Student journalists facing disciplinary charges describe murky process

Dylan Bouscher says he was trying to photograph a crime scene. The cop says he was treading on a crime scene. Bouscher says he was in a public space. The cop says he refused to leave.

And so another case plays out: a journalist says he was doing journalism, a cop says he was breaking the law. Except this case isn’t in court, it’s in Florida Atlantic University’s Office of Student Conduct, and Bouscher doesn’t have the benefit of systemic protections for criminal defendants.

In the end, he accepted some of the charges because he felt the school would pursue criminal charges if he did not.

“It seemed like a gamble,” said Bouscher, who is editor-in-chief of FAU’s student newspaper, the University Press.

In the last few years, nearly a dozen student journalists have faced student conduct charges as retaliation or threats for what professionals would simply call journalism. Students and advisers have largely been successful in getting these charges thrown out, but fighting such charges can be a drain on time and resources. Threats of punishment can also intimidate student journalists, making them less likely to pursue controversial stories in the future.

It doesn’t always take a controversial story to put administrators on edge. College Media Association President David Swartzlander said he once had to defend a student reporter who was charged with harassing swans by taking pictures of them.

“And he actually got written up on student conduct charges for that,” Swartzlander said. “I just kind of sat there and listened to the evidence.”

As he’d suspected, administrators didn’t have much of a case, Swartzlander said. They dropped all the charges except a technicality. But Swartzlander said the experience showed him how students can be cowed by the conduct process.

“We’re talking about 18- to 22-year-old people,” Swartzlander said. “In some cases they’re still pretty naïve … They can be easily intimidated by a judicial proceeding on campus.”

Michael Koretzky, the University Press’ volunteer adviser, said Bouscher’s hearing in September was all too typical of an administration that has a history of intimidating student journalists.

“I don’t think this case was really about Dylan,” Koretzky said. “I think it was a message to other students … ‘Don’t mess with us.’”

Karla Bowsher, who was editor-in-chief of the University Press in 2010 and 2011, said the same administrators threatened her with misconduct charges as a way to influence the University Press.

“They know better than to outright censor, but they can do it by intimidation,” Bowsher said. “They’re just smart enough to not outright say things.”

Koretzky calls this tactic “censoring without censoring.” Bowsher said she and Koretzky were able to avert these tactics by “calling their bluff on everything.”

“I did what any journalist should do,” Bowsher said. She waited. She checked her facts. And she was right: the administration backed off.

But the threats themselves, can create a chilling effect on journalists, said Robert Shibley, the Foundation for Individual Rights in Education’s senior vice president.

This “chilling effect” means students “will at be less likely to exercise their constitutional rights because they know they won’t get a fair hearing,” he said.

“If (schools) are using threats of punishment in order to affect press coverage, that’s a serious problem, and it ought not to be happening,” Shibley said.

Free speech advocates like Shibley say the student conduct system lacks due process, a cornerstone of the real-world justice system. Absent those safeguards, threats and intimidation against journalists and other students are much more likely to proliferate, FIRE says.

College students “run a significant risk of being found responsible for a minor or, indeed, serious offense even if (they) are innocent” in a student disciplinary proceeding, FIRE wrote in its guide to due process on campus.

Accused students do have some constitutional rights to due process, but not many. According to the Supreme Court’s 1961 decision in Dixon v. Alabama, schools must inform them of their charges and give them an opportunity to defend themselves. But that only applies to students facing suspension or expulsion, and only at public universities. (Private schools aren’t beholden to that ruling, but many promise their students similar rights in the conduct process.)

FIRE advises accused students arm themselves with knowledge of the school conduct code and their rights in its disciplinary system. The group says it also helps to know legal terminology, which raises the specter of a lawsuit before the officials’ eyes.

“Many students find that it is most effective to suggest subtly, before any suit, the possibility of legal action,” FIRE’s due process guide instructs. “Informally tell the administrators responsible for your case that you believe the university’s disciplinary procedures to be unlawful and explain why (using legal language).”

