Ineffective protections: A recent court decision has rendered California's private college free-expression law useless, advocates say
First Amendment advocates say a recent California Supreme Court decision not to hear an appeal from a former Occidental College radio host has left a gaping hole in California’s Leonard Law, which affords freedom of expression protection to private college students.
The case centered on former shock jock Jason Antebi, who claimed the university violated his rights under the California Education Code section 94367 (frequently referred to as the Leonard Law after its sponsor, former state Sen. Bill Leonard), a statute designed to protect free expression at private colleges. Similar California laws provide protections to high school and public college students. A lower court’s ruling said that Antebi could not make the claim because the statute only applies to current students. Antebi did not file his lawsuit until after he graduated from the college, almost a year after he was fired over comments made on his popular student radio show.
Reaction in California has been mixed, with some student editors and student media advisers doubting that the decision will have much of an impact. But others say they worry that the state supreme court’s refusal to review the case now renders the Leonard Law ineffective, and paves the way for administrators to censor.
“The one law meant to protect students at private campuses from being punished for speech is demolished and useless,” Antebi said. “It’s devastating for any student media, any student who has an opinion that could be deemed offensive to the administration.”
Antebi asked the state supreme court to review the previous ruling because he says it allows administrators to censor students by simply kicking them out of school so they will not have legal grounds to challenge the censorship in court.
“I think that this interpretation of the Leonard Law creates a huge loophole in the statute allowing colleges to engage in behavior they shouldn’t,” said Christopher Arledge, the lawyer who represented Antebi in the lawsuit.
One part of Antebi’s lawsuit, alleging defamation against a university official, is still pending. The judges also rejected a request from the First Amendment Project, an advocacy group in Oakland, and the Student Press Law Center to de-publish the opinion from the lower court’s ruling. A California Court of Appeal’s ruling is legal precedent if it is published.
Stuart Tochner, who represented Occidental College in the case, said he is pleased with the California Supreme Court’s decision, and is prepared to defend the defamation claims against his clients.
Meanwhile, Antebi said he will continue to pursue his cause in the state legislature, where wording of the Leonard Law could be changed to apply to both current and former students.
“I was hoping throughout all of this that Oxy wouldn’t have gotten away with what they did, but in the end I guess they did,” Antebi said. “I would hate to see private colleges in California to use the ruling in my case to stifle speech.”
An Occidental College student from 2000 to 2004, Antebi was active in the student council and had his own show at the student-run radio station.
Antebi said decisions he made in 2004 on the student council and comments he made on his show angered some students who eventually engaged in a recall effort against him. Court documents state that his opponents called Antebi a “racist,” that he “sexually harassed women” and that he was anti-Semitic.
Antebi claimed he tried to report the incidents to administrators, but was told he “would have to fight [his] own battles.” On March 11, 2004, Antebi used his radio show to mock and criticize his opponents. In the two weeks after Antebi made his comments, three students filed sexual harassment complaints against him based on the on-air remarks and he was fired.
Maryanne Horowtiz, Occidental College’s Title IX officer, investigated the complaint and found that the March 11 program had violated the university’s policy against creating a hostile environment and sexual harassment. Her report recommended that Antebi apologize to the complainants, to the college community and seek counseling.
Antebi appealed the findings within the university. Rameen Talesh, associate dean of students, conducted a disciplinary conference with Antebi and ordered censure until May 17, 2004. Antebi also appealed Talesh’s findings to the university president and the college’s board of trustees, but only after the deadline to do so passed. Antebi graduated from the university in the spring of 2004.
In his lawsuit filed in March 2005, Antebi claimed that his termination violated the Leonard Law. The law says private schools may not punish a student for expression that would be protected by the First Amendment off-campus.
The lower court rejected Antebi’s claims, saying that because he had already graduated from Occidental College when he filed the lawsuit, he could not sue the school because the law only applies to students “enrolled” in school despite the fact that he had been a student when the punishment occurred.
