BILL ANALYSIS                                                                                                                                                                                                    

                                                                  SB 438
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          SB 438 (Yee)
          As Amended January 14, 2010
          Majority vote 

           SENATE VOTE  :31-0  
           JUDICIARY           10-0        APPROPRIATIONS      13-4        
          |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                   |
          |     |                          |     |                          |
           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 

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