BILL ANALYSIS
SB 438
Page 1
SENATE THIRD READING
SB 438 (Yee)
As Amended January 14, 2010
Majority vote
SENATE VOTE :31-0
JUDICIARY 10-0 APPROPRIATIONS 13-4
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|Ayes:|Feuer, Tran, Brownley, |Ayes:|Fuentes, Bradford, |
| |Evans, Hagman, Jones, | |Charles Calderon, Coto, |
| |Knight, Monning, Nava, | |Davis, De Leon, Gatto, |
| |Huffman | |Hall, Norby, Skinner, |
| | | |Solorio, Torlakson, |
| | | |Torrico |
| | | | |
|-----+--------------------------+-----+--------------------------|
| | |Nays:|Conway, Harkey, Miller, |
| | | |Nielsen |
| | | | |
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SUMMARY : Clarifies that provisions regarding freedom of speech
and expressive activities in public schools similarly apply to
the state's charter schools.
FISCAL EFFECT : According to the Assembly Appropriations
analysis, minor absorbable GF/98 costs to charter schools to
comply with this measure. According to a May 2006 decision by
the Commission on State Mandates (CSM), charter schools are not
eligible to claim mandate reimbursements. In denying charter
schools' mandate claims, the CSM repeatedly cites the fact that
charter schools are "voluntarily" created.
COMMENTS : This 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. 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
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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.
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, 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.
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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.
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
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.)
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Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0005157