth” the Los Angeles Unified School District RHODE ISLAND — A settlement that opposes the “Day of Silence,” a was responsible for sexual harassment agreement was reached on Jan. 29 after protest held the day before by the Gay, that took place in the newspaper and did a student’s photo in medieval costume Lesbian and Straight Education Net- not do enough to protect her. was censored from the Portsmouth High work. In March 2002, a jury awarded School yearbook. According to the complaint, Zamec- Adams $4.35 million in damages, which Senior Patrick Agin submitted a nik was taken to Dean of Students Bryan was later vacated by a judge who said the yearbook portrait photo in which he Wells who told her the T-shirt “offended amount was “excessive” and because of posed with a sword, a clear violation some students and faculty” and that she the trial’s “errors in law” that questioned the school’s “zero tolerance” policy on would need to remove it. the school’s legal ability to control stu- weapons, according to Principal Richard When Zamecnik refused, Wells dent expression. Littlefield. Agin said he submitted the called her mother and the three held a Adams appealed the decision, as picture to represent his interest in me- conference in which a compromise was did the school district’s attorney, who dieval history and his involvement with reached: the phrase would be changed to requested a new trial because the jury’s the Society of Creative Anachronism, “Be happy, be straight.” instructions were unclear in regard to an organization that studies medieval After the discussion, Zamecnik state laws. With a retrial granted, Adams history and participates in recreational claimed that Wells went against his word filed another appeal on that decision. activities. and had a school counselor cross out While her appeal was pending, legis- The Rhode Island Civil Liberties “not gay,” leaving only the phrase “be lative language changed in the state’s Fair Union filed a lawsuit on behalf of Agin, happy.” Employment and Housing Act in 2003 stating that his First Amendment rights Zamecnik filed a lawsuit against the to “clarify” that employers are respon- were violated. school district March 21 with freshman sible for the acts of non-employees. A federal district court heard the Alexander Nuxoll, who agrees with her With the amendment in place, a case, but sent it to the Rhode Island stance. California Court of Appeal upheld the Department of Education to be resolved. The students’ attorneys have filed an retrial in August 2004 to assure a fair The state commissioner ruled in favor of appeal to the Seventh U.S. Circuit Court n trial was given according to current state Agin, stating that the yearbook allows of Appeals. law. students to express themselves even That decision was reversed and though it is not a public forum and that Case: Zamecnik v. Indian Prairie Sch. remanded by the California Supreme photos including items such as a pipe, Dist. #204 Bd. of Ed., No. 07-1586 Court in October 2006, stating that the toy gun and an axe had been published (N.D. Ill. prelim. inj. denied Apr. 17, appellate court should reconsider its rul- in the past without opposition. 2007). ing because, in the court’s view, the new The final agreement stated that in -re amendment did not change the original turn for the Rhode Island Civil Liberties

16 splc report • www.splc.org Spring 2007 INTERNET IN BRIEF

In December 2006, an Indiana dis- identity deception if committed by an High schoolers faced trict court issued a preliminary injunc- adult, according to the Associated Press. harrassment charges tion that ruled in the students favor and The juvenile court dropped most of the allowed them to return to school. The charges, but in June found A.B. to be a for MySpace lyrics students returned to classes in January. delinquent child and placed her on nine COLORADO — Six Loveland High Students Charlie Ours, Issac Imel months of probation after ruling the School students faced criminal harass- and Cody Overbay were expelled by the comments were obscene. ment charges after posting a threatening school district after creating “The Teddy But A.B. appealed, contending that rap song on the Internet in February, but Bear Master,” a movie in which students her comments were political speech pro- the charges were dropped after prosecu- mock a teacher character with the same tected by federal and state laws because tors concluded that the lyrics in question last name as a seventh grade teacher at they concerned school policy. were not specifically directed toward the district’s middle school, according to The Court of Appeals found that anyone. the Star. The teddy bear master orders the comments were protected under the On Feb. 11, a parent of one of the other stuffed animals to kill the teacher free expression provision of the Indiana students in the song notified the Love- because of an earlier embarrassment. Constitution, ruling that the juvenile A fourth student, Harrison Null, was court unconstitutionally suppressed her land Police Department of the matter n after her child found a link to it from a also part of the movie production and right of free expression. MySpace page, said Loveland Police De- expelled, but did not participate in the Case: partment Sgt. Benjamin Hurr. After the lawsuit. He was also allowed to return to A.B. v. State, No. 67A01-0609-JV- school in January along with the others, 372 (Ind. Ct. App. Apr. 9, 2007) (Slip song gained attention from police and n the local media, the students removed according to the Indianapolis Star. op.) the song from the Web, Hurr said. Case: Hurr said the song, which was cre- Imel v. Charles A. Beard Mem’l Sch. Teen rapper receives ated to retaliate against another group Corp., No. 06-1669 (S.D. Ind. prelim. of students, featured lyrics such as “My inj. issued Dec. 22, 2006). settlement from police fists are my best friends – you’re about to PENNSYLVANIA — Anthony Latour meet them too” and others that threat- Indiana court received a $60,000 settlement from ened violence. rules for student police after being arrested at his school Jonathan McEvoy, an 18-year-old in April 2005 for a “battle rap” posted senior, and Nicholas Gagnon, a 19-year- MySpace page online. old friend of the students, were among Latour’s attorney said that the school those responsible for creating and post- INDIANA — A court infringed on a interpreted his lyrics as a literal threat ing the song to the Web. The other two student’s free speech when it placed her against the school because of references students involved with the offensive song on probation for creating an expletive- to staff and students at Riverside Middle are minors and police would not release filled MySpace page that criticized a School in songs like “Massacre” and their names, as are another two stu- school principal, the Indiana Court of “Murder, He Wrote.” dents who police say initially started the Appeals ruled. Latour was later expelled from dispute. The harassment charges were The three-judge panel ordered the school, but was reinstated after the dropped for all the students involved. n Putnam Circuit Court to relinquish its Pennsylvania Civil Liberties Union filed penalty against the female student, re- a lawsuit against the district in August Students expelled for ferred to as A.B. in the court’s decision. 2005, requesting a preliminary injunc- In February 2006, Greencastle tion to revoke the expulsion. making movie settle Middle School Principal Shawn Gobert A $90,000 settlement was later discovered a Web page attributed to him made with the school district, while the with school district on MySpace.com. The page contained other sum was received from the lawsuit INDIANA — Three Knightstown High postings from the student on the page against the two police departments who School students who were expelled for that were critical of the school’s policy handled his arrest in which Latour’s making a movie off-campus about a doll prohibiting body piercings. Another parents claimed false arrest and violation that kills a teacher will share a $69,000 unnamed student created the MySpace of their son’s First Amendment rights. settlement from the school district. page in which A.B. posted her criticisms. Latour later withdrew from the The district also agreed to remove “While we have little regard for district and is currently being home- the sophomore students’ expulsions from A.B.’s use of vulgar epithets, we con- schooled. n their records as part of the settlement in clude that her overall message constitutes a federal lawsuit filed by the students, political speech,” the opinion states. Case: Latour v. Riverside Beaver High who said their First Amendment rights The state filed a delinquency petition Sch. Dist., No. 05-1076, 2005 WL had been violated when they were ex- in March alleging that A.B.’s acts would 2106562 (W.D. Pa. Aug. 24, 2005). pelled in October 2006. have been harassment, identity theft and

Spring 2007 www.splc.org • splc report 17 LIBEL & PRIVACY Privacy law strikes at heart of newspapers

the records request, Louisiana State students an administrator intimidated by dean sent Esfeller an e- mail saying that citing FERPA demands publicizing infor- mation about the By Brian Hudson case could be seen as When Patrick Esfeller, a junior at Loui- an attempt to “in- siana State University, learned he was under timidate, harass or investigation from school administrators, he unduly influence” says his feelings quickly moved from shock those affiliated with to outrage. the proceedings He claims the investigation, which was – an infraction that based on charges that he had been harassing could lead to addi- an ex-girlfriend, was unfairly targeting him, tional charges. and he decided to fight it. He wanted to pre- Among the in- pare his defense by finding out exactly what formation Esfeller evidence the university, had. So he sought passed along to the In January, after a resident assistant the help of the campus’s authority for pro- newspaper was the name of the ex-girlfriend, broke up a campus party junior Staci Borel curing documents: the student newspaper. who lodged the complaint against him. was attending, she wrote The Daily Reveille After signing a waiver allowing the Esfeller responded to the administrator’s to complain about what she believed to be newspaper to access his information, Esfeller e-mail with indignation and contacted the an abuse of power. and The Daily Reveille submitted a request American Civil Liberties Union. A week later, Borel was called to the for the records to the university. Administra- Although administrators at the univer- dean’s office where the conversation focused tors subsequently turned down the request, sity could not comment on Esfeller’s allega- primarily on the letter, she said. saying that according to federal privacy laws, tion or the investigation because of federal Like Esfeller, Borel was told that airing the university cannot release information privacy laws, Dean of Students K.C. White details of her story, specifically the name of about student disciplinary procedures. acknowledged the precarious balancing act the resident assistant, could be perceived as Such a response is not uncommon for between students’ freedom of expression interfering with a judicial affairs investiga- student journalists, who for decades have and the right to privacy, but defended the tion and could result in disciplinary action. been barred from accessing certain school university’s stance. While one student might The senior, months away from graduation, records in the name of students’ rights to be willing to impart his or her records, the found the warning particularly disturbing. privacy. Since it was passed in 1976, the disclosure could infringe another’s privacy, “I was scared, I didn’t know what was Family Educational Rights and Privacy Act she said. going to happen,” Borel said. “I’m in a lot has prevented publicly funded schools from The Daily Reveille printed the name of of organizations that are based in your aca- disclosing personal information about stu- Esfeller’s ex-girlfriend in a story detailing his demic standing with the university.” dents, such as their grades and disciplinary quest for information. Borel expressed concern that the threat history, without consent. “As an institution, we have to balance she received was not a reaction to the infor- But recently, some administrators at the the right of all of our students,” White said. mation she released but rather an attempt to college and high school levels have taken “When you’ve got competing interests, silence her criticism of the administration. FERPA a step further. Some are claiming where is the public’s right to know versus the Although Jeffrey said the university’s ac- that, in order to protect student privacy, victim’s privacy?” tions might be based on the legitimate in- they have the right to actively prevent the Although administrators did not stand terest of preserving investigative integrity, it dissemination of information. in the way of the information being pub- appears suspicious. At two schools this semester, adminis- lished in the newspaper, White’s position “What they’re actually doing and how it trators cracked down after students gave the could harm the newspaper’s mission, said looks may actually be different, but I think campus newspaper information that school Daily Reveille Editor in Chief Jeff Jeffrey. it looks pretty authoritative,” he said. “That officials believed was covered by FERPA. In “We fear it could create a chilling effect over-vigilance is becoming a problem.” these two situations a law originally intend- on campus where students are afraid to talk While The Daily Reveille’s content was ed to protect students was being interpreted to the newspaper,” Jeffrey said. “Getting never in jeopardy when administrators acted a way that silenced their speech. called to the dean of student’s office is like to protect student privacy, such an effort After Esfeller and the newspaper filed getting called to the principal’s office.” could lead to indirect censorship.

18 splc report • www.splc.org Spring 2007 LIBEL & PRIVACY

When the student newspaper at Cam- the article without the student’s name in its polindo High School, La Puma, similarly opinion section, along with an introduction tried to report the story of a student who felt written by Lubliner and another student. Criminal libel slighted by school disciplinary procedures, After the article ran in the Contra Costa they saw the article initially barred from Times administrators decided to allow the publication. article to run, Lubliner said. laws battled Earlier this year, the newspaper at- Dan Bledsoe, associate principal at Cam- tempted to report the story of a student polindo High School, refused to comment, who claimed administrators infringed his except to say that he fails to see how the in- out West rights when they confiscated his cell phone cident is noteworthy because the article was By Jared Taylor in class. Not only was the phone taken, the eventually published. student told La Puma, but an administrators 10th Circuit Court denies N. searched the voicemail and text messages Fighting the censorship Colorado student’s criminal and, based on their content, searched his libel appeal over Web site locker and book bag. While students at Campolindo High Believing the school conducted an un- School were able to get around the admin- A federal appeals court has affirmed a constitutional search, the student reported istrative censorship, students at Louisiana lower court’s dismissal of claims made in a his experience to the newspaper. La Puma State University had fewer options. lawsuit that challenged the state’s criminal attempted to print a The ACLU of Louisiana expressed inter- libel statute that was filed by a former Uni- story about it, but it est in Esfeller’s case, versity of Northern Colorado student. ran into trouble when but a spokesman But Thomas Mink, who was investigat- administrators could told him they would ed by police for publishing a satirical online We fear it could create a chilling not corroborate it, not take the case journal, may be eligible to receive damages effect on campus ... Getting called to unless the adminis- from the assistant district attorney who ap- said Elan Lubliner, a the dean of students’ office is like get- member of the news- tration took some proved a search warrant for his home, the ting called to the principal’s office.” punitive action. paper staff. “ Jeff Jeffrey 10th U.S. Circuit Court of Appeals ruled Although the Administrators editor in chief, The Daily Reveille, Louisiana State University April 16. would not confirm or Education Depart- Greeley Police searched Mink’s home in refute the story be- ment oversees the December 2003 and confiscated his com- cause they did not want to violate federal implementation of puter after University of Northern Colorado privacy laws, they said. The newspaper de- FERPA, a spokesman said it would not be- Professor Junius Peake filed a complaint after cided to report the story nonetheless, as an come involved, even if it is found that ad- a doctored photo of him was published in opportunity to address students’ rights on ministrators wrongfully interpreted the act the online journal, according to the ruling. campus, Lubliner said. in order to censor student expression. Days after the search, officers told Mink’s Ultimately, the principal censored the “We’re talking about disclosure of infor- attorney they were pursuing charges under story because it violated the student’s privacy mation that comes not from an education the state’s criminal libel law, which makes it rights, said Jim Negri, superintendent of the record but is disclosed by a student,” said a crime to maliciously publish false, damag- school district that includes Campolindo Jim Bradshaw, an Education Department ing information about someone who is not High School. spokesman. “We would only take notice if a public figure. it were a school official that was releasing the The U.S. Department of Education, Mink filed a federal lawsuit that said information improperly.” which oversees FERPA enforcement, has the criminal libel law violated his constitu- Students would not find any more help said that it does not consider the student tional right to free speech and that he was in legal precedents for autobiographical media subject to the act – meaning FERPA seeking damages for the search and seizure speech – the conflict over which still is in its does not bar newspapers from releasing in- of his property. A federal district court dis- infancy – said Sonja West, an assistant pro- formation. missed Mink’s case in October 2004, saying fessor of law at the University of Georgia. his claims against prosecutors were protected Despite that, Negri said he believes the In an article scheduled to be published school has the authority to regulate what by absolute immunity, and as he was never this spring in the Washington University Law charged under the criminal libel law, he information the newspaper releases because Review, West calls for increased constitution- the paper is produced in a class. lacked standing to challenge it. al protection for autobiographical speech. Mink appealed the district court ruling, “Under a class all schools have control “Courts and commentators have paid over factual information and student privacy and the federal appeals court ruled he did basically no attention to the constitutional not have standing to challenge the criminal rights,” Negri said. “As a class, it’s not an in- protection of autobiographical speech,” she dependent newspaper.” libel law because the district attorney stated wrote. “The right to tell your own life sto- he would not pursue the charges. The panel The Contra Costa Times,, an area news- ry has received only passing reference in a paper, which Lubliner also works for, ran handful of lower court decisions.” n See Criminal libel, Page 45

Spring 2007 www.splc.org • splc report 19 ACCESS Discretionary searches College and universities looking for new leadership insist that secrecy is the only way to attract the best candidates

