Does the University of Illinois’ Title IX policy violate freedom of the press?

The University of Illinois, as a public college, is a government entity. Can it punish its employees for exercising their constitutional rights?

Earlier this year, NPR Illinois and Pro Publica conducted an investigation on the University of Illinois at Urbana-Champaign’s handling of sexual harassment complaints. What they found, according to the report they published, was that “the university helped several professors keep seemingly unblemished records even though they were found to have violated its policies: letting them resign, paying them for periods they weren’t working, promising not to discuss the reasons for their departures and, in some cases, keeping them on the faculty.”

As a follow up to this investigation, NPR Illinois and ProPublica published an online questionnaire inviting more stories of sexual misconduct at Illinois universities, including incidents where the victims “did not or could not file a report.” The questionnaire asks for names and email addresses, but promises that the information will not be shared without explicit permission.

Within days, the University of Illinois at Springfield, where NPR Illinois is based, informed the station that it couldn’t offer this confidentiality to their sources. Why? Because NPR Illinois is owned by the university, which makes its reporters, technically speaking, university employees. And Title IX requires almost all university employees to report in detail all incidents of sexual violence, sexual harassment or other sexual misconduct to the Title IX coordinator.

Naturally, this is a huge impediment to NPR Illinois being able to continue its investigation into campus sexual misconduct. Confidentiality is crucial to reporting on these cases. As NPR Illinois reporter Mary Hansen says, “Particularly when we’re dealing with people who’ve experienced harassment, they’re pretty reticent to talk to people. You have to do some trust-building first.” This trust is far more difficult to establish when a source knows that everything she/he says will be disclosed to the university (which, I might add, has a poor track record of dealing with such complaints).

NPR Illinois requested that its reporters be exempted from the mandatory reporting requirement, similar to the exemption that the University of Illinois Springfield grants to counseling center employees. When the university denied this request, the station’s leadership wrote an open letter to the university’s president and chancellor beseeching them “to recognize the First Amendment protections of journalists and the editorial independence of our news organization by reconsidering our request for an exemption.”

Does NPR Illinois have a First Amendment right to keep its sources confidential? Many courts have found that the First Amendment provides journalists with a “qualified” privilege to protect their sources, meaning they can only be forced to reveal them under certain circumstances — say, if the government has a compelling interest in obtaining the information and there’s no alternative source for obtaining it. A majority of states, Illinois included, have press shield laws that protect reporters from having to disclose their sources in state court. But what makes this case more complicated is that the University of Illinois isn’t subpoenaing the reporters at NPR Illinois to reveal their sources in court. Rather, it’s making disclosure of those sources a condition of their employment.

That’s another First Amendment issue altogether. The University of Illinois, as a public college, is a government entity. Can it punish its employees for exercising their constitutional rights? The vast majority of cases that consider this question involve incidents where government employees were fired or disciplined for their speech. The law here is complex, but the very general rule of thumb is that you balance the interests of the employee in speaking on a matter of public concern that’s not part of their official duties against the interests of the government in an efficient and disruption-free workplace. It’s difficult for employees to win these cases, because courts tend to defer to the government employer’s judgment regarding when an employee’s free speech undermines its work. But it’s harder to predict what would happen if the dispute between NPR Illinois and the University of Illinois went to court because, quite unusually, it revolves around the free press rights of government employees.

The email denying NPR Illinois’s request for an exemption states that “the university has determined that requiring journalist employees to adhere to the … reporting requirements would not violate any constitutional or other legal protections,” but that certainly isn’t settled law. Nevertheless, the university has a valid and compelling interest in enhancing campus safety by requiring its employees to report incidents of sexual misconduct.

NPR Illinois agrees and says as much in its open letter. It’s not requesting that its reporters should be exempt from mandatory reporting requirements in every circumstance, but specifically when engaged in newsgathering activities. It’s unlikely that such a narrow exemption would open the floodgates for abuse. And the benefit would be that NPR can continue to do the work that journalists are meant to do — hold powerful institutions accountable.

Lata Nott is executive director of the First Amendment Center of the Freedom Forum Institute. Contact her via email at lnott@freedomforum.org, or follow her on Twitter at @LataNott.

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