CALIFORNIA — Students’ rights to publish and distribute underground newspapers could be in jeopardy after a recent court ruling raised the possibility that administrators could be held liable for harassing content.
In answer to an appeal filed by a former Palisades High School teacher, the California Court of Appeals issued a ruling that could affect how school officials who fear litigation by teachers targeted in the publications treat underground newspapers.
Janis Adam’s claim in 2000 ‘ that her school’s failure to prevent critical and derogatory articles about her from being distributed in an independent newspaper distributed at school called The Occasional Blow Job constituted sexual harassment ‘ was denied by a lower court, but a two-sentence addition to California law prompted the appeals court to reinstate her claim.
The court of appeals ordered a retrial; a court date has not been set.
Adams never took any legal action against the four student publishers of the O.B.J. but instead chose to sue the school, which had punished the students for their role in distributing the underground paper. The implications of the court’s ruling that employers, including school districts, can be held responsible for sexually harassing actions of non-clients ‘ such as students ‘ could be far-reaching.
The court did not rule that the school district was responsible based on the facts of this case but ruled that the amended law could permit such a claim and sent the case back for a new trial.
First Amendment advocates fear administrators could use the ruling as permission to exercise greater control over underground newspapers, even going so far as to deny distribution to publications that make any critical reference to students, teachers or administrators.
John Bowen, a professor of journalism at Kent State University and chair of the Journalism Education Association’s Press Rights Committee, said the decision should have no effect on underground newspapers so long as administrators remain hands-off.
“I would hope that administrators wouldn’t take [this ruling] as a signal they could do whatever they want” with student publications, he said.
Bowen said he believes officials should be exempt from any liability for offenses committed by underground newspapers if they maintain a clear distance from the newspaper’s content.
“If administrators don’t determine the content, if they don’t do prior review, then the position of the courts has been they have no legal responsibility for it,” Bowen said. “The students who publish the underground newspaper have full responsibility, and even more if they violate the law because there is no question that they are not a school-sponsored publication.”
Adams originally was awarded almost $5 million in damages in March 2002, but a trial judge overturned the verdict three months later. After the California law was changed, Adams asked for a retrial, which an appeals court granted in August.
The two sentences added in 2003 clarify California’s Government Code Section 12940, part of the Fair Employment and Housing Act, which outlines employer responsibilities in creating non-hostile and harassment-free environments.
The addendum clarifies that an employer may be held responsible in situations where “the employer, or its agents and supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”