The Student Press Law Center ("SPLC"), the nation's only nonprofit legal-assistance organization serving student journalists, is asking the Board of Trustees of Los Angeles City College in California to look into a pattern of threats to the editorial freedom of the award-winning student newspaper, the Collegian.

The letter of concern cites several instances in which the Collegian and its staff faced intimidation or retaliation for the content of their journalistic work, including a proposed transfer under which authority for the newspaper would be shifted to a new department, in an apparent attempt to exert greater administrative control over the newspaper's editorial content.

The SPLC was joined in its January 15 letter by the Foundation for Individual Rights in Education, Inc., a nonprofit advocacy group supporting freedom of speech on college campuses.

State Senator Leland Yee, D-San Francisco/San Mateo, California's leading champion of student First Amendment rights, has called for an inquiry into possible violations of student journalists' rights, but President Jamillah Moore has insisted that no violations occurred.

"LACC has damaged its own credibility with its stunning inability to find a First Amendment violation in a climate where such violations seem to happen as a matter of course. Finding a First Amendment violation at LACC is like looking for a needle in a needle stack," says the January 15 letter, directed to LACC Board of Trustees President Mona Field.

"It is beyond dispute that at a public college -- especially a college in California, which has the strongest student free-speech laws in America -- the student editors of a campus publication have the freedom to publish anything that is lawful, and to do so free from fear of reprisal," said Frank D. LoMonte, an attorney and executive director of the Student Press Law Center. "Unfortunately, L.A. City College has cultivated a climate in which student journalists fear that tough, honest journalism will be met with retaliation against them and their newspaper."

"We hope that the Board of Trustees will reinforce to the administration of LACC that an award-winning newspaper is something to be celebrated, and that the newspaper's editorial freedom is a vital part of its educational value," LoMonte said, noting that Collegian staff writer Mars Melincoff won third-place nationally in the 2009 Associated Collegiate Press competition for "sports story of the year" -- the only two-year college student recognized in that category -- for her investigation of academic irregularities in LACC's basketball program.

The letter highlights several examples of apparent violations of free-press rights on campus, including:

President Moore's demand that a student journalist covering an open, public meeting sign a "waiver" as a condition of being allowed to report on the events of the meeting.
A letter of reprimand issued to an LACC employee rebuking him for providing the Collegian with a copy of a public record that documented a (later-rescinded) 40 percent budget cut to the newspaper. (The letter of reprimand was withdrawn when it was shown that the employee was not the source of the document, but LACC has never acknowledged that it is improper to discipline employees for granting lawful requests for public records.)

Students in two-year public colleges in California are protected not only by the First Amendment to the U.S. Constitution but by California Education Code Section 76120, which provides that two-year colleges may not prohibit or punish speech unless it is libelous, obscene, or creates a "clear and present danger" of inciting its audience to break the law or otherwise disrupt the operations of the campus.

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.

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CALIFORNIA -- The high school that inspired a new Senate bill ensuring student free press rights for charter schools is now facing a stricter publication policy, leaving student journalists in a "legal limbo," the paper's adviser said.

SB 438, which if enacted will prevent attempted censorship by charter school administrators, passed the Senate's judiciary committee in a unanimous 5-0 vote today, according to the Orange County Register.

The bill, introduced by State Sen. Leland Yee (D-San Francisco/San Mateo), amends California Education Code Section 48907 -- the state's student free expression code -- to read "pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press ..."

The legislation serves to tighten ambiguities that administrators at Orange County High School of the Arts relied upon to defend a weeklong delay to print the student newspaper, the Evolution, according to the Orange County Register.

The Evolution, advised by Konnie Krislock, was postponed because of administrative reaction to two articles -- one about the school's theme of the year and one that was about the school's contract with a Christian food vendor.

The school's president and executive director, Dr. Ralph Opacic, told the Orange County Register this bill would not affect the Evolution, as it outlaws only prior restraint, not prior review. Opacic did not return calls by press time.

Opacic said the administrators did nothing that the amended law would make illegal.

"We did not restrain or censor anything," he told the Orange County Register. "Education Code Section 48907 does not preclude prior review, which is what we did in the incident."

But Yee's Chief of Staff, Adam Keigwin, disagreed.

