College media labs may increasingly clash with their universities

November 21, 2019

Seeking leads from sources whose stories haven’t yet become public is a routine reporting practice.

That’s why reporters — as part of an unsettling package of news stories about how the University of Illinois allowed professors found culpable for sexual harassment to resign quietly without creating a record of wrongdoing — invited readers to submit their own confidential news tips about other cases of sexual misconduct at the Champaign-Urbana campus.

The university’s response was anything but routine.

Because one of the lead reporters, Rachel Otwell of NPR Illinois, works out of the University of Illinois campus in Springfield, the university insisted that any information about sexual misconduct involving UI employees or students would have to be disclosed to the campus Title IX office — even if the sources requested anonymity.

By designating NPR Illinois journalists as “responsible employees” for purposes of Title IX compliance, the university made it a firing offense for a journalist to refuse to divulge the identity of a source who comes forward as a victim of rape or sexual harassment.

The predicament faced by reporters at UI was disturbing, but not unique.

Last fall, award-winning journalist Dan Malone was reprimanded for not notifying his employer, Tarleton State University, when the reporters he advises at Texan News Service began hearing complaints that a history professor was harassing students. Although the news service promptly published a series of stories disclosing the allegations — which the university was already investigating anyway — Tarleton administrators insisted that Malone was obligated as a “responsible employee” to make a redundant report.

As more and more universities become home to high-end investigative reporting labs, journalists invariably will clash with image-sensitive administrators, particularly when the reporting spotlight shines inward toward the campus itself.

In the professional world, journalists can count on vigorous and well-established legal protections that prevent government authority figures from searching their newsrooms, demanding the identities of their sources, or retaliating for unflattering coverage. On college campuses, however, journalists cannot confidently assume that the law will come to their aid when the source of adversity is the agency that issues their paychecks.

Protecting confidences

Some of today’s most impactful investigative reporting is being done by, or in cooperation with, students and faculty on college campuses.

A collaboration between University of Maryland reporters and NPR (“Code Red”) examining health-threatening levels of summertime heat in inner-city Baltimore neighborhoods just won the National Press Foundation’s top annual award for innovative storytelling. Thirty newsrooms across California recently collaborated to crunch data gathered by graduate students in the University of California-Berkeley’s journalism program showing how often police officers found guilty of serious crimes get to keep their badges.

Along with Maryland, the University of Indiana and Arizona State University have launched donor-funded initiatives to produce more original investigative reporting, joining long-established programs at places like Brandeis University (home to the Schuster Institute for Investigative Journalism) and Boston University (where the New England Center for Investigative Reporting is based).

Two realities are fueling the migration of investigative reporting from the newsroom to the classroom. Highly skilled professionals are coming onto the academic job market while still in their prime, victims of downsizing or simply seeking a more stable paycheck. And journalism schools are stepping forward to help fill the void left by the loss of an estimated 28,000 professional newsroom jobs since 2008.

Back when journalism classes focused on routine coverage of campus events, instructors rarely had to consider the tricky media law issues that professional newsrooms regularly confront. Now, those issues are front and center. And the university setting adds complexity that makes even well-settled legal questions seem … not-so-settled.

Take the question of protecting confidential sources.

The Illinois reporter’s privilege statute is typical of those created by legislatures or courts in virtually every state (sorry, Wyoming). The statute begins with these words: “No court may compel any person to disclose the source of any information obtained by a reporter(.)” The law clearly forbids dragging a journalist into a deposition or a court hearing and demanding information that compromises a confidential source.

But it is not nearly so clear that the law will do any good when the demand to divulge confidential information comes from someone in the journalist’s chain of supervision on a university campus. In the traditional newsroom setting, a journalist has no legal entitlement to withhold unpublished work product from an executive in the company that owns the newspaper.

Although Otwell is an experienced professional journalist, the legal issues become even murkier when the reporting is done by students.

State shield laws may not always extend to students, especially those working a few hours a week in unpaid positions for academic credit. Some statutes, notably those in Florida and Texas, condition eligibility for the reporter’s privilege on earning a substantial financial livelihood from journalism, which few students can claim. Only two state shield laws — Maryland and West Virginia — expressly extend the privilege to students. The rest, like Illinois, leave the question of “who’s a journalist” to be resolved case by case in the courts.

In 2011, a state-court judge in Chicago recognized that the reporter’s privilege extends even to unpaid college students in a case involving the Medill Innocence Project, which operated out of Northwestern University’s journalism school. But the judge concluded that the privilege had been waived as a result of the unorthodox structure of the project, because the journalists’ work product was shared with the legal team working to overturn a questionable conviction.

(Notably, a less-publicized cousin of the reporter’s privilege, the federal Privacy Protection Act of 1980, may afford a modicum of protection in the public university setting. The PPA forbids any agent of the government — not just police or prosecutors — from seizing or searching for a journalist’s unpublished work product without obtaining a court order after a hearing where the journalist has an opportunity to be heard. So while University of Illinois administrators might be able to insist on having the name of a confidential source, they cannot snoop into newsroom files or servers without a court order.)