By Jared Taylor Jim Lewers said it was “pretty simple.” The Iowa Board of Regents violated state open meetings laws during its search for a new president for the University of Iowa, he contends. “They had a regular meeting … and at the end of the meeting they didn’t officially adjourn and they met both in person and by telephone several times over the next sev- eral days,” said Lewers, managing editor of the Iowa City Press-Citizen. And he’s not alone in his concerns. Lewers’ concerns about transparency in public university presidential searches are shared around the country, as large public universities such as Ohio State University, Oklahoma State University, Purdue Univer- sity and the University of Iowa, among oth- ers, are looking for new leadership. Indiana University announced its new president in disclosed,” Gartner said. chancellor of the University System of New March after a completely closed search. Hampshire. Lewers and the Press-Citizen filed a Charles Davis, executive director of the lawsuit against the Regents, alleging that Open or closed? National Freedom of Information Center members illegally gathered in closed session While freedom of information advocates in Columbia, Mo., has performed research without notice several times from Nov. 10 contend that administrator searches at state on how public university searches are per- to Nov. 17, 2006, to discuss public matters universities should be as open to the public formed. He said closed searches for public regarding the presidential search. as possible, higher education advocates say university administrators are “scandalous.” “They contend it was one big meeting searches must have at least some confidenti- “A search committee and a headhunt- — a continuation of the meeting,” he said. ality to attract the best candidates, who may er working for the search committee have Michael Gartner, executive director of fear that looking elsewhere could jeopardize a vested interest in getting the job done,” the Iowa Board of Regents and a former their current job. Davis said. “They want to get the job done newspaper editor, said the discussions were Claire Van Ummerson is the vice presi- right, but they have a [primary] interest in “one adjourned meeting to discuss a per- dent for the Center for Effective Leadership getting someone in that job.” sonnel issue.” at the American Council on Education, a According to a recent survey conducted Gartner said the board operated within Washington-based higher education advo- by the American Council on Education, Iowa open meetings regulations because cacy group. 52 percent of universities relied on external they gave notice of the closed session dur- She said for a public university to lure search firms to find new leaders in 2006, an ing its Nov. 9 meeting. the best leaders to its campus, identities amount that has “close to doubled in the The meeting, which the regents claimed should not be disclosed until finalists are last 20 years,” Van Ummerson said. lasted until Nov. 17, 2006, remained closed named. Much of the rise in closed presidential to the public because some of the four presi- “If you’re trying to attract people who searches has come from increased use of pri- dential finalists did not want their identities are [currently] presidents…you need to vate search firms — or headhunters — to revealed, Gartner said. give them some level of confidentiality,” pursue talent, just as major corporations “I wouldn’t have minded disclosing said Van Ummerson, who has also served as would search for a new high-level execu- them, but the candidates didn’t want them president of Cleveland State University and tive.

20 splc report • www.splc.org Spring 2007 ACCESS

Bill Funk is one of those headhunters. lic universities, the process becomes easier presidential search will spark an open access Funk has been in the higher education for the committees and consultants while controversy on campus depends on how it recruiting business for more than two de- shortchanging the public’s right to be in- was done in the past, Funk said. cades and today heads his own search firm. formed. “The first thing we inquire about is what He and his associates are responsible for “It helps them control the field and is [the hiring school’s] tradition and what is finding more than 60 sitting presidents at hand pick the finalists,” Davis said. “If they your history of doing things,” he said. “We universities across the country, from Wash- can close it to public scrutiny, then they can try to counsel them about the ramifications” ington to Massachusetts and plenty of pub- be dealing with a lot fewer people.” of open or closed searches. lic and private institutions in between. Much of the controversy that surrounds In 2000, Funk recruited Martin Jischke, Funk says that “probably 60 percent” how presidential searches are conducted is who was president of Iowa State University, of the searches his firm conducts today are rooted in traditions of different levels in the to the same position at Purdue University, a open — that is, the names of candidates university hierarchy, Funk said. public institution in Indiana. who are finalists are revealed before hiring When most public universities look for That search was completely closed, as is decisions are made. a new department leader or college dean, the current one headed by Funk to replace “If you’re a provost, vice president or the vast majority of searches are out in the the retiring Jischke at Purdue, who earned other dean, there’s a pretty widely accept- open, Funk said. But when many of the $880,950 during the 2006-07 school year ed notion that you will be revealed,” Funk same faculty members are appointed to look — the second-highest salary among all pub- said. for a new president, more is at stake. lic institutions, according to The Chronicle But if a public university wants to bring “The ethos changes as you move up the of Higher Education. a sitting president at another school to lead ladder of executive rank” to demand a more “They really did want to look at sitting its campus, the recruitment process needs closed search, Funk said. “We try to tell presidents because they felt they were at to be closed until the candidate is hired, them at the presidential level there’s a dif- [that] stage,” Funk said. “That process really Funk said. ferent reaction.” helped them.” “If their names are revealed before they Davis says there’s a more basic reason “The reason it’s not problematic at Pur- are a finalist, they will drop out,” he said. for how things are done at the top. due is that is how that’s how they’ve always When finalists’ names are revealed in “There’s an economic food chain in done it.” searches, “essentially you wipe out the sit- institutions of higher learning and univer- Davis said regardless of tradition, closed ting president possibilities” because of the sity presidents want to climb up,” he said. searches are simply a bad practice. negative image that revelation sends back to “Everybody in a market economy wants to “I think everybody is trying to apply their current campuses. move up in terms of prestige and pay and a private sector model into a public sector “It will scare away sitting presidents — responsibility. I don’t see how open searches job,” Davis said. “They use all sorts of cor- your pool will be skewed,” Funk said. are going hurt that.” porate terminology to make it sound like Back at the University of Iowa, Gartner When a provost is revealed as a presi- these guys are going to be running a bank said the Regents “conformed with all aspects dential finalist and not hired, they can find or something instead of a flagship institu- of the law” because the closed session was themselves on the hot seat and could lose tion that is funded by the public.” used to discuss the presidential candidates. their jobs back home, Funk said. “No action was taken because you can’t “Over the 25 years I’ve been take action in a closed meeting,” Gartner doing this, what happens usu- said. ally is that is not the reason they On Nov. 17, 2006, the Iowa state Board are ultimately let go,” Funk said, of Regents emerged from the private meet- “but it becomes, if you will, the ing and voted to scrap the Regent-led presi- catalyst and they find reasons dential search and restart the process. over the next six to 12 months A new presidential search led by the to move them out.” university’s faculty commenced in Decem- Davis said he disagreed. ber 2006. “If you’re incredibly popular Van Ummerson said if the University of at home, it doesn’t hurt a bit,” Iowa chooses to disclose its finalists, it could he said. “But if you are slinking hinder its quality of candidates. around in the dark back at home “They won’t probably end up with a sit- with one foot on a banana peel, ting president, but there are many sitting in you’re probably going to be in provost positions throughout the country trouble anyway.” who are well-trained and well-prepared to take these roles,” she said. Playing on tradition Davis said by closing the search at pub- But much of whether a

Spring 2007 www.splc.org • splc report 21 ACCESS

Sunshine State lives up to they go public,” Funk said. “What’s really university presidents were at least 61-years- its nickname unfortunate is you have four or five other old in 2006 — more than three times great- people who are out there. I think it’s kind er than twenty years earlier. State laws vary about how open public of a sham.” “There’s going to be a lot of retirements. university presidential searches need to be “It’s one of the ways you can get sitting Depending on hiring a sitting president conducted, Van Ummerson said. Typically, presidents in there.” isn’t going to work,” Van Ummerson said. presidential searches can remain closed un- While Florida’s law attracts presidential “It is not just individuals changing jobs, it til finalists for the position are named, she candidates in the open, other states likely is individuals who are retiring so the pool said. will not adopt similar policies any time is not as robust it used to be, in terms of But in Florida, all public university soon, Davis said. numbers.” presidential candidates’ names are made “I don’t see a lot of states moving in “In terms of numbers, there’s going to public before and throughout the search that direction to say the least,” Davis said. be higher competition for the people.” process, regardless of whether the candidate “I see more states falling to the headhunter But just because there is greater compe- applies for the job or is nominated by some- argument saying they have to close these tition for new university leaders, that does one else. things.” not mean searches have to be less open, Da- Sandra Chance, executive director of vis said. the Brechner Center for Freedom of Infor- The future “It’s very much the case that there is mation at the University of Florida, said the a shrinking talent pool,” he said. “Where state’s sunshine laws lets the public “make With a shrinking pool of talent, the I get off the bus is I don’t see how secrecy sure we have the best pool, but also the stakes could become higher as annual presi- helps that any.” most diverse pool,” and that public univer- dential salaries approach $1 million. At the University of Iowa, faculty mem- sity presidential candidates know they will More public university presidential bers are leading a search that has been more be made public before decisions are made. searches are closed as a result of aging lead- open than the last, with posted meeting Davis said Florida’s law shows that ership among university leaders, Van Um- times and minutes at the university Web transparent searches can succeed. merson said. She said that nearly half of site, although David Johnsen, committee “You can have a completely open search from day one until the hire and guess what? Florida hasn’t fallen into the ocean yet,” Da- U. of Tennessee promotes open presidential searches vis said. “There’s not evidence — anecdotal After losing two presidents in as Loughry said despite the higher or otherwise — to say that it has harmed the many years, the University of Tennessee overhead costs for a completely open caliber of presidents found in that state.” System needed to find a way to bring a search that included live Web casts of But as a result, Van Ummerson said “a new leader to its campuses who would candidate interviews and larger meeting lot of sitting presidents don’t look for po- be able to stick around for a while. rooms to accommodate the public, “it sitions in Florida” to avoid controversy at When former President John Shu- was definitely worth it.” their own campus, should they not be se- maker resigned amid financial and per- “It more costly, but the results we lected for the job. sonal controversy in 2003, the Univer- feel were beneficial particularly in terms “It’s very hard to go back to your cam- sity of Tennessee Board of Trustees set of the process enhancing the amount of pus and say ‘I didn’t want this job anyway,’” out to find a new president in a way that growth in communication among our she said. would allow stakeholders to scrutinize stakeholders,” which includes students, But even with some of the most open candidates and hopefully avoid future faculty and staff, Loughry said. sunshine laws in the country regarding ad- scandals. But conducting a search out in the ministrator searches, the public does not “It resulted in people from across open can have its drawbacks. always know the full story. our long narrow state feeling reengaged With other private searches going Funk, who recruited the current presi- and reenergized,” Andrea Loughry, vice on at other large public universities at dents at Florida State University and the chair of the University of Tennessee the time, some candidates did not want University of West Florida, where he said, Board of Trustees, said of the ensuing to be considered for the Tennessee job, “no shenanigans were involved,” has “ob- presidential search. Loughry said. served some cases where the sunshine law During the six months that led up “The sitting president’s comment worked in reverse of what it was intended to the hiring of current University of to our executive director was…‘Why to do.” Tennessee System President John Pe- would I put myself through the public Sometimes search committees make tersen, the search committee conduct- search going on at Tennessee when I unofficial decisions in private, Funk said. ed one of the most open presidential can participate in these other searches?”’ “What happens is they decide who they searches higher education has ever seen, Loughry said. n want before they announce that final group she said. and promise that person [the job] before

22 splc report • www.splc.org Spring 2007 ACCESS chairman and dean of the College of Den- jobs,” Funk said. upon the fact that they are keeping people tistry, said the committee has not decided Today, the Press-Citizen’s lawsuit is apprised on what has been happening,” whether to disclose presidential finalists’ pending in Polk County District Court and Kurtz said. names to the public. the University of Iowa is still without a per- Still, the presidential finalists may not Funk said he was not surprised to see manent president, but has set a July 1 hiring be disclosed to the public, said David John- the public outcry surrounding the private deadline. sen, the search committee’s chairman and search at Iowa. Past critics have praised the new search dean of the College of Dentistry. He said “You could have almost predicted that process as being more open than the first, the finalists could face anything from “ex- was going to be a slippery slope,” said Funk, with meeting notices and minutes pub- tensive campus interviews” or “could even who recruited Iowa’s previous two presi- lished on the university Web site. be a closed process,” as the committee has dents. “They had a tradition of how they did Sheldon Kurtz, faculty senate president not decided. these presidential searches” in the open. at the University of Iowa, led a “no confi- But Kurtz said presidential candidates at Keeping a search open does not mean a dence” vote of the Regents after the first the University of Iowa should not be afraid university will end up with an unqualified presidential search failed. of publicizing their candidacy to lead other candidate, Funk said. He said the new search committee, universities. “The only difference is you’re going to composed of university faculty, staff and “We can’t worry about them, we’ve got have no or certainly fewer sitting presidents students, has been more accessible and to worry about us,” Kurtz said. “We’re a in your pool because they are worried about transparent than the first. public institution. They’ve got to learn that confidentiality because it could hurt their “I think it’s going quite well, based they have to be out in the public.” n

ACCESS IN BRIEF

LEGISLATION access they deserve, and help restore the story published March 8 in the student public’s trust,” Yee said in a statement. newspaper, The Crimson White, detailed A California court ruled in August student journalists’ frustrations with the California senator 2006 that while the University of Cali- policy, which the story said started last pushes bill to make fornia Board of Regents can discuss ad- summer when the university reshaped ministrator pay in private, no final deci- its public relations office. presidential salary sion could be made. The decision came Crimson White Editor in Chief discussions public in a lawsuit filed by theSan Francisco Marlin Caddell said the since the new Chronicle to stop the board from making policy has been in place at the Tuscaloo- CALIFORNIA — A bill that has unani- those decisions in closed sessions. sa campus, it has “filtered” information mously passed California State Senate Yee also introduced legislation that from all levels of campus administrators would allow greater public access to the was signed into law by Gov. Arnold — from low-level department directors state’s public university governing board Schwarzenegger in August 2006 explic- to the university president. meetings. itly prohibiting censorship of college University spokeswoman Cathy Introduced by Sen. Leland Yee student newspapers. n Andreen disputed Caddell’s claims, say- (D-San Francisco/San Mateo), SB 190 ing that all news outlets have to contact would require executive compensa- U. of Alabama media relations to interview campus tion packages drafted by the California officials. State University Board of Trustees and student journalists “Some people in the university the University of California Board of prefer that all media — not just student Regents to be discussed and voted on in say new interview media — go through media relations public. policy too restrictive office for interviews,” Andreen said. The California State Assembly will Caddell said his newspaper has now consider the bill. ALABAMA — Student journalists at complied with the policy until now, but SB 190 was drafted after lawsuits the University of Alabama said they are obeying the policy would hurt student and audits revealed that top administra- unable to easily interview school officials journalists’ ability to learn and build tors in the state’s university systems were after the university implemented an relationships with sources on campus. being paid more than the amount made unwritten policy that requires reporters “There will be nobody who remem- public. to contact the school’s media relations bers how things used to be and an that “SB 190 will bring much needed office for access to university faculty and this is an accepted way of doing things,” sunshine to these discussions, provide staff. he said. n members of the media the democratic The controversy went public after a