In his experience, Koretzky said, raising the issue of legal action has caused officials to back down. “Intimidating students is one thing, pissing off litigious media attorneys is quite another,” he wrote in a blog post.

Another potential pitfall for students in the disciplinary system, Shibley pointed out, was the lower standard of evidence. To be found guilty of a crime in a court of law, a jury must believe the prosecutor “beyond a reasonable doubt,” meaning they must be almost 100 percent sure of the defendant’s guilt, Shibley said.

Almost every universities today uses the “preponderance of evidence” standard, meaning the decision-maker must be 51 percent sure in order to find the student responsible. Shibley likened this system to a coin toss.

One reason protections are scarce in student conduct processes is that the potential punishments are much less. After all, a university can’t send you to prison. The worst it can do is expel you. But these are still potentially life-altering consequences, Shibley said.

University discipline offices have moved firmly away from more judicial-like proceedings to more educative-like ones. To reflect this change, in 2009 the Association for Student Judicial Affairs changed its name to the Association for Student Conduct Administration.

Its president-elect, Matt Gregory, said the group felt its original name didn’t accurately capture the disciplinary job.

“The term ‘judicial’ tends to communicate a legal construct, and that isn’t what we wanted campus processes to mirror,” Gregory said.

“Legalistic or formal models tend to create adversarial environments, foster confusion between criminal law and campus conduct, and hinder educational opportunities,” one 2011 study at Kansas State University found.

Gregory suggested campus news teams should hold training sessions on the school’s conduct code, as well as local laws such as trespassing.

“I think it’s important for student journalists to be aware of various state laws or university policies,” he said.

Trespassing was the charge used against The Breeze’s editor-in-chief and one of its reporters in 2011. James Madison University in Virginia charged them with trespassing, disorderly conduct and non-compliance with an official request for walking around a dorm and asking questions.

Their understanding of the First Amendment allowed the students to get almost all of their charges dropped.

Josh Wolf wasn’t so lucky. In 2010, the University of California-Berkeley student was hit with five alleged conduct violations for filming a student protest on campus. He was found responsible for three, and the vice-chancellor for student affairs later rejected his request for an appeal.

Another California student, Neil O’Brien, was found guilty of harassment in 2011 for videotaping school officials while asking them aggressive questions. He sued California State University at Fresno for violating his First Amendment rights; a district judge granted the school’s motion to dismiss the case in May, which O’Brien is appealing.

O’Brien isn’t a journalist, but the outcome of his case could have implications for student journalists who often are in the position of seeking interviews with reluctant sources themselves, which is why the Student Press Law Center and FIRE filed an amicus brief in October in support of O’Brien.

“We can’t have college disciplinary bodies passing judgment on whether a journalist’s interviewing style is polite enough,” SPLC Executive Director Frank LoMonte said. “Just the fear of being brought up on bogus charges — with the possible risk of being suspended from college — will be enough to intimidate journalists from doing their best work.”

Shibley said the secrecy of the university disciplinary process can be a detriment to accused students as well. Law and society have dictated that criminal courts remain open to public scrutiny as a check on their power, but most student disciplinary procedures are conducted behind closed doors.

“It does definitely introduce the disadvantage that if students are being railroaded or treated unfairly, there’s no one around to expose that,” Shibley said.

Sometimes that secrecy itself has produced more charges. In 2011, the University of Virginia’s student conduct board charged The Cavalier Daily with violating its “rules of confidentiality” by issuing a public apology for plagiarism by a staff member. The case was dismissed because the board did not have jurisdiction over “the exercise of journalistic and editorial functions by student groups.”

Harassment is among the more common disciplinary charges student journalists face, typically following complaints from readers or the unhappy subject of a story.

In one case, Cassie Negley, editor-in-chief of The Stylus at the State University of New York at Brockport, was brought up on harassment charges in fall of 2012 for writing aggressive stories about student government.