"They looked at it and didn't like it and stopped publication," he said in the Orange County Register. "It was the act of stopping the publication, not the review, that violated the law. Prior restraint can be 20 minutes or 10 years. If there's a delay in publication because you need to review it, that's delaying the speech."

This delay worries Krislock, who said she was given an updated version of the school's publication policy the day before winter break.

In it are three items that "directly oppose" the student free expression bill, according to Krislock. They include banning advertisements inappropriate for minors and a school environment, providing a copy of the publication to administrators at least three days prior to printing, and appointing the school as publisher of all school publications.

Krislock now finds herself in a "legal limbo right now," between the current Section 48907 and "the possible penalty of my administrators saying I was insubordinate."

Krislock and her students are currently "acting like [the new publication policy] doesn't exist" and hope the Senate bill passes before the end of the month, when the Evolution's next issue is scheduled to print.

Attorney Jon Schoenhorn told a three-judge federal appeals panel that the principal of Connecticut's Lewis B. Mills High School overstepped the First Amendment in punishing Avery Doninger, then a high school junior, for a coarse remark about administrators on a LiveJournal.com blog.

Although the blog referred collectively to school administrators as "douchebags," Schoenhorn said that term appears regularly on prime-time television and even on the front page of the New York Times, and is simply a youthful slang for "jerk" rather than a vulgarity.

"When students use terms of this sort, they are not obscene or even vulgar," Schoenhorn told judges of the Second U.S. Circuit Court of Appeals.

A U.S. district judge in 2009 found no First Amendment violation in Principal Karissa Niehoff's decision to punish Doninger's commentary, which concerned a dispute over scheduling a battle-of-the-bands concert that Doninger was helping organize. Niehoff penalized Doninger by disqualifying her from running for secretary of the senior class.

The judge applied the Supreme Court's Bethel School District v. Fraser standard, which makes "lewd" speech punishable if it occurs on campus at a school-organized event. Doninger's blog was created at her own expense on a home computer, and there is no evidence that the blog's handful of readers ever viewed it at school.

First Amendment advocates fear that, if not overturned, the lower court's ruling will blur the distinction between off-campus and on-campus speech. The Student Press Law Center filed a friend-of-the-court brief in support of Doninger through volunteer counsel with the Washington, D.C., office of Hunton & Williams LLP, arguing that the ruling endangers the freedom of online student journalists to comment on school issues.

This is the case's second trip to the Second Circuit. At a preliminary stage of the case, applying different legal standards, the judges agreed that the blog punishment was constitutionally permissible. However, the case is now before a new three-judge panel, with only one holdover, Judge Debra Ann Livingston.

The judges pressed the school district's attorney, Thomas R. Gerarde, over whether the blog was factually false in indicating that Niehoff had canceled the band concert. The district judge relied heavily on his view that the blog was false -- the concert was canceled, but with discussions about resurrecting it -- in finding that the speech fell outside of First Amendment protection.

Gerarde conceded that the evidence was in dispute over whether the blog was actually false, but said there was no disputing that the statement was misleading.

The judges spent the bulk of the oral argument on a secondary issue, involving the school's ban on "Team Avery" T-shirts that supporters of Doninger wanted to wear to an election assembly to protest Doninger's disqualification.

The court focused on whether the Supreme Court's landmark student-speech case, Tinker v. Des Moines Community School District -- affirming students' First Amendment rights to wear anti-war armbands in school -- was similar enough to the Doninger case to make it clear that banning the "Team Avery" T-shirts violated the First Amendment. Tinker allows schools to restrict student expression only if it threatens to "substantially" disrupt school functions.

Doninger won on the T-shirt issue at the district court. If the Second Circuit affirms that ruling, then she will be entitled to a trial as to whether the T-shirt ban violated her First Amendment rights.

Gerarde described the prohibition as a spur-of-the-moment judgment that Niehoff was forced to make under pressure: "There are 600 kids filing into the auditorium, and all of a sudden around the corner come the T-shirts, ‘Team Avery,' and she's got to make a call. We don't know, are there 150 of these (shirts), are these the only two?"

Presiding Judge Jose A. Cabranes voiced skepticism that banning the T-shirts had any connection with keeping order at the assembly or protecting the integrity of the election, the two justifications offered by the school.

