BILL ANALYSIS
SB 1370
Page 1
Date of Hearing: June 10, 2008
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 1370 (Yee) - As Amended: June 2, 2008
SENATE VOTE : 35-2
SUBJECT : EDUCATION: PROTECTION OF STUDENT SPEECH RIGHTS
KEY ISSUE : SHOULD CALIFORNIA LAW PROVIDE EDUCATIONAL EMPLOYEES
WITH PROTECTION FROM RETALIATION WHEN THE EMPLOYEE IS ACTING TO
PROTECT STUDENTS' STATUTORY AND CONSTITUTIONAL RIGHTS?
SYNOPSIS
This bill seeks to prohibit a school employee from being
dismissed, suspended, disciplined, reassigned, transferred, or
otherwise retaliated against for acting to protect a pupil
engaged in conduct authorized by state or federal law. 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 - a statutory scheme that has only been
strengthened by the Legislature in subsequent years. 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. This bill seeks to
continue California's long tradition of protecting freedom of
speech in 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. The bill is sponsored
by the California Newspaper Publishers Association and is
supported by a broad coalition of civil rights, labor, teacher
and student groups including the CTA, AFSCME, and the California
State Student Association. It is opposed by school boards and
administrators including the Association of California School
Administrators and the California School Boards Association. It
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passed the Senate by a vote of 35-2.
SUMMARY : Seeks to prohibit a school employee from being
dismissed, suspended, disciplined, reassigned, transferred, or
otherwise retaliated against for acting to protect a pupil
engaged in conduct authorized by state or federal law.
EXISTING LAW :
1)Grants to public school pupils the right to exercise freedom
of speech and of the press. (Education Code section 48907.
All further references are to this code unless otherwise
noted.)
2)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.
(Section 48950.)
3)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. (Section
66301.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill seeks to prohibit a school employee from
being dismissed, suspended, disciplined, reassigned,
transferred, or otherwise retaliated against for acting to
protect a pupil's statutorily and constitutionally protected
free speech rights. In support, 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
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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.
" Students And Teachers Do Not Shed Their Constitutional Rights
At The Schoolhouse Gate " - Tinker and Its Progeny : 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,
have, supporters of this measure agree, present more nuanced
issues. Namely, how can our society best balance the desire to
preserve the discipline and order necessary to the educational
process on the one hand without unduly restricting the critical
speech and expression rights of our 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 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 Supreme Court ruled on behalf of
the students in this famous case, 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, emphasis added.) The Court
stressed that the armbands were a silent protest that was not
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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 of the right of expression in
official school publications.
The Less Protective Federal Cases -- Riskier Being a Student
Journalist in Kansas? : Following the enactment of Section
48907, the United States Supreme Court issued two decisions that
were 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 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.)
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The More Protective California Cases - Kuhlmeier Ain't King
Here : Although Kuhlmeier remains the controlling standard under
federal cases interpreting 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.
Protecting Students by Protecting Their Teachers - The Outrages
Leading to This Measure: This bill seeks to ensure that
student free speech rights are protected by making sure that
school employees cannot be retaliated against for acting to
protect students' freedom of speech rights. The author and the
measure's sponsor, the California Newspaper Publishers
Association, have identified several instances where journalism
advisors have shockingly been removed from their positions after
having taken steps to protect the freedom of speech rights of
journalism students or after having refused to remove articles
that the administration found to be offensive and inappropriate.
As the sponsor notes, such acts of retaliation knock the very
foundations out from the state's public policy framework
strongly favoring student freedom of speech and expression. The
Newspaper Publishers Association notes that if journalism
advisers fear retaliation from school administrators, they
obviously cannot effectively teach and instill the importance of
freedom of speech in their students. Thus, the goal of this
bill appears wholly consistent with California's long tradition
of protecting students' freedom of speech rights while
maintaining schools' statutory authority to limit speech under
carefully and statutorily circumscribed circumstances.
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The Pertinent Ed Code Sections - " Students Doth Get to Protest
Much, But Slander and Obscenity Shan't Be Tolerated :" As noted
above, Education Code section 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. Thus 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 generally do not permit the prior
restraint of the private publication of libelous material, such
restraint is permissible in the limited forum of high school
newspapers under state law.
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
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prohibited from retaliating against employees who protect, or
refuse to infringe or abridge, a student's rights under Sections
48907, 48950, and 66301. However a journalism adviser who
refused to edit profanity from official publications would not
be entitled to protection under the measure.
ARGUMENTS IN OPPOSITION : The Association of the California
School Administrators (ACSA) writes in continuing opposition to
the bill that it is overly broad in that it protects all school
employees and not just specified "journalism teachers." ACSA
asserts that the bill could inappropriately lead to teachers
using freedom of speech to avoid appropriate discipline,
transfer, or other punishment. It writes that "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." ACSA has urged that the author restrict the
bill's retaliation protections only to "certificated" employees
who have "responsibility for school journalism." ACSA also
seeks an amendment that clarifies the employee may not be
retaliated against "solely" for acting to protect a pupil
engaged in the conduct authorized under the bill. The
California School Boards Association has similar concerns about
the breadth of the measure.
The author and the measure's supporters argue such proposed
amendments are inappropriate because, they state, all school
employees deserve to be protected from unfair retaliation
regardless whether they are certificated "journalism teachers"
or not. Especially since in some schools non-certificated
personnel serve in these helpful roles for students, they
suggest the principal inquiry for retaliation protection should
be whether the employee was acting to protect the students'
rights, not what the employee's title or resume was.
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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REGISTERED SUPPORT / OPPOSITION :
Support
California Newspaper Publishers Association (sponsor)
California Teachers Association
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO; AFSCME Local 3299
California State University Employees Union/SEIU 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
California School Boards Association
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334