Can a faculty advisor who has received confidential information about the school and publishes the story in the school paper be forced to reveal their source?

Like we said, every state has its own shield law, so each one is different. Let’s look at Michigan’s Shield Law for an example. Michigan law says that, 

"A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication shall not be required to disclose the identity of an informant."

. . . well, unless there are certain criminal charges involved. We won’t get into that, but just don’t break the law when you’re investigating (or, you know, ever). Because if you have information that could help solve an ongoing criminal investigation or your story is about a really serious crime involved, you might be forced to disclose your sources to law enforcement. This is a limited situation where shield laws won’t protect journalists.

Okay, so here’s our answer to your question. We’re thinking that the advisor counts as that “other person” who is involved in gathering or preparing for news. 

In this situation, the high school advisor received information from another teacher that the administration planned to ban the middle school teachers from teaching certain books to students. A resulting article was published in the school newspaper, which led to a community outcry and a later follow-up article by the school’s yearbook (supervised by the same high school advisor as the paper) that stated that the ban had been lifted. The fact that the story reached the community is significant because it indicates the kind of forum that the school had. To learn more about school newspaper forums, check out our Q&A “How do I know if my school’s newspaper is a limited public forum?”

For the purposes of the shield law, the fact that this specific case made it to the community would probably mean that it’s newsworthy. Newsworthiness matters because things that are considered important to the public are generally given more protection under shield laws. For example, if you can show that the information you got from your source made an impact on the community, then you have a better chance of protecting that source under a shield law. 

We know this is probably annoying to give you our answer based on a Michigan statute (unless you’re in Michigan), but the problem is that the answer to this question completely depends on what your state’s laws say. The point is that law is pretty unique to each state. Your state’s shield law could be super similar or totally different from Michigan’s. So, as a student journalist, it’s important to check your state’s shield law to see how it might affect you. 

How about teachers? Are they protected under the First Amendment?

Beyond the question of the advisor’s obligation to disclose the source, there is also the question of whether the school can discipline the advisor for refusing to disclose the name of the teacher who provided the confidential information. It turns out that courts have anticipated that schools might get a little vindictive when it comes to these things, and they have decided that because there is a constitutional right to press freedom under the First Amendment, members of the press are afforded protection. Consequently, a state or government actor (surprise, a public school is a government actor) may not prohibit reporting that talks about controversial issues. 

There are almost certainly freedom of the press and freedom of speech protections for a story disclosing the school banning the teaching of novels. Also, because public schools are considered government actors (public schools are part of the Department of Education, which is the government), speech criticizing the school is speech criticizing the government. That is considered political speech, which courts have ruled deserves the highest protection of all free speech. 

One more tidbit on free speech and we’ll move on. Previously, the Supreme Court heard a case where a high school teacher was fired when he wrote a letter critical of the district and later had it published in a local newspaper. The Court held that firing the teacher because of that letter was a violation of the teacher’s First Amendment rights. So, it’s looking pretty good for our school advisor!

So the faculty advisor might be protected under shield laws, and might be protected under the First Amendment. But isn’t this confidential information? Why doesn’t the teacher get in trouble for disclosing that confidential information?

Beyond free speech, there’s the question of whether the advisor could be punished for publishing any confidential information. The answer is no. The advisor did not pass along any information that was not already available through a request under the Freedom of Information Act (FOIA) or was protected by the Family Education Rights and Privacy Act (FERPA). Not sure what FOIA and FERPA are? Read about them in our Q&As on FOIA and FERPA.

FOIA allows the public to request information “regarding the affairs of the government and the official acts of those who represent them as public officials and public employees.” That language comes from Michigan’s FOIA law, but know that every state and even the federal government has its own FOIA law. The public should be able to know what is going on within the government and the reasoning behind the decisions of the officials—this is where FOIA requests come in. They help people just like you and me get the real facts and details about what’s going on behind closed doors in our government. And since the school is part of the government, and the superintendent is considered a government official, her proposal to ban the teaching of certain books was considered “FOIA’ble” and therefore not confidential. So, the advisor would be safe there. 

And as for FERPA, that law stops the school from releasing confidential student information, like disciplinary action taken against a student. While FERPA may arise as an issue in situations like this, it’s unlikely the advisor could be punished under FERPA because the information did not pertain to a student. 

What does this mean in the grand scheme of things? Well, the high school advisor will likely succeed in being able to escape any disciplinary action for refusing Lastly, because the advisor serves the students as the manager of a news organization that fully operates within the school environment, the teacher will likely be protected (like student journalists) under shield laws and the First Amendment.