When Gerarde argued that "what the administration feared is that there would be a sea of ‘Vote for Avery' or ‘Team Avery' T-shirts," Cabranes shot back: "So what?"

"I am having trouble seeing how the wearing of T-shirts is going to cause disruption, much less that it will lead to any particular results in the casting of ballots," Cabranes said.

Gerarde said that part of the school's concern was to prevent students from disrupting the election by casting ballots for Doninger; in fact, a majority of students did write in her name, but their votes were disqualified. But under questioning from the judges, he acknowledged that the school would not take the position that it could punish the casting of a protest vote for Doninger as a disruption.

Gerarde said that the case was unlike Tinker because of the well-publicized blog controversy that preceded the election assembly, making it reasonable for Niehoff to anticipate student unrest.

But Schoenhorn responded that the Des Moines school administrators in the Tinker case also had reason to anticipate unrest -- and the armbands did actually provoke some disputes -- yet the speech was constitutionally protected.

As is customary, the appeals court took the case under advisement and did not indicate when it would rule. Rulings typically take at least six months.

The law firm of Baker & Hostetler LLP filed the brief Monday in Cook County Circuit Court in Chicago in the case of The People of the State of Illinois v. Anthony McKinney. SPLC attorneys prepared the brief on behalf of a coalition of leading media organizations that represent the interests of college journalists, including the Society of Professional Journalists, College Media Advisers, Inc., and the Association for Education in Journalism and Mass Communication.

The brief urges the Court to quash a State Attorney's subpoena for the student journalists' confidential work product, gathered in their investigation into the 1978 murder conviction of Anthony McKinney. The students' work, published on the Medill Innocence Project website, raised doubts about the legitimacy of McKinney's conviction and helped win a new court hearing for McKinney, who was convicted in the shooting death of a security guard.

Student Press Law Center Executive Director Frank D. LoMonte, an attorney, said the students are "reporters" as defined by the state shield law and are entitled to its protections. The shield law is designed to safeguard the integrity of newsgathering by allowing reporters to keep their unpublished newsgathering materials confidential, unless a court finds an overriding need for disclosure of information that is available through no other route.

"These student journalists were actively engaged in collecting documents and interviewing witnesses with the intention of informing the public, and that is all that the Illinois shield law requires," LoMonte said. "Student journalists are uniquely vulnerable to pressure from government authorities, and they are perhaps the journalists most in need of shield-law protection. The work of Professor David Protess and his students at the Innocence Project is incredibly valuable to society, and it would not be possible if his reporters were unable to promise their sources confidentiality."
The SPLC's brief states: "No matter how they are compensated and for what medium they write, when students perform reporting functions, they are entitled to protection against the compelled production of their newsgathering materials and fishing expeditions into their motives."

"The student journalists' work sheds light on an essential government function, fulfilling a need not fully met by any other media outlet. The students' ability to gain access to information through independent interviews of witnesses, and the protection of their source materials that are produced as a result of these interviews, are necessary to ensure they can inform the citizens of this state about the efficiency or failings of the criminal justice system. In short, this vital journalistic work is exactly the type of work for which the reporters' privilege was designed," the brief states.

The SPLC concludes: "Without the protections of the Act, stories that are important to the citizens of Illinois may never get investigated or published. Informants' tips will dry up if there is no assurance of anonymity. The work of student journalists informs the community as a whole, and the failure to extend the Act's protections to students would cause harm to the public interest."

Attorney Erin Bolan Hines of Baker & Hostetler filed the brief, which was prepared with the assistance of SPLC volunteer attorney Robert Bertsche of Boston, a veteran First Amendment lawyer.

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.

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The lawsuit was brought by the American Civil Liberties Union (ACLU) of San Diego and & Imperial Counties and Student Press Law Center volunteer attorney Jean-Paul Jassy of Bostwick and Jassy LLP in Los Angeles, Calif.

Two items provoked the censorship: first, a news story about a dispute over whether the district's superintendent had refused to allow the school to be used as a shelter during October 2007 wildfires, and second, an editorial critical of a school assembly promoting abstinence-only sex education. When journalism adviser David Evans brought the censorship to the District's attention, the school's then-principal, Rod King, cancelled the journalism class and removed Evans as adviser.

According to the ACLU, the proposed settlement requires the District to pay Evans $7,500 and to reimburse the ACLU and Bostwick and Jassy LLP $20,000.

