Protecting confidential sources in sexual harassment cases is putting college journalism advisers at risk

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This article is being co-published with RealClearInvestigations/photo by Kathryn Jones

For Tarleton State University’s student news outlet, the Texan News Service, the April story was a scoop: young women coming forward to tell of sexual overtures made by an established professor at the school in North Texas.

But to the administration at Tarleton, part of the Texas A&M University system, the story violated a school regulation requiring that any alleged sexual harassment be reported to university authorities first.

The school entered uncharted waters when it not only reprimanded newspaper adviser Dan Malone but threatened to fire him if he didn’t submit to additional training regarding Title IX, a federal anti-discrimination law. Malone says he signed off on the story and knew the identities of “some of the sources, but not all.”

College media experts say the incident is an important test of how the student press and its advisers navigate issues of Title IX and free speech.

Malone, an assistant professor, says the case illustrates the tension between his obligations as a journalist and as a school employee. “The university sees me as a teacher who is not a journalist, yet they hired me because of my background as a journalist,” said Malone, who as a Dallas Morning News reporter in 1992 shared a Pulitzer Prize for reporting on police misconduct. “I can’t agree that if you’re a journalist and start teaching, you relinquish all duties as a journalist,” including the obligation to protect anonymous sources.

The university maintains that the case does not involve sacred principles but standard policy. It never asked Malone to disclose the names of the accusers. It just insisted that he follow the rules that require all such allegations be relayed immediately to the school – not through the campus paper, but through proper channels.

“See where Dan gets paid,” said Laylan Copelin, spokesman for the Texas A&M System. “He’s an employee.”

Colleges and universities have a history of meddling with student media by defunding them or censoring content, actions often seen as First Amendment infringements. But some critics fear the invocation of Title IX in the Tarleton case may signal a move toward more active regulation of campus speech.

When it was passed in 1972, the statute was largely intended to prevent discrimination against women in college athletics. In the decades since, it has been applied to address a wide range of issues, notably campus rape, sexual harassment and other abuses. Now student journalism is a focus of Title IX enforcement.

Tarleton’s action is drawing special attention from media advocates, with free speech now a hot topic on campus. Some critics complain that universities have done little to prevent breaches of the right to free expression; for example, when controversial speakers are cancelled, or when “bias response teams” encourage anonymous student complaints for what some consider simply expressions of beliefs.

Although Title IX requires schools to create their own policies guided by federal law, it gives them leeway in how they are shaped. This has led to a mish-mash of policies. “Some universities have chosen to remain silent on mandatory reporting,” said Jill Engle, a professor of clinical law at Penn State University and the author of a 2015 paper on mandatory reporting. Others have crafted their own approaches.

The University of Northern Iowa simply requires any employee who is “aware of” incidents involving harassment to report them, while students are “encouraged” to do so. At the University of Oregon, an employee is obligated to report an incident if he or she has “reportable evidence” of a problem. At Texas A&M, all employees must report “alleged or suspected” activity.

Engle said many schools do not independently craft their own policies. Instead, they pay tens of thousands of dollars to consultants to develop Title IX language that will keep them out of courtrooms. These policies – which tend to view exceptions as forms of legal exposure — almost always ignore the student press and its advisers, said Bob Bergland, who chairs the First Amendment Advocacy Committee of the College Media Association, which supports college media advisers.

“In some ways, universities would be reluctant to carve out an exception” for journalism advisers, Bergland said, “and because there are so few other exceptions they would not want to include them.”

Frank LoMonte, senior legal fellow at the Student Press Law Center, said there is “a subset of situations where compelling someone to report is wrong. And that starts when you start telling people they cannot confide in journalists.”

“It’s well known that a doctor or a lawyer cannot divulge information like this, even on campus,” he argued.

So far, the harassment-reporting mandate many schools require has not been tested in the courts to see how they square with shield laws, LoMonte added.

State shield laws protect journalists from being forced to disclose their sources and are in place in 40 states, including Texas.

Malone’s lawyer, Jay Ellwanger, wrote in a letter to the university that, as an adviser to the student newspaper, his client is “protected by the Texas Free Flow of Information Act, as well as the First Amendment.”

But the school says the reprimand of Malone will remain a mark against him pending a grievance process, and it will not discuss the matter further.

“A private sector journalist is one thing, but a university employee isn’t covered [by the state shield law],” said Copelin, the Texas A&M System spokesman. “If someone wants an exception, he will probably have to get the law changed.”

The reporter of the story, Quanecia Fraser, was not sanctioned.

“She did the right thing and reported it to her supervisor,” Copelin said, referring to journalism adviser Malone.

Bergland of the College Media Association spread kudos to Malone. “He and his students should be praised for bringing to light a Title IX violation,” he said. “This professor created this boldness in reporting.”

Steve Miller can be reached at [email protected].

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