Expert: Student journalists retain right to survey under new state law

Note: the content of this post should not be construed as legal advice from KSPA and executive director Eric Thomas. If you need advice on how you or your students should handle a particular situation, please consult a lawyer. You can find help through the Student Press Law Center and the Foundation for Individual Rights and Expression.

From KSPA executive director Eric Thomas:

During the past few weeks, many advisers have emailed KSPA or me personally to ask about the impact of a Kansas statute (HB2567) that was signed by Gov. Laura Kelly in May. The concern has come from teachers who have been warned by school administrator about proctoring surveys to students. Most commonly, these warning came during teacher meetings that preceded this school year.

Given that, some teachers are nervous how the work by their student journalists might be limited — in regards to student surveys — by the new law. Can student journalists continue to use surveys under HB2567?

As my note above makes clear, I am not a lawyer. So, to help clarify your best next steps as publications advisers and journalism teachers, I consulted some legal experts here at KU and elsewhere. Even so, I stress the need to consult a lawyer or your school district’s counsel if you are concerned about a survey that students in your classroom are using.

Harrison Rosenthal is a former graduate student here at KU and a current litigation fellow at the Foundation for Individual Rights and Expression (FIRE). I will quote a bit of his expertise here:

“Upon further perusal of HB 2567—it seems the amended statute would only apply to staff, not students. The amended version includes the following language:

(e) Except as provided in subsection (f), the provisions of this section shall apply to any test, questionnaire, survey or examination described in subsection (a) that is administered or proposed to be administered to any student by any employee of a school district, including, but not limited to, any administrator, teacher, counselor, social worker, psychologist or nurse. (My emphasis here)

This constitutes a narrowing construction—it would have been nice if the legislature had included it right at the beginning. Some could read the statute as saying “nobody can distribute a survey, and employees definitely can’t distribute surveys,” but that would make this provision redundant.

Harrison also notes that FIRE would be interested in litigating if any student was restrained from surveying based on this law and if “the facts were right.”

I hope that this expert reading provides some clarity — and perhaps some expertise that you can display to an administrator that hopes to restrict your students or to sharpen your students’ understanding of their rights.

This is a good place for me to register my discomfort with how student journalists use surveys. Of course, there are some important information gathering surveys that we use in student journalism, including collecting demographic (clubs, activities, etc.) and fun facts (senior quotes), especially for yearbooks.

However, I am reluctant to encourage students to use surveys to represent their student body. Last year, I got so wound up about it, that I presented a session at the virtual NSPA/JEA convention on the topic. Feel free to use the slide deck or the video (embeded below) in your classrooms.

While I certainly don’t support the state restricting student journalists from administering surveys, this might be a good moment for staffs to reconsider how often to use surveys — and how much to trust their results.

Questions? Please let me know with an email to staff@kspaonline.org.

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