The Federal Educational Rights and Privacy Act (FERPA), better known as the Buckley Amendment, requires that educational institutions receiving federal funds obtain permission of the parents (or the student if over 18) to release student records. The punishment for a violation of FERPA is loss of federal funding.
Colleges and universities soon began to use FERPA to keep from reporting campus crime statistics and to withhold crime information from student newspapers and later began to claim that FERPA protected them from allowing the media to attend campus disciplinary proceedings. (1)
Reporting of campus crime statistics became required under the Student Right to Know and Campus Security Act, signed on Nov. 9, 1990, by President Bush. The act requires campuses to collect crime data beginning July 1, 1991, and to make the data available after Sept. 1, 1992.
In March 1991 in the case of Bauer v. Kincaid, (2) Southwest Missouri State University Standard editor Traci Bauer successfully argued that the university was not compelled by FERPA to keep crime information secret.Then in November 1991, the Washington, D.C., District Court ruled in Student Press Law Center v. Alexander (3) that DOE could not take away funds from schools for releasing crime information, citing Bauer as support for its ruling.
Steve Pasternack noted that, despite the Bauer and SPLC rulings, the campus "press should not expect a post-Bauer tidal wave of success" in getting access to crime reports.(4 ) The executive director of the Freedom Forum First Amendment Center at Vanderbilt University, Paul McMasters, drew the same conclusion, noting:
But the court decisions don't automatically guarantee access. Many college officials continue to ignore the court decisions, and even new laws.(5)
Anecdotal information also suggests that colleges are attempting to circumvent open records laws by channeling campus crime through student judicial procedures.(6) The question of whether FERPA can be used to forbid access to student judicial proceedings is still being debated. The Georgia Supreme Court ruled in 1993 that campus disciplinary proceedings and records must be open under state law; however, a Louisiana court decided in March 1994 that Louisiana law did not mandate public access. In the meantime, student journalists attempting access to campus court records have met with limited success. For example, the editor of the University of Missouri at St. Louis student newspaper was handcuffed and led away by police for trying to attend a campus judicial proceeding.(7)
Another court case involving a Missouri student editor besides Bauer v. Kincaid, the Hazelwood School District v. Kuhlmeier case,(8) stated that school newspapers which are not public forums can be censored. Though the Hazelwood decision specifically applied to high school newspapers, it has caused concern for staffs of college newspapers as well.
The Student Press Law Center in Washington, D.C., has reported that the number of calls for legal help from student journalists rose 143 percent from 1988 through 1992, and calls rose another 8 percent in 1993. Almost half (47 percent) of the phone calls received came from student journalists at public colleges and universities, and another 14 percent came from students in private colleges. Only 23 percent came from public high schools. According to the SPLC, "Much of the increase is believed to be the result of the U.S. Supreme Court's 1988 decision in Hazelwood School District v. Kuhlmeier... ."(9)
Another kind of censorship, the theft of multiple copies of campus newspapers, has been a problem for several years,(10) but it appears to be on the increase. McMasters complained that "the reaction and response to all of this by college officials, faculty, students and prosecutors has been abysmal, for the most part."(11)
Two national studies concerning access to campus crime information have been reported, both prior to Bauer. Shipman received responses from 107 campus police units, 63 advisers and 42 editors at 150 colleges and universities studied.(12) He found that campus police had widely different interpretations of what the Buckley Amendment requires and that only about half of the campus police agencies allowed reporters to examine the actual security records.
Shipman also found that the relationship between campus police and the campus newspaper was usually good. He assumed good relations were based partly on the fact that little contact existed between the two. One-third of the campus police administrators said the campus press checked security records irregularly or never, and only 42 percent of the newspapers checked twice of week or more often.
Dickson received responses from about 35 percent of the members of College Media Advisers.(13) He found that 74 percent of college newspapers had attempted to gain access to campus security records. Newspapers at 27 percent of the institutions had access to all campus crime reports, 61 percent had access to some reports, and about 13 percent had no access. Forty percent of the denials for access were based upon the Buckley Amendment.
