THE BUCKLEY AMENDMENT AND THE CAMPUS PRESS
(This article is adapted from a presentation at the 1990 Morro Bay Faculty Retreat of the Journalism Association of Community Colleges. The author is an attorney and professor of communications at California State University, Fullerton. He holds both a J.D. degree from Loyola Law School and a Ph.D. in community college administration from UCLA. He is the co-author of four books, including two college textbooks on communications law).
Controversies have arisen at both El Camino College and East Los Angeles College because campus newspapers reported that student leaders were academically ineligible to hold their offices. Both newspapers were accused of violating the Buckley Amendment by publishing stories based on confidential academic records.
Because stories about the academic eligibility of student leaders and student athletes are clearly newsworthy, similar stories are likely to surface on other campuses from time to time. For that reason, campus newspaper advisers should know what the Buckley Amendment does and doesn't say--which is something that college administrators often do NOT seem to know.
The controversy over the El Camino Warwhoop's decision to publish student academic information was resolved without any disciplinary action against the student staff or Jolene Combs, the faculty adviser. After a meeting of those involved in the case, the consensus seemed to be that the primary blame should be placed on the student activities administrator responsible for ensuring that student leaders were academically eligible (and who had obviously failed to do his job). He left his post shortly thereafter.
At East L.A., on the other hand, two student journalists were placed on probation and school officials filed a "Notice of Unsatisfactory Service" against adviser Jean Stapleton. Such a notice is a serious threat: even a tenured teacher who receives two such notices within a three-year period may be dismissed.
Because of the seriousness of an unsatisfactory service notice--and because of the troubling First Amendment implications of the use of such a notice to punish an adviser for the newspaper's content--the teachers' union filed a grievance against the Los Angeles Community College District on Stapleton's behalf. At a day-long hearing before an arbitrator, a series of witnesses testified for Stapleton, among them a Los Angeles Times editor, three four-year university journalism professors, and Combs (who described what had happened at El Camino). They pointed out, among other things, that under LACCD policies the adviser is forbidden to control the content of student newspapers, that the story was clearly newsworthy, and that the Buckley Amendment applies only to a college's general policies and not to isolated incidents such as this one.
Although the LACCD withdrew the unsatisfactory notice before the arbitrator could decide the case, it seemed clear that the journalists had made their point at the hearing. But the LACCD was not willing to end the matter: the district next removed Stapleton as newspaper adviser and transferred her involuntarily to Pierce College. The union responded by filing a second grievance, which was heard by the same arbitrator. This time, the district did not back down and the arbitrator ruled in Stapleton's favor on all counts, ordering her reinstated as the East L.A. adviser and department chair of journalism.
Exactly what does the Buckley Amendment require school officials to do?
A SUMMARY OF THE BUCKLEY AMENDMENT
Enacted at about the same time as the Privacy Act of 1974 and the 1974 amendments to the Freedom of Information Act, the Buckley Amendment was part of Congress' response to a growing concern over the way government agencies were handling personal information about individuals.
Known formally as the Family Education Rights and Privacy Act (20 U.S.C. 1232g), the Buckley Amendment is sometimes confused with the general Privacy Act, and in fact the two do have certain similarities. The Buckley Amendment was so designated because Senator James Buckley of New York led the effort to add it to the 1974 Elementary and Secondary Education Act amendments, which grew into a major federal-aid-to-education policy bill.
The Buckley Amendment is tied to federal aid programs: it requires schools and colleges receiving federal funds to adopt policies consistent with its requirements or risk losing their federal aid. The law says schools must allow parents to see their children's school records and must follow policies that prevent the release of these school records to outside parties without the parents' consent. Similarly, it says students over age 18 should be allowed to see their own school records and requires their consent before these records may be released to outside parties. It also requires schools to allow parents and adult students to correct errors in the records.
