Criticized, sued, and overcharged: Are barriers to reporting on sexual assault surmountable for student journalists?

On the morning of Oct. 10, 2017, five days after The New York Times released its groundbreaking investigative article on Hollywood movie mogul Harvey Weinstein, Mitchell Koch, then managing editor at University of Memphis’ The Daily Helmsman, published a story he had been working on for a little over a month.

The article told the story of Caroline (a pseudonym), a female student who was allegedly raped twice in 20 days in April 2017. A University of Memphis student who was arrested for one of the incidents “was suspended from the university for only the summer 2017 semester, but…was allowed to come back to campus August 27, the beginning of the fall semester,” Koch reported.

University President M. David Rudd was quick to criticize Koch’s reporting. “I said the article in The Helmsman was irresponsible and I’m going to say it again,” President Rudd said at a Q&A held eight days after Koch’s article was published. He was disappointed that the newspaper had written about an ongoing investigation.

Student journalists face a multitude of challenges when it comes to reporting on allegations of sexual assault or harassment on their campuses:

  • They are routinely criticized by their administrations for reporting about sexual assault, being cast as too young or too inexperienced.
  • Universities have sued their own student news organizations to prevent documents from being released, causing student newsrooms with already tight budgets to scramble for legal assistance.
  • Universities charge upwards of hundreds or even thousands of dollars for public records request, a cost most student publications — and even many commercial news outlets — cannot cover.

Criticism from universities

President Rudd criticized Koch’s reporting at a crucial time for journalism. “It just so happened that it was when all the Me Too stuff was happening,” Koch said.

Three days before the university’s Q&A, in light of Weinstein’s fallout, actress Alyssa Milano tweeted, “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” Milano’s tweet, inspired by civil rights activist Tarana Burke, who coined Me Too, created a firestorm. Thousands of women on social media started to write their own stories of sexual harassment and assault. The movement was born.

Koch thought he had done his due diligence in corroborating the story. He says four or five media professors and an attorney from the Student Press Law Center were consulted before the article was published. “I had that [article] run through so many people,” Koch said. He also reached out to the student who was charged with the crime. While Koch was unable to get a response, he had tried to “give another side of the story.”

Reflecting back on the Q&A, Koch laments, “I very much disagree with [President Rudd]. I think it is our responsibility to publish things like that.”

Koch isn’t the only student journalist to face criticism from administrators for covering this kind of story.

In October 2016, University of Kentucky, Lexington President Eli Capilouto sent a campus-wide letter to students explaining why the university had chosen to sue the student newspaper.

The Kentucky Kernel had started an investigation into universities across the state, requesting public records regarding sexual misconduct investigations. UK denied the Kernel’s requests and upped the ante by filing a lawsuit against the paper.

As part of the letter, Capilouto blamed the Kernel for a drop in the number of students who were coming to the university for help with sexual assault or harassment incidents. Thirty-eight people had reported sexual assault or harassment to UK in fall 2016. This was 21 people fewer than the previous year.

“The decline in the number of clients … underscores the chilling impact that news reports are having on the willingness of victim-survivors to come forward,” Capilouto said. He was alluding to a number of articles the Kernel had published about a former professor with multiple sexual assault and misconduct accusations.

The Kernel didn’t disclose assault and harassment survivor names in their articles.

Then editor-in-chief of the Kernel, Marjorie Kirk, disagreed with Capilouto’s conclusions. “I think it’s the victims [that] know that there’s questionable behavior going on at the university and they probably just have more distrust in that option,” Kirk said in an interview with local news station LEX18.

A Lexington Herald-Leader news article published shortly after Capilouto’s letter showed dips in students reporting sexual crimes to the university wasn’t a new phenomenon.

Public universities sue student news organizations 

The Kernel’s public records request was denied when UK claimed they were protected under the Family Educational Rights and Privacy Act. The paper then asked for an independent ruling by Kentucky Attorney General Andy Beshear.

Beshear asked for a private review of the requested records to see if they were, indeed, under the protection of FERPA, a process that is unique to the state of Kentucky.

UK refused to hand over the records to Beshear. At this point, Beshear sided with the Kernel, ordering UK to turn over the records. The only option left for UK was to sue the Kernel on the grounds of having a court decide whether the records were FERPA-protected.

There are two different lawsuits now. The first is whether the Kernel can have access to the records. The second is whether Beshear has the right to privately review them.

