BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 438
Senator Yee
As Amended December 16, 2009
Hearing Date: January 12, 2010
Education Code
KB:jd
SUBJECT
Charter Schools: Freedom of Speech and of the Press
DESCRIPTION
This bill, sponsored by the California Newspaper Publishers
Association, would clarify that provisions regarding freedom of
speech and expressive activities in schools apply to the state's
charter schools.
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 Section 10611, and were subsequently replaced
by Section 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.
This bill would clarify that provisions regarding freedom of
speech and expressive activities in schools apply to the state's
charter schools.
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CHANGES TO EXISTING LAW
Existing law grants to public school pupils the right to
exercise freedom of speech and of the press. (Ed. Code Sec.
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. (Ed. Code Sec. 48950.)
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. (Ed. Code Sec. 48907.)
Existing law , 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. (Ed. Code Sec. 47610.)
This bill would make provisions regarding free speech and
expressive activities applicable to charter schools.
COMMENT
1. Stated need for the bill
In September 2009, the OC Register and the Student Press Law
Center reported about a controversy at the Orange County High
School of the Arts (OCHSA). The administration at the OCHSA
stopped the printing of the student newspaper, Evolution,
because they had reviewed it prior to its publication and
thought it was unfit for publication due to grammatical and
factual errors. One of the articles featured in the newspaper
was about the school's new cafeteria service provider, Long
Beach-based Alegre Foods. The article reported that Alegre
Foods identifies itself as a "Christian-based company" with a
"purpose" to serve God. The charter school administration
believed this information to be irrelevant to the story and
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wanted to hear the student's rationale for including this
information prior to allowing the article to go to press.
In response to concerns regarding what seemingly amounted to
student censorship, OCHSA stated that the charter school was
exempt from laws protecting student expression and journalism by
Education Code Section 47610. As a result, the author decided
to introduce this bill in order to clarify the meaning and
effect of existing law with respect to charter school pupils'
First Amendment rights.
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 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.)
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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 (1995) 34 Cal.App.4th 1302, 1311.) In 1978, the
Legislature repealed Section 10611 and replaced it with Section
48907, which grants all public school students "the right to
exercise freedom of speech and of the press" and the 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 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
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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.
3.This bill would clarify that pupils in charter schools enjoy
the same First Amendment protections as pupils in other
schools
Charter schools were authorized in 1992 to give communities the
opportunity to establish schools that could operate freely from
the structural programs and bureaucracy of public school
districts. Charter schools are intended to provide a unique
learning environment, giving students a different approach to
scholastic achievement. However, charter schools are funded in
the same manner as other public schools. In the 2007-2008 State
of California Education report, 675 charter schools were in
operation in California, serving almost 250,000 students.
(Education Data Partnership, May 22, 2009.)
Education Code Section 47610 provides that a charter school
shall comply with all of the provisions set forth in its charter
petition, but is otherwise exempt from the laws governing school
districts. This section falls under Chapter 3 of the Charter
Schools Act of 1992, which governs charter school operations.
This exemption was, as previously stated, intended to allow
charter schools to operate free from the structure and
traditional operations of public school districts. However, it
was not intended to exempt charter schools from all laws
governing pupil rights and responsibilities, including those
guaranteeing them the right to exercise freedom of speech and
the press. If Section 47610 were interpreted in this manner,
then pupils who enroll in any of the state's hundreds of charter
schools would enjoy less protection than their counterparts in
regular public schools. Moreover, charter school pupils would
arguably enjoy less protection than pupils enrolled in private
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schools that do not utilize public funds. (See Ed. Code Sec.
48950 which prohibits school districts 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.)
This bill would clarify that pupils in charter schools have the
same rights of freedom of speech and the press as pupils in
other public schools. This is arguably consistent with
California's tradition of protecting freedom of speech in
educational institutions. It is important to note that although
Education Code Section 48907 provides broad protection for
freedom of speech in official student publications, it does
contain 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.) Thus, this bill would not
prevent charter school administrators from exercising prior
restraint of official student publications in limited
circumstances, but would rather clarify that they, just like
their public school counterparts, may not engage in arbitrary
student censorship.
4. Suggested amendment
In order to ensure that this bill is not interpreted as a
substantive change in current law, an amendment stating the
intent of the Legislature to clarify current law should be
inserted.
The suggested amendment is as follows:
"It is the intent of the Legislature in amending these sections
to construe and clarify the meaning and effect of existing law
with respect to the right of student expression."
5. Opposition
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In opposition, the California Charter School Association writes:
CCSA's opposition is not on the merits of current law that
requires school districts to provide high school students with
a degree of freedom of expression and freedom of speech. CCSA
is opposed based on the bill's imposition of statutory
requirements that will direct the curriculum for journalism
and other classes in charter schools.
A central tenet of charter schools is the ability to achieve
academic success for charter students using the instructional
tools and methods that the charter school deems best. Charter
school students must pass statewide testing requirements like
all public school students but how the school prepares the
students to achieve academic standards is up to the school.
Support : American Civil Liberties Union
Opposition : California Charter School Association
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. AB 2581 also
prohibited prior restraint of student newspapers at public
universities and colleges.
SB 1370 (Yee, Chapter 525, Statutes of 2008) prohibited 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 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.
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Prior Vote : Not Relevant. This bill was substantively amended
to deal with a different subject matter.
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