Spring 2007 www.splc.org • splc report 23 ACCESS A culture of open records This spring, the SPLC celebrated Sunshine Week, an annual event that encourages organizations to promote open government Although Sunshine Week is celebrated in March, advocates and journalists agree that open government should be an everyday occurrence. By Brian Hudson But the week itself is not the end goal. A reporter made an open records re- Student newspapers are essentially com- Rather, the purpose is to focus attention on quest, and with that data discovered that at munity newspapers, but with one trait that open government and records access that the campus’s computer lab, where printing sets them apart from their commercial coun- can be carried over to the entire year, said was free, students used more than 2 million terparts. Debra Gersh Hernandez, coordinator for sheets of paper each month, costing students Student publications, which are often the week’s events. and the university thousands of dollars. fueled by a volunteer work force, can field a “If you look at the myriad stories that The incredible amount of paper being larger staff. They can have a quicker response come from public records … it just shows used on campus, documented by a Novem- time. What students lack in experience, they how important it is to protect access” she ber 2005 article, caught the attention of stu- can make up for with tenacity for chasing said. dent leaders at the university, who began a down provocative stories. Pulitzer Prize-winning reporter Bill Stith push for quotas to limit students’ printing But that determination might lack direc- advocates that sort of perpetual dedication totals. tion, and even the most seasoned reporters to investigative reporting. Stith, who writes An investigative culture in your news- can run short of story ideas. To avoid that, for The (Raleigh, N.C.) News and Observer, is room will in the same way allow you to all reporters should be well versed in access- an expert in the use of electronic databases harvest stories from open records. It is a ing public records. – used in newsrooms across the country as resource that gives reporters the ability to These records can foster the kind of ar- computer-assisted reporting. translate natural curiosity into thorough in- ticles that both attract reader attention as He advises establishing a permanent vestigative articles. well as hold leaders accountable. Each year mechanism in the newsroom that will create During this year’s Sunshine Week, the hundreds of news organizations participate an investigative culture which, when nur- Student Press Law Center offered student in Sunshine Week, which is specifically de- tured by curiosity and dedication will allow journalists examples of stories they could signed to underscore the importance of ac- writers to naturally consider how informa- cover that would help create a culture of cess to government records. tion from open records can be used using open records in the newsroom. Here More than 700 groups were involved in That kind of diligence to culling open are a few stories from that week – some that the week this year, which ran from March records worked for reporters at The Daily Tar were published online and others published 11-17, 2007. Organizations participated in Heel, the student newspaper at the Univer- for the first time here. a new nationwide audit where they worked sity of North Carolina. In fall 2005, after an Try them out, or develop your own in- to obtain the same public document from editor became curious how much the uni- vestigation using public records and share many local governments. versity spent on printing costs. your successes. n — The next Sunshine Week is March 16-22, 2008, visit www.sunshineweek.org —

24 splc report • www.splc.org Spring 2007 ACCESS

Do it too! Salary Information Examining salary information at your school can We contacted the Montgomery County Public SPLC reporters sought records be a great way to uncover interesting stories. Schools for teacher salaries at JFK High School. Typically, only public schools have to disclose After exchanging e-mails to clarify what we of interest to students by salary information under state open records laws. wanted to obtain, a public information officer requesting information from At private schools, you may find some salaries provided us with a spreadsheet file of all the high for top administrators by requesting the school’s school teachers’ salaries. governmental agencies near Form 990 tax form. At the University of Maryland, Dale Anderson, Before slapping an open records request letter director of university human resources, said his our office. down on an administrator’s desk, ask to see the office discloses salary information it is obligated to salary information first. Use letters only when one share whenever a person provides an open records is requested or if a verbal request is denied. request letter, but typically charges for requests. You can write an open record request letter Anderson said that student newspaper The by visiting the State Open Records Law Letter Diamondback requests salary information from Generator on the SPLC Web site. his office every year.Diamondback editors said the To find out how area schools handle salary salaries are a popular feature. requests, the SPLC decided to contact the Univer- While the numbers alone might not make sity of Maryland and Montgomery County (Md.) the story, the information can be handy to have Public Schools and ask for salary information. around when that next big story breaks. n

Use our free state freedom of Health Inspections informationAccess letter it online generator! at Food service establishments across the country inspections it has had since February 2003. Those www.splc.org/foiletter.asp are subject to routine health inspections, and violations accounted for almost 20 percent of all those reports – be they from a school cafeteria or critical violations in the area’s restaurants in that five-star restaurant – are almost always open to time span. the public under state open records laws. The restuarant was cited five times for the pres- Health inspection grades likely are available at ence of vermin between January 2004 and April your county’s environmental health office, as are 2005 before the problem was rectified. One ques- past copies of inspectors’ reports. In some coun- tion for health officials, for instance, would be ties, the information is even posted online. why it took five consecutive health inspections for We reviewed the health inspection history of a the restaurant to correct its vermin problem. dozen restaurants in Rosslyn, the Arlington, Va., A health inspector explained that a restaurant neighborhood where the SPLC is located. The is closed when there is found to be an imminent Bus Maintenance records themselves may not be a story, but within health-hazard such as vermin infestation, which the reports journalists can find trends and investi- occurs when pests are present “in the food, basi- In seeking bus maintenance information in gate local hangouts and eateries. cally.” Arlington, Va., the Student Press Law Center For example, one Rosslyn establishment that “If it’s critical enough, we’ll take action,” he said. contacted the Washington Metropolitan Area has been particularly prone to health code of- “It’s judgmental: How many mice droppings do n Transit Authority, which runs the bus system in fenses tallied 68 critical violations during the 12 you get in trouble for?” Arlington, and Arlington Public Schools, which maintains school buses in the district. The WMATA offers policy procedures online, district rarely endorses a waiver. A request was but we called to request a fee waiver, which is submitted on Feb. 15 and a follow-up call was sometimes permitted by law for non-profits or made 10 working days later, when we learned our the media. We were redirected to the Office of waiver had been denied. An official there said it the General Counsel where a waiver was verbally would take up to eight hours of professional work Learn about your right to granted for a request under 100 pages. A detailed to obtain the records in a specialized computer e-mail request for maintenance records concern- program for the district’s 125 buses — totaling access athletic department ing a particularly bus route was sent Feb. 13 and more than $300. records at your school! our request was granted March 13. A search or copying fee can often be minimized Unfortunately, a waiver was not available from by reducing your request to a particular route or a Read about it on page 27. Arlington County Schools. A district representa- narrow time period. n tive said while she “commends” the research, the

— Read coverage from this and past year’s Sunshine Weeks on www.splc.org —

Spring 2007 www.splc.org • splc report 25 CAMPUS CRIME Incident highlights importance of Clery Act

watch out,” he said. tion methods with help from Security on Editors say Tampa police The federal Jeanne Clery Act requires Campus and the U.S. Department of Edu- inaccurately reported both public and private colleges and univer- cation. The Dean of Students Office was to sities nationwide to issue crime alerts in a provide a report about disclosing campus campus rape timely manner when major crimes — such security information to the university presi- By Jared Taylor as rapes — are reported. dent by March 30, but that deadline has The U.S Dept. of Education sent an e- been extended until May 30. After University of Tampa officials had mail inquiry to the university about how the O’Brien said the university has more failed to notify students and the student crime was reported after Security on Cam- readily reported crimes with fliers on cam- newspaper about a rape reported on cam- pus, a non-profit Clery Act advocacy orga- pus since the incident — after another rape pus, the university is reviewing its crime nization, sent an e-mail to the university occurred on campus and following a report reporting procedures to ensure they are in and the Department of Education about of a person seen allegedly carrying a gun on accordance with federal statutes. the situation. campus. No campus crime alerts were issued after Daniel Carter, senior vice president “I’m not sure if it was their own definite the alleged rape was reported to police on of Security on Campus, said regardless of effort to keep it secret but I do think that Jan. 27, and the incident was not included whether the incident was a date rape, the they [now] realize that they have to notify in the university’s campus crime log sent to University of Tampa officials failed to com- people,” O’Brien said. The Minaret, the University of Tampa’s stu- ply with the Clery Act, which requires all Carter also said student journalists dent newspaper. colleges and universities disclose crimes re- should check crime reports in person rather Victor O’Brien, editor in chief of The ported on campus. than rely on summaries or reports sent to lo- Minaret, said a flyer was posted in each “An institution can not fully comply cal media by campus security or police. dormitory on campus four days after police with Clery by having the default position, O’Brien said Minaret reporters have learned of the rape, but the newspaper and as you say UT does, that timely warnings started checking the campus police log other students on campus did not learn of will never be issued in an acquaintance rape themselves, in addition to relying on the e- the crime until Feb. 9, nearly two weeks af- case,” Carter wrote in an e-mail to Donald- mailed reports. n ter the incident was first reported. son. O’Brien said the rape was initially re- ported as a less serious crime. The alleged rape occurred after a man “We checked the police logs and it was accompanied an intoxicated University of posted as sexual assault instead of sexual Tampa student back to her dorm room. The More about the Clery Act battery,” he said. “They sent us that and we man grabbed his clothes and fled the stu- kind of trusted them to be accurate.” dent’s room when another student showed The federal law, last amended in University officials said they did not ini- up. Security cameras captured the man’s 1998, requires that colleges and tially report a campus security alert because blurry image when he left and the woman universities report crimes in the of the possibility the incident was a date reported the incident to police soon after- following seven major categories: ward. rape, although they admitted the crime was • Criminal homicide, including murder and not reported in a timely enough fashion, ac- During a telephone interview, Carter manslaughter cording to the St. Petersburg Times. said timely crime warnings are “impor- • Sex offenses, including rape and non- Dean of Students Robert Ruday defend- tant because it is the thing that will allow forcible sex offenses ed the university’s position in a message sent students to empower themselves” against • Robbery to all campus e-mail addresses. crime. • Aggravated assault “The primary question for authorities Under the Clery Act, university officials • Burglary on the scene after they secured the safety of should have issued a campus security alert • Motor vehicle theft and arson the victim was to decide if there was a con- within hours of the incident being reported, tinuing danger to the campus at large,” the Carter said. He said even though the sus- • Schools are also required to report liquor e-mail said. “In this particular instance, the pected rapist remains at large, the university law violations, drug law violations and il- university followed what we believed to be still has not issued an official crime alert, legal weapons possession. Statistics are appropriate protocols and fully cooperated which is generally provided via e-mail or also broken down geographically, and with local law enforcement.” with flyers posted on campus. must indicate if any crime was a “hate O’Brien said that students needed to “At this point, it probably wouldn’t crime.” know about the incident soon after it was make much sense, given how far out it is reported. and the information is well known,” Carter — Information compiled from the Security “They didn’t want to make a situation said. on Campus, Inc. Web site, www.security- with mass hysteria, but we should have O’Brien said university officials are re- oncampus.org known and women should have known to viewing the university’s crime alert notifica-

26 splc report • www.splc.org Spring 2007 LEGAL ANALYSIS Open records season College athletic programs, subject to open records laws, maintain data that can lead to stories coopy Doo, ace reporter for The Pa- per at Highbrow College, heard from Shis inside source, Bad Breath, that the nationally ranked men’s foosball team at Highbrow received $250,000 of new equip- ment last year while funding for the women’s team was cut for the third year in a row. He also tells Scoopy that nearly half of the play- ers from the team are in danger of flunking out because of poor grades. Frankly, Scoopy has often wondered how some of them were ever admitted to academically competitive Highbrow College in the first place. Finally, Bad Breath says that the ate budget reports listing such information as athletic staff salaries, school plans to raise tuition next year to cover a shortfall in the ath- revenues from sporting events and total program expenditures. letic department’s budget. Given that Scoopy and his classmates al- As college athletics become an ever-bigger enterprise at many ready pay $50 for a foosball match ticket and $10 for a stadium hot schools, the student media has an ever-growing obligation to moni- dog (not to mention the $1 surcharge for ketchup), Scoopy wonders tor their programs. The following guide should provide you — and where all of the athletic department’s money goes. Scoopy — with valuable tools for obtaining the information you Scoopy knows from past experience that Bad Breath’s leads can need to do your job. only be trusted so far. He will need independent confirmation. Un- fortunately, he knows that the tight-lipped public information offi- Student athlete graduation rates, admissions cer will once again simply point to the framed “No Comment” sign standards and financial aidI nformation on her wall when Scoopy approaches her. Fortunately for Scoopy, much of the information he seeks is avail- The Student Right to Know Act, a federal law passed in 1990 able because of: 1) federal legislation, 2) traditional state open records to remedy the perceived abuse surrounding athletic scholarships and laws or 3) the National Collegiate Athletic Association (NCAA). other athletically related financial aid, is one avenue for getting ac- While students attending a public school have probably always cess to this information. The law was also aimed at improving reten- had — and continue to have — a right to much of the information tion and graduation rates. Scoopy needs by using their state open records law, private school It requires most colleges and universities to issue an annual report students were generally out of luck. to the U.S. Department of Education. This report must compare the However, Congress and the NCAA, reacting to charges of ad- graduation rates of student-athletes to that of other students, broken ministrative abuse and poor academic performance by student ath- down by race and gender. It also must contain the total number of letes in some college athletic programs, have sought to more closely students at each institution compared with the total number receiv- monitor the situation by enacting laws and regulations that require ing athletically related student aid participating in various sports. schools to compile and disclose detailed information about the ad- Who must comply and what is the penalty for noncompliance with ministra3tion of their college athletic programs. For example, the the Student Right to Know Act? Student Right-to-Know Act and NCAA regulations grant students All postsecondary schools that receive federal financial assistance and the general public access to college and university reports re- (for example, institutional research grants, federal work-study as- garding enrollment and graduation rates of student athletes. The Eq- sistance or other grants for students and National Direct Student uity in Athletics Act requires schools to compile and make available Loans) and offer athletically related financial aid must comply with to the public annual reports comparing the amount of money spent the act. This includes almost all postsecondary schools issuing ath- on varsity programs for both men and women. And federally man- letic scholarships since virtually every postsecondary school — pub- dated “Program Participation Agreements” compel schools to gener- lic and private — receives some form of federal financial assistance.

Spring 2007 www.splc.org • splc report 27 LEGAL ANALYSIS

(Note, however, that because NCAA Division III schools cannot of- athletic aid broken down by major sport, 2) average college board fer athletically related financial aid, they will not be required by this scores, 3) courses of study and 4) average time spent to graduate by law to provide graduation rate information specifically for student athletes and non-athletes. athletes. They are, however, required to provide the overall gradua- Who must comply and what is the penalty for noncompliance with tion rate for students at their school.) Schools that fail to submit a NCAA regulations? report to the Department of Education would risk losing their eligi- All colleges and universities participating in NCAA competition bility for federal aid or face other penalties for noncompliance. are subject to the NCAA’s regulations. Schools that fail to submit the Where can I get this information? required information by the July 1st deadline will not be allowed to Reports required under this law must be filed with the Depart- enter a team or individual in any NCAA championship event. ment of Education by July 1 of each year. All schools must report the Where can I get NCAA information? data that they have (for example, the number of students attending, The NCAA makes this information available on its Web site, those receiving athletically related aid, etc.) regardless of whether or at http://www.ncaa.org/grad_rates/. You can find it by selecting an not they publish graduation rates. The Department of Education is NCAA Division and then an individual school. then supposed to summarize the data and indicate how schools rank The Web site also includes data on NCAA Graduation Success nationally. Rate (GSR) and the Academic Success Rate (ASR). According the According to Department of Education regulations, schools are NCAA, the GSR measures graduation rates at Division I institutions supposed to make their report reasonably available to the public and includes students transferring into the institutions. The GSR through appropriate mailings and publications. Reports should also also allows institutions to subtract student-athletes who leave their be kept on file for students or the general public to review upon institutions prior to graduation as long as they would have been request and must be distributed directly to prospective student- academically eligible to compete had they remained. athletes. Alternatively, this information should also be available by The ASR measures graduation rates at Division II institutions making a request (either informal or under the federal Freedom of and is very similar to the GSR. The difference is that the ASR also Information Act) to the U.S. Department of Education. includes freshmen who were recruited to the institution but did not In addition to requirements under the Student Right-to-Know receive athletics financial aid. Act, universities and colleges participating in NCAA competition are required by NCAA regulations, to make graduation rate (num- Financial data for men’s & women’s sports ber of students graduating within six years of enrollment) or persis- Athletic program financial data broken down by gender can be tence rate (a measure of how many students in a given class return to school for the following year) data, broken down by race and gender, obtained using the Equity in Athletics Discloure Act (EADA), a fed- publicly available. Division I schools must issue graduation rate data eral law passed in 1994 to address the unequal resources traditionally for the classes entering six years prior to the current year. Division II allocated to men’s and women’s athletics. and III schools are required to issue either graduation or persistence It requires every coeducational college and university that re- rate data annually as to how many students are enrolled. ceives federal funding and that participates in intercollegiate athlet- These reports must list the number of entering student-athletes ics to make an annual report publicly available. This report should receiving athletically related aid in various sports, the total num- compare the amount of money spent on men’s varsity sports pro- ber of students in the school grams to that spent on women’s, as well as list the revenues and and the average graduation or expenditures for each team. persistence rates of previous The EADA report must also include: (1) a comparison of the classes for athletes and non- amount of athletically related student aid awarded to student-ath- athletes. Division I schools are letes by gender, (2) the amount of money and other resources spent also required to report: 1) high on recruiting student-athletes, (3) the amount of annual revenue school grade point averages for generated by varsity teams and (4) the average annual salaries of the the collective group of enter- head coaches and assistant coaches of varsity teams. ing student-athletes receiving Who must comply and what is the penalty for noncompliance? Every coeducational college and university — public and pri- vate — with an intercollegiate athletic program that receives federal financial assistance (for example, institutional research grants, fed- eral work-study assistance or other grants for students and National Direct Student Loans) is subject to this law. Schools that do not comply with this provision risk losing their federal funding. Where can I get this information? There is no regulation indicating where the report must be made available. However, the Department of Education suggested in its regulations that if copies were left at the intercollegiate athletic of- fices, admissions offices, libraries or sent to each student by e-mail, this requirement would be satisfied. Students, prospective students, parents or coaches may not be charged for this information. Mem- bers of the general public can be charged reasonable copy fees.

