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Bauer wins!

It wasn't the first time a college athlete walked away scot free from the consequences of an alleged rape. But when officials at Southwest Missouri State University in Springfield refused to release information on a 1988 incident there, they probably didn't count on the persistence of spunky college editor Traci Bauer.

The episode was the spark that detonated the first-ever U.S. courtroom battle over the issue of studen privacy rights versus freedom of information.

SMSU claimed it could lose federal funding if it released information on the alleged rape, basing its stand on the Family Educational Rights and Privacy Act of 1974 (FERPA). Paul K. Kincaid, the director of university relations, later issued a written "clarification" of FERPA that cut off all campus crime report information from student journalists.

Bauer contended that by withholding the reports, the university was inhibiting students' ability to prepare for crime.

Part One in the landmark case of Traci Bauer vs. Paul K. Kincaid, et al. came to an end March 13th, when U.S. District Judge Russell Clark handed down a decision in favor of Bauer.

For Bauer, the decision meant "two years of waiting are finally over and we got everything we went in for."

The SMSU Board of Regents voted March 15 not to appeal the decision.

"This is a precedent-setting case which could affect thousands of schools in Missouri and across the country," Kincaid said after the ruling came down. "Our intent is to follow the court order and to cooperate with the media in every way possible."

Frank Gibson, president on the Society of Professional Journalists, hailed the decision, saying, "This is an important decision and makes a strong statement that students have the same right to know what is happening in their communities as other Americans."

In his 50-page decision, Judge Clark found that neither the criminal investigation nor the incident reports is an educational record as set forth in FERPA. He added that FERPA is not a justification for violating the Missouri Freedom of Information Act, the state's "sunshine law."

He also granted Bauer's request for a permanent injunction against SMSU's withholding of information on campus crime reports.

Last fall, Bauer won the Society of Professional Journalists' First Amendment Award, SPJ's tribute to individuals who have worked to strengthen the freedom of the press. She was then 21 and in her second year as editor of the Southwest Standard, the 15,000-circulation campus weekly.

"Traci is a unique individual," says retired Missouri Court of Appeals Judge Douglas Greene, who has been the principal counsel for the plaintoff. "When you meet her you don't realize that she has taken on the campus community . . . she's got a lot of backbone."

Bauer herself looks at it different: "I don't think it's so courageous as I think it's a responsibility."

Responsibility is a word she's taken seriously since her days as the student editor at Cassville, Missouri, High School, where she credits her journalism teacher with instilling high professional standards. She carefully chose SMSU, she says, "because it had a paper that I thought I could start with as a freshman and make improvements." And she did.

Last September, the paper won a first-time regional Pacemaker award from the Associated Collegiate Press. "To us, it was like a Pulitzer Prize," Bauer says.

Circulation is up 3,000 over last year, the Standard has been redesigned, and coverage of the city of Springfield has been greatly expanded. "I think it's important to let students know what kind of community they live in," she stresses.

When it comes to the importance of students knowing what kind of campus they live on, the university administration stands accused of a different kind of thinking.

"The Lawsuit," as it's come to be known at SMSU, stemmed from the Standard's efforts to get a report from the campus security office on the alleged rape of a student, on campus, by an SMSU basketball player. Bauer reminded campus security officers that in the past they had turned over reports, with names, to her and other student reporters. But this time she was stonewalled.

The security director, on advice from Kincaid, pleaded FERPA. From then on, a blanket gag rule on all campus crime reports was in effect. Bauer testified at a hearing in February that a clarified ruling in writing, which she had requested, was also used as a blanket to restrict information in cases involving a university employee and a non-student who had given written permission to use his name.

Bauer contacted the Student Press Law Center in Washington for help. SPJ's Legal Defense Fund provided $5,000. Jefferson City attorney Dan Dodson agreed to represent her pro bono, and in January, 1990, she filed suit for release of the records. (Ex-judge Greene joined the team soon afterward.) Ironically, Kincaid, the main defendant as director of university relations, is also the general manager of the Southweat Standard.

The SMSU case stands out against a national backdrop of statistical campus crime reporting that is "absolutely brand new," according to the Campus Violence Prevention Center in Baltimore.

A USA Today survey of 698 campuses revealed there had been a total of 32 homicides in 1987, as well as 600 reported rapes, 1,800-plus armed robberies and 13,000-plus physical assaults.

Late last year the Carnegie Foundation for the Advancement of Teaching reported that 47 percent of college presidents said crime had become a "moderage to major problem on campus" in the last five years. What things were like before 1985, no one can say for sure, since crime reporting was something colleges could sidestep without legal consequences.

But Kincaid said he had statistics to prove that Southwest Missouri State, with the second largest college enrollment in Missour (20,500), is "one of the safest campuses in the country."

As for security efforts, he stressed some half million dollars the university has spent on improved lighting, a shuttle system, escort services and student patrols, a sophisticated dorm alarm system and an information campaign. "We even go so far as to plant bushes and trim them so there's no place to hide," he says.

But, he clarifies, "that's not really the point."

Like Bauer, Kincaid also is a member of SPJ, as well as the Public Relations Society of America. "Both (SPJ and PRSA) codes of ethics talk about upholding First Amendment rights, but they also talk about protecting the rights of individuals. The balance thereof is what we're talking about."

In March, the balance tilted in Bauer's favor, but the precariousness of that balance was reflected in a statement by SMSU President Marshall Gordon: "The questions we dealth with in this lawsuit are too large and too important to go away. They will be addressed . . . in another federal court, at the appellate level, or even at the Supreme Court."

The decision left many of SMSU's students still wondering about the issues involved.

Said Student Body president David Kellett, "As far as the lawsuit is concerned, I guess the average student doesn't really know what's going on, except for what's in the paper." Kellett said he considered the paper biased toward Bauer's cause.

"Some think that Traci wants to publish all the names with the reports," he said, "but some think she wants to publish only the incidents."

With considerable national press coverage of the case, Kellett also believes "Traci has her future in mind. But I think she also has the students in mind, and I respect her for that."

Panhellenic Council president Melissa House reads student understanding of the case as "more of an issue of student rights. Will the students win over the university? The comments I've heard are that we need to know what's going on so we can take the necessary precautions to protect ourselves."

Eileen Lockwood is a freelance writer based in St. Joseph, Missouri.
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Title Annotation:college editor Traci Bauer wins freedom of information case
Author:Lockwood, Eileen
Publication:The Quill
Date:Apr 1, 1991
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