The SPLC led a coalition to file an amicus brief in the first case in support of the Kernel.

In January 2017, a circuit court ruled in favor of UK, citing that the records were protected. In a second August 2017 ruling, the court ruled against Beshear, saying that the he has no authority to compel UK to turn over the records to him.

Both the Kernel and Beshear have appealed these rulings.

To pay for the legal costs, the Kernel launched a GoFundMe page, which raised $13,476 as of May 2018. This has been enough to temporarily cover legal costs at the Kernel, but Kirk said it won’t be able to sustain the legal costs long term.

Kirk’s story is emblematic of how far a university will push to keep documents private.

“There is a great public interest in making most of these records public,” Kirk said, who now attends law school at the University of California, Davis. “I don’t think the privacy interests or economic interests of a school outweigh that.”

How do journalists balance protecting the identities of survivors with maintaining transparency? S. Daniel Carter, president of Safety Advisors for Educational Campuses and an expert on campus safety issues, said it starts with journalists creating an environment where survivors feel comfortable talking about their experiences to build trust with the campus newspaper.

“I don’t know of any professional or responsible student media outlet that would name a sexual assault survivor without their consent,” Carter said. “Including information that might allow someone to identify them is where it gets more challenging.”

This requires more careful, extensive editing, Carter said. “It’s not just a matter of doing ethical reporting, it’s a matter of building up confidence of the campus community so that survivors are comfortable speaking to that outlet.”

The Kernel isn’t the only paper being threatened with legal action. In February 2017, Western Kentucky University in Bowling Green sued both its campus paper, The College Heights Herald and the Kernel. The Herald had requested records of sexual misconduct allegations against university employees. Beshear ordered the university to hand them over.

“It’s troubling the university is suing its own newspaper for practicing good journalism,” Michael Abate, the attorney representing the Herald, said in an interview with the paper. The SPLC spearheaded an effort to collect donations that were forwarded to the Herald to help cover ongoing legal costs.

WKU, just like UK, is suing to have the court make a precedent regarding FERPA. Oral arguments for the case were heard on April 6, and the judge presiding over the case is considering letting Beshear review the public records requested by The Herald.

Will universities become more lenient with public records requests?

“It could go either way,” Kirk said. “I think universities have a great interest in keeping these records private for a lot of reasons.”

“It’s a tough question,” said Darby VanHoutan, who is investigations editor for The University Daily Kansan, University of Kansas’ student paper. “Optimistically, I want to say it will because [universities] realize that they don’t have to protect the brand of the school or any office or institution as much as they need to protect students.”

Conner Mitchell, who was editor-in-chief of the Daily Kansan during fall 2017, isn’t as hopeful.

“The legal aspects of reporting on this is going to stay difficult, unless there is a change in [Kansas] law,” Mitchell said.

Mitchell and VanHoutan haven’t been sued by their university. The main barrier for them in accessing public records has been cost.

High costs student papers can’t cover

On Nov. 30, 2016, Mitchell, then associate news editor of the Daily Kansan, published “How universities do, and don’t, inform the public about sexual misconduct cases.” The newspaper had made a number of records requests to the university for the article. The university complied, but set a high cost.

The University of Kansas handed over cases of sexual assault and violence occuring at the university spanning from May 2012 to Aug. 2016, charging the paper $561.

Public records costs at University of Kansas, Lawrence

In an editor’s note at the top of his article, Mitchell wrote that the university was charging an additional $132.50 if he wanted the most recent documents for the 2016-2017 academic year. “We ended up letting that go,” Mitchell said. “Finances were tight and I felt like the point of the story still got across.”

“It stops a lot of the stories from being written. I have filed records requests, looked at the bill, and given up on the story.”

While the Kansas Open Records Act states, “Reasonable fees, not exceeding actual cost, may be charged for access to records, copies of records, and staff time for processing your request,” there is little guidance about what that means in practice.

“It stops a lot of the stories from being written,” Mitchell said. “I have filed records requests, looked at the bill, and given up on the story.”

Kansas State University in Manhattan charged The Collegian $1,375 for sexual assault records the paper requested in September 2016 in collaboration with the Daily Kansan.

These hefty fees are not unusual. When the Central Michigan University chapter of the Society of Professional Journalists requested “board of trustees expenses, presidential discretionary spending and sexual assault police incident reports” from 15 Michigan universities, the cost for the public records totaled over $20,000.

