BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   SB 438|
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                                 THIRD READING


          Bill No:  SB 438
          Author:   Yee (D)
          Amended:  1/14/10
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  5-0, 1/12/10
          AYES:  Corbett, Harman, Hancock, Leno, Walters

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8


           SUBJECT  :    Charter schools:  freedom of speech and the  
          press

           SOURCE  :     California Newspaper Publishers Association


           DIGEST  :    This bill clarifies that provisions regarding  
          freedom of speech and expressive activities in schools  
          apply to the state's charter schools.

           ANALYSIS  :    

           Existing Law

           1.Grants to public school pupils the right to exercise  
            freedom of speech and of the press.  (Education Code  
            Section 48907.)

          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  
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            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 Section  
            48950.)

          3.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.  (Education Code Section  
            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 form the laws governing  
          school districts, except for specified provisions .   
          (Education Code Section 47610.)

          This bill makes provisions regarding free speech and  
          expressive activities applicable to charter schools.  

          This bill states that 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.

           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 District   
          (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  

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          students in California's schools enjoy broader free speech  
          protection than is generally provided under the First  
          Amendment of the United States Constitution.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

           SUPPORT  :   (Verified  1/19/10)

          California Newspaper Publisher's Association (source)
          American Civil Liberties Union
          Journalism Education Association of Northern California
          California Scholastic Journalism Initiative
          National High School Journalism Teacher of the Year, Paul  
          Kandell

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          "Senate Bill 438 simply clarifies that charter schools must  
          adhere to existing laws that protect student expression on  
          campus, and protects both students and teachers for  
          exercising their rights.

          "More specifically, this bill adds 'charter schools' to the  
          Education Code Sections 48907 relating to student freedom  
          of the press, making it explicitly clear that all schools,  
          including charter schools, must grant all students the  
          liberty of expression including freedom of press without  
          prior retrain or censorship.

          "It also adds 'charter schools' to section 48950 which  
          would protect journalism students, advisors and other  
          school employees from administrative disciplinary action on  
          the basis of freedom of expression."


          RJG:cm  1/20/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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