Following his national study of college press freedom, Ivan Holmes reported the censorship was a problem even prior to the Hazelwood decision.(14) The only reported study of the effects of the Hazelwood ruling on the college press was conducted in the fall of 1988, just months after the ruling. Northington received responses from 221 of 797 college newspaper advisers who belonged to College Media Advisers Inc.(15) Nearly one-third of the advisers (32 percent) responded that they had received hints from administrators to avoid certain subjects in the previous year. She concluded that the first year after the Hazelwood ruling was not a particularly disastrous one for the college press, however.
Two main research questions guided the study. The first was: Are student newspapers having problems in gaining access to campus crime reports and reports of student judicial proceedings? The second was: Are newspapers having problems with prior restraint or punishment for newspaper contents. We also wanted to know if newspapers were having problems with newspaper theft.
Surveys were sent at the end of April 1994 to the "Student Newspaper Editor" at 1,498 institutions identified as public or private four-year colleges and universities. As of mid-August 1994, a total of 231 surveys were completed and returned by editors and 47 surveys were returned from institutions without a student newspaper (a response rate of 18.6%). Since only about 1,000 colleges and universities are thought to have a student newspaper, the response rate from institutions with student newspapers was most likely about 23%.
Most editors (88.7%) reported that their newspaper ran information on campus crime; however, nearly four-tenths of the editors (38.7%) did not know if the institution had an official policy concerning access to campus incident reports. More than a third of those editors who knew if a policy existed (36.2%) stated that there was no official policy.
Nearly nine of 10 editors (88.0%) reported that the newspaper had attempted to gain access to campus incident reports. Only three in 10 editors (30.0%) at such newspapers attempting access reported being given direct access to the actual campus incident reports. Nearly six in 10 editors (59.6%) who said they had access to incident reports stated that names of students are deleted before the reports are released.
One-third (33.3%) of editors who reported that access to campus incident reports was denied stated that the reason given for denial was that access was not required because it was not a public institution. Three in 10 editors (30.4%) reporting that the U.S. Family Educational Rights and Privacy Act (FERPA) was given as the reason access was denied, and slightly over one in eight editors (11.8%) stated that the reason given was that incident reports were not covered by the state open records law. About one-quarter of the editors (24.5%) stated that some other reason was given.
Only about six-tenths of the editors (59.5%) reported that the institution had provided campus crime statistics to the student newspaper; however, about one-third of the editors (34.4%) stated that they had not requested the statistics. Another 6.2% had requested them but had not received them.
About half of the editors (49.3%) stated that they had had no problem gaining access to campus incident reports provided to local police. Nearly four in 10 editors (37.9%) reported having problems occasionally, and about one in eight (12.8%) reported having problems much of the time. Access potentially may be more of a problem than the figures suggest, however, because a large number of editors evidently had not tried to gain access.
Slightly more than half of the editors (53.4%) were provided no access to proceedings or to information about student disciplinary/judicial proceedings. Somewhat over one in five (21.8%) were provided access to both proceedings and to rulings, one in eight (12.4%) were provided access to rulings but not proceedings, 9.4% were provided summaries and/or edited transcripts, and 3.0% were provided access to proceedings but not rulings.
Just over three in 10 (30.7%) editors reported that they were denied access because the institution was private and access was not required. Slightly fewer editors (27.1%) were told that the Federal Family and Education Rights and Privacy Act (FERPA) did not allow it, one in 14 (7.1%) were told the state's open meetings law did not apply to such meetings, about one in eight (12.1%) were given other reasons, and about one in four (22.9%) were given no reason.
Nearly three in 10 editors (28.5%) reported being told that they had been told by someone in authority at the institution not to run a story. About one in eight editors (12.4%) reported that someone in authority at the institution had told them during the year not to run an editorial or cartoon.
Almost half of the editors told not to run a story (49.3%) complied, and just over half of those editors who had been asked not to run an editorial or cartoon (52.9%) stated that they had complied with the request.
Advisers were most likely to have been the person who told the editor not to run something (either a story, an editorial or an advertisement). The adviser was named 36 times, the vice president or dean of student affairs 26 times, and the president 14 times. The publications board was named six times, and "other" 18 times.