Perhaps the main problem with the Buckley Amendment is that it causes school officials to overreact. Fearful of losing federal money, they tend to avoid risking any appearance of non-compliance. And yet all the Buckley Amendment really requires is that schools have ongoing policies and practices of keeping student records confidential. Nowhere does the Buckley Amendment forbid student newspapers to publish student leaders' grades when their academic eligibility is questionable. Nor does it say that a college could lose its federal funds just because of an isolated incident in which the campus newspaper reveals a few student leaders' grades in a clearly newsworthy story about their fitness to serve. Although non-compliance could indeed lead to a denial of federal funds by the U.S. Department of Education, apparently that sanction has never resulted from any isolated instance of information being released to an unauthorized person.
In addition, a federal court has ruled that the Buckley Amendment does not create a private right for any individual to sue anyone when grade records are revealed. Instead, it merely authorizes administrative sanctions by the U.S. secretary of education against schools with inappropriate information-handling policies or practices (see Girardier v. Webster College, 563 F.2d 1267).
However, a student whose grade records are revealed could perhaps sue
for invasion of privacy under state law, although newsworthiness could
be cited as a legal defense in any such lawsuit. In fact, the courts have
often ruled that journalists cannot be penalized for publishing confidential
but newsworthy information that is obtained lawfully from news sources,
even if a source breaks the rules by releasing the crucial information
to the press. One such case resulted from the publication of student athletes'
grades that were obtained in violation of the Buckley Amendment.
CONFIDENTIAL INFORMATION AND THE COURTS
While the Buckley Amendment requires schools and colleges receiving federal funds to adopt policies to protect the confidentiality of student records, the media have a clear legal right to publish information obtained from confidential records, as long as journalists do not actually engage in trespassing or the theft of documents. The United States Supreme Court--and numerous lower courts--have ruled that it is not an invasion of privacy for the news media to publish information about the qualifications of public officials and public figures, even if the disclosure of that information is prohibited by a law or regulation. Nor may criminal sanctions be imposed on the media for an unlawful disclosure of confidential information.
For example, in a 1978 case, Landmark Communications v. Virginia (435 U.S. 829), the U.S. Supreme Court upheld the right of a newspaper to publish confidential information about a judge's qualifications. The case involved the Virginian Pilot's coverage of the proceedings of a state commission reviewing the judge's performance in office. Although Virginia law made these proceedings confidential, the paper published the name of the judge, among other information. The newspaper was criminally prosecuted and convicted of violating the confidentiality law.
The U.S. Supreme Court overturned the judgment, ruling that the Virginia law violated the First Amendment. The court said judges have no greater immunity from criticism than other persons or institutions. When a newspaper lawfully obtains information about a proceeding such as the one in question, the paper may not be punished for publishing what it learns even if there is a law forbidding the disclosure. In a concurring opinion, Justice Potter Stewart said:
If the Constitutional protection of a free press means anything, it means that government cannot take it upon itself to decide what a newspaper may and may not publish. Though government may deny access to information and punish its theft, government may not prohibit or punish the publication of that information once it falls into the hands of the press, unless the need for secrecy is manifestly overwhelming.
A number of lower court decisions have followed the precedent established by the Supreme Court in the Landmark Communications case. Even before the Landmark decision, lower courts were generally upholding the media's right to publish newsworthy stories based on confidential information, and the Supreme Court again affirmed this principle in connection with police and court records in a 1989 case, Florida Star v. B.J.F. (109 S.Ct._____).
One particularly relevant state court case involved the publication of student athletes' grades by both a college newspaper and a professional one. In Bilney v. Evening Star (406 A.2d 652), a widely noted case, the court held that it is not an invasion of privacy to publish the grade records of students who assume a position of prominence by their campus activities. In Bilney, two student journalists at the University of Maryland published the grade records of several members of the basketball team in the campus newspaper and in the Washington Star. The court ruled that by becoming basketball players the students became public figures; questions about their academic eligibility were legitimate matters of public concern and not an invasion of privacy. Thus, the student journalists did not invade their privacy by reporting that they were academically ineligible--and then proving it by revealing their grades.
