BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
SB 1370 S
Senator Yee B
As Amended March 24, 2008
Hearing Date: April 8, 2008 1
Education Code 3
KB:rm 7
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SUBJECT
Education: Journalism Teacher Protection Act
DESCRIPTION
This bill would prohibit an employee from being dismissed,
suspended, disciplined, reassigned, transferred, or
otherwise retaliated against for acting to protect a pupil
engaged in conduct authorized by state law or refusing to
abridge or infringe upon conduct that is protected pursuant
to United States and California Constitutions.
BACKGROUND
In 1969, the United States Supreme Court recognized
students' free speech rights for the first time in its
landmark ruling, Tinker v. Des Moines School Dist. (1969)
393 U.S. 503. In the years following this decision,
California became the first state in the nation to enact a
statutory scheme that protected the free speech rights of
students. These protections were codified in Education
Code 10611, and were subsequently replaced by 48907.
In 1992, the Legislature enacted Sections 48950 and 66301,
which further strengthened the free speech rights of
students of the state's high schools, and public colleges
and universities. Relying on this statutory authority,
California courts have repeatedly found that students in
California's schools enjoy broader free speech protection
than is generally provided under the First Amendment of the
United States Constitution.
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This bill seeks to continue California's long tradition of
protecting freedom of speech educational institutions by
providing that employees of secondary schools, and public
colleges and universities cannot be retaliated against for
acting to protect a pupil engaged in conduct that is
authorized by statute, or refusing to abridge or infringe
upon conduct that is protected by the First Amendment to
the United States Constitution or Section 2 of Article 1 of
the California Constitution.
CHANGES TO EXISTING LAW
Existing law grants to public school pupils the right to
exercise freedom of speech and of the press. (Education
Code 48907.)
Existing law also prohibits school districts operating one
or more high schools and private secondary schools from
making or enforcing a rule that subjects a high school
pupil to disciplinary sanctions solely on the basis of
conduct that is speech or other communication that is
protected by specified provisions of the United States
Constitution and the California Constitution. (Education
Code 48950.)
Existing law prohibits the Regents of the University of
California, the Trustees of the California State
University, and the governing board of a community college
district from making or enforcing a rule subjecting a
student to disciplinary sanction solely on the basis of
conduct that is speech or other communication that is
protected by specified provisions of the United States
Constitution and the California Constitution. (Education
Code 66301.)
This bill would prohibit an employee from being dismissed,
suspended, disciplined, reassigned, transferred, or
otherwise retaliated against for acting to protect a
pupil's conduct authorized or protected pursuant to these
statutory provisions or refusing to abridge or infringe
upon conduct that is protected by the First Amendment to
the United States Constitution or Section 2 of Article 1 of
the California Constitution.
COMMENT
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1. Stated need for the bill
The author states:
"Students at California's public high schools and
colleges are specifically granted free speech rights,
including 'the right to exercise freedom of the press.'
In 2006, AB 2581 (Yee) specifically granted this
protection and prevented prior restraint or censorship by
college administrators. High school speech protections
were enacted in 1992. However, since passage of these
two laws, some administrators have tried to control
student speech by threatening, disciplining, demoting, or
even firing faculty members, including journalism
advisors.
The protections provided in current law become worthless
if administrators are allowed to continue to indirectly
control student speech through this loophole in the law."
2. Freedom of speech rights in academic settings
The First Amendment of the United States Constitution
provides in part: "Congress shall make no law ?
abridging the freedom of speech ? ." Article I, Section
2, subdivision (a) of the California Constitution
guarantees that "every person may freely speak, write,
and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not
restrain or abridge liberty of speech or press." The
freedom of speech rights embodied in both our federal and
state constitutions have always been crucial to a
functioning democracy. Without this right, citizens
would be unable to freely engage in debates and exchanges
of ideas.
Freedom of speech rights, when considered in school
settings present a more difficult question. Namely, how
do we preserve the discipline and order necessary to the
educational process without restricting freedom of speech
and expression rights of students?
The United States Supreme Court first considered these
rights in the context of a high school setting in Tinker
v. Des Moines School Dist. (1969) 393 U.S. 503. In
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Tinker, a number of students who wished to wear black arm
bands to school to protest the Vietnam War were denied
access to the school, and subsequently disciplined. The
Court ruled on behalf of the students holding that "First
Amendment rights, applied in light of the special
characteristics of the school environment, are available
to teachers and students. It can hardly be argued that
either students or teachers shed their constitutional
rights to freedom of speech or expression at the
schoolhouse gate." (Id. at 506.) The Court stressed
that the armbands were a silent protest that was not
disruptive of the educational process. (Id. at 510.)
