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Panel releases final results of free press & speech investigation
The following document includes the findings of the panel (Drs. Henry Hughes, Dean Braa and Mark Perlman, and Mr. Dick Hughes, Editorial Page Editor for the Statesman Journal) charged with investigating allegations relating to free speech issues on our campus. President John Minahan responded to the Panel with:
April 28, 2008
To: The Western Oregon University Community
From: The WOU Ad-hoc Committee on Free Press
(Dr. Dean Braa, Dr. Henry Hughes, Dr. Mark Perlman, Mr. Dick Hughes)
The following document contains the results of an investigation into allegations made by the editor of the student newspaper, Mr. Gerry Blakney, that First Amendment rights of a free press have been violated by the administration and faculty of Western Oregon University. After conducting several interviews with parties cited and involved in the allegations, consulting with lawyers representing the Oregon Board of Higher Education, and examining facts and records related to the case, we have determined that there have been no violations of First Amendment rights of free speech and free press.
Furthermore, this Committee believes that the accusations of First Amendment violations were made recklessly. When the facts are viewed objectively, there is not even minimal evidence to support those accusations. However, it is equally clear that in some instances the University administration responded ineptly and in a heavy-handed manner. In short, there is a dysfunctional relationship between the student newspaper and the college administration. Any participants, on either side, who would be tempted to blame others should instead critically examine their own contribution to this untenable situation.
Our report offers documentation and analysis, as well as criticism of and recommendations for student and administrative procedures related to the student newspaper. Students have a right to free speech and a free press, but this right must be exercised responsibly with adherence to ethical and legal standards. This Committee finds that these standards were not observed in Mr. Blakney’s written allegations. Recognizing Western’s role as a learning institution, the Committee also feels that the University’s administrators, faculty and staff are partly responsible for the newspaper’s questionable journalistic practices. Nonetheless, the Western Oregon University Journal is a student newspaper, and it is only with the help of conscientious and ethical student journalists that it may improve.
It is important to note that this Committee was given complete freedom to perform its work. No one – from either the administration or the student newspaper – attempted to influence our findings. We were able to talk with all relevant participants except two former WOU employees who did not accept our invitation to meet.
The Committee’s findings are unanimous.
On January 12, 2008, Mr. Blakney sent a widely distributed e-mail titled “I am writing to you out of desperation.’’ The thousand-word e-mail, signed by him as editor in chief of the Journal, outlined his contentions that “Our First Amendment guarantee of a free press is coming to an end.” (See letter attached at the end of this report.)
WOU President John Minahan formed this Committee to investigate Mr. Blakney’s allegations and sent the following campuswide e-mail on January15, 2008:
“The Editor of our student newspaper has made allegations relating to free speech issues that go to the heart of what we stand for as a university. I think these allegations need to be addressed. So, I am naming a panel to investigate the allegations and report back to the campus community no later than the end of this term as to what they have found. Dr. Dean Braa, Dr. Henry Hughes, both of our faculty, and Mr. Dick Hughes, Editorial Page Editor of the Statesman Journal, have consented to serve on this panel. The panelists will have access to any information that they request and the freedom to report their findings as they see fit. I thank each of them for their willingness to do this important work.
As I see it, no university can afford to be confused about fundamental issues of what is true and what is false when it comes to a fundamental right like free speech.
I thank all of you for your cooperation as this group sets about its work.”
Subsequently, the Committee chose a fourth member, Dr. Mark Perlman of the faculty.
Following are the four main allegations as contained in Mr. Blakney’s January 12 e-mail, followed by the Committee’s findings in each case. The Committee is extremely grateful to the members of the Western community who met with us and especially to Mr. Blakney for providing extensive documentation of his concerns.
Allegation No. 1: “Western employees searched our newsroom during the night without authority or prior notification, which is against federal and state law. Our advisor was consequently fired for protecting our right to gather information and my copy editor faced disciplinary sanctions for finding the file.”
This situation was badly handled by all concerned, but that is not the same as illegal conduct by the University.
More than 10 months after this incident, some parts remain murky. Different versions have emerged as to why a student was looking through files on a supposedly secure part of the University computer system. The student had undergone orientation to be a Journal copy editor but had not yet started that job.
He came across student names, Social Security numbers and other unsecured information in a supposedly secure College of Education file. He made a copy of that information, and then Mr. Blakney alerted the College so that the data could be secured.
From a journalist’s standpoint, that certainly is a legitimate news story. However, downloading that information violates University policy. At no point did the Journal seek legal advice from its counsel, the Oregon Department of Justice, which under Oregon law is the only designated counsel for Western Oregon University.
A copy was made of the data and stored temporarily in the desk of the Journal advisor; again, an action that appears to violate University policy.
