When a student judiciary starts to weigh in on the rights a student newspaper should have on campus, you can bet an awkward education in the First Amendment is going to follow. Last night, students at the University of Virginia got that education as the student judiciary decided not to punish the student newspaper's editor-in-chief for telling the truth.
Early in September, the Cavalier Daily realized that a writer appeared to have plagiarized some words or phrases. The editors investigated further and uncovered additional stories that seemed to contain plagiarized material and subsequently fired the writer.
At this point, the Cavalier Daily editors had two obligations, and they were pursued in tandem. The editors began work informing their readers about the plagiarism and the removal of the writer in an editorial; plagiarized work could cast doubt on the accuracy of the Daily, and only full transparency could justify the faith readers put into the newspaper. But as a student organization on the University of Virginia campus, the Cavalier Daily also had to report this misconduct to the school's Honor Committee.
At this point, it helps to know a little bit about how the student self-governance system works at UVA. There are two different student-run committees with disciplinary authority. The Honor Committee has authority to punish any "honor offense," which is an "intentional act of lying, cheating or stealing which warrants permanent dismissal from the University." The University Judiciary Committee, on the other hand, has the "authority to investigate and adjudicate alleged violations of the Standards of Conduct."
The Standards of Conduct are twelve categories of activity, some of which are clearly proscribable (e.g., physical assault) and some of which seem more subjective (e.g., failure to comply with directions of University officials).
The Cavalier Daily ran the editorial disclosing the plagiarism on Sept. 12. Two days later, the chair of the Honor Committee filed disciplinary charges against the editors for disclosing the fact that there was an Honor Committee proceeding taking place. Thereafter, charges were dropped against everyone except editor-in-chief Jason Ally.
Tuesday night, Ally stood before the University Judiciary Committee accused of a violation of Standard of Conduct #11: conduct that violates the confidentiality rules of the Honor or Judiciary Committee.
First Amendment and jurisdiction prohibit the proceeding
There are two logical problems with this. First is an obvious constitutional obstacle. The Cavalier Daily is a student newspaper, protected by the First Amendment, reporting truthful information related to a public university. A public university just does not have the legal authority to prevent a newspaper from publishing the truth. Sometimes a (real) judge or an agency charged with protecting national security might be able to prevent the publication of truthful information for short periods of time, but the University of Virginia is neither of those. A student judiciary has only powers granted by the university; it cannot possess powers the university does not.
The second problem is that the University Judiciary Committee already realized the First Amendment conflict in 1985, and its constitution was amended to limit its jurisdiction to exclude journalistic work. Article II, Section D, Clause 5 of the UJC Constitution states that the Committee does not have jurisdiction over "the exercise of journalistic and editorial functions by student groups[.]"
Ultimately, this won the day in Ally's Oct. 18 hearing. But the Committee first heard Ally's jursidictional defense on Sept. 22, and let the charges against Ally stand because the Committee could not, at that time, reconcile its jurisdictional mandate with its jurisdictional limitation. Ally spent over a month in a kind of disciplinary limbo.
For future reference, a basic rule of statutory construction is to read the words in a way that gives them all meaning. If you are reading your mandate in a way that makes your limitation meaningless, you are reading the mandate incorrectly.
The Family Educational Rights and Privacy Act doesn't apply to student disclosures
In Tuesday night's hearing, the Honor Committee chair that brought the charges against Ally introduced the Family Educational Rights and Privacy Act, or FERPA, as part of the evidence that Ally had violated a right to confidentiality.
It's hard to know what to say about FERPA at this point, because it is a law so badly administered, with such little credibility, from an office so insular and disconnected from basic educational reality, on regulations so unrelated to the intent of the law, that I feel like I'm complimenting it by pointing out there are stupid things it doesn't attempt to do. Nevertheless, FERPA doesn't restrict the content of student newspapers.
A more in-depth discussion of FERPA can be downloaded from the Student Press Law Center website, but here's the short version: FERPA prohibits institutions receiving federal funding from having a policy or practice of disclosing personally identifiable information contained in education records. Education records are those maintained by the agents of the institution that identify students.
There are lots of reasons why the Cavalier Daily's editorial didn't violate FERPA. For example, the plagiarized material was printed in the student newspaper, where students maintain it, not agents of the school. Student journalists acting in their editorial capacity aren't agents of the school because the First Amendment prevents the school from controlling their work in such a way as to create an agency relationship.
Also, FERPA is concerned only with the sanctity of confidential university records (like transcripts). Those who wrote the disputed editorial had no access to confidential UVA records. Their information came from independent personal observation. No records, no FERPA.
But here's the simplest reason why FERPA doesn't apply to campus newspapers: the office with the only authority to enforce FERPA said so. (Here's the redacted opinion letter; see page 3.)
Student conduct and student judiciary problems proliferating
But UVA is not the only institution to have used (or misused) student conduct or student judiciary processes against student journalists. The SPLC Report covered some of these stories in more depth in its Fall 2010 issue. Among them was a Central Oregon Community College student subjected to a disciplinary hearing for reporting on student government hiring practice and James Madison University students who had to go through hearings after being accused of trespassing because they asked students about a peeping tom in the dorm, upsetting the resident adviser.
Some common themes emerge from these cases. I have the sense that most universities are uncomfortable stepping in to the student judiciary process until the process completes. This is probably a mistake. If a student board was considering ejecting a student based on that student's religion, I hope a university wouldn't hesitate to stop the process. Why should a university wait to see the outcome of a trial of freedom of speech when they wouldn't wait for freedom of religion?
Students accused of exercising constitutional rights have those rights violated from the moment a disciplinary process begins, even if the outcome is in the accused student's favor. Whether it's freedom of religion or freedom of speech, the trial itself creates a chilling effect. Editors hesitate to print truthful information and risk facing new charges while the threat of discipline for what they write is still hanging over their head.
More generally, in my limited experience, students attracted to the student judiciary have a romantic notion about what entitles someone to First Amendment rights that has no relationship whatsoever to legal reality.
Here's a self-test: do you agree with the following statement? "Students have a right to free speech, but with that right is the responsibility to use that speech carefully."
It sounds very nice, doesn't it? But it's a rhetorical invention that has no basis in truth. The entire concept of a "right" is an intrinsic benefit unconditionally assigned to an individual. That doesn't mean the right doesn't have limitations; it means within those limitations, there's no wrong way to use free speech, even when it's inconvenient for the government. Especially, actually, when it's inconvenient for the government.
Students attracted to the student judiciary tend to have a genteel notion of a conflict-free campus governed by enforced niceness that doesn't seem to account for the fundamental rights assigned to Americans in our democratic society. Case in point: UVA's University Judiciary Committee, which put Jason Ally through a hearing to defend another student's "right" to a secret trial.
UVA should have stepped in sooner. The authority to create real disciplinary consequences for students was handed off to the student judiciary by the university itself, but a public entity cannot avoid its public obligation to ensure its authority is wielded within constitutional limitations by hiding behind student decision-makers.