Applying Tinker, a California federal district court
found unconstitutional Sections 9012 and 9013 of the
Education Code which banned "partisan" and "propaganda"
publications on high school campuses. (Bright v. Los
Angeles Unified School District (1976) 18 Cal.3d 450,
457-458.) In 1971, the Legislature repealed Sections
9012 and 9013 of the Education Code and enacted Section
10611, "the nation's first statutory scheme for
protecting students' free expression on school campuses."
(Lopez et al. v. Tulare Joint Union High School District
Board of Trustees, 34 Cal.App.4th 1302, 1311.) In 1978,
the Legislature repealed Section 10611 with Section
48907, which grants all public school students "the right
to exercise freedom of speech and of the press" and if
right of expression in official school publications.
Following the enactment of Section 48907, the United
States Supreme Court issued two decisions that were much
less protective of speech in school environments and more
deferential to school officials. In Bethel School
District No. 403 v. Fraser (1986) 478 U.S. 675, the Court
upheld the discipline of a student for a speech given at
a school assembly, nominating another student for a
position in student government, which was replete with
"elaborate, graphic, and explicit sexual metaphor." (Id.
at 678.) Noting that the speech was vulgar, embarrassing
to the immature 14-year old students in the audience, and
insulting to the female students, the Court upheld the
right of school officials to discipline the speaker. The
Court distinguished between the "nondisruptive, passive
expression of a political viewpoint," such as in Tinker,
from the sexual speech presented in Fraser. (Id. at
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557.)
Two years later, the Court issued another ruling that
demonstrated even more deference to school officials. In
Hazelwood School District v. Kuhlmeier (1988) 484 U.S.
260, the United States Supreme Court held that under the
First Amendment school officials retain relatively broad
authority to regulate student speech in school sponsored
publications. The Court stated "educators do not offend
the First Amendment by exercising editorial control over
the style and content of student speech in
school-sponsored expressive activities so long as their
actions are reasonably related to legitimate pedagogical
concerns." (Id. at 273.)
Although Kuhlmeier remains the controlling standard
under the First Amendment for school sponsored speech,
California courts have held that Section 48907 provides
broader protection for student speech in California
public schools. (See Leeb, et al. v. DeLong et al.,
(1988) 198 Cal.App.3d 47.) The court held that as a
matter of California statutory law, "[t]he broad power
to censor expression in school sponsored publications
for pedagogical purposes recognized in Kuhlmeier is not
available to this state's educators." (Id. at 54.)
In 1992, the Legislature enacted Sections 48950 and 66301
which provided further protections for student free
speech rights at high schools (both public and private),
and public colleges and universities in the aftermath of
Kuhmeier. In 2006, AB 2581 (Yee) amended Section 66301
to prohibit prior restraint of student newspapers at
California's public universities and colleges. It is
against this backdrop of case law and legislation that we
consider the implications of this bill.
3.This bill seeks to prohibit retaliation of employees who act
to protect or refuse to abridge or infringe upon a
student's freedom of speech rights
The author and the sponsor, California Newspaper
Publishers Association, have identified several instances
where journalism advisors have been removed from their
positions after having taken steps to protect the freedom
of speech rights of journalism students or after having
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refused to remove articles that the administration found
to be offensive and inappropriate. This type of
retaliation undermines the public policy favoring freedom
of speech and expression. If journalism advisers fear
retaliation from school administrators, they cannot
effectively teach and instill the importance of freedom
of speech in their students. Thus, the goal of this bill
is certainly consistent with California's long tradition
of protecting students' freedom of speech rights while
maintaining schools' statutory authority to limit speech
under certain circumstances.
Education Code 48907 provides broad protection for
freedom of speech in official student publications, but
contains some limited exceptions where schools may
exercise prior restraint. The statute states that
expression which is obscene, libelous, or slanderous, is
prohibited. Section 48907 has been interpreted to
empower school districts to censor expression from
official school publications which they reasonably
believe to contain an actionable defamation. (See Leeb
v. DeLong (1988) Cal.App.4th, 198.) In Leeb, the court
characterized high school newspapers as a limited forum
where the ability of government to regulate expression is
greatly reduced, but the government may restrict access
to the forum consistent with the purposes for which it
was created. (Id. at 56.)
