California Education Code 48907

California Education Code 48907 (1977) acts as a counter to the Hazelwood v. Kuhlmeier (1988) Supreme Court ruling, which limited the freedom of speech granted to public high school newspapers that had not already been established as "forums for student expression", Ed Code 48907 affirms the right of high school newspapers to publish whatever they choose, so long as the content is not explicitly obscene, libelous, or slanderous. The newspaper content must also pass the minimal disruption test set forth in the Supreme Court ruling on Tinker v. Des Moines (1969). In contrast with Hazelwood, which limited First Amendment Protection to only those high school newspapers that had, through practice or policy, been established as forums for student expression, Ed Code 48907 affirms the right of all newspapers to the freedom of expression.

Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) was a United States Supreme Court decision which held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established (by policy or practice) as forums for student expression.

The main text of the Code is as follows:

Students of the public schools shall have the right toexercise freedom of speech and of the press including, but notlimited to, the use of bulletin boards, the distribution of printedmaterials or petitions, the wearing of buttons, badges, and otherinsignia, and the right of expression in official publications,whether or not such publications or other means of expression aresupported financially by the school or by use of school facilities,except that expression shall be prohibited which is obscene,libelous, or slanderous. Also prohibited shall be material which soincites students as to create a clear and present danger of thecommission of unlawful acts on school premises or the violation oflawful school regulations, or the substantial disruption of theorderly operation of the school.
Each governing board of a school district and each county board ofeducation shall adopt rules and regulations in the form of a writtenpublications code, which shall include reasonable provisions for thetime, place, and manner of conducting such activities within itsrespective jurisdiction.
Student editors of official school publications shall beresponsible for assigning and editing the news, editorial, andfeature content of their publications subject to the limitations ofthis section. However, it shall be the responsibility of ajournalism adviser or advisers of student publications within eachschool to supervise the production of the student staff, to maintainprofessional standards of English and journalism, and to maintain theprovisions of this section.
There shall be no prior restraint of material prepared forofficial school publications except insofar as it violates thissection. School officials shall have the burden of showingjustification without undue delay prior to any limitation of studentexpression under this section.
"Official school publications" refers to material produced bystudents in the journalism, newspaper, yearbook, or writing classesand distributed to the student body either free or for a fee.
Nothing in this section shall prohibit or prevent any governingboard of a school district from adopting otherwise valid rules andregulations relating to oral communication by students upon thepremises of each school.

Background

Many public high schools provide for a school-funded newspaper, most often the product of a journalism class taken for credit. As a recent Legal News Advisory issued by the California Department of Education noted, these newspapers exist mainly to teach students the elements of journalism and to supplement the language arts curriculum. However, the same advisory also noted that students have a legitimate interest in the full expression of their own ideas on topics of concern, even when those ideas are in conflict with or are critical of those of the school or the majority of the public. Following the landmark Supreme Court ruling in Tinker v. Des Moines, which asserted that students do not lose their free speech protections at the schoolyard gate, then students are allowed a degree of freedom of expression in school, even those rights are justifiably less than if those students were outside of the school.

However, the 1974 study commissioned by the Robert F. Kennedy Memorial, Captive Voices, found that censorship and the systematic lack of freedom to engage in open, responsible journalism characterize high school journalism. This study, which examined censorship issues, minority participation and journalism education and commercial media's involvement with scholastic journalism, also found that censorship of journalism is a matter of policy, stated or implied, in all areas of the country, despite legal protections that override such censorship. Importantly, the issue of self-censorship was found to have created passivity among students and made them cynical about the guarantees of a free press under the First Amendment. [Leaming, Jeremy. Analysis of Hazelwood's impact on the student press. January 12, 1988. < http://www.freedomforum.org/templates/document.asp?documentID=4494>]

As a counter to these suppressions and as a reaction to the Tinker v. Des Moines, California became the first state in the United States to enact a statutory scheme that protected the free speech rights of students. These protections were codified in Educational Code 10611. [Corbett, Ellen M, Chair of Senate Judiciary Committee. Education: Journalism Teacher Protection Act. April 8, 2008. ] In 1977, the California Legislature rewrote this code and replaced it with Educational Code 48907. This revision was prompted by Bright v. Los Angeles Unified School District 1976, in which the California Supreme Court found that Educational Code 10611 did not authorize prior restraint, and thus that a school could only discipline a student for violation of a publications rule or prohibit further distribution. However, Educational Code 10611 was not completely clear, and thus the Legislature replaced it with the current statue, 48907, which now states that prior restraint is allowed only when student expression violates the specific prohibitions of Section 48907. [California State Department of Education. Limitations on Student Expression in School-Sponsored Publications. March 4, 1988. < http://www.splc.org/pdf/caldoeadvisory.pdf>]

Specific Provisions

School authorities can only prohibit publication of stories in school newspaper if they are obscene, libelous, slanderous, or likely to incite others to commit illegal or disruptive acts. Additionally, school districts may not censor, even if the above conditions are met, if the district has not adopted in written form rules and regulations including reasonable provisions for the time, place, and manner in which issues of censorship may be addressed or settled. Thus, even if material falls within the realm of obscene, defamatory, illegal, or disruptive, all reasonable restrictions on school newspapers, school officials may not censor student material simply because no written school district regulations governing publications exist.

Also, a school district rule which generally prohibits such potentially sensitive topics as pregnancy and divorce is not permitted by the statue.

In issues of school liability, often stemming from libel or defamation lawsuits, the majority opinion in Leeb v. Delong 1988 stated that to impose a prior restraint requires the article to contain a “false statement…likely to harm the reputation of another…” and cannot be allowed “to hinge on the subjective pique” of a prospective plaintiff. This again holds the school to a high level of free speech protection before being allowed to censor. [Crosby, P.J. “Leeb v. DeLong (1988) 198 Cal.App.3d 47 , 243, Cal.Rptr. 494.” California First Amendment Coalition. 31 May 2008. .]

Additionally, Leeb v. Delong holds that a lack of “professional standards of English and journalism” is not justification for prior restraint; post-publication responses are the only way to maintain these standards. [Crosby, P.J. “Leeb v. DeLong (1988) 198 Cal.App.3d 47 , 243, Cal.Rptr. 494.” California First Amendment Coalition. 31 May 2008. .]

Recent Usage

This policy and Education Code 48907 was most recently supported by the case Smith v. Novato Unified School District 2007. A California Court of Appeal found that school unlawfully disciplined by condemning a controversial editorial as a violation of school policy and stating it should not have been published. The editorial, titled “Immigration,” contained extremely derogatory statements about Mexican immigrants. The principal, soon after the newspaper’s release, ordered that all remaining copies of the newspaper no longer distributed. Smith sued the school district, and the Marin County Superior Court ruled against him; however, the First District Court of Appeal reversed the decision, stating that Code 48907 prohibits schools from censoring speech simply “because it presents controversial ideas and opponents of the speech are likely to cause disruption.” [Court of Appeal of the State of California, First Appellate District, Division Five. Brief of Amici Curiae In Support of Andrew D. Smith and Dale R. Smith. < splc.org/pdf/novato_amicus.pdf>]

References