28 splc report • www.splc.org Spring 2007 LEGAL ANALYSIS

ment their own reasonable guidelines for mak- FOI law in action ing these documents available to the public. For example, they may establish special times Indiana reporter uses law to dig up athletic program to view them or require an appointment. Such guidelines, however, may not impose an reports on 164 Division I public colleges unreasonable burden on the requester. Universities and students contribut- federal EADA report — which schools are These records will probably be kept at ed $1 billion to university athletic depart- required to file with the NCAA by January the athletic department offices or with the ments in 2005, according to a story by 16 of each year. Alesia ended up with in- school’s financial officers. Due to the flex- Mark Alesia of the Indianapolis Star. formation from 164 schools, a response ibility given to institutions in maintaining How did the Star get this scoop? rate of 76 percent. With this information, this information, there are various places that Working with a team of several other the Star reporters were able to ask tough these reports may be kept. reporters, Alesia sent requests to 215 questions about the cost of college What should I do if I have problems or ques- Division I public schools under each of sports programs, and the article came tions obtaining any of the records described the state’s open records law. (You can out in time for the 2006 Final Four. above? submit your own using the SPLC’s open The Star’s NCAA Financial Informa- records law request letter generator at: tion Database is available online, with While you should be courteous and un- http://www.splc.org/foiletter). all of the information gathered from the derstanding, you should also be firm. You — They asked for financial information 2004-05 school year. You can find it at and your readers — are entitled to this infor- on everything from ticket sales to student http://www2.indystar.com/NCAA_finan- mation. While it is hoped that most schools contributions, broken down by sport. cial_reports/ will be cooperative, inevitably some reporters This information is all part of each Check out your school today. And will run into roadblocks. school’s NCAA/EADA report — which pro- make it a habit to ask for this informa- In the event of trouble, it will be impor- vides a bit different information than the tion annually. n tant to put all requests in writing. Generating a paper trail is necessary for both personal ref- This law requires schools to inform students of their right to ob- erence and for holding individuals account- tain the information included in the reports but the Department of able. Initial problems can be directed to the Student Press Law Cen- Education will not regulate this requirement. The Department does, ter (http://www.splc.org). however, recommend that notice of the reports’ availability be given For more specific questions or concerns about the federal laws at least once annually in a widely circulated school publication, such discussed above you may want to contact one of the Department of as an institution bulletin or newsletter. Education’s Freedom of Information Act Public Liasons at (202) Alternatively, this information is also kept by the Department of 245-6651. Education. You can find it online at http://ope.ed.gov/athletics/, or To request information directly from the Department of Educa- it should be available by submitting a request, either informally or tion, using the Freedom of Information act, you can send an e-mail under the federal Freedom of Information Act. to: [email protected], or a fax to: (202) 245-6623. Finally, if you use the methods suggested by these parties and Athletic department budgets are still having trouble, you may want to consider filing a formal, written complaint against your school with the Inspector General’s Detailed financial information about a school’s sports program office at the Department of Education. You can write to the office can be obtained by invoking rights under another federal law, which at: U.S. Department of Education, Office of the Inspector General, requires schools to compile program participation agreements. This 400 Maryland Avenue SW, Washington, DC 20202-1510, e-mail law was passed in 1992, like the Student Right-to-Know Act, to to: [email protected] or call: (800) 647-8733 combat perceived abuse concerning athletic funding. It requires For more information about the NCAA regulations, you can most colleges or universities to compile annual reports that detail contact: Eric Hartung, Associate Director of Research, National the revenues and expenditures that can be attributed to their school’s Collegiate Athletic Association, at [email protected] or (317)917- sports programs. 6222. Revenues include, but are not limited to: 1) gate receipts, 2) There is a vast amount of information that college athletic pro- broadcast revenues, 3) appearance guarantees and options and 4) grams are required to disclose. With knowledge and persistence, an concessions and advertising. Among the expenses that must be re- enterprising student reporter should be able to dig it up. n ported are: 1) grants-in-aid 2) salaries 3) travel, 4) equipment and 5) Jay Hathaway, a law stuident at Rutgers School of Law in Camden, N.J. supplies. and a 2006 graduate of Knox College, where he served as editor-in-chief of The Who must comply and what is the penalty for noncompliance? Knox Student, helped update and revise this article. 1. 20 U.S.C. § 1092 (e). Every coeducational college and university — public and pri- 2. 20 U.S.C. § 1092(a)(1)(L). vate— with an intercollegiate athletic program that receives federal 3. 5 U.S.C. § 552 4. For more information, see Student Assistance General Provisions; Final Rule (Student Right-to-Know Act financial assistance and offers athletically related student aid (does regulations, 34 C.F.R. 668.48) not include Division III schools) is subject to this law. Schools that 5. N.C.A.A. regs. 13.3 (2006) and 30.1 (2004) 6. 20 U.S.C. § 1092(g). do not comply with this provision risk losing their federal funding. 7. For more information, see Student Assistance General Provisions; Final Rule (Equity in Athletics Disclosure Act Where can I get this information? regulations), 34 C.F.R. 668.45(a)(1), and 34 C.F.R. 668.47. 8. 20 U.S.C. § 1092(g). The Department of Education has said that schools may imple-

Spring 2007 www.splc.org • splc report 29 LEGISLATION

COVER STORY Legislation on the move Student free expression proposals sweep legislatures from coast to coast, some survive, but others meet an early end

By Erica Hudock laire Lueneburg and Sara Eccleston were just seniors at Everett High School when they filed a federal Clawsuit against their school. The Washington state high school in Ev- erett was hiring a new principal and, as edi- tors of their high school newspaper, The Ko- dak, Lueneburg and Eccleston assigned the staff to carefully report the selection process. When a candidate was chosen for the posi- tion, the student editors became suspicious; the selection committee’s student members had ranked two candidates above her. Articles suggesting that the student voic- es had been neglected were printed in the Kodak, which prompted the school principal to establish future prior review of the publi- cation. She also asked the students to remove the phrase describing the paper as a “student forum” from the Kodak’s masthead. The editors responded by refusing to print the next edition. When matters did istrative censorship. When he confronted the school district, but that decision was later not improve, they protested by means of a opposition from school administrators, he reversed by the Eighth U.S. Circuit Court of blank, four-page publication that only in- turned to state Rep. Dave Upthegrove (D- Appeals, stating the school could not meet cluded a statement about the incident and Des Moines), and the two focused on draft- the Supreme Court’s 1969 Tinker standard, one photo: Lueneburg and Eccleston posing ing a bill to protect both high school and which required showing substantial disrup- with their hands behind their backs and tape college students under one statute and also tion of the school activities or invasion of the across their mouths. the first student free press proposal in the rights of others. The U.S. Supreme Court Incidents like the one in Everett have at- state in more than 15 years. decided otherwise, reversing the decision tracted the attention of not only the media, Arkansas, California, Colorado, Iowa, one last time in favor of the school district but also politicians, students and journalism Kansas and Massachusetts have laws that and stating that school officials have some teachers who are taking steps to enact state protect high school students, the last en- authority to impose prior review and censor legislation and that would protect student acted in 1995. California also passed a law content for school-sponsored publications press rights. specifically protecting college students from that are not public forums. In Hazelwood, censorship in August 2006. the Court set a less protective standard for Student press freedom 2007 The majority of these laws and the recent some school-sponsored publications. state proposals stem from two major court But the Hazelwood ruling still does not In the spotlight of this movement are a cases — decided decades apart. The first sit well with some. number of student press freedom bills intro- case, decided in 1988, was the U.S. Supreme A heightened concern for college student duced this year, a trend that began in Wash- Court’s decision in Hazelwood School Dis- press freedom came after the 2005 Seventh ington state with one student’s vision. trict v. Kuhlmeier. The incident spawning the U.S. Circuit Court of Appeals’ decision in Washington State University student fight for the student press began in Missouri Hosty v. Carter, which said college student Brian Schraum found opposition at his for- when a Hazelwood East High School prin- newspapers in Illinois, Indiana and Wiscon- mer school, Green River Community Col- cipal censored two articles on the impact of sin could be subjected to the same restric- lege, in establishing a publications policy divorce on students and teenage pregnancy. tions set by Hazelwood. It was the Hosty de- that would protect students from admin- A federal district court ruled in favor of cision that prompted Schraum to push for

30 splc report • www.splc.org Spring 2007 LEGISLATION student press protection in his state. Over the past several months, Upthe- grove’s bill, HB 1307, faced opposition in- cluding aggressive amendments and party- Illinois takes line voting, ending with the bill’s death in the state Senate where it was not brought up for vote prior to the legislative deadline. Despite its sudden ending, advocates say on Hosty the track record for the bill is an impressive one. From the start, the bill gained 19 ad- ditional sponsors, all of whom were Demo- By Brian Hudson crats, and enough supporters to make any When the Seventh U.S. Circuit Court political candidate jealous. of Appeals handed down its decision The bill’s first hearing with the House in Hosty v. Carter two years ago, it of Representatives Judiciary Committee on was heralded as the greatest blow Jan. 26 attracted a crowd of students and against student press rights in al- advocates too large for the room. Despite most two decades. some disparaging words from the Washing- After Hosty, college student ton State School Administrators Association journalists in Indiana, Illinois and the Association of Washington School and Wisconsin for the first time Principals, the committee appeared to be could be subjected to the same moved by the words of the students and administrative oversight as their high school teachers with stories of censorship in their counterparts, according to the court’s rul- 7-4 vote. The committee also voted to defeat ing. The Hosty ruling an amendment that was proposed by Rep. Advisers and student journalists across Hosty v. Carter Jay Rodne (R-North Bend) that would have , which has been the the country breathed a sigh of relief when impetus for the recent rash of legislation, cut high school students from the bill. the U.S. Supreme Court declined to review Rodne’s amendment surfaced and was originated with a dispute between three stu- the Seventh Circuit’s ruling, which, if up- dent journalists at Illinois’ Governors State defeated for the second time on the House held, would have opened the ruling to the floor, and a victorious 58-37 vote sent the University and a dean who demanded prior entire country. The In- bill to the state Senate just before a legisla- approval of the student publication, But in the last several months, a silver novator. tive deadline. Still concerned about partisan lining to the Hosty ruling has appeared, as voting, Upthegrove and advocates sought to A lawsuit was filed and the Seventh U.S. lawmakers have begun proposing safeguards Circuit Court of Appeals ultimately ruled gain as much support as possible. for student press rights. The relief, however, Although crowds of supporters for the for the administration, in doing so applying has originated not in the courtroom, where Hazel- bill attended the March 27 state Senate Ju- the 1988 Supreme Court ruling in most student expression protections are es- wood School District v. Kuhlmeier diciary Committee hearing, Sen. Rodney that previ- tablished, but rather in state legislatures. ously had only been applied to high school Tom’s (D-Medina) amendment to strike Three legislatures, including one in the high school students from the bill was ap- publications. Seventh Circuit, have considered bills this The Hazelwood decision declared that proved in an executive session on March protect the collegiate press from prior review 30. The committee had initially killed the unless a student publication is designated a and restraint, and California has had such public forum for student expression, it could whole bill, but with Upthegrove’s persua- a law on the books since August 2006. In sion, consented to vote on it after striking be censored when school officials demon- each state, legislators said their bills were a strated a reasonable educational justification the protection for high school students and response to the 2005 Hosty decision. gaining Upthegrove’s written agreement to and their censorship was viewpoint neutral. But the efforts have largely been sepa- In their response to Hosty, some law- not attempt to re-amend the bill on the Sen- rate from one another, and the bills have ate floor. makers have gone beyond merely counter- taken different routes through their respec- acting the effects of the ruling. Legislators Upthegrove was “hopeful” about get- tive state legislatures. A noticable common ting the college portion of his original bill in Oregon have introduced a bill that also thread among the bills that garner the most would negate the Hazelwood ruling in high signed as it held less controversy than the support are those that frame the issue as high school guidelines, but many bills often schools. matter of civic education, rather than sim- The reaction has actually gone a step far- meet this fate, he said. Of the 2,700 bills ply as one of student press rights. that were introduced in the 2007 session, ther to protect the student press and restore As one First Amendment advocate put some of the rights to high school journal- only 540 were successful in making it to the it, the successful bills are those that are governor’s desk, according to the Washing- ists that have long since been stripped away. portrayed as “pro-citizenship,” rather than If this trend catches on in other states, the ton legislature’s office. “anti-Hosty.” See Legislation, Page 32 See Hosty, Page 34