As a result of the lawsuit, new guidelines were implemented to protect student rights, the District made a commitment to keep the student paper running, and the former students most directly involved with the censored stories – Daniela Rogulj, Chantal Ariosta and Margaret Dupes – will receive a letter signed by the superintendent and principal acknowledging that they broke no school rules.

In March 2009, shortly after the lawsuit was filed, the school agreed to allow the previously censored content to run in the Tomahawk.
“This case is a victory for freedom of the student press,” said David Blair-Loy, legal director for the ACLU of San Diego and Imperial Counties. “We owe an enormous debt to Dave Evans and the student plaintiffs for standing up for free speech. The result of this case sends a clear message to school districts and administrators all over California – you violate student speech rights at your peril.”

The resolution at Fallbrook High School is significant for the student press across California, Jassy said.

“Dave Evans and the students of Fallbrook High School are First Amendment heroes,” he said. “They fought back against unlawful censorship and helped to secure an important resolution for a free student press in California.”

Student staff members indicated satisfaction with the settlement.

"Although it is unfortunate that this was not resolved immediately, I feel that our prolonged pursuit of justice was most definitely worthwhile," said Rogulj, who was editor of the Tomahawk during the controversy. "I believe that our efforts have set an example for students across the country to speak their minds and stand up for their rights."

MISSOURI -- Students were ordered to pull back copies of Timberland High School's student newspaper The Wolf's Howl because of an image of a student's ankle tattooed with a cancer-support ribbon and name of a student who passed away from the disease.

The students were told by Principal Winston Rogers to remove their Dec. 17 issue of the Wolf's Howl from distribution bins Thursday because of a thumbnail-sized image of a tattoo that appeared as part of an article about students struggling with cancer. The tattoo belonged to a female student who had recovered from cancer, and depicted a ribbon and the name of a fellow student who had died from a brain tumor, Wolf's Howl Editor-in-Chief Nikki McGee said.

"He opened [the paper] up in front of us and pointed to the tattoo and said 'I need you guys to guys to pick these up,' " she said.

The Wolf's Howl staff was able to pass out papers on Thursday, Dec. 17 until Rogers recalled the issues in the mid-afternoon, but "there were quite a few [copies] we picked up," she said. Because staff members were unable to discuss the issue with Rogers until Monday, Dec. 21, the staff was also unable to mail issues of the paper to community members, as they typically do.

After meeting with Rogers and the district's assistant superintendent Monday, the staff was permitted to resume distribution and mailing of the Wolf's Howl. McGee, however, was concerned about affect the delay in mailing the papers had on the paper's advertisers.

"I don't think this is acceptable to our advertisers," McGee said. "That was the last shopping weekend of the year for people to go in and shop at their businesses -- that's the primary goal of several people advertising."

Attempts to reach Rogers and school district administrators were not successful by press time.

The Wolf's Howl had operated for years as a student-directed public forum with minimal administrative involvement until last school year, when the school district began enforcing a mandatory administrative pre-approval of content after the student staff accepted an anti-abortion ad from a local church.

In October 2009, Rogers required that an article and an editorial about tattoos, as well as advertisements for tattoo parlors, be pulled from the student newspaper. He said that the topic was not age-appropriate for students.

McGee said it was made clear to her that as a topic of writing, tattoos are off limits. She is concerned the restrictions on content are hurting the quality of the paper and making it less accessible to its primary audience: the student body.

"We had kids coming up to us saying they don't want to read our paper anymore because it's so bland," she said. "It used to be such a good paper because we tackled some tough topics -- not just topics that are extremely controversial, but the tough topics kids talk about."

ILLINOIS -- Staff members of Stevenson High School's Statesman attended the school's Board of Education meeting Thursday night to speak out against the ongoing censorship of their high school newspaper.

Administrators at Stevenson High School blocked an article addressing prescription drugs from the Dec. 18 issue of the paper. The article discussed the drugs and their side effects, and included the story of a female student openly discussing her use of birth control pills, according to an article in the Lincolnshire Review. In place of the article, the newspaper will include a blank page and an editor's note of explanation.

In a publicly released statement, Board President Bruce Lubin said that though the article addressed a newsworthy topic, the administration was not willing to publish personal medical information about a student.

