Seven-year-old underground newspaper case will have retrial in California

CALIFORNIA — The California Supreme Court denied an appeal March 28 that was filed by a former Palisades High School teacher who alleged that her school district was responsible for an underground student newspaper article in 2000 that claimed she was a pornography film actress.

Teacher Janis Adams was a subject in an underground student newspaper called “The Occasional Blow Job” that was created by Palisades High School students and distributed on campus. The “crude” articles that focused on sex and targeted school faculty led to the suspension of 11 high school students in March 2000.

Adams claimed to the Los Angeles Unified School District that the articles were sexual harassment after one article claimed she was an actress in pornographic films, but felt the district did not do enough to protect her rights, according to Adams’ attorney, Tyna Orren. The teacher subsequently filed a lawsuit against the school district and a jury awarded her $4.35 million in damages in March 2002.

That decision was vacated three months later by a judge, stating that the damages were “excessive” and because of the trial’s “errors in law” that questioned the school’s legal ability to control student expression. Adams appealed, as did the school district in a cross-appeal that requested a new trial because the jury’s instructions were unclear in regards to the state laws. A retrial was granted, prompting Adams to file another appeal of that decision.

While her appeal was pending, new language was added to the state Fair Employment and Housing Act in 2003 to clarify that “an employer may also be responsible the acts of non-employees, with respect to sexual harassment of an employee” and that a jury should consider the context and the control the employer had of the situation.

A California Court of Appeal upheld the retrial motion in August 2004 because it said the parties involved had the right to judgment under the newly clarified legislation.

The California Supreme Court reversed and remanded the appellate court’s decision in October 2006, requiring the appellate court’s reconsideration because, in the supreme court’s view, the new amendment to the Fair Employment and Housing Act did not change the meaning of the original language of the law.

On Jan. 11, 2007, the appellate court reaffirmed its previous ruling for a retrial, which reasoned that the 2002 ruling was flawed in its use of the amended law and a retrial would be necessary for the case.

Adams’ appeal was denied again by the state Supreme Court on March 28. The case is now at the trial court level again for review.

Orren said this case is a “unique circumstance” because a non-employee was committing the alleged harassment, whereas most cases take place between two employees of the same organization or company. Although Adams’ lawsuit centers on the fact that the school did not address the sexual harassment problems that erupted from the underground newspaper’s publication, the result of the case could also have an impact on the power of school officials over student expression that is not sponsored by the school, Orren said.

“The jury needs to take into consideration how much control and other legal responsibility the employer has over these non-employees,” Orren said.

Publishing an underground newspaper, organizing a peaceful rally and handing out leaflets are examples of speech that could be restricted depending on the broadness of the ruling, Orren said.

School District Attorney Kate Collins agreed that students could see the adverse effects from the case. She said the district felt like it was “between a rock and a hard place” because it did not want to inhibit student speech, but sees some expression as questionable.

“What level of control do [school officials] have?” Collins said. “It is no longer free speech when the speech takes the form of harassment; it’s prohibited action.”

However, Collins said the school district would never “cross the line.”

Attorney Elwood Lui, also representing the school district, said, “at some point in time I guess it becomes a question of whether we did everything we could.”

He used an example of a customer harassing an employee in a store, questioning the liability of the owner. Lui said the speech of the customer is out of the realm of an employer’s responsibility, as is the unidentified expression of people handing out publications or flyers not sponsored by the school.

“How far can you go to search out the source of the newspaper?” Lui said. “You can’t prevent the free press of publication.”

By Erica Hudock, SPLC staff writer

Adams v. Los Angeles Unified Sch. Dist., 2007 WL 68104,No. B159310 (Cal. App. Jan. 11, 2007)