Spring 2007 www.splc.org • splc report 31 LEGISLATION

From Legislation, Page 31 In retrospect, Upthegrove said greater Editorial battle success might have been achieved through more communication with Republicans Papers in Washington state spar over legislation prior to the session, as the bill’s support was Most newspapers are carefully crafted Times editorial columnist Bruce Ramsey split down party lines. documents that result from a lengthy process echoed Blethen’s statement in a Feb. 7 col- “One of the senators even indicated that of interviewing, writing, editing, fact checking umn, suggesting that the bill is in need of a to me, ‘You’ve made some good points, but and more editing. Once those steps are com- “good editor” because students should only I’ve committed my vote,’” Upthegrove said. pleted, a chief editor typically reviews the ma- have the rights that he as a professional has. terial before the paper goes to print. “I was kind of offended at the idea that a Although this has been a setback for the Because this laborious means of produc- high school student who is still just a kid could bill, Upthegrove said “it’s not a matter of if, tion requires care and attention, many profes- have a right that a professional didn’t have it’s a matter of when” he will reintroduce a sional journalists agree that students aspiring and wouldn’t be expected to have,” Ramsey bill in the near future that would protect to be reporters and editors deserve the op- said in an interview. high school students. portunity to produce their own publications to Ramsey contends that student newspa- “I feel like we’ve stated a movement gain a foundation of experience. pers do not belong to the students, as they are to some degree,” Upthegrove said. “We In light of the recent student press free- educational tools for students to use. shouldn’t view the bill as an ending place.” dom bill introduced in Washington state, the “The paper belongs to the school and its Seattle Times, the Seattle Post-Intelligencer function is educational and its function is to, Jumping on the bandwagon and other Washington commercial newspa- number one, teach journalism,” Ramsey said. pers have battled over this issue, firing salvos Other Washington newspapers including Whether the motivation for state student through editorials and columns. the Yakima Herald-Republic and the Walla press legislation came from Upthegrove’s State Rep. Dave Upthegrove (D-Des Walla Union-Bulletin, both owned and oper- lead or on-campus conflicts, evidence of a Moines) introduced a bill that originally called ated by the Times, also ran disparaging edito- for the protection of public high school and rials against the bill. student press freedom legislation movement college students from censorship and prior Union-Bulletin Editor Rick Doyle said in is apparent. review. a January editorial that he is “emphatically” Oregon state Rep. Larry Galizio (D-Ti- Offering his support and testimony at the opposed to censorship, but views ownership gard) caught the fever from the north and state House of Representatives hearing Jan. as the foremost right in the news business: proposed a bill, HB 3279, that would pro- 26, Post-Intelligencer Associate Publisher “That’s the real world, folks.” tect high school and higher education stu- Kenneth Bunting challenged a committee to “Student journalists — and every member dents in Oregon and encourage them “to vote in favor of the bill, stating that Washing- of the public — are entitled to the full protec- become educated, informed and responsible ton would set a notable precedent for the na- tion of the First Amendment,” Doyle said. “But members of society,” according to the bill. tion as a supporter of free student press. they — like professional journalists — aren’t Oregon state law gives free expression rights Bunting also said in an interview that edu- entitled to usurp the rights of the publisher/ cators and advocates around the country view owner.” to all citizens, but Galizio said students need Upthegrove’s bill as a “model” to “reinvigorate Doyle also said that a true “student news- further protection from those who might the ideals” that have protected student ex- paper” is one independent of school funding. read that law too broadly. pression in the past. Student Press Law Center Executive “Because of the sensitive nature of high His editorial, published the morning of the Director Mark Goodman counter-argued a school students and concerns in smaller hearing, alluded to those standards by quot- school’s authority over student publications in towns, there can be situations where a stu- ing the 1969 U.S. Supreme Court decision in his response to Blethen’s Times editorial. dent or students are writing an article that is Tinker v. Des Moines Independent Commu- “What these editors don’t seem able to not perceived favorable by administrators or nity School District, which said that students grasp is the fact that the school is a govern- interests in the community,” Galizio said. “do not shed their constitutional rights at the ment agency and a private newspaper is not,” Similar efforts to protect student pub- schoolhouse gate.” Goodman said. “The First Amendment was A rebuttal came six days later from Times specifically created to limit the government’s lications have been progressing in Illinois Associate Editorial Page Editor Ryan Blethen ability to censor. The school is not the ‘owner’ where Sen. Susan Garrett (D-Lake Forest) in his editorial, “Young journalists, meet your of these publications, the people are.” introduced the College Campus Press Act, editors.” The son of the newspaper’s pub- As director of student media at Oregon SB 729, in February, which would protect lisher and fifth-generation contributor to the State University and executive director of the state public college and university students newspaper, Blethen wrote an editorial stat- Northwest Scholastic Press Association, Frank from the Hosty decision. That ruling only ing Upthegrove’s bill “goes too far to correct a Ragulsky said he and his collegues do not applies in the Seventh Circuit, which is problem that could be solved collaboratively.” “take their roles lightly as teachers.” comprised of Indiana, Illinois and Wiscon- “The daily life of a journalist and editor “I don’t think teachers are going to let sin public schools. is one of give and take,” Blethen wrote. “The students run amuck and be blatantly irrespon- The College Campus Press Act, initiated best journalists become so by a constant sible,” Ragulsky said. “I think that even at the head-butting collaboration with editors. Stu- high school level, student journalists take by the Illinois Civil Liberties Union, was dent journalists would be well-served by learn- their roles pretty responsibly. With the proper quickly passed through the state Senate with ing to collaborate with superior rather than teachers, there are going to be huge learning the help of a unanimous vote from the Sen- bypassing them.” opportunities for them.” n ate Rules Committee. In the state House of

32 splc report • www.splc.org Spring 2007 LEGISLATION

Representatives, the bill has been assigned to bers. After some opposition, the students flag and school, those three things combined the House Rules Committee and also gained complied, but printed a blue box contain- make for a big issue,” Sheforgen said. “Look- bipartisan sponsorship from two represen- ing the words, “Originally a photo was to ing back on this, it’s better to ask for forgive- tatives: Rep. Naomi Jakobsson (D-Cham- be placed here, but it was censored by the ness than to give in. I absolutely would have paign) and Rep. Dan Brady (R-Blooming- administration.” printed it.” ton). Crier Editor in Chief Eric Sheforgen said Other organizations like the Indiana Carrying the bill relay east, Michigan that as the conflict escalated to levels of poli- High School Press Association are seek- state Sen. Michael Switalski (D-Roseville) cy change, he began doing his own research. ing supporters for student press legislation made his second attempt at a student press Amidst his reading of Hazelwood, Sheforgen through other means. IHSPA Executive Di- freedom bill by introducing SB 352 on also found that the last legislative attempt in rector Diana Hadley headed a First Amend- March 15. The bill was referred to the state his state to nullify the ruling was nearly 15 ment Symposium that took place March 6 Senate Education Committee. His previous years ago. Fortunately for him, the original where students, legislators, advisers and ad- bill, which was sent to the same committee, authors of the 1992 bill are still members of ministrators discussed student censorship in was heard on April 14, 2005, but ran out of the state legislature. the state. time before a vote could be taken. With the current efforts of Washington’s The IHSPA is currently is looking for a Despite a process parallel thus far to his advocates, Sheforgen said he wants to make sponsor to introduce legislation because “it first attempt, Switalski remains optimistic. the attempt as well and says he is making takes a village to move forward on some- “I believe this legislation addresses fun- headway. thing like this,” Hadley said. damental issues of the First Amendment to “A lot of the problem at Eric’s school is In addition to Minnesota and Indiana, freedom of speech and the free exercise of the that the principals do not understand…that Student Press Law Center Executive Direc- press,” Switalski said. “This bill has a better giving the students the freedom to be jour- tor Mark Goodman said he is aware of three chance of passing than in the past because it nalists isn’t going to mean they’re going to be other states where similar legislation is being is being considered by a new legislature.” irresponsible journalists,” Minnesota High pursued. Not only does he hope to see SB 352 en- School Press Association Program Assistant acted into law, Switalski is looking to educate Sarah Rice said. Are they ‘just students’? students that a free press is a “basic freedom” Rice said she and Sheforgen are develop- for Americans. He cited a 2005 survey fund- ing a plan of action to develop one for their Those in opposition say that high school ed by the John S. and James L. Knight Foun- state, beginning with a comparison of the students do not have the capability to re- dation, which revealed that nearly one half Washington and Oregon bills. While she sponsibly publish a newspaper and maintain of American high school students surveyed developed a memo to contact members of consistent content quality. believe media content should be approved the state legislature, Rice said Sheforgen re- A bill introduced in February by Kansas by the government prior to publishing. searched to find potential sponsors who are Rep. Don Myers (R-Derby) was designed to “I believe Senate Bill 352 would further interested in student expression and First allow the school and community to moni- help educate students on their First Amend- Amendment issues. Further support was tor the content of high school publications, ment rights and allow students to use their sought by contacting teachers and principals without conflicting with the Kansas Student creative talents to further their educational in Rice’s organization. As did Washington Publications Act, Myers said. Established experiences,” Switalski said. with its bill, Rice anticipates potential par- in 1992, the law grants student editors full tisanship and opposition. responsibility and states that “material shall Taking the next step “Minnesota is a progressive state and has not be suppressed solely because it involves a lot of forward-thinking ideas,” Rice said. political or controversial subject matter.” Although becoming involved in politics “The challenge…is the state doesn’t have Myers said he in no way wants to change may be far from a budding reporter’s mind, really active journalism schools. Maybe it that statute, but simply wants to offer “older many student journalists around the coun- could unite the journalism programs in the peer review” of what topics are appropriate try are taking an interest in the legislative state.” under community standards by means of process as a result of school-inflicted censor- For now, Sheforgen is also informing a committee consisting of a school board ship. other students about censorship through member, the superintendent and a parent Such is the case in St. Francis, Minn. for workshops to emphasize that high school within the district. staff members of The Crier, a student news- journalism is just as important as the colle- “It is permissive on the part of the com- paper at St. Francis High School. The staff giate and professional press. mittee that they review publications and it’s ran a photograph of a student holding what “Prior review is teaching students that not required that the students go along,” appeared to be a torn American flag. It was they’re not responsible for choosing their Myers said. in fact a tablecloth patterned with the stars content,” Sheforgen said. “Teachers are say- Student press advocates are speaking and stripes that was used for a scene in the ing, ‘You can write it, but we’re in control.’” against the bill, claiming that its measures school’s play. He said he has hopes for even more ef- are an “extreme” attempt to “gain outside When the principal found out about the forts by students across the country, but ex- control of the publication.” photo, he halted printing and said the photo pects it will take a crisis at their own school Washington alone has seen at least three was more of a political statement that could to motivate them to take action. be viewed as offensive to community mem- “As soon as you combine censorship, the See Legislation, Page 35

Spring 2007 www.splc.org • splc report 33 LEGISLATION

From Hosty, Page 31 Student press freedom legislation across decision in Hosty v. Carter could, in its own the country as of April 30, 2007 way, be a boon for student journalists at high schools and colleges.

Fighting Hosty California is the first – and thus far only – state to pass a bill in response to the Hosty ruling. The bill, sponsored by California Sen. Leland Yee (D-San Francisco), explic- itly prohibits prior restraint and other forms of censorship of the college press. Yee said in a recent interview that he fo- cuses on First Amendment issues, and when he learned of the Hosty decision he was com- pelled to act.

The bill was intended to ensure the pres- Laws on the books ervation of First Amendment rights for the Leglislation being considered next generation of journalists, Yee said. Leglislation failed in 2007 “Young people in school, learning that it is OK to exercise prior restraint, sets a dan- gerous precedent,” he said. might lie in legislative, rather than judicial, communications and public policy for the But the law is a somewhat symbolic action. ACLU of Illinois. response to the Hosty ruling because deci- Lawmakers, as elected officials, are more In the past, such communal efforts of- sions in the Seventh Circuit do not apply to accessible to citizens and the concerns they ten are organized casually – at conference California. Rather, the Hosty decision only bear. That relationship with constituents is meetings or through online communiqués applies in the Illinois, Indiana and Wiscon- evident in the origin of the bills in Illinois – he said. sin, although just one of these states has seen and Washington, where both got their start “There’s some activity that happens in progress in the legislature to combat the rul- with the lobbying efforts of First Amend- one state or another, then it gets picked up,” ing. ment advocates. Wyohnka said. “It’s a pretty informal pro- In Illinois, legislators are considering a A student in Washington, after failing cess the way in which that works.” bill that would effectively nullify the 2005 to persuade administrators at his school So while he said he would not be sur- court ruling. to change their policies, lobbied Washing- prised if Illinois College Campus Press Act The various legislatures do not have the ton State Rep. Dave Upthegrove (D-Des was replicated in other states, he said it is authority to overturn a federal court ruling, Moines) to intervene to protect student difficult to tell whether it will be picked up but through deft political maneuvering, press rights. In Illinois, the American Civil groups Wisconsin and Indiana. they can negate its impact. Liberties Union was the catalyst behind the Tim Withers, a lobbyist with the ACLU Because Hosty declared that only publi- legislation. of Indiana, said that so far there has been cations that are not classified open forums The Illinois chapter got involved last no effort to introduce a similar bill in that for student expression can face censorship, year after the U.S. Supreme Court declined state, and he expressed doubt as to whether the Illinois bill simply declares every public- to hear Hosty v. Carter. That decision ruled one would succeed in the current legislative ly funded college newspaper such a forum. out the possibility that Hosty would be over- atmosphere. So far the bill has steamrolled through turned in the courts, so the ACLU worked Republicans hold two-thirds of the seats the Illinois Senate, receiving unanimous with Illinois Sen. Susan Garrett (D-Lake in the Indiana Senate, and Democrats con- support both in committee and in a floor Forest) to introduce the bill. trol the state House of Representatives by a vote in March. It is now on its way to the If the bill continues through the Illinois slim majority. Illinois House of Representatives, where it legislature without opposition, it could be “Given the split, it would ultimately likely will receive a similarly welcome recep- signed into law as early as this summer. boil down to a partisan issue,” Withers said, tion, representatives predict. It is not yet clear whether the legislative adding that Republicans have largely been “I don’t think censorship has that many success so far in Illinois will be replicated in opposed to legislation establishing public fo- supporters from the General Assembly,” said other states within the Seventh Circuit. rums. “That wouldn’t gain much traction.” Illinois Rep. Kevin McCarthy (D-Orland Because the various chapters of the Wisconsin’s legislature is not contem- Park), who is chairman of the committee ACLU operate in a network of indepen- plating a bill either, said Bill Ahmuty, ex- that will review the bill in May. dent state branches, it is not always clear ecutive director of the ACLU in that state. That sentiment speaks to the underly- what activity will translate from one state Also, the ACLU in Wisconsin does not have ing reason why the answer to fighting Hosty to another, said Ed Wyohnka, director of a dedicated lobbyist in the state house like

34 splc report • www.splc.org Spring 2007 Libel &LEGISLATIO Privacy iNn brief the Illinois branch, and Ahmuty said that tention because the issue was rhetorically inconsistency could hinder the translation framed not just as a matter of journalism, of legislative success. Hosty in Louisiana? but one of citizenship. The starkly different political atmo- Administrators at Grambling State U. “It pointed out that journalism is an ap- spheres in the Seventh Circuit – where col- recently tried to apply the Hosty v. Carter plication of civics, and it’s more than kids legiate free expression bill has been unop- decision to their student newspaper, being able to write what they want,” Watson posed in Illinois while eliciting doubts in even though Louisiana is not in the said. “That has to be a precursor for any suc- Wisconsin and Indiana – underscores the Seventh Circuit, which is composed of cessful bill.” precarious nature of these efforts. Illinois, Indiana and Wisconsin. When framed in that light, the bill drew The conditions in each state differ great- the support of a broader base of lawmakers, Read about it on page 40. ly, and political tactics that succeed in one and the debate over the Oregon bill has the state might fail in another. same tone. It is in part because of these dissimilari- strategy can build a stronger argument and “It captures the meaning of journalism ties that no one has ever produced a defini- sets the tone for ensuing debate. as the vehicle by which people learn to be tive guide for effectively producing student Despite its failure, the Washington state citizens,” Watson said. “This is how you free expression legislation, said Mark Good- bill is the best recent example of a success- learn to be in a democracy.” man, executive director of the Student Press ful rhetorical strategy, said Warren Watson, In that same context, proponents need Law Center. who is director of J-Ideas, Ball State Univer- to highlight that principals would not be “It is so much dependent on the circum- sity’s national First Amendment and student held responsible for student-produced con- stances,” Goodman said. journalism institute. tent, he said. In most cases, however, there are re- Watson, who with J-Ideas has closely That argument is often cited by advo- sources that can be used to the advantage of followed the efforts to protect student free cates of student publication prior review, student press advocates. expression rights, said the Washington state and it was often invoked by opponents of For example, he said, an endorsement of bill was the spark that has been the impetus the Washington state bill. support from a free speech or journalism or- for similar bills in other states: “A rising tide Watson recommended underscoring ganization, such as the American Society of lifts all boats,” he noted. the contributions of the newspaper adviser, Newspaper Editors or the Society of Profes- While California was the first state to in- which can not only provide more insight on sional Journalists, can legitimize a lobbying troduce a bill in response to Hosty, Washing- sound journalism practice than most princi- effort and garner media attention. ton state’s bill has attracted more attention pals, but can do so without having to cen- Also, many of those who have lobbied from the press, and has been supported and sor. for student expression rights have found attacked on the opinion pages of Seattle’s “Each effort needs to show there’s re- success by developing a specific framing of newspapers. sponsibility and accountability in each the issue. In political terms, this rhetorical Watson said the bill attracted the at- school.” n

