California's student free expression act enters unchartered territory

When the principal of the charter school Orange County High School of theArts (OCHSA) in Santa Ana, Calif., stopped the printing of the school’sstudent newspaper in reaction to two articles — one about OCHSA’stheme of the year and one that was about the school’s contract with aChristian food vendor — Editor-in-Chief Taylor Erickson was inshock.

“I was alone in the principal’s office with no one there tosupport me,” Erickson said. “It was really intimidating and itreally struck me as odd … the administration never really gave a hoot aboutwhat we were writing until that very moment.”

The paper was censored based on claims of raciness in one article andirrelevance in the other. While Erickson said the reasons for censorship did notseem justifiable to the student journalists or the adviser, the students had notjust outrage but the law in their corner, because of the state’s studentfree expression law, which is supposed to drastically limit the amount ofcensorship student journalists have to deal with.

On Feb. 22, 1977, California’s student free expression law wasestablished, granting student journalists in California added protection againstadministrative censorship that supplements their First Amendment rights. Thelaw, written into Section 48907 of California’s education code, states”There shall be no prior restraint of material prepared for officialschool publications except insofar as it violates this section.”

Violations include anything obscene, libelous, or slanderous.

Dr. Ralph Opacic, president and executive director of OCHSA, released apublic response Sept. 15 stating OCHSA’s status as a charter schoolexempts it from Section 48907 of California’s education code (the studentfree expression law). He said that state law exempts charter schools from theEducation Code with limited exceptions pursuant to Section 47610 of theeducation code, otherwise known as the charter school mega-waiver. Based on themega-waiver, Opacic argued it is clear the student free expression law does notapply to charter schools.

Opacic’s declaration raised a tricky legal issue: should charterschools, which are publicly funded, be free from California’s strong legalprotections against censorship and retaliation?

Susan Wolf, former senior media consultant with the California CharterSchools Association, explains that charter schools are independent publicschools that have more freedom to be creative within their curriculums. She saidthey are held to the same standards as public schools, but can be moreinnovative in certain processes, such as the hiring and firing of staff members.Otherwise, they operate just like public schools.

“Charter schools are exempt from many laws that school districtsfollow under the education code with some specific exceptions, but, in additionto considering whether or not the education code might apply, charter schoolstake into consideration the general application of federal and constitutionallaws when determining matters related to this topic,” she said,Inaddition to the fundamental differences between charter schools and publicschools, Peri Lynn Turnbull, senior vice president of communications for theCalifornia Charter Schools Association, said parental choice, programmaticautonomy and accountability for results are the three more specific aspects thatmake charter schools different.

“In California, charter schools are exempt from a significant part ofthe education code,” Turnbull said. “There are a number of thingsthey don’t have to do, so it gives them flexibility while still being heldaccountable for their results. It’s really programmatic flexibility withthe expectation for results.”

To California State Senator Leland Yee, Opacic’s claim of exemptionseemed contrary to the purpose of charter schools. The controversy promoted Yeeto suggest a bill that makes charter schools’ responsibility to obey thestudent free-speech law clear as day. Student free expression laws areslowly spreading across the country. They clearly define the difference inrights between public and private schools, but can be slightly ambiguous when itcomes to magnet and charter schools.

Other than California’s, the first student free expression law wasestablished in Massachusetts after the 1988 decision in Hazelwood SchoolDistrict v. Kuhlmeier significantly limited the First Amendment rights ofhigh school student journalists working on school-sponsored publications. Statesthat followed suit include Kansas, Arkansas, Colorado, Oregon and Iowa.California’s law, however, was established in 1977 before the

Hazelwood decision. States with anti-Hazelwood laws, or studentfree expression laws, have essentially returned to students the same freeexpression rights that existed prior to Hazelwood — at least theythought so.A major detraction from school administrators’ desire toobey student free expression laws is the confusion that stems from state lawsseemingly “trumping” federal laws, since the Hazelwood

decision was written by Supreme Court justices, according to Mike Hiestand,legal consultant at the Student Press Law Center.

But Hiestand said it is legitimate for states to require more than theminimum set by the Hazelwood decision.

The one thing states cannot do is require less than what was set byfederal law — including charter schools.

“We’ve been working with the California Newspaper PublishersAssociation to draft legislation that will clear up any ambiguity in thelaw,” said Adam Keigwin, chief of staff for Senator Yee. “Wedon’t believe there is any; we believe that the law covers charterschools. We don’t want anyone to misinterpret it, so we will make itcrystal clear in the law.”

Yee started the process of drafting legislation in September. He said hisoriginal intent in proposing the student free expression law was to cover allstudents — it was never supposed to exempt charter schools from any FirstAmendment protection. Yee’s new bill can do one of two things: It willeither amend the charter school mega-waiver that explains from what sections ofthe code charter schools are exempt, or it will add an additional section to thecode that clarifies charter schools’ responsibility to obey the studentfree expression law.

“Either way, what is interesting to me is that you’ve got acharter school principal that somehow thinks we should not respectstudents’ First Amendment rights,” Yee said. “I’m hopingthat this principle will adopt within schools an understanding and respect forstudents’ First Amendment rights. Our students’ rights are extremelyimportant. The foundation of democracy is based on the ability to criticize evenprincipals and school boards.”

The proposal is set to be considered when the legislature convenes inJanuary 2010.

For purposes of law, charter schools are public schools “with atwist,” according to “Law of the Student Press,” a publicationof the Student Press Law Center. The text also states that a growing number ofcourt decisions have found charter school employees are subject to the sameconstitutional limitations on other public schools, compliant with state laws.As a result, student journalists should have the same First Amendment rights asin public schools, as guaranteed by federal and state laws.

Because of the creativity level of the curriculum, students of OCHSA andother charter schools are required to apply or audition to get in, Erickson said– which is why she thinks a charter school refusing to be subject to astudent free expression law is contradictory.

“I was so disillusioned with the principal and the assistantprincipal back in September because OCHSA has a mantra that says we want tofacilitate and nurture an education in the arts … it just seemed like theiractions was so hypocritical to what OCHSA stands for,” Ericksonsaid.

Turnbull said in California, families apply to have their children attend acharter school. Parents make a choice to send their child to that particularschool.

“There is a fairly significant component to the family decisionmaking, so I think that’s probably pretty powerful,” she said.

Jim Ewert, legal counsel for the California Newspaper PublishersAssociation, explained that the student free expression law inCalifornia’s education code was not meant to govern how school districtsoperate; it was meant to provide students enrolled in campuses throughout thestate with particular rights. While the charter school mega-waiver does exemptcharter schools from some aspects of the education code, it is geared moretoward flexibility in creating curriculum and meeting state standards, Ewertsaid.

“For charter schools — which are sort of quasi-private/public– to claim that they are not subject to recognizing student rights is apretty tortured interpretation,” he said. “Nevertheless, to makeabsolutely crystal clear that they are, I think it’s Yee’s intent toadd charter schools to the list.”