A sea of teenagers outside a school building. Most are wearing red, some are holding pieces of paper.
Hundreds of Berkeley High students walked out of class Monday. Berkeleyside was told to leave campus shortly after this photo was taken, just before the student rally began. Photo: Natalie Orenstein

First Amendment lawyers say Berkeley Unified illegally denied journalists access to a school campus to cover a student protest Monday.

District leaders maintain they had the right to tell reporters to leave.

Berkeleyside reporter Natalie Orenstein entered Berkeley High School’s campus Monday morning to cover a highly publicized student walkout and rally on issues related to sexual assault and how the administration handles reports of such incidents.

Hundreds of students had gathered in the courtyard, but the rally had not yet begun when BUSD’s public information officer and a Berkeley High staff member told Orenstein to leave the campus. They said the district was concerned about student privacy and safety if personal stories were reported in the press.

Orenstein complained, as did Berkeleyside Executive Editor Frances Dinkelspiel by phone, asserting that journalists had the right to enter school campuses; but Orenstein was walked off the courtyard and out of Berkeley High.

The district said they told multiple journalists from other outlets to stay off the campus that day as well.

Berkeleyside’s legal counsel, Thomas R. Burke, as well as David Snyder from the nonprofit First Amendment Coalition, said that BUSD did not have the authority to prevent journalists from accessing the school.

Snyder, in an email to BUSD on Monday, which was shared with Berkeleyside, explained that journalists had the right under California’s Education Code to cover the walkout.

“Unless the Berkeleyside reporter’s presence posed a significant threat of disrupting or interfering with classes or other BHS school activities — and my understanding is that the reporter’s presence did not and would not rise to this level — BHS’s exclusion of the Berkeleyside journalist here was improper,” Snyder wrote.

“The press, which as you know plays an absolutely crucial role in the health of our democracy, has an obligation and indeed a right to cover issues of significance to our communities,” he continued. “Today’s demonstration is just such an issue, and the school’s exclusion of a reporter here not only prevents the public from understanding its community but also appears to run afoul of the Education Code.”

Asked about BUSD’s position on media access, Superintendent Brent Stephens again said that student privacy concerns were the basis for the district’s rules Monday. However, Burke said privacy is not a legal basis for media denial in this instance. The right to privacy goes away when events or experiences are shared with multiple classmates and are discussed in a public forum, he said. Berkeleyside had also explained to the district’s public information officer that it did not have plans to name students who spoke about personal experiences at the rally.

“As you know, the issues at Berkeley High School this morning — including those underlying the student walkout — involve highly sensitive student privacy issues potentially involving the names of students who may have been victims and others who may be accused of wrongdoing,” Stephens wrote in an email to Berkeleyside on Monday afternoon. “Our responsibility as District staff — first and foremost — is to protect all of our students. In this context, we asked all media to remain on the sidewalk of the school. Almost all of the media present respected our request and did so.”

Stephens cited district policy and a California attorney general opinion that he said “strongly support” BUSD’s stance.

The district policy says journalists “shall register immediately” when they enter a school campus. Berkeleyside did not register with the front desk Monday, but instead, Orenstein walked directly past Stephens and the public information officer and through a wide-open main gate to campus.

Stephens also cited a section of the policy that states, “The district shall not impose restraints on students’ right to speak freely with media representatives at those times which do not disrupt a student’s educational program. However, interviews of students may not create substantial disorder or impinge on the rights of others.”

The California attorney general opinion Stephens referenced says that “school administrators may require members of the news media to follow reasonable conditions while they are on school grounds in order to prevent interference with the orderly educational activities of the school. These conditions may restrict the news media representatives in the same manner that access by members of the general public may be limited…”

Berkeleyside maintains that reporting on the student event — which it was invited to cover by its organizers — would not have interfered with educational activities. On the contrary, students themselves were choosing to leave their classes and engage in non-academic activities. Berkeleyside also believes our reporter’s presence at the rally in no way threatened student safety.

“Finally, I think you know based on the open communication from Berkeley High School’s principal to the student and parent community this past week, and my own presence at today’s walkout, which included numerous on-camera interviews, that the district supports telling this story and honors our student’s voices regarding this important issue,” Stephens wrote.

The superintendent spoke with journalists on the sidewalk outside of Berkeley High on Monday.

Berkeleyside covered the second part of the student protest once it moved off-campus.

Berkeleyside also covered related student protests Tuesday, which took place on the streets of Berkeley and inside the district’s central office and School Board meeting room. The district did not attempt to restrict journalists’ access to those events.

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Berkeleyside is Berkeley, California’s independently-owned local news site. Learn more about the Berkeleyside team. Questions? Email editors@berkeleyside.org.