Mr. Blakney reported the unsecured files to the College of Education. Subsequently, University officials twice entered the Journal’s newsroom to look for any copies of the data.
The searches appear to be legal but poorly handled. The Committee finds no compelling reason that the search had to be conducted without first notifying the newspaper advisor or editors and having them present. Indeed, the Committee is concerned about a lack of respect for students and student organizations in such situations. Clear policies need to be established delineating the rights of such organizations.
The Committee also finds no evidence that the non-renewal of the newspaper advisor’s contract was a First Amendment issue or that it was unjustified.
The computer use policy and computer security should be reviewed periodically. In the situation described above, the initial “fault” lies with the University personnel responsible for keeping that data secured, and auditing that security, in the first place. The University and student organizations should have clear policies specifying each side’s expectations and rights. That includes organizations using campus technology and property.
The Western Oregon University Journal and its advisor should ask the Oregon Department of Justice to present an informal workshop on legal issues for the newspaper staff.
The Journal should have a defined code of ethics available to all concerned. Among other aspects, it should cover the acquiring of information that might violate University policy. Training on that code should be conducted each year. The advisor and editors also should acquaint themselves with media organizations that specialize in ethics and can help the staff work through ethics problems.
The expectations and role of the Journal advisor should be clearly defined, including pre- and post-publication roles. The University should develop one or more courses covering the basics of journalistic reporting/writing/editing/ethics for the Journal staff and other interested students. The Student Media Board should consider creating a board of visiting advisors – professional journalists who could be available to provide staff workshops at the start of each publication year, occasional critiques of the newspaper and a sounding board for journalistic issues.
Allegation No. 2: “After the new school year began [September, 2007], I changed the Journal’s cover masthead to include ‘Student Owned and Operated, Reporting the Unabashed Truth.’ As a result, the Vice-President for Student Affairs [Dr. Gary Dukes] sent an email to our interim-advisor [D. Curtis Yehnert] asking that the statement be changed or removed.”
The student paper is owned not by the students, faculty or administration, but rather by the Oregon State Board of Higher Education. The Board’s legal counsel confirmed that “the current masthead statement ‘student owned’ is incorrect and should be revised.” Gary Dukes was legally justified in asking that the masthead be changed or removed.
Although the Committee appreciates that students on the Journal examined and questioned the complexities of state ownership, as journalists they should also avoid language that is false and misleading. Moreover, although the advice of Dr. Dukes was sound and the administration was within its rights to remove the masthead, no action was taken. Rather than “repress” or “censor” the paper as Mr. Blakney claims, it seems the administration allowed the Journal to maintain the inaccurate masthead.
Following the advice of the University’s legal counsel, the Committee recommends that the statement “Student Owned” be removed from the masthead.
Allegation No. 3: “Western’s Admission Office stole and recycled Journal copies with the Associate Provost’s direct knowledge.”
On November 10, 2007 Western Oregon University conducted a second “Fall Preview Day” for prospective students and their families. This session was well attended with around 400 students and family members. The group included young children and a delegation of 8th grade students from Gilliam County, Eastern Oregon. Most events for the Preview participants were held in Werner University Center where the Journal was well distributed in racks around the building.
David McDonald, Associate Provost for Admissions, Retention, and Enrollment Management, was in charge of the Fall Preview events. Associate Provost McDonald was concerned about the contents of the then-current edition of the Journal (November 9, 2007). This edition included a story on voyeurism and a cover photo of nude males whose “blurred” genitals were not completely covered by a banner across the page. Associate Provost McDonald decided that the cover and story were inappropriate for young visitors and families, and this prompted him to turn papers upside down and cover some with other materials (other papers, pamphlets, etc. in the area). His goal was to make them as inconspicuous as possible in a short period of time. Copies of the Journal were later turned back over by McDonald so that the front page was again face up, and other copies were simply uncovered.
The Committee found no evidence to support the charge that copies of the Journal were destroyed or recycled. Testimony from individuals indicated that on November 12, the Monday following the Preview Day, there were ample copies of the Journal in the racks and counters throughout Werner University Center. So if copies of the Journal were removed, then it could not have been a large number. Associate Provost McDonald testified that he did not destroy copies of the Journal or move them to a recycling bin. The Committee found no evidence to contradict this assertion.
Later Associate Provost McDonald apologized to the newspaper for concealing copies of the Journal. In his apology he acknowledged that his action was inappropriate and violated university policy. He further indicated his support for free speech and press, as well as support for open dialogue and critical discourse on campus. His apology was printed in the November 30 edition of the Journal. Associate Provost McDonald suggested in an interview that he should have asked the Journal editor to voluntarily cover the newspapers temporarily. And he also suggested that he should have consulted with the Student Media Board before taking any action. Associate Provost McDonald indicated that the university needs to have a functioning and active Media Board in the future as a means to provide guidance and policy for interactions between the larger community and the Journal.