"We do not believe that it is appropriate for a school district to make public this type of confidential personal information about an identified student, by disclosing it in a school-sponsored newspaper," he said.

The school's refusal to print the article discussing birth control follows an extended battle over the content of the November issue of the Statesman. The administration objected to articles addressing shoplifting and teen pregnancy, and would not allow the staff to print an article that used anonymous sources to discus the school's substance abuse policy. The students were then required to publish a paper with only administration-approved content.

"It's bad teaching and it's bad journalism," Statesman Editor-in-Chief Pamela Selman told the Lincolnshire Review. "A school administration cannot simply censor whatever they want to as long as they come up with a reason."

"The staff feels that our rights, while limited, have certainly been violated," she continued. "We are at a breaking point. We just can't continue to operate as student journalists."

Gabriel Fuentes, an attorney with Jenner & Block in Chicago who is working with the students, said they want the administration to exercise only clear, constitutional controls over the student publication.

"[The students] want the school district to stop regulating the content of the paper in a way that is not consistent with Hazelwood v. Kuhlmeier and the First Amendment," he said. "They want any type of review or restraints to be constitutionally valid and to be clearly explained to them as to what the legal basis is."

Going forward, Fuentes said all options for dealing with censorship of the Statesman are on the table.

"The students have conveyed to the school district through legal counsel that the school district's censorship of the article this week and the school district's action of the last month compelling the students to publish a paper that wasn't their work product are unacceptable," he said.
The students and the administration are disagreeing about the level of authority that is appropriate for the school to exercise over the paper's content, Fuentes said.

"It's pretty transparent that the agenda of the Stevenson administration is to prevent anything remotely controversial or negative from appearing in the Statesman," said Frank LoMonte, executive director of the Student Press Law Center.

"First, the journalists are told they can't use anonymous sources, then they are told they can't write about named students," he said. "The decisions coming out of this administration are absolutely irrational, and it's time for the school board to step in and impose some sane standards that give the students fair notice of what is and isn't allowed."

WISCONSIN -- Wisconsin Attorney General J.B. Van Hollen issued an opinion Dec. 17 that provides guidelines for determining whether state open meetings and public records laws are applicable to student governments in the University of Wisconsin system.

The opinion was issued in response to a request filed by University of Wisconsin - Milwaukee journalism students who asked the attorney general in April to determine the applicability of the laws to these student bodies after having difficulty accessing information.

Though the opinion did not state that any specific student organization in the University of Wisconsin system was subject to the open meetings law, the attorney general's guidelines explain that organizations that have "shared governance," or the ability to exercise government authority -- such as University of Wisconsin student governments -- will be considered a governmental body and subject to the law, said Robert Dreps, an attorney with Godfrey and Kahn in Madison, Wisc., who reviewed the student's request for an attorney general opinion.

"The framework he provided makes clear that those organizations that do in fact exercise shared governance authority in the university system are subject to the open meetings law," Dreps said.

Jonathan Anderson, the special projects editor for the UWM Post and one of the students who filed the request, said he views the opinion as a success and feels it will have a positive effect on the Post's coverage of student governments.

"It gives us an argument when we make a records request to a University of Wisconsin - Milwaukee student government. We hope that it makes the process easier when requesting records," he said.

While the opinion of the attorney general is not binding on the University of Wisconsin system, Dreps said it does carry official weight and will be helpful to the student journalists.

"Especially with state governmental entities it is very rare for any to not follow the guidance of the attorney general," he said. "The attorney general is designated by the legislature to interpret and advise on the requirements of the records and meetings laws."

The amount of authority and responsibility a student organization has is also a factor in determining whether it is subject to the state's open meetings and open records laws, as does the purpose for which it's meeting.

"The significance of this is to ensure public oversight, but in particular student oversight over how their segregated fees are spent. Wisconsin gives students substantial authority over substantial funds," Dreps said.

According to a press release distributed by Anderson, "during the 2007-2008 academic year, student governments at UW System campuses budgeted to allocate a minimum combined total of $25,331,296.82 in public funds."

Anderson said he is pleased with the attorney general's thorough opinion.

"We hope that is makes the process easier in requesting records and ensuring that the meetings of student governments are open," he said.

By Julia Chapman, SPLC staff writer