From Legislation, Page 33 advantage from these proactive steps toward it affirms the high school students’ First student press protection is a more open Amendment rights and it could take Ha- highly publicized incidents of student cen- discussion between students and school of- zelwood out of the driver’s seat,” Ragulsky sorship in recent years, including that of Lu- ficials. said, also adding that this movement is also eneburg and Eccleston, who were awarded Frank Ragulsky, executive director of affecting the college student publications as the 2006 Courage in Student Journalism the Northwest Scholastic Press Association, seen in the Washington, Oregon and Illinois Award by the Newseum, the Student Press an organization of student media advisers in bills. Law Center and the National Scholastic Alaska, Idaho, Montana, Oregon, Washing- Although deadlines cut the life of the Press Association. ton and Wyoming, said that “focus groups” Washington bill short, morale remains high In March, students at Lake Stevens High could be created to open communication for the next opportunity to reintroduce the School were censored from running an arti- between the community and school publi- bill. Upthegrove said he has been inspired by cle critical of an English teacher’s class, while cations. the “patience, persistence and motivation” of Vashon High School students were stopped Stephen Matsen, the Northwest director the people with whom he worked. from printing a piece criticizing the Hazel- for the Journalism Education Association, “We’ve really started a movement for wood ruling that can permit school officials said that the Washington bill was “fortu- student press freedom rights that started a to censor. nate” enough to be supported by the recent fire around the country,” Upthegrove said. “I acts of censorship in the state, which proved always try to look at the positive in things. Winnings to be gained the need for legislative action. One positive thing is we’ve started a move- Ragulsky hopes that the publicity and ment in Washington state that is going to Despite the controversy, these legisla- indirect support of other bills will lead to continue after this year. Next year we’ll be tive examples have proven to be learning the collective strengthening of student press back. We’ve started a large coalition in this experiences for students and educators, and protection in all states. state against the abuse of school administra- demonstrate the growing concerns about “If more states get involved, then I think tors. This is just the beginning.”n censorship. Many advocates claim that one

Spring 2007 www.splc.org • splc report 35 LEGISLATION Legislation targets ‘cyber bullies’ in class grades — even remote instances of But student press suicide, Kowalski said. “The damage being done to these kids advocates worry new who are being cyberbullied is just unbeliev- laws could inhibit able,” said Kowalski. Because it is a new phenomenon, the student expression long-term effects of cyberbullying on chil- By Jared Taylor dren are unknown, Kowalski said. “We don’t know the psychological ef- State lawmakers across the country are fects that cyberbullying can have,” Kowalksi introducing bills intended to curtail bully- said. “We think that they can have the same ing in schools via text messaging and the effects as traditional bullying.” Internet, but critics charge that the legisla- Henry Jenkins, director of comparative tion could trample students’ rights to free media studies at the Massachusetts Institute expression. of Technology, said the indirect nature of the Bills that mandate public schools cre- MySpace and other social networking Web ate policies against so-called “cyberbully- sites makes it easier for people to post de- ing” have been considered by legislatures rogatory comments online. in Arkansas, Florida, Minnesota, Nebraska, “MySpace can be like the local locker Oregon and Washington. Laws have already room, on occasion. The kid who is isolated can be picked on [by several people] all at been enacted in South Carolina and Iowa. discount in any way with the mental health once,” Jenkin said. “If you can’t see that pain As described in the bills, instances of cy- of kids in the school,” she said. berbullying can range from posting offensive on their face, you may push farther and content on personal Web sites to sending ha- deeper.” Free speech or harassment? rassing e-mails or text messages via cellular Critics of cyberbullying legislation say phones. that dealing with bullies is part of growing Justin Layshock has experienced the Proponents of the measures say they are up. consequences of being accused of cyberbul- necessary to protect children’s emotional Bennett Haselton, founder of Peacefire, lying firsthand. well-being, but opponents remain wary that a youth free speech advocacy group, said stu- But rather than being charged with vic- vague language in the legislation could limit dents have encountered bullies “since people timizing another student during his senior legitimate student expression. have been passing notes in schools.” year at Hickory High School in Hermitage, Cabell Gathman, a researcher at the “Now it’s in a form that is visible to ad- Pa., Layshock was punished in December Massachusetts Institute of Technology who ministrators, but that doesn’t mean that kids 2005 for creating a parody of principal Eric specializes in social networking sites such as haven’t been dealing with it for a long time,” Trosch on MySpace, a popular social net- MySpace and Facebook, said most cyberbul- he said. working Web site. lying on the Web arises when users publish Mark Goodman, executive director of “Any person with brain function that’s inflammatory comments on other users’ the Student Press Law Center, said that chil- not, like, a small child, knows that this wasn’t profiles. dren need to learn how to handle criticism done [by Trosch] himself,” Layshock said. “You can delete things [from your pro- from their peers. Layshock’s situation shows that cyber- file], but you can only delete it when you “What some people refer to as bullying is bullying does not always involve student- know it’s there,” Gathman said. “There’s no simply criticism, and we do our children no on-student intimidation. screening system that makes [posts] invis- favors if we protect them from the criticism The MySpace page included a photo ible.” that is a part of life in this world,” Goodman of Trosch and included short responses to Robin Kowalski, a professor of psycholo- said. “Speech that’s harsh or critical has to be an online survey, which Trosch alleged has gy at Clemson University who has researched protected by the First Amendment whether defamed his reputation. He said he created cyberbullying’s effects on children, said in a it’s being expressed by a 16 year old or a 60 the page on a computer at his grandmother’s survey she conducted with 3,500 middle year old.” house because he “was bored and just joking school students, 18 percent of respondents Kowalski said while she supports policies around.” said they had been victims of cyberbullying. that prohibit all forms of bullying, schools Other students created different false Like traditional face-to-face bullying, need to remain cognizant of student rights. profiles of Trosch on MySpace at the time, cyberbullying can have a broad range of ef- “You kind of have got to balance First but Layshock said he was the only student fects, from minor depression to severe drops Amendment rights, which I don’t want to who admitted to creating one of the pages,

36 splc report • www.splc.org Spring 2007 LEGISLATION and felt pressured into taking responsibility. tronic, written, verbal or physical act” that laws, which have “legal ways” to define ha- “I think they just wanted someone’s creates a hostile school environment. It de- rassment language, cyberbullying bills leave head on the platter to make an example,” fines “electronic” as communication that much to be interpreted and could step on he said. “[The administration] had the same “includes but is not limited to communica- student rights. amount of proof [about the others] as they tion via electronic mail, Internet-based com- “I don’t think many people would op- did with me, but [the other students] didn’t munications, pager service, cell phones and pose the idea of legal limitations on actual get caught because they didn’t admit to it,” electronic text messaging.” harassments,” Goodman said, “but the dif- Layshock was given a 10-day suspension Layshock said administrators should be ficulty with these proposals is the language is from school after admitting to creating the able to govern what goes on at schools. vague enough that it’s not entirely clear what page and spent two months in alternative “I think that if [bullying is] done at would be covered.” classes. He and his parents have sued the school using school computers, of course Haselton said while harassment laws school district for violating his First Amend- [administrators] should have some right to already define unprotected speech, the ano- ment free speech rights, excessive punish- govern what’s going on there,” Layshock said. nymity of the Internet would make it virtu- ment and interfering with his parents’ right “But if it’s done outside of school I don’t see ally impossible to find those responsible. to judge how to raise their son. what kind of right they have on it.” “If it’s something that’s insulting some- Today, Layshock has graduated and cur- Most of the bills do not cover bullying body anonymously, that’s not illegal and rently studies at St. John’s University in New that occurs off of school property or outside generally not trackable,” Haselton said. York. But new legal matters surrounding the of school, except in Minnesota, where the phony page continue to unfold. bill simply reads that school policies “shall Effective legislation? In April 2007, Trosch filed a lawsuit address intimidation and bullying in all Anti-cyberbullying advocates say that against Layshock and former students forms, including, but not limited to, elec- states need to change their anti-bullying Thomas Cooper, and brothers Christopher tronic forms and forms involving Internet policies to include electronic speech, such as and Brendan Gephart for creating different use.” The bill passed the Minnesota Senate phone text messages or on the Web. But crit- false MySpace pages that he claims defamed and has moved to the state’s House of Rep- ics say that vague language in the laws could his reputation. resentatives. allow administrators to use the policy to cen- If he could go back, Layshock said he In Florida, a bill under consideration sor protected speech. would not have participated at all. states that school cyberbullying policies A bill in Washington would require cy- “It’s caused a lot of trouble for me and must be approved by the state Department berbullying prohibition to be included in my family, a lot of unneeded stress,” he said. of Education as prerequisites to receive state school districts’ conduct policies initially “If [others] want to do something like this, funding. The bill was approved by the Flor- would have also attempted to regulate stu- be ready for the consequences.” ida House of Representatives in April, but dent behavior outside of school grounds. What divides harassment from protected did not pass through the state Senate before The state’s House and Senate have passed free expression by students on the Internet the legislative session ended. the bill. remains uncertain. States have been aiming But schools have to walk a tightrope be- But after the state’s American Civil Liber- to make that definition more clear. tween stepping on student rights and pro- ties Union chapter raised its concerns about In general, language in anti-cyberbully- tecting bullied students, said Thomas Hut- school administrators potentially overstep- ing legislation would call for school boards ton, staff attorney with the National School ping their bounds, the bill was amended and to draft policies against electronic harass- Boards Association. addresses behavior that occurs during school ment that involves students and school “Lots of forms of harassment are in the hours and on school grounds. employees — on school grounds or during forms of expression — so school districts Doug Honig, spokesman for the ACLU school activities. have to evaluate where you draw those lines of Washington, said he sees the bill as “tak- Governors in South Carolina and Iowa to avoid encroaching on expression you just ing the typical school concerns about bul- have already signed laws that prohibit cyber- don’t like — but then they have to consider lying and adding speech in cyberspace at bullying in schools. the well being of all the students under their school.” Similar to antibullying legislation in care,” Hutton said. “Schools don’t have authority to control states such as Washington, Oregon and Jenkins said many schools already pro- what students say off campus on their own Arkansas, the Iowa law mandates school hibit access to social networking sites on time,” Honig said. “They do have ability to districts to adopt an policy that prohibits school computers, but he says sites such and the authority to say what happens at school employees, volunteers and students as MySpace.com and Facebook.com “are a school” when it crosses a legal boundary. from “harassment and bullying in schools, place where young people learn how to net- Haselton said bills that look to curb cy- on school property, and at any school func- work.” berbullying at school would do little to stop tion or school-sponsored activity regardless “It’s much better to teach kids how to it. of its location.” use them in a rational way rather than lock “It’s a case of them saying they can’t pre- Looking closer at the Iowa statute, ha- them away,” Jenkins said. vent it — they just don’t want to be account- rassment and bullying includes “any elec- Goodman said that unlike harassment able,” Haselton said. “It’s not a case of them

Spring 2007 www.splc.org • splc report 37 LEGISLATION preventing something from happening, it’s aimed at a specific school and/or its person- just them wanting to wash their hands of nel is brought onto the school campus or ac- it.” You’re trying to fix into law some- cessed at school by its originator, the speech Goodman said laws that were intended thing that is constantly in flux and will be considered on-campus speech,” the to stop bullying could open the door for you’re never going to be able to decision read. other forms of muting student expression in adapt.” Hutton said school districts think care- schools. “ Henry Jenkins fully before creating policies on constitu- Director of Comparative Media Studies, “Under some of these bills, I think school Massachusetts Institute of Technology tional matters. officials would feel empowered to justify acts “Once you’ve asserted your author- of censorship of expression simply because will likely prove to be ineffective, Haselton ity to do something, there’s an argument they could claim it is harassment in some said. that you’ve asserted the responsibility to do way,” Goodman said. “I think most people “As long as it’s something that students something,” he said. would say if we don’t have the right to criti- can just as easily do from home as they could cize our government officials, we have no from school, it’s just for show, anyway,” Looking ahead meaningful First Amendment rights at all.” Haselton said. “You wouldn’t usually be able And with the constant changes of how As more cyberbullying bills become to find out who it was no matter what laws cyberbullying laws, students will likely en- social networking sites have developed on they pass.” the Web, legislation could quickly become counter free expression problems, Goodman outdated, Jenkins said. Past decisions said. “You’re trying to fix into law something Kowalski said schools could attempt to A deciding factor in student Internet that is constantly in flux and you’re never go- create policies against cyberbullying outside expression cases has involved whether the ing to be able to adapt,” Jenkins said. “You’ve of school, although parents would have to controversial expression took place on or off got a system that starts out rational and be- sign off on such a proposal. school grounds. comes irrational very quickly.” “Once they’re signed and agreed upon, In Beussink v. Woodland R-IV School Dis- then they are enforceable,” she said. Making the call trict, a federal district court ruled that school Jenkins said with restrictions against officials violated student Brandon Beussink’s expression that could be interpreted as bul- Cyberbullying policy decisions should First Amendment rights when they sus- lying, an environment could develop where be left to local school boards — as prescribed pended him for 10 days for creating a Web administrators “encroach on more speech in much of the states’ current legislation — page that contained vulgar language that was than they mean to,” such as statements that otherwise problems for schools could arise, critical of the school. are critical of political or ideological view- Hutton said. The judge cited Tinker v. Des Moines points. “It can put a school board in a very tricky Independent Community School District, a “All of those will be abuses of the [anti- situation where if you follow the law handed landmark U.S. Supreme Court decision that bullying] laws on the books and the conse- down by state legislature, it could you get said administrators may not censor student quences will be severe on young peoples’ free sued,” Hutton said. “The more prescriptive expression unless it causes a substantial dis- expression rights,” Jenkins said. [legislation] gets, there are some liability ruption of school activities or violates the Ultimately, Goodman said the deciding tradeoffs that school districts have to think right of others. line between free expression and cyberbul- about, and that decision is left best at the “Disliking or being upset by the content lying could be left to the courts, should the local level.” of a student’s speech is not an acceptable jus- bills become law. Hutton said while he is not opposed to tification for limiting student speech under “What I think we’re going to see later is state governments examining a continuously Tinker,” the Beussink decision read. there’s going to be cases in court testing the changing area such as the Internet and cy- But in J.S. v. Bethlehem Area School Dis- constitutionality of these restrictions,” he berbullying, but drafting policies that affect trict, an unidentified 8th grade student who said. “I think it may end with the courts ul- students should be left to the schools. created a Web site at home that criticized his timately rejecting some of these provisions.” “It’s a lot easier for a school board to math teacher and principal, comparing the Hutton said while the Internet has revo- change a policy than a state legislature to teacher to Adolf Hitler, the case was decided lutionized learning, cyberbullying is “the change a statute,” Hutton said. “I don’t mean very differently. dark side of it.” to be suggesting that states have no business The student was expelled for the site after “It’s unfortunate if the way we have to doing this, but there’s a lot of things that the school said it inflicted emotional distress figure this stuff out is because of lawsuits, need to be thought about.” upon the teacher and caused a disruption because the money comes out of some kid’s Any law that would curb online expres- among students at the school. The student education,” Hutton said. “It’s fortunate in sion could not keep up with technology, Jen- sued the school district, saying his Web site how it’s revolutionizing the way we live and kins said. was protected speech, but the Pennsylvania how schools can teach and [cyberbullying] is Any attempts — at the state or local lev- Supreme Court sided with the school. sort of the dark side of it, but the upside is el — to stop anonymous speech on the Web “We hold that where speech that is very powerful.” n

38 splc report • www.splc.org Spring 2007 Legislation Freedom to teach? Academic freedom legislation could tie professor’s tounges, and student’s rights, opponents argue