The committee recommends that the Media Board should be organized and functioning during the school year. The Media Board may develop a policy for the temporary removal of adult materials when programs that include young visitors are scheduled. Individuals could petition the Media Board for permission to temporarily conceal or remove sensitive materials in areas where young people would be present.
Allegation No. 4: Unauthorized changes to the Student Media Board.
Mr. Blakney’s allegations regarding the Student Media Board are as follows:
The Committee has determined that some of Mr. Blakney’s concerns are warranted, but there was an inordinate level of confusion that led to his believing that serious problems existed. Most important, no changes to the Student Media Board have officially been made; therefore, the most serious charges are not correct. However, Dr. Gary Dukes, the Vice President for Student Affairs, did take it upon himself to work on changes to the board.
Dr. Dukes explained his actions as being a reaction to the fact that the Media Board had not been formed in Spring of 2007 (as it was supposed to have been) and did not meet in Fall of 2007. Dr. Dukes said that problems with the Board necessitated searching for changes in its structure. Dr. Dukes judged that the Student Media Board was not an effective review board of the "Journal", and he looked at rules of media boards at several universities to find ways to improve the WOU board. Dr. Dukes discussed his ideas with Dr. Yehnert. While Mr. Blakney describes these as “secret” and even “illegal” meetings (in violation of public meetings laws), this Committee finds no reason to view them as anything other than University colleagues discussing a matter of common interest. Though President Minahan was told changes were being considered, the President did not know the details, and was not yet asked to ratify any changes. Thus, no changes were actually made to the bylaws.
Mr. Blakney asked Dr. Yehnert for a copy of the bylaws, and Dr. Yehnert said that they were in the process of being updated. When Mr. Blakney and his managing editor, Ashley Erb, met with Dr. Dukes, they were told that there were changes being planned, but their requests for more information were refused. Dr. Dukes seems to have initially refused to give them a copy of the Media Board’s bylaws, but later produced a copy. All of this made Ms. Erb and Mr. Blakney suspicious and upset, anticipating the worst. In fact, Dr. Dukes has no standing to rewrite the bylaws of the Media Board. There is a clear process for such changes to be made, and they require first having a Media Board and board meetings where proposals are presented, discussed and voted on. Mr. Blakney’s concerns on this aspect are entirely correct. No changes can be made to the Media Board’s bylaws without board ratification. No board, however, had been formed and convened.
Why was no Media Board formed in Spring 2007? It seems that the then-Director of the Werner University Center, Denise Galey, was supposed to form the board in Spring 2007. That did not happen. Soon after, she left the University’s employment. Ms. Galey was succeeded by center Director Jon Tucker, but the board still was not formed. Dr. Dukes appears to take no responsibility for these failures, even though the center Director reports directly to him. He said he did not even know that the Media Board had bylaws until they were revealed through the NW Accreditation process. It also seems that the bylaws require that the Vice President for Student Affairs appoint some members of the Board, but Dr. Dukes did not do so. In the opinion of this Committee, the failure of the WOU administration, and in particular the Vice President for Student Affairs and those working under him, to form the Media Board, began the troubles and anxieties that lead to that portion of Mr. Blakney’s allegations.
Moreover, even after knowing that there were problems, and that the Media Board was not formed or meeting as it should, Dr. Dukes did not take steps to create a Media Board in order to consider possible changes to the bylaws. Instead, he simply came up with his own solutions, with no student input whatsoever, and planned to submit them to the University President. He then met with Mr. Blakney and Ms. Erb and, according to their testimony, was entirely unhelpful. He gave these students the impression that changes were being made, even though he viewed them as merely “ideas,” “notes,” and “possible proposals.” In the judgment of this Committee, the controversy about changing the Media Board might have been alleviated had Dr. Dukes been upfront with these students.
This Committee’s recommendations on this issue are simple: Form the Media Board as the rules dictate, and let it do its job. If there are problems with its structure, the board’s bylaws have specific procedures for considering and adopting changes. That is the proper forum for discussion of problems with the board’s structure and composition. It is not the place of the Vice President for Student Affairs to unilaterally write new rules and send them to the President. Doing so gives the appearance of violating proper procedures, even if such ideas were simply “proposals.” In addition, the affected students should be treated with respect, given clear and correct information, and not misinformed and manipulated. They deserve answers about issues of importance to them, not hedging and stonewalling, which is what they appear to have received from their own Vice President for Student Affairs.
The Committee unanimously reiterates that the allegations of free speech and press violations are unfounded. The Committee urges the University community to adopt the recommendations contained in this report.
The Jan. 12, 2008, letter from Gerry Blakney:
I am writing to you out of desperation.
Our First Amendment guarantee of a free press is coming to an end.