In California, the courts have upheld this principle several times. For example, in 1986 the third district Court of Appeal so ruled in Nicholson v. McClatchy Newspapers (177 C.A.3d 509). George Nicholson was the Republican candidate for California attorney general in 1982. Shortly after his defeat by John Van de Kamp, Governor George Deukmejian considered Nicholson for a judicial appointment, but Nicholson was rated "unqualified" for even a municipal judgeship by the State Bar. As a result, Deukmejian declined to appoint him to any judicial office.
Although the bar's evaluations of prospective judges are supposed to be confidential, a Sacramento Bee reporter learned of Nicholson's low rating and wrote a story about it. Nicholson sued the Bee and others for revealing what he contended were private facts. A judge dismissed his case against the Bee and he appealed.
The third district Court of Appeal responded with a ruling that was a strong affirmation of the right of the press to publish newsworthy stories such as this one--as long as the information was not obtained by trespassing or theft. In so ruling, the California court relied heavily on Landmark Communications v. Virginia, the U.S. Supreme Court decision that affirmed the constitional right of the media to report newsworthy information of this type.
Nicholson's attorneys contended that the reporters, who knew the Bar's judicial ratings were confidential, invaded Nicholson's privacy by even inquiring about his rating. The appellate court responded by emphasizing that a judicial rating on a recent candidate for attorney general is clearly newsworthy and that it is a normal journalistic procedure to interview people in an attempt to obtain such newsworthy (although confidential) information. The court said:
While the government may desire to keep some proceedings confidential and may impose a duty upon participants to maintain confidentiality, it may not impose criminal or civil liability upon the press for obtaining and publishing newsworthy information through routine reporting techniques.
Shortly after the Nicholson decision, another California appellate court decision reaffirmed this principle in a second case involving the Sacramento Bee. In Alim v. Superior Court (185 C.A.3d 144), the Court of Appeal upheld the newspaper's right to report confidential information that was apparently derived from a public official's state personnel file, despite the fact that the Information Practices Act (Civil Code sec. 1798) forbids the release of this information. The Information Practices Act is California's state law patterned after the federal Privacy Act of 1974.
The Alim case began when the Bee reported that Walter Atlee, state deputy director of veterans affairs, had wrongfully received a federal disability pension while he was employed full time as a state official. Atlee contended that the story could only have been based on information in his personnel file. (The Information Practices Act not only forbids the release of personnel file information but also authorizes civil lawsuits for the wrongful disclosure of private information held by state government agencies).
The court agreed with the Bee's contention that the information published in the newspaper was substantially correct. The court also ruled that the public is entitled to know of conduct that reflects on a public official's integrity; this is precisely the sort of reporting that the First Amendment protects. The appellate court ordered Atlee's lawsuit dismissed without trial. In effect, the court created an exception to the Information Practices Act to protect First Amendment freedoms.
While the courts upheld the right of journalists to publish confidential information in all of these cases, another legal hazard often lurks in these situations. Whoever gives the confidential information to a journalist is surely breaking the rules. If identified, that person could face severe disciplinary actions; any journalist who publishes confidential information such as a student leader's grades must be prepared to protect his or her sources. In California and 25 other states, there are shield laws that may excuse journalists from being forced to name their sources in court. However, these shield laws do not always apply; a journalist sometimes must choose between identifying a news source and going to jail for contempt of court. For that reason alone, students' grades and other confidential information should be published only when it really is clearly newsworthy.
To summarize, the Buckley Amendment does not forbid the occasional publication
of student leaders' or athletes' grade records when their records are newsworthy
because of their academic ineligibility. Instead, the law merely allows
the federal government to withhold aid from schools and colleges that lack
ongoing policies designed to keep student records confidential. And the
courts have repeatedly held that it is not an invasion of privacy to publish
this type of confidential information because of its newsworthiness.