One in 10 editors (10.0%) reported that an official at the institution had withheld a story or editorial from publication over her/his objection during the year. Whereas 3.4% reported it happened once, 2.6% reported it happened twice, and 3.9% reported it had happened 3-5 times. Fewer than one-tenth (9.2%) of the editors reported that an official had withheld an advertisement over the editor's or ad manager's objections.
About one in nine editors (11.4%) reported that she/he, members of the newspaper staff, or the newspaper itself had been punished in some way during the year for running something controversial.
Nearly half of the editors (47.6%) reported having complete freedom from prior restraint, and nearly four in 10 (38.3%) reported having substantial freedom. Another one in eight (12.3%) reported having limited freedom, and 1.8% reported having no freedom.
Just over one-fifth of the editors (20.7%) reported the newspaper had had a problem during the year with theft of large numbers of copies of the paper.
Public institutions were more likely to run campus crime information than were private ones (95.2% v. 83.1%, significance <.01), and newspapers at public institutions were more likely to have direct access to incident reports (43.0% v. 16.5%, significance <.001). Editors at private institutions were more likely than editors at public ones to state that incident reports were not released (32.4% vs. 13.1%, significance <.001).
At institutions where records were released, editors at private institutions were more likely than editors at public ones to state that student names were deleted before campus incident reports were released by campus officials (74.7% vs. 46.5%, significance <.001). No significant differences existed, however, between public and private institutions as to whether crime statistics were provided the student newspaper (90.3% v. 90.9%).
Editors at private institutions were no more likely to have had much of a problem getting access to campus incident records held by local police (12.8% v. 12.9%, significance >.05).
Editors at private institutions were not significantly more likely than those at public ones to say that they had had a problem getting access to student judicial proceedings. Whereas 56.0% of editors at private institutions had been given no access, 51.1% of editors at public institutions gave that response (significance >.05).
Editors at private institutions were more likely than those at public ones to have been told not to run a story (37.4% v. 17.3%, significance <.001). They also were more likely to have been told not to run an editorial or cartoon (17.2% vs. 6.8%, significance <.02).
Actual censorship of a story or editorial also was more likely to have taken place at private institutions than at public ones (13.8% v. 5.7%, significance <.05). Actual censorship of an advertisement also was more likely to have taken place at private institutions (14.6% vs. 2.9%, significance <.01).
Newspapers at private institutions were not significantly more likely than those at public ones to have been punished for running something controversial, however (12.9% v. 9.7%, significance >.05).
Editors at public institutions were more likely to report complete freedom of the press (61.5% v. 36.1%). However, editors at private institutions were more likely to report substantial freedom (41.8% vs. 33.7%) and limited or no freedom (22.1% vs. 4.8%, significance <.001. Nearly two-thirds of the private institutions (62.9%) reported having a policy of freedom of expression for the student newspaper.
Editors at public institutions were more likely than those at private ones to report that theft of newspapers had taken place (26.2% vs. 15.4%, significance <.05).
The larger the institution, the more likely the newspaper was to run campus crime information (<2,500, 80%; 2,500-5,000, 87%; >5,000, 100%; p<.001). Based upon the editors' understanding, no statistically significant difference existed based upon undergraduate enrollment concerning whether the institution had no official policy concerning access to campus incident reports (<2,500, 39%; 2,500-5,000, 44%; 5,000-10,000, 36%; >10,000, 29%) or concerning whether the policy was written (<2,500, 35%; 2,500-5,000, 24%; 5,000-10,000, 30%; >10,000, 45%; p>.05).
The larger the institution, however, the more likely the newspaper was to have direct access to campus incident reports (<2,500, 15%; 2,500-5,000, 29%; 5,000-10,000, 43%; >10,000, 45%), and newspapers at institutions with fewer than 2,500 students were more likely than those at other institutions to have no access (<2,500, 20%; >2,500, 5%; p<.001). The larger the institution, the less likely reports themselves were withheld (<2,500, 36%; 2,500-5,000, 22%; 5,000-10,000, 14%; >10,000, 7%; p<.001).
