Update to Calif. student free expression law to reach Senate floor

CALIFORNIA — An updated version of the student free expressionbill is set to take the Senate floor Monday, according to a legislative staffer.

“We’re pretty confident,” said Adam Keigwin, chief ofstaff to Sen. Leland Yee (D-San Francisco/San Mateo).

The bill, SB 438, which if enacted will prevent attempted censorship bycharter school administrators, passed the Senate’s judiciary committee ina unanimous 5-0 vote last Wednesday.

The bill, introduced by Yee,amends California Education Code Section 48907 — the state’s student freeexpression code — to read “pupils of the public schools, including charterschools, shall have the right to exercise freedom of speech and of the press…”

The legislation is a direct result of an incident at Orange County HighSchool of the Arts, according to Keigwin, where administrators relied onambiguities in the existing free-speech law to defend a weeklong delay in printing the student newspaper, theEvolution.

The Evolution, advised by Konnie Krislock, was postponed because ofadministrative reaction to two articles — one about the school’s theme of theyear and one about the school’s contract with a foodvendor that openly espoused religious views.

“We don’t believe that any form of censorship occurred,”said Dr. Ralph Opacic, the school’s president and director. “Webelieve that we were acting appropriately in exercising our right to priorreview.”

“In light of that differing opinion, we want to make it crystal clearthat charter schools need to adhere” to this legislation, Keigwin said.

Both public and private schools must follow the free expression law, so why wouldn’ttaxpayer funded charter schools as well, he added.

“This bill is, in our opinion, more of a clarifying of existinglaw,” he said. “They obviously think otherwise, but at the end ofthe day, it will be the same result.”

“We abide by state and federal law and if [SB] 438 should includecharter schools in being held to [California Education Code] 48907, we’dcertainly follow the letter of the law,” Opacic said.

Although private schools are not mentioned in California Education CodeSection 48907, both public and private schools are subject to CaliforniaEducation Code Section 48950, also known as the “Leonard Law.” Thatmeasure states, “nothing in this section shall be construed to supersede,or otherwise limit or modify, the provisions of Section 48907,” accordingto Jim Ewert, legal counsel for the California Newspaper PublishersAssociation.

The “Leonard Law” is the only state law that prohibits privatehigh schools from making or enforcing any rule that would subject a student todisciplinary action for engaging in expression (on or off campus) that would beprotected by the First Amendment or the California Constitution’s freeexpression provision if it occurred off campus.

Charter school officials might try to cite California Education CodeSection 47610, known as the charter school mega-waiver, to block thislegislation, but Keigwin said, “in our opinion, that applies tocurriculum. We do not think student speech is a curriculum issue.”

“It just wouldn’t make sense that our laws protect privateschools students, protect public school students, but why would charter schoolstudents not deserve that same protection?” he said. “I would askthem why they don’t think their students deserve that.”

The school has recently updated its prior review guidelines in apublication policy given to Krislock the day before winter break.

In it are three items that “directly oppose” the student free expressionbill, according to Krislock. They include banning advertisements inappropriatefor minors and a school environment, providing a copy of the publication toadministrators at least three days prior to printing, and appointing the schoolas publisher of all school publications.

If the bill passes, parts of this policy could be considered illegal.

“It’s obvious that the students are the publishers of studentnewspapers, that they get to dictate content, that includes advertising,”Keigwin said.

This legislation “releases any sort of liability on theadministration,” should the newspaper print anything libelous, he said.

Opacic said the school would review its publication policy, should the billcome to pass, to make sure it is compliant with the new law.

“The administration here supports and respects any legislation thatprotects students’ First Amendment rights,” Opacic added.

“Students don’t shed their first amendment rights at the doorhere in California,” Keigwin said.