It pained us lovers of the First Amendment to see Berkeleyside reporter Natalie Orenstein ousted from the Berkeley High campus on Monday, Feb. 10, during the student walkout over sexual assaults. Berkeleyside took umbrage under the banner of the public’s right to know, while the school district shielded itself with its legal duty to protect student privacy and safety.
As a journalist for most of my career, I believe we owe daily thanks to any press gods for blessing us with Berkeleyside and its superb local coverage and staff, so it pains me also to side with the school district in this case. But my view stems from having been on the front lines on both sides. I retired from the Berkeley school district last August, after three years as the Public Information Officer.
All agree that reporters have a legal right to enter school campuses and that schools have a legal right to impose reasonable restrictions on reporter access under certain circumstances. The disagreement centers on which circumstances justify barring access and whether those circumstances were present Monday.
In its article on the dispute, Berkeleyside suggests that schools can’t bar reporters unless the reporter’s presence would disrupt or interfere with educational or other school activities. In this view, the walkout and campus rally were “non-academic activities” not subject to restrictions on access.
The district says it acted to protect student safety and privacy, and District Superintendent Brent Stephens cites “highly sensitive” privacy issues involving “the names of students who may have been victims and others who may be accused of wrongdoing.”
But Berkeleyside’s legal counsel says privacy concerns don’t apply when “when events or experiences are shared with multiple classmates and are discussed in a public forum.” And, Berkeleyside adds, it did not plan to name students who spoke about personal experiences.
And regarding safety, Berkeleyside said it “believes our reporter’s presence at the rally in no way threatened student safety.”
But on the other side of the gates, there’s a different world, where even on a normal day, providing safety and order, not to mention education, on a campus of 3,000 lively teenagers is often a Herculean challenge.
A student walkout typically triggers an all-hands-on-deck alarm for administrators who need to not only deal with the walkout throng but also quickly triage class maintenance and other regular school activities for students who don’t walk out. If walkout students suddenly veer off campus, as they often do, administrators must be instantly available to go with them to help ensure their safety.
The under-funded district typically lacks enough staff to accommodate several reporters on campus at once. Student walkouts can bring not just Berkeleyside but also the Daily Cal, KCBS, KQED radio, and multiple TV crews, not to mention the East Bay Times, EdSource and the Associated Press. When I was the PIO, BUSD policy required that reporters on campus be accompanied by a staff member, rather than left to wander alone. We seldom had a single administrator to spare during walkouts. And since it’s often not possible to herd reporters into packs at mass gatherings, we certainly lacked enough staff to accompany each reporter. (Requiring accompaniment by a staff member is a “reasonable condition” that schools may set for access, according to the state Attorney General’s “Rules for Media Access to Schools.”)
In short, diverting staff to accompany roving reporters during a large student walkout can mean inadequate staff for urgently needed tasks attending to the walkout itself – and for protecting student safety.
As for student privacy, a public school campus is not strictly a “public forum.” It occupies murkier legal terrain. Berkeleyside’s promise not to use names, judging from my experience, could be relied on, but the district may lack the same familiarity with other news organizations. And in any case, BUSD cannot enforce such a condition on any media outlet.
Allowing press on campus in this instance would have posed a privacy hazard for students who weren’t aware they could be quoted by name and also photographed and recorded on video while disclosing personal trauma to fellow students in a campus setting, and that their disclosures could be accessible anytime in the future to anyone in the world with an internet connection. (When off campus, they’re more likely to know their remarks are public.)
The district must consider the rights of accused students too. They too have privacy rights. And not to diminish the actual cases of sexual harm, but the district cannot ignore the possibility that one or more of the accused students may be falsely accused by name, which could constitute defamation, a crime. In the recent protests at Berkeley High, restroom graffiti accused some students by name of rape or other sexual harm. The district could not rule out the possibility that such accusations would be repeated by someone at the campus rally.
As Berkeleyside argues, the campus rally may not have been covered by access rules governing “educational activities,” but the state Education Code also names “other activities of the public school program” as subject to rules governing access. In my view, “other activities of the public school program” can include school safety plans and other contingency protocols that schools implement during disruptions to normal operations, including walkouts.
So, I think the district’s action was probably authorized by law in this case, but there’s no easy answer. When rights conflict, resolution often depends on a case-by-case balancing test. I wouldn’t say it’s okay to ban reporters from all student walkouts and rallies on campus. When Berkeley High students held a campus rally for the national walkout on gun violence following the 2018 Parkland school shooting, we designated an area for the media at the rally. We could do so because we had notice far in advance and in-depth consultations with walkout organizers, giving us time for necessary coordination with our staff and with reporters.
Perhaps more important, the gun violence walkout did not involve the sensitive privacy issues of the current case. Also, the denial of campus access on Feb. 10 did not deprive Berkeleyside and other news outlets of ample access to abundant information and viewpoints from students and administrators about the issues at stake.
I have not been in contact with anyone in the district about the Feb. 10 incident or this column, and I don’t know all that administrators said or thought at the time about denying access.
My interest is focused mainly on the broader issue of when any school is entitled under the law to deny media access. It was my hope that my experience and perspective from both sides might help contribute to a fuller understanding of the recent Berkeley case and possibly other similar cases requiring a balance of our fundamental values of press freedom and student protection.
