California eyes new free-speech protections in schools

A bill seeks to protect teacher advisers when student newspapers anger administrators.

from the April 15, 2008 edition

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First Amendment on campus

Nationally, the first recognition of students' free-speech rights came with a 1969 US Supreme Court decision. In the case of Tinker v. Des Moines School District, a number of students who wished to wear black armbands to protest the Vietnam War were denied access to the school and disciplined. The court ruled on that First Amendment rights applied to pubic schools.

In 1988, however, the Supreme Court in Hazelwood v. Kuhlmeier found a public high school could refuse to publish the works of student editors.

Prompted in part by federal decisions, California lawmakers have consistently tried to offer more free-speech protection on campuses.

Yee's 2006 bill extending protection to college students, for example, was spurred by a federal court ruling in favor of university administrations' power to censor stories they deem undesirable.

In the case of Hosty v. Carter, involving the editors of the student newspaper at Governors State University in Illinois who had to seek prior approval for articles critical of the administration, the 7th US Circuit Court of Appeals found in 2005 that the students' rights were not violated.

The ruling led Christine Helwick, general counsel for the California State University system to send a memo to the presidents of every CSU campus stating: "The Hosty case appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers."

It was then that Yee moved ahead with his bill to extend First Amendment protections to college journalists.

Preventing misuse of the law

Proponents of the new legislation counter the criticism from administrators that the law will be open to misuse. "The other side has concerns that this law will become an additional tool for teachers to sue districts and make it more difficult for administrators to make personnel decisions," says Mr. Ewert.

But the language of the bill addresses this, he says, by focusing only on protection of speech and not on other kinds of insubordination.

"Administrators can still take whatever job actions they deem necessary on other matters," says Ewert. And he says the bill offers one more assurance: "The burden falls on teachers/employers to demonstrate that any retaliations were based on the content of articles, not other reasons."

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