Antebi and the Leonard Law
In his petition for review to the California state Supreme Court, Antebi claimed that the lower court’s ruling eviscerates the protections offered by the Leonard Law.
Foundation for Individual Rights in Education President Greg Lukianoff said the ruling will make way for administrative abuse of power.
“The court’s interpretation of the law actually creates incentives for private colleges to kick students out when [administrators] want to violate their free speech rights,” Lukianoff said.
Lower courts said they interpreted the Leonard Law by its plain language, which states, “any students enrolled may commence a civil action.” The courts also said that the legislature could have extended the application of the statute to “any student enrolled or who was enrolled,” when the law was created in 1992, but did not.
But in the debates that led to the passage of Leonard Law, clarifying who the law would apply to was never discussed, former state Sen. Leonard said. He said that his intent was to provide free speech protections to all students, even those that have graduated.
“It’s irrelevant whether or not they’re still a student, if they are wrongfully disciplined for free speech, then they have right to sue,” Leonard said. “It doesn’t even matter if [the student] drops out or has graduated.”
Leonard also said that the Antebi case is exactly the type of situation his law was created for. “It’s quiet clear he was disciplined for something he said related to the campus and the campus disciplined him,” Leonard said. “That’s the situation the Leonard Law was designed to cover.”
Student media reaction
In the wake of the California state Supreme Court’s decision, some worry how the Leonard Law’s interpretation will affect California private school student media. David Greene, executive director of the First Amendment Project, said he was especially disappointed with the court’s decision not to de-publish the opinion from the lower court’s ruling.
“It’s a shame,” Greene said. “[If the opinion is published], it’s a powerful thing and has life of its own beyond the case.”
But opponents of the lawsuit dispute that the court of appeal’s previous ruling will have the impact Antebi is claiming. Nothing has changed, they say.
“As it stands, a party needs to be an existing student in order to file as a plaintiff and allege a violation of the Leonard Law,” Tochner said. “That’s the way the legislature wrote the law.”
Some student editors and advisers in California said they are also uncertain whether the case will dramatically lessen students’ rights — that administrators can now easily expel students they want to censor.
Michelle Carter, an adviser from Notre Dame de Namur University in Belmont, Calif., said that expulsion at her school is not an easy process.
“Every school I’m aware of has in place procedures for appealing an expulsion,” Carter said. “I would expect that during the appeal process, the real reason for the expulsion would be discovered and the expulsion would be overturned.”
Airan Scruby, news editor for Pepperdine University’s student newspaper The Graphic, said that while the Leonard Law is important, he does not think Antebi’s case will affect him.
“The case strikes less of a chord for me,” Scruby said. “My concerns about Leonard Law focus on whether I will be protected …. while I am a student and able to publish in the newspaper, not whether I will be able to sue when I have graduated.”
But Lukianoff warned against the thinking that Antebi’s case would not set a precedent or that it would not impact student media groups around the state.
“Fundamentally, that decision is precedent for everyone” Lukianoff said. “This decision is a legal precedent that will haunt student organizations around California.”
Natalie Zanzucchi, editor in chief of University of San Diego’s student newspaper, The Vista, called diminishing the rights of student publications in private schools “frightening.” She also said she disagrees that the Leonard Law should only apply to enrolled students.
“[Antebi] was a student at the time the university fired him, the application of the Leonard Law should be when the incident happened,” Zanzucchi said.
Tom Nelson, Loyola Marymount University’s director of student media, stressed the importance of the Leonard Law and said that anything that weakens the statute should raise concerns.
“Anything that waters down or is perceived as a loophole [in the law] is detrimental to the freedom of the student press,” Nelson said.
The California Supreme Court’s decision has not dampened Antebi’s spirits, though, and he said he hopes to convince the state legislature to change the wording of the Leonard Law.
He said he is optimistic about lobbying state legislators to take up the issue.
“There is little doubt we will pursue this in the state legislature,” Antebi said. “The trend in California has been on the side of free speech and we look forward to working with anyone who is willing to help us.”
California, Occidental College, reports, Winter 2006-07