The larger the institution, the less likely student names were omitted when incident reports were released by campus officials (<2,500, 76%; 2,500-5,000, 67%; 5,000-10,000, 57%; >10,000, 31%; p<.001).
No statistically significant difference was found based upon institution size as to whether crime statistics were released when requested by the newspaper. Nearly all newspapers that requested such statistics were provided them (<5,000, 89%; >5,000, 93%; p>.05).
Enrollment was not significantly related to whether the newspaper had not had a problem obtaining campus incident reports from local police (<2,500, 54%; 2,500-5,000, 54%; 5,000-10,000, 47%; >10,000, 36%; p>.05).
Size of the institution was not significantly related to whether editors were to report that the newspaper was denied all access to student disciplinary or judicial proceedings and rulings (<2,500, 55%; 2,500-5,000, 53%; 5,000-10,000, 38%; >10,000, 66%; p>.05).
According to editors, theft of newspapers was more likely to have taken place at institutions with more than 2,500 enrollment (<2,500, 11%; >2,500, 28%; p<.01).
The larger the institution, the less likely the editor had been told by someone in authority not to run a story (<2,500, 41%; 2,500-5,000, 31%; 5,000-10,000, 16%; >10,000, 11%; p<.001). Editors at the smallest institutions (under 2,500) were more likely to have complied with such a request than were editors at larger institutions (<2,500, 63%; >2,500, 33%; p<.02).
No statistically significant difference was found concerning whether the editor had been told not to run an editorial or cartoon (<2,500, 16%; 2,500-5,000, 12%; 5,000-10,000, 4%; >10,000, 14%; p>.05), and no statistically significant difference was found based upon institutional size as to whether a story of editorial had been withheld from publication over the objections of the editor (<2,500, 15%; 2,500-5,000, 10%; 5,000-10,000, 2%; >10,000, 8%; p>.05).
The larger the institution, however, the less likely that an advertisement had been withheld from publication over objections of the editor or ad manager (<5,000, 14%, >5,000, 0%; p<.001).
No statistically significant difference was found concerning whether the newspaper or staff had been punished for running something controversial (<2,500, 12%; 2,500-5,000, 8%; 5,000-10,000, 16%; >10,000, 11%; p>.05).
The larger the institution, the more likely the editor was to state that complete freedom of the press existed at the institution (<2,500, 37%; 2,500- 5,000, 44%; 5,000-10,000, 60%; >10,000, 63%; p<.001). Based upon the size of the institution, however, no statistically significant difference existed at private institutions concerning whether the institution had a policy of freedom of expression for the student newspaper (<5,000, 61%; >5,000, 75%; p>.05).
The results from this study were compared with those reported by Dickson from his 1990 study.16 Though the two populations sampled were different (advisers who belonged to College Media Advisers in the 1991 study and a random sample of editors in this study), a study of high school advisers, principals, and student editors found that their responses to questions concerning what had taken place at the school are quite similar.(17) A total of 166 advisers from four-year institutions responded in the 1990 study and 231 editors from four-year institutions responded in this study.
We found no statistically significant difference in the percent of newspapers that had attempted to gain access: 85% in 1990 and 88% in 1994. We also found no significant difference in whether the newspaper had gained access to campus incident reports: 13% of those attempting in 1990 and 11% in 1994 reported no access, and 27% in 1990 and 30% in 1994 reported access to all reports.
We found no statistically significant difference as to whether the Buckley Amendment was the main reason access was refused. Thirty-seven percent gave that response in 1990 and 30% in 1994. Whereas slightly fewer newspapers at public institutions cited Buckley in 1994 (47% in 1990 and 40% in 1994), the same percent of newspapers at private institutions cited the Buckley Amendment in 1990 as in 1994 (25%).
This study found that the Buckley Amendment is still being used extensively to deny student newspapers access to campus security records, apparently about as often as was the case before it was determined that FERPA does not prevent access. We also found that a large number of newspapers still are not attempting to gain access and, thus, have not tested their institution's access policy.