The Me Too effect

How has the Me Too movement and the flood of stories about sexual misconduct affected the cost of public records?

The movement may have helped Mitchell pay for a separate set of sexual assault records requests for the Daily Kansan. He created a GoFundMe page in October 2017, right around the time the Me Too movement was heating up. Through donations from university alumni and community members, Mitchell was successful in raising the money. The university’s bill was $528.75 after the university lowered it from $1,057.50.

VanHoutan attributes the timing of the fundraiser to its success. “I don’t think that [it] would’ve happened without the Me Too movement,” VanHoutan said.

Carley Lanich, the former editor-in-chief of Indiana University’s Indiana Daily Student, published an 11,000-word series in September 2017 detailing and criticizing how the university handled sexual assault cases on campus. The series was given accolades by the Hearst Journalism Awards Program and Women’s Press Club of Indiana.

Since Me Too, the IDS has been “taking a look at different approaches” in reporting on sexual assault, Lanich said. In February 2018, freshman staff writer Jake Taylor wrote a personal essay about sexual harassment he had experienced in high school. “We just opened up space in the paper and said [to Taylor], ‘We’re going to give you guidance but we’re not going to shape your story. We’ll let you tell it,'” Lanich said.

Lanich thinks the Me Too movement was integral in making Taylor’s article possible. “I don’t know that there would have been the voices ready to step up and make that big, public step of sharing [this] story before the Me Too movement.” The style of the essay was also novel. “This is Jake telling his story directly to our audience,” Lanich said.

In March, an IU female student who had read Taylor’s essay approached Lanich to write about her own account of sexual assault. The essay is still in the works, Lanich said, since the student was not yet emotionally prepared to write it.

This isn’t the only instance where student journalists are finding sources who are more willing to come forward.

“Before this movement, every woman that I talked to, I had to come up with some kind of encouragement [for them to speak],” Kirk said. “So after the movement began…it was invigorating. And not just for the people who had stories to tell, but for the [journalists] who had previously been fearful of telling these stories.”

Mike Hiestand, the SPLC’s senior legal counsel, provides legal guidelines to student journalists and advisers. The SPLC has seen a dramatic increase in the amount of requests for help on stories about sexual assault and harassment since the fall of 2017.

“We’ve not seen anything like this before,” Hiestand said. “Not to this degree.” While the sheer number of sources coming forward is helping student journalists, universities are set up in a way that make it hard to do reporting.

Hiestand made the important distinction that in a professional work setting, a sexual assault claim would go through an HR department and the judicial system. “There’s accountability and oversight,” Hiestand said. But in campus judicial systems, there is “a built in model for how to keep this stuff quiet.”

He is optimistic for the future of student-led reporting on the topic. “The way that it has changed now, victims [of sexual assault] will not keep quiet.”

Student journalists taking a stand

In East Lansing, Michigan State University’s The State News started writing investigative articles about USA and MSU team gymnastics physician Larry Nassar before his years of sexually abusing gymnasts became a national story. The paper devoted an entire reporting position to the Nassar beat. On Jan. 18, 2018 it ran a front page editorial calling for MSU President Lou Anna K. Simon to resign.

“It’s really extraordinary to see a front-page editorial of any kind, which is advisedly a rare departure for a newspaper, and doubly so when it directly takes on the sitting administration,” SPLC Senior Legal Fellow Frank LoMonte said. “The editorial functions as a smack across the face to the people in power.”

Amid national pressure, Simon stepped down six days later.

In response to the Nassar case, The Kentucky Kernel also published a January 2018 front page editorial titled “How Many More.” It called for universities to be more transparent when sexual assault occurred on campus.

“The Me Too movement has emphasized that complicity in this kind of secrecy leads to tragedy,” the editorial said.

And Koch’s article about Caroline, which was criticized by his university’s president, may turn into one of the more hopeful stories to come out of student-led reporting on sexual assault. It contributed to some small policy changes.

Ten days after his article was published, President Rudd announced seven new steps to tackle sexual assault on campus. These included studies conducted on sexual assaults within each university department.

“I think a lot of good has come out of [the story].” Koch said. “The campus has really changed positively.”

Resources for journalists:

From the Student Press Law Center:

From the U.S. Department of Education

More resources

Resources for survivors of sexual assault:

SPLC staff writer Gabriel Greschler can be reached by email or at (202) 974-6318. He is on Twitter @ggreschler.

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