California law provides students greater free speech and press protections from school censorship than does the First Amendment. As interpreted by the U.S. Supreme Court, for example, high school student newspapers can be prevented by school administrators from publishing a story concerning teen pregnancy, for a variety of reasons (Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988)). The court conclued that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.
In contrast, California Education Code Section 48907 dictates that high school student journalists can almost never be disciplined for saying or writing things in news reports, editorials or other forms of of official school communication that would have free speech or press protection off campus; if they are, they can sue the school district to have the discipline reversed (and their records cleared), and have the district pay their attorneys fees reimbursed by the district. Similar laws protect college and university students.
In addition to protection from punishment after the fact, California makes the Hazelwood case of little moment by providing, in Education Code Section 48950, that student journalists cannot be prevented from printing in official school publications whatever they decide is appropriate news, comment or other expression, with the sole exception of material that would expose the district to a successful libel suit, that constitutes not just vulgarity but actual obscenity, or that creates the clear and present danger of inciting serious disruption or lawlessness. This law also protects against such prior restraint any student expression found in whatever mediumspeeches, posters, fliers or Internet postings. But when it comes to the school newspapers, the student editors are given the sole authority over topics to cover or opine about, with the faculty advisor responsible only to supervise the production of the student staff, to maintain professional standards of English and journalism, and to maintain the provisions of this section.
However, as veteran high school journalism teacher and newspaper advisor Janet Ewell
has recently pointed out,
While Education Code 48907 protects the students, advisers who follow 48907 are vulnerable to the wrath of administrators.
It is indeed a two-edged sword. Do advisers disobey 48907 and keep administration happy, or do we follow 48907 and risk the possibility that the students will offend the administration, or even exercise less-than-perfect judgment as they learn? Of course the decision should be made in accord with the law and with the educational needs of the students in mind; publishing is an essential element of an authentic writing process and students certainly do not fully grasp the First Amendment and the importance of the written word through a four-hour survey in their senior civics class.
If the adviser does not circumscribe the student’s rights, then the adviser often suffers. At least six advisers lost their positions in California high schools this year after conflicts with the administration over the content of the student press. They joined a large and unhappy club of de-frocked advisera club I am a member of.
Advisers seem to be removed with increasing frequency in our current educational climate where every administrator lives in terror lawsuits and bad press. Any sign of criticism, even on a student editorial page, is looked upon as damaging to morale and public image, disloyal, or insubordinate, so any adviser who does indeed teach the students sound English and journalism practices is liable to feel the heat of administrators who do not wish students to exercise their legal and educational rights.
Ewell has kept this issue alive to the point that, with the backing of the California Newspaper Publishers Association, Senator Leland Yee (D-San Francisco) has just introduced SB 1370, the Journalism Teacher Protection Act. The bill actually protects any school employee whose conduct fits a certain profile, stating as an amendment to the no-censorship rule of Section 48907:
An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for acting to protect a pupil engaged in the conduct authorized under this section, or conduct that is protected by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.
The measure contains similar language applicable at the college and university levels.