Change in policy raises 1st Amendment concerns

A proposed change in the University's judicial system could allow the University to punish students or faculty who discuss pending cases. The University's judicial proceedings have always been confidential, but there was never any system for punishing people for breaking confidentiality. The new proposed policy states that only the person accused in the case can make the issue public, and disclosure by others "shall constitute a violation of University rules and subject the individual to the appropriate procedures for dealing with such violations." According to the code, the person who files charges, or anyone else involved in the case, would face penalties if he or she went public with information on the case. "This is going to put a bite in it," said Stephen Burbank, the chairperson of the committee proposing the changes. Faculty who worked on the plan said yesterday that the intent of the revision is to prevent leaks and to protect confidential information about students from being released. "Breaches of confidentiality are a violation of University rules. If you leak, you're liable," Burbank said. Though the person charged is technically allowed to discuss a case, "that is discouraged," Burbank said. David Pope, chairperson of the oversight committee, emphasized that the intent of the committee was to protect the rights of the accused. "We don't want people who are privy to certain information to be trumpeting around campus that someone has been accused," Pope said. Pope said that while it would be fine to reveal that charges had been filed, the intent of the committee was to prevent revealing the name of the person against whom charges were filed. "The main concern we have is that once things go before a hearing court or honor court or when the JIO is given information by individuals, that no one leaks that information," Pope said. History Professor Alan Kors, perhaps the most vocal free-speech advocate on campus in recent years, said that he sees the need for the confidentiality, but that students' rights need to be protected. "It seems an admirable goal to prevent leaks, but one has to do that in a way not to preclude other legal rights," Kors said yesterday. "This has to be consistent with other rights . . . This also includes the right of a free press to report by its own choice information that comes into its possession." Mark Goodman, the executive director of the Student Press Law Center in Washington, D.C., said yesterday that administrators at other university have attempted to prosecute student journalists for printing information on judicial cases. "It's crazy to think they have the right to control what the newspaper wants to publish," Goodman said. Pope said under the new code, a reporter or editor could be brought up on charges by the JIO, or be asked to reveal who had leaked the information so that that person could be brought up on charges. "I suspect it would happen and I suspect that the editor would refuse to say who had told him," Pope said. But Pope said while he personally does not think this is how the code should be applied, it can be interpreted that way. "I personally wouldn't want to charge the editor, but there would be people who would want to charge the editor with violations." SPLC's Goodman said at Southern Methodist University, the student newspaper published a story about judicial proceedings and the administrators began a judicial case against the editor. "Defenders of the editor came out of the woodwork," Goodman said. But Goodman said he had never heard of challenges to such university rules going to court and predicted that most are resolved when there is a public outcry against the university suppressing freedom of the press. "I think it is disgraceful for any institution, especially the University of Pennsylvania, which has such a long and esteemed reputation, to take a notion that is contrary to press freedom in this country," Goodman said. According to the University's policy, all information concerning judicial cases must remain confidential under the Family Education Rights and Privacy Act of 1974, which is commonly known as FERPA or the Buckley Amendment. FERPA states that colleges and university cannot release "education records" of a student without permission from the student or his family. But over the summer at the University of Georgia, the student newspaper The Red and Black filed suit against the school, claiming that judicial records are not "education records" and therefore are not covered by FERPA. Reporters at the Red and Black tried to attend a hearing of the school's Organizational Court, which was holding hearings on alleged hazing at two fraternities. The schools lawyers said they could not attend the meetings, citing FERPA.

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