When journalists are classified as employees of a public university, an additional confidentiality concern arises: What if the journalists’ emails, notes or drafts are requested under the state open-records act?

The public normally is entitled to review state employees’ emails, text messages and other work-related correspondence. State freedom-of-information laws expressly recognize exemptions for certain privileged material, including attorney-client communications, but no state has addressed whether the reporter’s privilege trumps a public records request.

In a 2001 legal interpretation, the Texas attorney general’s office said that a student newspaper at the University of Texas-Tyler did not have to fulfill requests for its records, because the newsroom operated independently from the university, so its records were not records of official university business. But faculty-led reporting projects typically have no such separation. While some subset of documents might be legitimately confidential — for instance, emails about students’ grades might qualify as federally protected “education records” — it is uncertain whether records can be withheld solely because they give away journalists’ unpublished work.

The Title IX issue

Title IX of the Education Amendments of 1972 is best-known as the statute that assures women of opportunities to compete in college athletics comparable to the opportunities offered to male students. But the statute does far more. It forbids gender-based discrimination in any federally supported education program. As interpreted since the Obama administration, the law even applies to campus sexual assault, if there is reason to believe that universities have failed to take complaints from victims seriously, resulting in a hostile climate for women.

The U.S. Department of Education, which enforces Title IX and can seek fines for noncompliance, holds colleges liable for making sure “responsible employees” are promptly forwarding instances of gender-based discrimination and harassment to the proper authorities.

But the department has never said that every person drawing a university paycheck is a “responsible employee.” The University of Illinois has discretion to classify journalists as exempt from the duty to report, but simply chooses not to.

Guidance issued by the department in 2001 defines a “responsible employee” to include people with the authority to address sexual violence, or people that students might realistically believe have the duty to accept complaints on behalf of the college. This latter category includes, for instance, coaches or faculty sponsors of extracurricular clubs.

But when a student comes to a newsroom to share her story with journalists, it’s doubtful that she believes she is making a report for purposes of having it forwarded to the Title IX office.

I asked campus safety consultant S. Daniel Carter, who has helped the Department of Education draft campus safety regulations under Title IX and the Clery Act crime-reporting law, whether the federal definition of a “responsible employee” was understood to be broad enough to encompass journalists. He said that wasn’t his understanding.

But he added a caution: “Nothing in current Title IX or Clery Act guidance prohibits an institution from designating all employees, including students who are also employees, as responsible employees and or campus security authorities if they want to.”

Carter also said the department typically does not allow college employees to “switch hats” and claim to be functioning as “responsible employees” only when performing certain roles. (For instance, a college newspaper’s faculty adviser is probably a “responsible employee” if a student on the newspaper staff reports being raped, and may not be able to switch off that status if the report comes from a student who’s not on the staff.)

Takeaways and the need for clarification

A 2014 survey by the Pew Research Center (“America’s Shifting Statehouse Press”) found that one out of every six reporters assigned to a state capitol news bureau is a student. The share undoubtedly has grown since then. The public is increasingly dependent on campus-based news organizations to meet fundamental needs for civic information. Yet when the pressure is on, campus journalists stand on uncertain legal footing.

Thankfully, one reason that the status of campus-based journalists is unclear is that few cases have made their way into the courts to provide authoritative judicial guidance. But another reason for the uncertainty is that people running campus journalism labs have hesitated to ask uncomfortable questions for fear of unwelcome answers.

Geanne Rosenberg Belton, a journalism professor and media lawyer at the City University of New York-Baruch College, interviewed instructors at college journalism labs as a first step toward building an online resource of best legal practices (“J-School Legal”). She found that many had purposefully avoided asking their university’s attorneys to clarify the legal status of journalism instructors and students, concerned that risk-averse administrators might curtail their reporting.

At the University of Illinois, benching NPR reporters from working with confidential sources did not end journalistic scrutiny of the college’s mishandling of sexual misconduct cases. NPR Illinois’ reporting partner, ProPublica Illinois, was able to continue the reporting after erecting a “firewall,” insulating university-paid reporters from dealing directly with confidential informants.

ProPublica is still pushing back against the university’s decision, with support from the ACLU of Illinois and press-freedom organizations from across the country. The university’s governing board is being asked to revise the definition of a “responsible employee” to exclude journalists — a request that the UI president’s office has already turned down.

But not every campus reporting enterprise will be backstopped by an editorially independent partner as muscular as ProPublica. That’s why the legal system must adapt to the growing reality that journalists are at risk of governmental reprisal from within their own workplaces.

Frank LoMonte, Poynter’s legal correspondent, is director of the Brechner Center for Freedom of Information at the University of Florida. He can be reached at flomonte@ufl.edu or on Twitter at @FrankLoMonte.