Newspaper editors in this study and in Dickson's 1990 study reported less access to the actual incident reports than was reported by policeadministrators in the study by Shipman,(18) conducted before the Bauer and SPLC rulings. We can only assume that police were overstating the extent of access provided. In any event, a large number of institutions continue to provide only condensed or summarized written versions and even oral reports about contents of records.
We were surprised to learn that so few campus newspapers had attempted to get their institution's campus crime summaries now that they are required to be made available. One would wonder why all newspapers are not attempting to gain information about campus crime. Some editors may assume that access to records or summaries will not be granted or, incorrectly in the case of newspapers at public institutions, that they won't be allowed to publish them. Neither reason should keep newspaper staffs fromattempting access, however.
Possibly the most surprising finding was the number of editors who reported having access to student disciplinary or judicial proceedings. Only Georgia courts have ruled that access is required under the state's open meetings law. More research needs to be done to determine why so many editors reported having access. We wonder if policies of these institutions address access and whether access is allowed in spite of existing rules or because of them. We also were somewhat surprised at the extent of newspaper theft.
We found the extent of self-censorship when threatened by administrators somewhat alarming, particularly at public institutions. We wonder if student journalists are being intimidated or are only being deferential. Further research also is needed to find out what types of contents are being self-censored.
The figures on self-censorship somewhat detract from the figures that suggest that censorship itself is not a major problem at most institutions. That fewer than half of the editors reported that the newspaper has complete freedom from prior restraint suggests a number of editors are being intimidated even if they are not being directly censored.
The study does not present a totally bleak picture of the situation in regard to the major issues reported: access to crime information and freedom of expression. It does, however, suggest that much work needs to be done in educating editors and reporters about their responsibilities in attempting to gain access to information that is important for their readers to know. It also suggests that much work needs to be done in educating administrators and campus security officials about the right that the student newspaper has to publish such information and other information that does not put the institution in a good light.
1 Scott Jaschik, "Journalists Contend Colleges Are Using a Privacy Law to Deny Information on Campus Crime to the Public." The Chronicle of Higher Education, April 11, 1990, pp. A22, A26.
2 759 F. Supp. 575.
3 778 F.Supp. 1227.
4 Steve Pasternack, "Unsealing Campus Law Enforcement Records."
Newspaper Research Journal, 13:4-14:1 (1993), 25.
5 Paul McMasters, "Trashing the Press." College Media Review, 32:3 (1994), 16.
6 Caroline Carlson, "Some Often Asked Questions on Secret Campus Courts," Access to Campus Courts: A Guide for Student Newspapers. Report presented at the Society of Professional Journalists National Conference, Nashville, Tenn., September 1994.
7 Student Press Law Center Report, Spring 1994, p. 15.
8 484 U.S. 260, 1988.
9 Student Press Law Center Report, Spring 1994, p. 3.
10 Ivan Holmes, "New Problem: Censorship by Theft." College Media Advisers Report, December- January, 1988-89, p. 3.
11 Paul McMasters, "Trashing the Press." College Media Review, 32:3,
12 Marlin Shipman, "College Newspaper Access to Campus Crime Reports: Perceptions of Police, Advisers and Editors" (paper presented at the convention of College Media Advisers, Denver, Colo, October 1991; and Shipman, "Perceptions of Campus Police: Newsgathering and Access to Public Records," Newspaper Research Journal, 15:2 (1994), 2-11.
13 Tom Dickson, "Gaining Access to Security Records a Problem for College Newspapers," College Media Review, 30:2 (1991), 7-9.
14 Michael W. Hirschorn, "University Effort to Censor Newspaper Are on the Increase, Student Editors Say," The Chronicle of Higher Education, April 22, 1987, pp. 35-36.
15 Kristie B. Northington, "National Survey Shows No `Hazelwood' Effect." College Media Review, 29:4 (1990), 20-21.
16 Dickson, op. cit.
17 Jack Dvorak, Larry Lain, and Tom Dickson, Journalism Kids Do Better: What Research Tells Us About High School Journalism (Indianapolis, Ind.: ERIC/EDINFO Press, 1994).
18 Shipman, op. cit.