By Jared Taylor protection for the academic pursuit of A sweep of legislation from Arizona to independent ideas, Massachusetts aims to reshape the principles Horowitz’s Academic of academic freedom, which some say could Bill of Rights would limit free expression on campus. establish guidelines on Since 2005, 28 states have introduced how professors present so-called “academic freedom” bills based on material in classes. a broad spectrum of concerns, from assessing “While teach- “intellectual diversity” on campus to restrict- ers are and should be ing public university professors from grading free to pursue their based on personal opinions and expressing own findings and per- opinions in class without presenting alterna- spectives in present- tive positions. Among those states, bills in ing their views, they only four state legislatures — Arizona, Mis- should consider and souri, Montana and South Dakota — have make their students made it past committees before being voted aware of other view- down. points,” according to Opponents of the legislation say that the Academic Bill of it seems innocuous,” Berg said, but “what creating an environment that monitors free Rights. “Academic disciplines should wel- the bills would create is against what they are expression would discourage professors from come a diversity of approaches to unsettled trying to protect.” sharing their true opinions with the student questions.” Smith said while conservative state legis- media. They also contend that the bills are Horwitz’s bill also states “no faculty lators in Arizona, Kentucky, Massachusetts, unnecessary and safeguards already are in shall be hired or fired or denied promotion New York, Oregon, Texas and West Virginia place at colleges and universities. or tenure on the basis of his or her political have pitched Academic Freedom legislation Megan Fitzgerald, program director or religious beliefs,” which opponents say is this year, “no states have passed any of these of the Center for Campus Free Speech, an unnecessary legislation because professors at laws,” in 2007 or any other year. organization that promotes free student universities are already protected from dis- “It’s just really nothing more than a po- expression, said the bills are aimed to limit crimination based on their opinions. litical distraction,” Smith said. professors’ sharing personal opinions in Craig Smith, spokesman for Free Ex- In Arizona, lawmakers in 2006 voted class, which in turn would limit student ex- down a bill based on the Academic Bill of pression. change on Campus, an advocacy group against academic freedom legislation, said Rights. But a new version of the bill that was “Most of the bills don’t directly deal with introduced by Sen. Thayer Verschoor (R- student expression, but they certainly deal most of the legislation introduced regard- ing the Academic Bill of Rights came from Gilbert) in February 2007 would apply to with what students learn,” Fitzgerald said. state colleges and universities as well as the Although none of the bills proposed Horowitz’s group and not state lawmakers. “We want to make sure people get the all grades in the state’s public schools — un- have passed, lawmakers have continued to like any other bill based on the Horowitz introduce academic freedom legislation, facts about this, that they understand the bill is coming from a political organization language. Verschoor could not be reached with 11 new bills introduced since January for comment. 2007. The bills’ opponents maintain that the outside their state — not faculty, not admin- If the bill becomes law, instructors in bills would create more problems than solu- istrators, not students,” Smith said. Arizona state schools and institutions found tions in the classroom. Horowitz’s critics charge that his Aca- advocating any social, political or cultural is- Six of the 11 current academic freedom demic Bill of Rights would create a chilling sue in class would be subject to a $500 fine bills introduced in state legislatures this year effect on how professors present courses, and suspension or termination of employ- are based on the “Academic Bill of Rights,” rather than promote diverse opinions. ment, which is also unprecedented among which was first published by conservative Nicole Berg, spokeswoman for the academic freedom legislation. author David Horowitz in 2003. American Association of University Profes- Partially based on the 1915 General Re- sors, said the bills’ language is misleading Serena Unrein, executive director of the port of the Committee on Academic Freedom because “it would stifle debate rather than Arizona Students’ Association, said the bill and Tenure by the American Association protect it.” “would restrict the free exchange of ideas on of University Professors, which established “When you read some of the language, See Academic freedom, Page 45

Spring 2007 www.splc.org • splc report 39 COLLEGE Censorship Prior review nears end at U. of Texas

Since the new trust was adopted By Brian Hudson in February, the media Every school night for more than 35 board has had the dis- years, The Daily Texan had to make a detour cretion to end the on its way to the printer. Before a single prior review pol- drop of ink met newsprint, an adviser was icy whenever it required to comb through every word in wanted, but the the newspaper, searching for any legal gaffes board opted to editors might have let slip by. wait until the But for the first time this year, student newspaper was journalists at the University of Texas at Aus- insured. tin will shed that buffer and join virtually If the me- all of their college media counterparts, end- dia board still ing one of the most high-profile policies of does not have prior review in the country. libel insurance The policy was part of a 1971 trust by this sum- agreement, which the Texas Board of Re- mer, some on gents scrapped in February in favor of a new the board very policy that relinquishes control over Uni- well could vote versity of Texas student-produced newspa- to hold on to prior per, magazines, radio station and other pro- review temporarily, said Kathy Lawrence, grams to the Texas Student Media Board. but early in the news cycle, rather than at who as director of student media is charged the end. The regents no long assume liability for with carrying out the board’s decisions. Finnell’s job is a rare one among pub- content, although they will maintain con- After a long battle to free the newspaper lic college newspapers, where prior review trol of student publication assets. Now that from administrative oversight, students are largely is an outdated policy. responsibility officially lies with the media anxious to be finished, yet patient for a reso- Lawrence, a former president of College board, and it has set out to revise the stu- lution – partly because it seems inevitable. Media Advisers, the national organization dent media policy handbook. “The university is a bureaucratic mess, of professional media advisers, said she is After the new trust agreement was ad- and, you know, it takes a while,” said me- unaware of any other major public college opted, one of the media board’s first tasks dia board President A.J. Bauer, who is also that requires a newspaper be reviewed be- was to scrap the prior review policy, which it a former Daily Texan editor and a Student fore publication. unanimously agreed to do during its March Press Law Center board member. Because of that, The Daily Texan has 2, 2007, meeting. While no adviser since 1971 has been cited by proponents of prior review But The Daily Texan student editors are changed any aspect of the newspaper’s con- across the country, who say that the policy not yet editorially autonomous; an adviser tent without an editor’s approval, without at a major, award-winning daily student still reviews the paper each night before it the prior review policy, future editors will newspaper justifies similar policies else- goes to print and will continue to do so at never have to worry that an adviser might where, Lawrence said. least until the newspaper’s summer edition. interfere, Editor in Chief JJ Hermes said. But Daily Texan editors are reserving The transition of oversight from the re- “It’s just trying to make sure things are their celebration of the end of the policy. gents to the media board has been arduous, as healthy as possible for the future students Hermes said he was apprehensive that and three months after the regents’ decision at The Texan,” Hermes said. after so much work, there still might be to forfeit control, media board members The current adviser, Richard Finnell, some unforeseen complication that could still are working out precisely how they will said that of his 12 years in the position, he keep the policy in place. manage the university’s myriad publica- could recall reviewing only one news article “It’s got momentum in the right direc- tions. that could have been libelous. tion,” he said. “But [the regents] have the Many of the intricacies of the new ar- Finnell said the newspaper has been ability to change momentum whenever rangement remain unresolved. Even the able to avoid more instances of libel in part they want.” exact date for the prior review policy to of- because of programs like his staff-wide lec- Lawrence was confident that the dis- ficially end is still not certain. ture on media law each semester, aimed at mantling of the prior review policy would While most anticipate that prior review training the staff to spot libel and other legal be carried out successfully, and she fore- will be scrapped for the first issue of The mistakes themselves. sees nothing that would “muck it up.” Her Daily Texan’s summer edition in June 2007, After the prior review practice ends, he concerns, she says, are the less glamorous that deadline is contingent on whether the says he will continue to help the newspaper aspects of the transition – such as account- board purchases libel insurance by then. staff maintain sound journalistic practice, ing and personnel issues – which still must

40 splc report • www.splc.org Spring 2007 COLLEGE CENSORSHIP be worked out between the regents and the the opportunity to renegotiate the trust For example, the new agreement be- media board. agreement and develop a new agreement tween the newspaper and the regents in- The end of prior review at Texas is the that was satisfactory to both sides. cludes a provision that could allow the culmination of a work stretching over de- And, Lawrence said, it helped that the newspaper to become an independent non- cades, during which editors worked to grad- regents were open to acknowledging that profit entity – separate from the Board of ually dismantle the policy. University of Texas media was responsible Regents’ oversight. Until the effort of one editor about 10 for its content. The provision requires that the media years ago, the prior review policy was more “There were people on the board of re- board establish an endowment of at least $5 expansive, requiring the adviser to police for gents at this time who understood the First million, but it will likely be several years be- certain political content the newspaper was Amendment,” Lawrence said wryly. fore the newspaper will be able to establish prohibited from including. The duration of this effort highlights such a fund, Hermes said. The opportunity to finally eliminate the complications a student newspaper may The experience has been exhausting, prior review appeared about two years ago, face when trying to renegotiate its relation- consuming countless hours, Hermes said. when the Board of Regents developed an ship with the school. “There’s so much else going on down interest in analyzing the more than 30-year- The ordeal has been long and compli- here in the newsroom,” he said. “I’m glad old policy. cated, and it will extend beyond the current I’m finally at a point where I don’t have to During that time, the media board had editors’ time at the university, Hermes said. deal with this anymore.” n

COLLEGE Censorship in brief

IN THE COURTS Case: McDermott v. Long Island Univ., No. 002521/2007 (NY Sup. Ct. Nassau Case: Women’s Studies Org. of R.I. Coll. Students settle County dismissed Mar. 22, 2007). v. R.I. Coll., No. 06-00525 (D. R.I. filed Dec. 4, 2006). lawsuit after being State college’s legal fired for video motion tries to shirk SATIRE AND SPOOFS NEW YORK — The C.W. Post campus First Amendment of Long Island University settled in Satire article leads to February a lawsuit filed by five students RHODE ISLAND — An attorney who claimed the private university was representing Rhode Island College filed editorial review from wrong when it fired them from their in February a motion asserting that the administration resident assistant posts because they college is not an entity of the govern- made a video alleged to be offensive to ment and therefore is not subject to the CONNECTICUT — After outcry over Muslims. First Amendment. a satirical newspaper article advocating The out-of-court settlement, the de- The motion remained on the books rape in February, the president of Cen- tails of which were not publicly released, for just five days before the attorney, tral Connecticut State University created was reached to the “mutual satisfac- facing pressure from the Rhode Island a committee to review the publication’s tion of all parties,” according to a joint Board of Governors, withdrew it. A operating procedures and determine statement from the university and the spokesman for the board said the mo- how it can better practice “journalistic students’ attorney. tion did not reflect the views of the integrity.” During the two-minute video, titled board. The committee will reviewThe “A Duck Napping,” four of the students The motion was an attempt to Recorder’s constitution, the roles of its appear in ski masks holding a rubber dismiss a lawsuit filed by the American editors and adviser as well as its funding duck as “hostage.” They make ransom Civil Liberties Union behalf of a campus model, and it will compare these aspects demands in broken English while Mid- group, which is contending that the to peer institutions. The committee will dle Eastern-sounding music is played in college violated the group’s rights when then make a recommendation to the the background, and the words “Mu- administrators removed their signs advo- university community, President Jack hammad” and “jihad” are heard. cating abortion rights. Miller said in a Feb. 22 statement. The five students filed a $2.5 million The college is under the oversight of Miller maintains that the committee lawsuit in a state court, but it was not the Rhode Island Board of Governors is not an attempt to censor the newspa- been revealed whether the settlement for Higher Education, and this academic per, but rather is an effort to ensure that awarded the students money or allowed year the school received $126 million “students have the opportunity to learn them to keep their jobs. n in state funds – accounting for about a third of its budget. n See College briefs, Page 42

Spring 2007 www.splc.org • splc report 41 COLLEGE Censorship in brief

that journalism is far more than putting making process among student leaders. As promised in its ultimatum, the on paper whatever thoughts come to Among the new provisions is an ad- newspaper set out to pursue legal action, mind.” ministrator veto of student government but editors have been unable to raise the The committee was prompted by a actions, which should prevent disputes money to hire an attorney or to find one Feb. 7 article titled “Rape Only Hurts like last year’s student media funding who will waive legal fees. n If You Fight It,” in which the author cut, said Charles Brown, vice president satirically claimed that rape has been a of student affairs. Editor looks to secure positive force in Western civilization and In February 2006, student leaders benefits “ugly women.” In his statement, voted to cut $63,000 from the student financial autonomy Miller said that the committee is ad- newspaper and television station budget NEW JERSEY dressing long-standing concerns that the – an action that many saw as retribution — After a dispute this editorial “brought to light.” n for content critical of the student gov- year with student government, the edi- ernment. Brown said he probably would tor of Montclair State University’s week- have vetoed the funding cut. n ly newspaper is taking the steps toward Threat of lawsuit no making the publication financially inde- fun for spoof issue pendent from the university. Paper’s ultimatum In March, campus leaders reached NEW JERSEY — A spoof edition fails to return funding an agreement with the The Montclarion published by the Princeton University that would reduce the amount of stu- newspaper that mocked members of the MISSOURI — Almost three months dent fees the newspaper retains, while campus community drew ire in January after a delivering an ultimatum to allowing the newspaper to keep all of its and, at least initially, the possibility of administrators calling for their interven- advertising revenue. legal action. tion, the University of Missouri at Rolla The intention to gain financial The Daily Princetonian’s spoof issue, student newspaper’s efforts to restore its autonomy was announced in a Feb. 8 published Jan. 17 under the banner The funding have stalled. editorial, in which Editor in Chief Karl Gaily Printsanything, included an article In November 2006, the student gov- de Vries said the impetus for the an- that described a romantic tryst between ernment at the predominately engineer- nouncement was Student Government Professor Robert George and a gay ing school voted to slash the budget of Treasurer Maria Soares’ attempt to cut prostitute. The Missouri Miner by nearly a third. the $103,000 in student fees from the After the satirical issue came under Editors say they were told at the newspaper’s budget. fire for multiple articles, George told time that the funds were being cut in de Vries said he believes the attempt The Philadelphia Inquirer that he had part because the newspaper’s content to slash the budget was motivated by a consulted an attorney about the matter. was grammatically incorrect and biased personal vendetta, while Soares said the By April, much of the clamor over – an act of censorship, they say. decision to cut funding, which has since the spoof issue had died down, an editor The budget cut was part of the been overruled by the student body said, and George has not publicly pur- student government’s annual budget president and legislature, was a response sued the matter further. George did not allocation, which was later approved to the newspaper’s overspending. return phone calls from the SPLC. n by the administration. In February, the Under a new agreement, the news- newspaper delivered an ultimatum to paper will receive 40 percent less money STUDENT GOVERNMENTS campus officials, saying that if its fund- from student government. To make ing was not restored it would pursue up for the funding gap, the paper will Student gov’t legal action. be able to retain all of its advertising Although the university prefers to revenue. reshaped after remain uninvolved in such disagree- The funding structure will allow threatening press ments and let students govern them- the newspaper to begin to accumulate selves, a spokesman said, the admin- a “nest egg,” de Vries said, which could FLORIDA — Just more than a year istrators investigated the newspaper’s one day be put toward buying off-cam- after the student government at Florida allegation. pus office space. Atlantic University tried to cut student Within a week, administrators Since its inception more than 70 media funding, administrators have ap- reported they it found no evidence that years ago the newspaper has relied on proved new measures that they hope will any of the budget decisions were based the university’s support, and de Vr- prevent any future acts of censorship. on “the views expressed in The Mis- ies, who will be editor in chief again The new student government con- souri Miner,” and it concluded that the next year, admitted that the process of stitution, approved by the university’s student council’s actions were based making the newspaper independent will board of trustees on Jan. 21, adds addi- on legitimate financial considerations, require diligence. n tional checks on student power that are according to a letter delivered to the meant to encourage a better decision- newspaper.

