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