In a show of support for student speech rights, the California State Assembly approved legislation yesterday that would prohibit the state’s high schools and universities from disciplining teachers serving as advisors to student newspapers for protecting the free speech rights of student journalists by a vote of 47-2.
Authored by Senator Leland Yee, Bill 1370 would amend California’s Education Code to read in relevant part:
An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for acting to protect a pupil engaged in conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.
Bill 1370 must now pass a procedural concurrence vote by the state Senate before reaching Governor Arnold Schwarzenegger’s desk. Passage by the Senate appears likely, as the Bill received Senate approval in a 32-5 vote in April.
While FIRE does not support, endorse, or lobby for legislation, we can attest to the clear need for the protection Bill 1370 would provide. Echoing the shameful instances of administrative retaliation against student newspaper advisors cited by Senator Yee’s office, FIRE has seen examples of this form of de facto administrative censorship across the nation. Perhaps the most high profile abuse occurred at Kansas State University (KSU), where a newspaper advisor to the award-winning KSU Collegian was removed by university administrators after complaints about the paper’s content. The advisor’s removal sparked litigation, as two student journalists took the school to court arguing that the removal violated their First Amendment rights. Unfortunately, the Tenth Circuit Court of Appeals decided the case (Lane v. Simon, Nos. 05-3266 & 05-3284 (10th Cir. 2007)) against the students on a technicality, ruling that the student journalists lacked standing to pursue the case because they had graduated while the case was under review. FIRE joined an amicus brief with the Student Press Law Center requesting the Tenth Circuit to rehear the case, but the Tenth Circuit denied the appeal.
Senator Yee has established a record as a stalwart defender of student press rights, having authored a 2006 bill specifically outlawing censorship and prior restraint of the college press which was signed into law by Governor Schwarzenegger in August of that year. Senator Yee drafted that legislation specifically to address the Seventh Circuit Court of Appeal’s disastrous decision in Hosty v. Carter, 412 F.3d 731 (2005) in which the Seventh Circuit held that administrators at Governors State University in Illinois had the authority to censor a student newspaper based on a legal standard previously applicable only to high school students. (FIRE’s policy statement on Hosty‘s dismal ramifications is available here, and our Supreme Court certiorari amicus brief is available here.) In the wake of the Supreme Court’s decision not to hear an appeal of the Seventh Circuit’s ruling, the general counsel for the California State University system authored a memo stating that "CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers"—an ominous statement, and the impetus for Yee’s legislation.
FIRE will continue to monitor the progress of Bill 1370. While we’re glad student speech rights have the attention of the state legislature, a quick Spotlight perusal of California university speech codes demonstrates that the Golden State has still more work to do.