Ours is a story that started last summer when my copy editor accidentally came across over 80 students' confidential information including social security numbers, state test scores, grade point averages and contact information that was completely unsecured on the university network. Minutes later, he told me, editor in chief of the Western Oregon Journal, about the breach and asked for advice and guidance.
We quickly went through the files to make sure that the files were in fact confidential, and to make a record so we could report on the incident at a later date. We felt students needed to know if their private information was unsecure, so made a copy of the information and locked it away as evidence for a future story. We reported the file to the university within 15 minutes of initially finding the files so that information could be secured. But as a result of our discovery, Western employees searched our newsroom during the night without authority or prior notification, which is against federal and state law. Our advisor was consequently fired for protecting our right to gather information and my copy editor faced disciplinary sanctions for finding the file. Our advisor's supervisor, the director of the Werner University Center, resigned shortly thereafter.
This incident has been reported by news agencies nationwide. And the injustice of it has been editorialized in blogs and Oregon papers including Willamette Week, who called the action "soviet."
After the new school year began, I changed the Journal's cover masthead to include "student owned and operated, reporting the unabashed truth." As a result, the Vice President for Student Affairs sent an email to our interim-adviser asking that the statement be changed or removed.
A month later on Preview Day, Western's Admissions office stole and recycled Journal copies with the Associate Provost's direct knowledge. I challenged their decision that day by handing out copies of the Journal to prospective students and families. I was only able to hand out three copies before the Associate Provost guaranteed that our papers would be returned and never hidden again. Western's faculty union and communications department weighed in on the theft of our papers, prompting the Associate Provost to finally apologize to the university publicly.
Time and time again, the administration has proven that they do not care about a free press, the First Amendment or, seemingly, students. The University President condemned the hiding of our papers to the press, yet continues to defend his staff's actions as he is the "publisher of the newspaper."
All of this brings me to yesterday, January 11, 2008. The Western Oregon Journal is governed by the Student Media Board composed of students, staff, faculty and an outside representative from the press, and chaired by the Director of the Werner Center (whom I mentioned earlier, resigned earlier in the year). According to its guidelines, this board serves the student body and media heads and is responsible for hiring and firing the media heads (to alleviate any content influence from university administration), developing policies to guide student media, approving the budget and responding to any complaints or grievances relating to student media. This board has been active and archived for at least 15 years. Unfortunately, the board has not yet met in this academic year, and the reason for this became painfully obvious Friday.
I was shocked to learn that student media's interim-adviser and the Vice President for Student Affairs have secretly been making changes to the Media Board's bylaws without the Media Board's knowledge, to be approved only by the University President. In 2001, a committee of students and staff, aided by OSU's student media adviser, adjusted the guidelines to ensure an independent student press. Those bylaws went through the proper channels, were approved by the then-University President, and ratified by the entire Media Board.
But this time, there is absolutely no student input. Our interim-advisor refuses to release the changed bylaws. The Vice President for Student Affairs refuses to release the changed bylaws; his only reasoning being that "he won't." The bylaws have not yet been approved by the University President, and the administration won't reveal any timeline.
According to the current Media Board bylaws, Article 14, sections 1 and 2 outline the process to amend the bylaws. Amendments or revisions to the bylaws may only be introduced to the Media Board for consideration. Furthermore, all amendments and revisions to the bylaws must be ratified by a two-thirds vote of the Student Media Board and the Vice President for Student Affairs. None of this has happened.
The Media Board must adhere to Oregon Public Meeting Laws and a two-thirds quorum. However the Vice President for Student Affairs and our interim-advisor have made changes without consulting anyone but the University President.
I have served in student government for the past five years as the Judicial Administrator, Chief of Staff, President and Director of Communications prior to my service as the Editor in Chief of the Western Oregon Journal. Including a term of service on the Oregon State Board of Higher Education. I have a long history of student advocacy but do not know what I can do next. The Western administration has completely taken control of the student press. We are a public university; the administration's previous attempts at censorship have damaged Western's reputation. I'm tired of the Oregonian and Willamette Week writing about how repressive and 'soviet' our school is. The public views us as the opposite of progressive. Is this the kind of university that you want to attend and graduate from? If not, I need your help.
I am asking for your time. Western Oregon University needs to know that an independent press must exist on a public university. Censorship is not part of the educational process. There exists an oversight Student Media Board to protect both a free press and the university. The actions that the Vice President for Student Affairs, interim Advisor and University President have taken are completely inappropriate and possibly against state shared-governance and student media laws. I need you to write letters: to the press, university administration, the state board, Governor Kulongoski, and anyone who cares about American freedom. Please feel free to call me at 503-473-5142 or email me at email@example.com for further information.
We need your help.
Editor in Chief
Western Oregon Journal
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