BILL NUMBER: SB 438 CHAPTERED BILL TEXT CHAPTER 142 FILED WITH SECRETARY OF STATE AUGUST 17, 2010 APPROVED BY GOVERNOR AUGUST 17, 2010 PASSED THE SENATE JANUARY 25, 2010 PASSED THE ASSEMBLY AUGUST 2, 2010 AMENDED IN SENATE JANUARY 14, 2010 AMENDED IN SENATE DECEMBER 16, 2009 AMENDED IN SENATE MAY 6, 2009 AMENDED IN SENATE APRIL 23, 2009 INTRODUCED BY Senator Yee FEBRUARY 26, 2009 An act to amend Sections 48907 and 48950 of the Education Code, relating to education. LEGISLATIVE COUNSEL'S DIGEST SB 438, Yee. Charter schools: freedom of speech and of the press. Existing law grants to public school pupils the right to exercise freedom of speech and of the press, as specified. Existing law requires each governing board of a school district and each county board of education to adopt rules and regulations in the form of a written publications code that includes reasonable provisions for the time, place, and manner for conducting expressive activities within the agency's jurisdiction. 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. The Charter Schools Act of 1992 requires a charter school to comply with the act and all of the provisions of the school's charter, but provides that a charter school is otherwise exempt from the laws governing school districts, except for specified provisions. This bill would make those provisions regarding free speech and expressive activities applicable to charter schools. By requiring charter schools to perform additional duties, the bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. It is the intent of the Legislature in enacting this act to construe and clarify the meaning and effect of existing law with respect to the right of pupil expression. SEC. 2. Section 48907 of the Education Code is amended to read: 48907. (a) Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school. (b) The governing board or body of each school district or charter school and each county board of education shall adopt rules and regulations in the form of a written publications code, which shall include reasonable provisions for the time, place, and manner of conducting such activities within its respective jurisdiction. (c) Pupil editors of official school publications shall be responsible for assigning and editing the news, editorial, and feature content of their publications subject to the limitations of this section. However, it shall be the responsibility of a journalism adviser or advisers of pupil publications within each school to supervise the production of the pupil staff, to maintain professional standards of English and journalism, and to maintain the provisions of this section. (d) There shall be no prior restraint of material prepared for official school publications except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to a limitation of pupil expression under this section. (e) "Official school publications" refers to material produced by pupils in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee. (f) This section does not prohibit or prevent the governing board or body of a school district or charter school from adopting otherwise valid rules and regulations relating to oral communication by pupils upon the premises of each school. (g) An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution. SEC. 3. Section 48950 of the Education Code is amended to read: 48950. (a) A school district operating one or more high schools, a charter school, or a private secondary school shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution. (b) A pupil who is enrolled in a school at the time that the school has made or enforced a rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon motion, a court may award attorney's fees to a prevailing plaintiff in a civil action pursuant to this section. (c) This section does not apply to a private secondary school that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization. (d) This section does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected. (e) This section does not supersede, or otherwise limit or modify, the provisions of Section 48907. (f) The Legislature finds and declares that free speech rights are subject to reasonable time, place, and manner regulations. (g) An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution. SEC. 4. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.