BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 438
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          Date of Hearing:   June 15, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     SB 438 (Yee) - As Amended:  January 14, 2010
           
          SENATE VOTE  :  31-0
           
          SUBJECT  :  CHARTER SCHOOLS: FREEDOM OF SPEECH AND OF THE PRESS

           KEY ISSUE  :  SHOULD EXISTING LAW BE CLARIFIED THAT PUPILS IN  
          CHARTER SCHOOLS HAVE THE SAME RIGHTS OF FREEDOM OF SPEECH AND  
          THE PRESS AS PUPILS IN OTHER PUBLIC SCHOOLS?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS

          This relatively non-controversial bill (its previous opponent  
          states it is a "soft" opposition only) is sponsored by the  
          California Newspaper Publishers Association.  The bill seeks to  
          clarify that provisions regarding freedom of speech and  
          expressive activities in schools also apply to the state's  
          charter schools.  

           SUMMARY  :  Clarifies that provisions regarding freedom of speech  
          and expressive activities in public schools similarly apply to  
          the state's charter schools.

           EXISTING LAW  :

          1)Grants to public school pupils the right to exercise freedom  
            of speech and of the press.  (Education Code Section 48907.   
            All following 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 another  
            communication that is protected by specified provisions of the  
            U.S. Constitution and the California Constitution.  (Section  
            48950.)

          3)Requires each governing board of a school district and each  








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            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 these agencies'  
            jurisdiction.  (Section 48907.) 

          4)Under 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.  (Section 47610.)

           COMMENTS  :  This relatively non-controversial bill seeks to  
          clarify that provisions regarding freedom of speech and  
          expressive activities in public schools also apply to the  
          state's charter schools.  Students in charter schools would  
          hereafter receive the broad free speech protections that  
          California provides to its other pupils.

           Author's Statement  :  According to the author:  

                This bill 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 restraint 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.

           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 Education Code Section 48907.  In 1992,  








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          the Legislature enacted Education Code 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.  

          In September 2009, the Orange County Register and the Student  
          Press Law Center reported about a controversy at a charter  
          school called 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 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 to clarify the meaning and effect of  
          existing law with respect to charter school pupils' First  
          Amendment rights, making clear in our state law that provisions  
          regarding freedom of speech and expressive activities in public  
          schools also apply to the state's charter schools.   

           Freedom Of Speech Rights In Academic Settings -- The Federal  
          Cases  :  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.  








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          Freedom of speech rights, when considered in school settings  
          present a more difficult question.  Namely, how can society  
          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.)

          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."  








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           (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.) 

           Freedom Of Speech Rights In Academic Settings -- The California  
          Approach  :  Although Kuhlmeier remains the controlling standard  
          under the First Amendment for school sponsored speech,  
          California courts have held that Education Code Section 48907  
          provides even 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 Education Code 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 Kuhlmeier.   
          In 2006, AB 2581 (Yee) amended Education Code Section 66301 to  
          prohibit prior restraint of student newspapers at California's  
          public universities and colleges.  
            
           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  








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          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  
          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.)  

           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  








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          to the United States Constitution or Section 2 of Article 1 of  
          the California Constitution.  
           
          REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Newspaper Publisher's Association (sponsor)
          American Civil Liberties Union
          Journalism Education Association of Northern California
          California Scholastic Journalism Initiative

           Opposition 
           
          California Charter School Association
           

          Analysis Prepared by  :  Drew Liebert / JUD. / (916) 319-2334