Section 48907 has also been interpreted to prohibit
profanity in official school publications. (Lopez et al.
v. Tulare Joint Union High School District Board of
Trustees (1995) 34 Cal.App.4th 1302.) In Lopez, the
court found that the Legislature intended to prohibit
profanity in official school publications by requiring
students, pursuant to Section 48907 to "maintain
professional standards of English and journalism." (Id.
at 1325.) The court also stated that teaching students
to avoid profanity is a legitimate pedagogical concern,
and thus the prior restraint was proper under the First
Amendment and the California Constitution. (Id. at
1327.) Thus, while the First Amendment and Article I,
Section 2, subdivision (a) of the California Constitution
clearly do not permit the prior restraint of the private
publication of libelous material, such restraint is
permissible in the limited forum of high school
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newspapers.
Currently, this bill would prohibit retaliation against
employees for acting to protect a pupil engaged in
conduct authorized by existing statutes and for "refusing
to abridge or infringe upon conduct that is protected by
the First Amendment or Section 2, Article I of the
California Constitution." To date, no case involving
questions of students' free speech rights have been
decided under Section 2, Article I of the California
Constitution. Rather, courts have focused on
California's statutory scheme, which as previously
stated, is much more protective than the First Amendment
under the standard articulated in Hazelwood. Thus, in
practice, schools would be prohibited from retaliating
against employees who protect, or refuse to infringe or
abridge, a student's rights under Sections 48907, 48950,
and 66301.
For example, articles or editorials in high school
newspapers that are openly critical of the school's
administration may not be edited or restrained under both
Section 48907 and the United States and California
Constitutions. Students may exercise their freedom of
speech rights to openly discuss issues they see as
problematic. However, administrators do retain the
right, pursuant to Section 48907, to edit profanity from
articles published in official school publications.
Outside the school setting, such prior restraints on
profanity would not be permissible. In this respect,
students do not enjoy absolute freedom of speech rights,
rather they are limited by Section 48907. Under these
circumstances, a journalism adviser who refused to edit
profanity from official publications would not be
entitled to protection under this bill.
Thus, this bill would prohibit retaliation against
teachers for approving publications that the
administration has no authority to edit or restrain, but
also ensure that schools may effectively utilize the
limited authority granted to them by California law.
4.This bill would provide protection against retaliation to
all employees of public and private secondary schools,
and public colleges and universities.
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Although this bill is called "The Journalism Teacher
Protection Act," the current provisions would apply to
all employees of all public schools, private high
schools, and public colleges and universities, even those
who do not work in an academic capacity. The sponsor has
stated that the need for this legislation has arisen from
several instances where journalism teachers at the high
school level were disciplined or removed from their
positions as advisers by the administration in
retaliation for stories and editorials that were
published in student newspapers. Given that the
identified problem currently seems to be arising in the
context of official student publications, the committee
may wish to consider whether this bill's protections
should be limited to journalism advisers.
SHOULD NOT THIS BILL'S PROVISIONS BE LIMITED TO EMPLOYEES
WHO SERVE AS JOURNALISM ADVISERS OF OFFICIAL STUDENT
PUBLICATIONS?
5.Opposition
The Association of the California School Administrators
(ACSA), argue that this bill is overly broad in that it
protects all teachers and not just journalism teachers.
ACSA asserts that the bill could lead to teachers using
freedom of speech to get out of discipline, transfer, or
other reprimands.
Specifically, the opposition states "ACSA has heard of
numerous situations whereby a teacher has used poor
judgment under the guise of student freedom of speech.
The school principal must be able to utilize discretion
when coming in contact with these situations. Teachers
are the adults that must be held accountable for their
students, even in the case of a school newspaper,
yearbook, or other written materials. The protection of
the students must be a top priority at every school
site."
Support: California Teachers Association; American
Federation of State, County and Municipal
Employees (AFSCME), AFL-CIO; AFSCME Local 3299;
California State University Employees Union/SEIU
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Local 2579; California State Student Association;
California Labor Federation; Associated Students
of the University of California at Davis;
California Nurses Association; CalAware;
California Federation of Teachers
Opposition:Association of California School
Administrators
HISTORY
Source: California Newspaper Publishers Association
Related Pending Legislation:None Known
Prior Legislation: AB 2581 (Yee, Chapter 158, Statutes
of 2006) prohibited public college
administrators from taking disciplinary
action against students solely on the
basis of speech that off campus would
be considered constitutionally
protected speech.
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