42 splc report • www.splc.org Spring 2007 COLLEGE Censorship in brief

ordered him to leave. He says he was administrators had stolen the newspa- Attempt to cut heading away from the area when they pers, a claim Davitt initially denied. funding falls flat “changed their mind,” ordered him to While he admitted then that he had his knees and handcuffed him. problems with the ethics of the story, CALIFORNIA — The student news- Cui said one officer said into his Davitt denied being responsible for tak- paper at the University of California at radio, “We’ve got a suspect matching ing the papers and instead surmised that Santa Barbara faced a weeklong standoff the profile,” according to an article in a custodian or an angry faculty member with student leaders in January, when the Collegiate Times. Both Cui and the could have been responsible. the legislative council voted to suspend gunman, Seung-Hui Cho, are of Asian With the help of two anonymous the newspaper’s budget. descent. sources, El Vaquero was able to convince The impasse was resolved when Cui was released two hours later, but Davitt to admit that he told campus the student body president vetoed the without his camera, camera bag and the police to “hold” the newspaper until he legislature’s measure. two forms of ID police had taken from could discuss the article with the staff Students in the legislative council him. He said he was told his possessions and adviser. n say The Daily Nexus deserved to lose its would be returned to him at a later funding after it sold advertisements to a time. USC institutes former company facing a campus-wide boycott. After he was released the Collegiate The company came under fire from Times set out to retrieve Cui’s equip- editor’s proposals student government for its involvement ment, but during the chaotic ensuing in a real estate deal that evicted tenants days editors were not able to contact CALIFORNIA — Administrators at the of a 55-unit apartment complex near the anyone with the state police that could University of Southern California agreed campus. The legislative council levied speak about the camera confiscation. to implement a former editor’s sug- a boycott against the company and The newspaper’s ediors have said gestions for changes at the newspaper, declared that any student group under they hope to resolve the situation soon. n weeks after they rejected his application its funding umbrella, the Associated Stu- for reappointment. dents, could Retired president The changes include increased lose its fund- salaries for the staff and more transpar- ing if it does admits involvement in ency regarding The Daily Trojan’s budget. business with Former Editor in Chief Zach Fox the company. censorship offered the suggestions in his platform Al- CALIFORNIA — The former presi- when he was vying for a second term as though The dent of Glendale Community College editor, which was ultimately rejected by Daily Nexus admitted late last year to telling campus the university’s media board. receives almost $50,000 from the police in June 2006 to hold copies of the In making the changes, administra- legislative council, the publication has campus newspaper because of an article tors are also disputing the claim that the not been a member of the Associated denial of Fox’s application was moti- n that discussed depression and suicide. Students for almost 30 years. According to a December 2006 vated by the objections he raised in his MISCELLANEOUS BRIEFS article in the student newspaper, El Va- platform. quero, former President John Davitt had The editorial board’s decision to copies of the June 9, 2006, issue pulled block Fox’s potential second term was Va. Tech photographer because the article and an accompanying met by outrage from college newspapers detained, equipment cartoon were “slanderous to [the] nurs- across the country, at least 20 of which ing department.” published an editorial in December confiscated The June article named one of the 2006 chastising the university and VIRGINIA — Amid the chaos follow- two nursing students who committed questioning whether the decision was ing the April 16 shooting massacre at suicide during the previous school year, because of Fox’s “probing questions.” Virginia Tech, state police apprehended and Davitt found that to be offensive, A university spokesman said that the a student photographer and confiscated El Vaquero reported. He said the article editorials had misconstrued the situ- his equipment while he was covering the gave the impression that it was the ation and that Fox’s second term was story for the campus newspaper. “rigor of the [nursing] program [that] denied because he was seeking to make Shaozhuo Cui, photo editor for the contributed to [the students’] suicide,” changes to the position of editor at the Collegiate Times, was taking pictures according to the newspaper. same time he was applying for the job. as police evacuated Norris Hall, where Soon after distribution, the staff no- The university established a task force ticed that papers were disappearing at an to review Fox’s proposals, most of which a student gunman shot and killed 30 n students and professors before taking “alarming rate,” said Jane Pojawa, editor were approved in January. his own life, when two police officers in chief of the newspaper at the time. She said in June 2006 that she suspected

Spring 2007 www.splc.org • splc report 43 COLLEGE CENSORSHIP Grambling administrators implement prior review the paper’s production based on the 2005 By Jared Taylor Hosty v. Carter decision. In that decision, the After a semester that saw Grambling Seventh U.S. Circuit Court of Appeals ruled State University administrators shut down that limited freedom of expression rights ap- and reinstate the student newspaper, the stu- plicable to high school newspapers could be dent editor in chief says the weekly publica- extended to college campuses. tion’s operations have resumed without con- But the Hosty ruling does not apply to flict, and now wonders if the paper’s battle The Gramblinite, as Louisiana is part of the was all “for nothing.” Fifth Circuit. Citing concerns about the newspaper’s Smith said Dixon also justified the sus- content, Grambling State Provost Robert pension because students use state-owned Dixon shut down operations at student equipment to produce the paper. newspaper The Gramblinitein mid-January. Courts at both the state and federal level The newspaper was reinstated by the have held that the First Amendment forbids end of the month with review by a faculty almost all censorship of student-edited col- adviser prior to publication, which was later lege publications, regardless of whether the removed following complaints from student equipment is owned by the school. In the journalists and free speech advocates. 1975 case Schiff v. Williams, the Fifth U.S. Since then, Gramblinite Editor in Chief Circuit Court of Appeals recognized strong administration in a less-than-positive light,” Darryl Smith says that “everything has been free press protections for college student Goodman said. “That’s the end of journal- running smoothly.” newspapers and rejected acts of censorship ism and the beginning of propaganda.” “The stories we have come up with this based on concerns about “quality.” Smith said that with the support of lo- whole semester have been original,” Smith After The Gramblinite’sshutdown on Jan. cal media and national advocates, he issued said. “We haven’t had any problems with 24 gained attention from area media outlets, a formal request with Dixon’s office to have publishing the paper.” less than 24 hours later, Dixon met with the prior review policy revoked and for the But the student journalists’ ability to Gramblinite editors, who were allowed to university to adopt a policy that protects stu- publish comes only after administrators resume publishing the newspaper with new dents’ freedom of expression. started the spring semester with a strong- guidelines — and a catch. Not only did Dixon remove the prior armed attempt to take control the newspa- Smith said he looked forward to new review policy, but he also scrapped the other per’s editorial operations. measures such as a new copy editing course recommendations, such as the copy editing In a Jan. 17 memorandum sent to fac- and workshops with faculty. courses and workshops, Smith said. ulty Publication Director Wanda Peters, But the university also imposed a mea- “They basically said all of the measures Dixon wrote that the newspaper was sus- sure that required a faculty adviser to review have been thrown out,” Smith said. “We pended for the remainder of the month or all content before it was to be published. wanted a copy editing class and we wanted until administrators were satisfied that better College Media Advisers Inc., a national the mass communication faculty to help.” “quality assurance” was in place. Dixon also organization of student media advisers, the “It’s like we went through the suspension stated that he wanted mass communication Society of Professional Journalists and the for nothing.” instructors to assume a greater role in the Student Press Law Center immediately criti- Smith said he remains concerned that paper’s production. cized the administrators’ actions. the university has not adopted any policies Smith said in January that Dixon told “No faculty or staff adviser to the pub- regarding student free expression rights. him the paper had been suspended after lication should be asked to engage in such “I think they really want this to die on negative stories that upset Dixon. censorship or be held responsible for the its own,” Smith said. “If you let it die on its Smith said he complied with the suspen- content decisions student reporters and edi- own without any rules or regulations put in sion to protect the two newspaper advisers’ tors are legally authorized to make,” CMA place, it only leaves the door open for it to jobs, which he felt were threatened by the said in a statement released Jan. 26. happen again.” administration. Student Press Law Center Executive Di- But for Smith, who said he will graduate “It’s an issue where we want to fight for rector Mark Goodman called the prior re- in May, the process of having The Gramblinite the First Amendment, but at the same time view “clearly unconstitutional.” suspended and reinstated by the Grambling we don’t want to see two advisers lose their “University officials may say that it’s only State administration affirmed with him that jobs,” Smith said. to catch grammar and spelling mistakes, but standing up for your beliefs can pay off. Smith said that in a meeting with Dixon before you know it the unlucky employee “You’ve got to keep your head up against during the suspension Dixon told him that forced into this position will be editing the university and keep fighting for what’s administrators believed they could suspend things out that reflect the university or its right,” Smith said. n

44 splc report • www.splc.org Spring 2007 LEGISLATION

From Academic freedom, Page 39 feel like you already have [measures] in place Similar to the legislation based on and legislating is being very heavy-handed Horowitz’s Academic Bill of Rights, the in- Arizona’s state campuses,” both in classes and and redundant.” tellectual diversity bills include language that with the student media. While states have considered adopting recommends barring political bias during the “I think that faculty would self-censor Horowitz’s proposal, others are looking at hiring and promoting of professors. themselves and avoid having conversations policies that would examine and protect “in- Mitchell said when an instructor advo- with students and avoid the media if they tellectual diversity” at state universities. cates an opinion that is unrelated to a class, felt it could cost them their job or $500,” With language adopted from the re- “that’s not professional behavior.” Unrein said. port Intellectual Diversity: Time for Action “That’s not teaching, that’s not relevant, Brad Shipp is the national field director published by the Washington D.C-based that’s not helpful, that’s not professional be- for Students for Academic Freedom, an or- American Council of Trustees and Alumni, havior,” Mitchell said. ganization that supports legislation based on the bills contain provisions that would rec- Fitzgerald said that professors may pres- the Academic Bill of Rights. ommend eliminating speech codes that re- ent different opinions in order to stimulate “We are not telling the professor to not strict freedom of speech, creating student debate in classes. have an opinion. We’re not telling a pro- press freedom protections and prohibiting “Students generally want to be chal- fessor to not express their opinion,” Shipp viewpoint discrimination while distributing lenged, that’s how they learn and professors said. “What we’re simply asking is they don’t student funds, among others. are professionals that deeply care about edu- indoctrinate their students on one side of a But the bills based on the report also cating students,” she said. controversial subject.” call for regular studies to assess intellectual Mitchell said that intellectual diversity Unrein said any bill that would impose diversity at state university campuses, which legislation would not stifle free speech on requisites about opinions in classes would opponents say would create a similar envi- campuses. chill discussion among students and profes- ronment as the one pitched by proponents “We don’t want to see that problem and sors, even if proponents say it would do the of Horowitz’s Academic Bill of Rights. attempt to fix that problem and create a opposite. “You can only have the marketplace of bunch of other problems,” Mitchell said. “In order to have a vibrant marketplace ideas that makes critical thinking and higher But with the Academic Bill of Rights of ideas at universities, [students and profes- education possible when everyone in the and intellectual diversity legislation, oppo- sors] have to be able to freely exchange ideas classroom is able to bring up positions that nents say solutions are being proposed to and thoughts,” she said. “This bill would re- are relevant, without the legislature clamp- problems that do not exist. ally restrict that from happening.” ing down on them,” Fitzgerald said. Unrein said greater problems exist in But Shipp said he does not think that But Charles Mitchell, spokesman for the higher education today, such as high tuition ensuring academic freedom at universities American Council of Trustees and Alumni, rates. “is a legislator’s job.” said that regular intellectual diversity stud- “I think there are a lot of real problems “The university systems need to do this ies conducted by the universities would not in education, but we are talking about these on their own,” Shipp said. “We feel that the stifle free expression on college campuses. issues that don’t seem to be an actual prob- university system ought to take the academic “One of the best things that we think lem,” Unrein said. freedom language, whatever academic lan- institutions can do is to just do a self-study,” Fitzgerald said if a state or university guage they want to use, and include students Mitchell said. “There’s absolutely no reason were to adopt restrictions proposed in the in it.” to not ask students what they think about Academic Bill of Rights or intellectual diver- Smith said states have voted down aca- this every year.” sity policies, the “long term impact would be demic freedom legislation because it is not Lawmakers in Montana and Virginia a lower quality of higher education.” needed. have defeated intellectual diversity bills, but “A free exchange of ideas is absolutely “When [state lawmakers] sit down and legislation is also being considered Georgia critical to education, inside and out,” she look at what’s going on in their institutions, and Missouri, where the state’s house of rep- said. “The only way you get that free ex- they say we really don’t need to legislate resentatives passed an intellectual diversity change of ideas is an environment without this,” Smith said. “If there is a grievance, we bill in April. restrictions.” n

Appeals in the case urging that all criminal In that case, Ian Lake, a 16-year-old Criminal libel From , Page 19 libel laws be recognized as unconstitutional. high school student at Milford High School, also ruled that the prosecutor did not have Utah eliminates criminal libel was arrested and charged with one count of absolute immunity for investigative deci- criminal libel after posting derogatory com- sions and sent the case back to the federal Gov. Jon Huntsman Jr. signed a bill ments about the school’s principal and other district court for consideration. abolishing the Utah’s antiquated criminal students on his Web site. In April 2005, the Student Press Law libel laws in March. Sixteen states have a criminal libel law, Center joined with the Silha Center for the The bill comes after the Utah Supreme which is different from the civil libel laws Study of Media Ethics and Law in filing an Court ruled in the case I.M.L. v. State of in all 50 states that allow victims of alleg- amicus curiae — or “friend-of-the-court” Utah in November 2002 that the state’s edly defamatory statements to seek damages — brief with the 10th U.S. Circuit Court of criminal libel laws were unconstitutional. from speakers in civil court. n

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46 splc report • www.splc.org Spring 2007 Student Press Law Center Membership

Knowledge is the Best Defense and Membership is the First Step The Student Press Law Center now offers annual memberships.* The SPLC is the only national, nonprofit re- source center that educates and assists student journalists and their teachers/advisers on media law, censorship and other free-expression. Since its founding in 1974, the SPLC has been a leading advocate for student press rights and responsibilities in secondary schools and colleges and universities throughout the United States.

Join today and support the work of the SPLC. All of this comes to you for a small price:

Membership benefits include: $15 individual student $30 individual for teachers/advisers, parents or other non-students. • Subscription to the SPLC Report, a three-times-yearly maga- $60 high school student publication or student media department. zine that keeps you informed of all the changes in student me- $130 college student publication or student media department. dia law and challenges to student free expression in schools $300 associate memberships for associations, organizations or nonstu- and colleges in the United States. dent media.

Membership is for one full year beginning with the date membership is received. Donations to the SPLC, • Legal Alert, members-only monthly other than memberships, are tax deductible. (school-year) bulletin, that will be sent to your e-mail address. To become a member, send the following form to: • Discount of 10% on one or more copies of the CD-ROM version of Student Press Law Center Law of the Student Press, the most 1101 Wilson Blvd., Suite 1100 comprehensive and easy-to-understand Arlington, VA 22209-2275 guide to the laws, policies and court deci- sions that apply to student media in the United States. (High school, college and associate mem- Check membership category and payment: bers receive one free copy. [ ] $15 individual student • Access to free reprints of SPLC published legal analyses, [ ] $30 individual teacher, adviser or other adult which may be reproduced for classroom lessons, media staff [ ] $60 high school student media handbooks and other uses. Topics include libel; [ ] $130 college student media copyright; Hazelwood Supreme Court decision; [ ] $300 associate member for association or group privacy; freedom of information; campus crime [ ] Check enclosed. [ ] Purchase order enclosed. #______and campus court reports, among others. [ ] Donation (optional) enclosed for $______. Checks and school/college purchase orders only, payable to SPLC. Your payment and mem- • The opportunity to support the free legal assistance that bership information will be forwarded to the SPLC. you and all student journalists and advisers receive from the Name Date SPLC, including telephone and e-mail advice and referrals to media attorneys in your area when necessary. School/College Street address • Security in knowing that you will be kept up to date on the City/State/Zip legal issues you may face as a student journalist or adviser and on the latest information to teach your staff and students. Office phone Fax

*Membership benefits do not include voting privileges. E-mail URL

Spring 2007 www.splc.org • splc report 47 Want to join the team? visitus online at Become a reporting intern for the student press law center! Apply online at www.splc.org/internships.asp The SPLC offers three semester-long paid internships during the fall, spring and summer academic terms. Positions are open to students and recent www.splc.org graduates with journalism experience, an interest in media law and a passion for the First Amendment! SPLC Interns Cover: • College and high school • Anti-censorship legislation censorship • Internet issues • Newspaper thefts • Open records and meetings Apply for FALL 2007 and

SPRING 2008 positions NOW! !

STUDENT PRESS LAW CENTER 1101 Wilson Boulevard, Suite 1100 Non-Profit Org. Arlington, VA 22209-2275 U.S. Postage Paid Washington, DC Phone: (703) 807-1904 Permit No. 4702 Web site: www.splc.org

ATTENTION: STUDENT MEDIA

48 splc report • www.splc.org Spring 2007