Berkeleyside alleges Berkeley school district violated 1st Amendment

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Online-based Berkeley news outlet Berkeleyside has leveled allegations against the Berkeley Unified School District, or BUSD, claiming the school district violated its 1st Amendment rights at a Berkeley High School protest against the school district’s handling of Title IX cases.

The allegation was published by Berkeleyside on Feb. 12, when it reported claims that its own journalist, Natalie Orenstein, was excluded from the Berkeley High School, or BHS, campus. Executive director of the nonprofit First Amendment Coalition David Snyder said he thought the school district had overstepped its legal bounds by asking Orenstein to leave.

“The narrow legal rights here resides in the education code in California,” Snyder said, adding that the education code does not provide enough legal grounds to prevent journalists from covering events such as the BHS rally. “Based on what I understand happened there, I don’t think those conditions were met.”

The rally came amidst the ongoing lawsuit Jane Doe v. Berkeley Unified School District, in which a BHS student alleged that BUSD employees were negligent in their supervision of the reportage of sexual assault. The rally and walkout that students staged Feb. 10 protested the lawsuit along with what one student called the school’s “rape culture.”

The school district claimed it asked Orenstein to leave the BHS campus because of concerns for student privacy and safety.

“Our responsibility as District staff — first and foremost — is to protect all of our students. In this context, we asked all media to remain on the sidewalk of the school,” said BUSD Superintendent Brent Stephens in a statement. “Almost all of the media present respected our request and did so.”

BUSD spokesperson Trish McDermott alleged in an email that Orenstein failed to check in when she entered the campus despite signs stating that guests must do so.

In response, Berkeleyside executive editor Frances Dinkelspiel said this was not grounds for Orenstein’s alleged exclusion from the protest.

“Lawyers have told us that districts can’t deny access to schools on the basis of protecting student privacy — and even if they could, privacy is not relevant here because the walkout rises to the level of a public event,” Dinkelspiel said in an email. “The right to privacy goes away when a student shares an experience with multiple people and talks about in a public setting, according to lawyers with which we conferred.”

Legal action against the school district is a possibility, according to Snyder. He added, however, that it is not currently being considered by the First Amendment Coalition. Instead, Berkeleyside hopes to “engage in dialogue” with school officials about the incident, Dinkelspiel said in the email.

Contact Ben Klein at [email protected] and follow him on Twitter at @BenKlein_dc‏.