“[The conduct officer] told me to keep it quiet and tell no one,” Negley said. Instead, she immediately told her staff and adviser. A week later, she said, the administrator called her into the office to tell her the charges had been dropped.

“But she made me sit there and read through all these letters” from angry student government members, Negley said. “She was trying to sit me down and read me the riot act.”

Editors at The Calumet at Muscatine Community College in Iowa found themselves confronting investigators last fall after the paper published a story raising concerns after the Student Senate president was named “Student of the Month” for the second time in a contest where her uncle served as judge.

In The Calumet’s case, an investigator with the school’s Equal Employment Office tried to question reporters but wouldn’t tell them what they were accused of, editors say. As of press time, the school has clarified only that the adviser, and not the students, are under investigation.

And for the past two years, April Fool’s Day editions have prompted disciplinary action against newspaper editors.

Editors at the University of Missouri came within throwing distance of misconduct charges in 2012 for an April Fool’s issue that renamed the paper The Carpeteater, which many found offensive. The Maneater’s top editors received letters asking them to attend “pre-disciplinary” meetings with the Office of Student Conduct, but the school later stated it would not pursue any charges.

“Even highly offensive speech is constitutionally protected against disciplinary sanction,” LoMonte wrote in a letter to the university at the time.

In 2013, The Sun Star, the student newspaper at the University of Alaska at Fairbanks, faced two investigations for similar charges after its April Fool’s edition. The issue included an article announcing the construction of a “building in the shape of a vagina,” a satire on the proliferation of “penis-shaped” buildings.

A professor accused the paper of sexual harassment, prompting the schools’ Diversity and Equal Opportunity to investigate. The officer ruled in favor of the newspaper, noting that the article was “constitutionally protected,” but the professor appealed. The second review has not been completed.

Lee Bird, an Oklahoma State University student affairs officer who consults on First Amendment issues, said it’s not always the conduct office’s fault if it receives and investigates a complaint, as was the case in The Sun Star investigation. After all, these offices don’t go out and “drum up business,” she said.

“I think I’d work on trying to get people together to talk about perceptions and what’s going on” rather than initiate disciplinary action, Bird said.

Gregory, with the student conduct association, said disciplinarians should be careful not to confuse regulating students’ behavior with censoring their speech. He suggested both sides institute policies and procedures that encourage a collaborative partnership.

“A student journalist, just like any member of a student organization, or any person who is enrolled for classes and is a student, behaviorally speaking, could be held accountable,” Gregory said.

Many universities have disciplinary procedures and policies that afford students rights beyond those guaranteed by the Supreme Court. But once a school makes that promise, it needs to keep it or be liable for lawsuits, said John Lowery, a consultant with the National Center for Higher Education Risk Management.

“The more specific an institution is, the more it locks itself into a set response,” he said. “The more likely they are to encounter a case that their system doesn’t accommodate well.”

Shibley, with FIRE, said private universities have to follow this rule as well, because keeping promises is a matter of contract law, and not due process. Three colleges are currently fighting “breach of contract” lawsuits filed by students who say their disciplinary procedures were unfair.

“We’ve seen case after case … where universities don’t follow their own rules,” he said. “Due process means getting a fair deal and the deal that you are promised by the school.”

Bouscher, the FAU student accused of disobeying a police order in September, said he didn’t think taking reports, investigating complaints, deciding responsibility and issuing sanctions should all be carried out by the same official.

“I don’t think that power should belong to one person,” Bouscher said.

Even though he doesn’t think he did anything wrong, Bouscher said he accepted some charges in order to protect the paper from future interference from the conduct office. He said the discipline officer even asked for the name of another reporter who was with him that day.

“It seemed like they did plan on bringing her up on charges,” he said. He refused to give up the reporter’s name, and the officer dropped the issue.

Bowsher said her time at FAU made her more careful and thoughtful in her responses to threats from public officials, but also inspired her.

“They gave me another reason to do watchdog journalism, to hold them accountable to what they were saying,” she said.

By Samantha Sunne, SPLC staff writer.