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 SB 1370 Page 2 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 SB 1370 Page 3 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 SB 1370 Page 4 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.) SB 1370 Page 5 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. SB 1370 Page 6 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 SB 1370 Page 7 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. SB 1370 Page 8 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