Journalists rely on free-flowing information to do their jobs but often run into barriers of access. These can range from sluggish responses to information requests to public officials trying to prohibit staff members from talking to the press.
Such obstacles to information are frustrating, and they also can be unconstitutional.
“The Supreme Court has said over and over again that public employees do not check their First Amendment rights at the door when they sign on to take a government job,” said Frank LoMonte, a professor at the University of Florida and counsel at CNN, during a Sunshine Week panel co-hosted by the Society of Professional Journalists and the National Press Club Journalism Institute.
“This is a pretty serious issue when we’re being unfairly blocked to get information that’s important to news consumers,” said Delece Smith-Barrow, education editor at POLITICO. “They’re using our stories to make decisions about their lives; where to send their children to school; who to vote for.”
Joining LoMonte and Smith-Barrow to share strategies for education reporters facing information roadblocks were Eva-Marie Ayala, Education Lab editor for The Dallas Morning News, and Randi Weingarten, president of the American Federation of Teachers, AFL-CIO.
From the First Amendment to the Family Educational Rights and Privacy Act, know and stand up for your rights under the law.
The First Amendment grants public employees the right to speak with the press if they choose — and this applies to all public school employees at the elementary, middle, high school, college, and university levels. It also includes charter schools, which are publicly funded.
When being denied access to an employee at a public school, firmly remind the official that the First Amendment still applies on school grounds.
“Every single time a public employee has sued a government agency over the legality of one of these policies, these gatekeeping policies, that public employee has won and the agency has lost,” LoMonte said. “So the courts have unanimously spoken to this.”
Weingarten said that journalists also can contact the union representing the employees as another avenue for access.
“The public is entitled to know what’s going on; teachers should be able to say what’s going on. There should not be this censorship,” she said. “Of course, the union should be a vehicle to help.”
The Family Educational Rights and Privacy Act (FERPA) is sometimes used by schools in response to a Freedom of Information Act request, LoMonte said. But it is a narrow law that applies only to a subset of student education records that are centrally maintained in that student’s permanent file.
“It applies to almost nothing that any journalist would legitimately want to see,” he said. For example, FERPA does not apply to data or trends, including the number of COVID cases on a public school or university campus.
If journalists encounter this particular roadblock from officials, LoMonte said to push back. Ask to see the restrictive policy that prevents the release of data and ask specifically why they are blocking the information.
“Make sure you know what your state’s open records laws are as far as getting access to information routinely,” Ayala added.
Another work-around is reaching out to statewide or nationwide associations that can offer a wider context to your reporting.
Look for opportunities to include students in your reporting.
Children also have a First Amendment right to talk to the press and can add valuable perspective and context to education stories.
“There’s not a children’s invisibility law in America,” LoMonte said. “So kids absolutely have the right. And I would argue that we as journalists have the responsibility to make sure that they’re not invisible, that they’re actually seen, heard, respected, and honored for the complex human beings that they are.”
As children get older, the law recognizes a greater capacity of consent, so implementing an age-specific process can be helpful.
“You have to approach this with humanity,” Ayala said. “You can’t just have a one-size-fits-all approach to anything, but particularly to interviewing kids.”
This includes having conversations about what the impact could be for both the student and family after being identified in the media. And when in doubt, bring in a parent or guardian — especially if the students are younger.
“You don’t want to put [students] in a situation where they are putting their families and themselves at risk,” Ayala said. “[It’s] trying to balance the immediacy and the needs of the day with humanity.”
And in terms of access, LoMonte said it can be beneficial to interview students away from school property: “If you want faces and names of kids, meet them someplace after hours and then there won’t be that official intermediation.”
Cultivate relationships off deadline to help earn trust.
Getting to know prospective sources in low-pressure environments is a great way to build connections that don’t feel extractive.
“On deadline is not the time to build trust, right? You want to build those relationships as far ahead in advance as you can,” Ayala said.
And when a reporter is starting a new education beat, it makes sense to introduce themselves to school leaders right away to get off on the right foot.
“We’re not trying to be your cheerleader, we’re not trying to knock you down,” Ayala said she tells these leaders. “We’re trying to give an honest and accurate portrayal of what’s happening in our communities and in our schools.”
Allow time to meet people outside of work, Ayala added, making sure to include a variety of school districts.
Weingarten said that local journalists like Ayala tend to be more successful in building trust, and that can be good for the relationships between schools and communities too.
“The community will actually be more respectful of what local media says, than, you know, a tweet from out of town,” Weingarten said. “And if we don’t make sure that the public actually sees what’s going on schools, good, bad, and other, then how is the public going to trust that the schools are taking care of our kids, and the schools have the resources they need for teachers to teach and children to learn?”
Bonus hack: Use this method to work around restrictive information access policies.
LoMonte shared that for tough FOIA and state-based open information requests, it can pay for a reporter to go into used-car buying mode.
“Only a chump pays the sticker price, right? And so don’t pay the sticker price [for the request]. Haggle, treat that first quote — it’s going to take six months, it costs $4,000 — as the starting point in the negotiation and push back and know your state law, because often, the state law entitles you to a faster response and a cheaper response,” he said.
Nathaniel Liu, NPCJI spring intern, contributed to this reporting