Legislature passes anti-retaliation bill





California teachers stand to get more protection this fall under a bill meant to keep high school and college administrators from retaliating against them for protecting student free speech or expression.

The state Assembly on July 14 approved Senate Bill 1370, proposed by Sen. Leland Yee (D-San Francisco/San Mateo), with a 72-1 vote. The bill was passed in the Senate 31-2 Aug. 5 before moving on to Gov. Arnold Schwarzenegger’s desk for a signature or veto. The bill follows up on legislation Yee authored in 2006, Assembly Bill 2581, which bars administrators from punishing students for engaging in protected speech or expression. A.B. 2581 took effect in January 2007.

The teacher protection bill bounced back and forth between the legislative houses, taking on several amendments along the way. As of Aug. 1, the bill had been amended to counter arguments that it was overly broad and to address concerns from the University of California, concerned school board members and administrators.

Originally dubbed the Journalism Teachers’ Protection Act, the Assembly stripped the bill of the moniker on June 2 to make clear that the protections extend to all faculty members, not just journalism advisers.

The bill then passed the Assembly with a 67-6 vote, but upon return to the Senate it was met with more amendments. University officials, school board members and administrators pushed for more changes, saying the bill still ran the risk of protecting teachers who simply were not doing their jobs.

Happy Chastain, senior legislative director for UC, sent a letter on behalf of the university to Yee June 16 while the bill was awaiting consideration on the Assembly floor. The letter warned that if the bill passed without amendments, the university would be unlikely to adopt its provisions.

UC argued in the letter that the bill was misleading because it is “not simply limited to free speech rights for Journalism teachers, as implied, but the provisions would extend to all UC faculty and staff.”

The university wrote that the bill could restrict its ability to act against teachers who fail to meet academic standards and could expose the university to unnecessary litigation. School boards and high school administrators expressed similar concerns.

“S.B. 1370 would make it very difficult to reassign a journalism teacher who is not performing in accordance with academic requirements,” wrote Brian M. Rivas, a California School Boards Association lobbyist, in a letter to Yee outlining the organization’s opposition to the bill. Their argument suggested that schools would hold the burden of proving the reassignment is not due to the teacher’s protection of students’ rights.

“The burden of proof would be difficult to meet due to the close link between the teaching of journalism and the student freedom of the press,” Rivas wrote.

After discussions with UC, representatives for school administrators, and the governor — who is a member of the UC Board of Regents — Yee agreed to amend the bill to clarify that it is not meant “to diminish a district’s ability to take actions authorized by current law in order to maintain instruction that is consistent with the statewide academic standards.”

The California Newspaper Publishers Association — the bill’s primary backer — said the added legislative intent language bolsters the idea that the purpose of the bill is to promote good journalism and how to teach First Amendment responsibility.

“If a teacher is not teaching to those standards then the district should have the ability to discipline or take an action that it needs to take,” said Jim Ewert, CNPA legal counsel. The Senate also added one word clarifying that administrators may not retaliate against an employee based “solely” on the employee’s protection of student speech and expression. The CNPA originally declined this amendment in discussions with the CSBA and the Association of California School Administrators.

“The sponsors were difficult to work with,” said Laura Preston, an ACSA lobbyist. “Normally when you oppose a bill, the sponsors will try to find a compromise. In this case, though, they didn’t have to because they were getting the votes for the bill.”

But the CNPA knew early on it might have to accept that language because the students’ protections in A.B. 2581 carry similar restrictions, Ewert said.

“Since the students are protected solely on the basis of speech conduct, we were pretty sure that we were going to have to do the same for the teachers,” Ewert said.

Ewert said they did not include the language in the bill originally because the CNPA felt it was a technicality that did not change the application of the bill.

“Most administrators are probably savvy enough to understand that they can still take disciplinary action on an employee for conduct other than acting to protect a student’s speech rights,” Ewert said.

Rich Cameron, chairman of the California Journalism Education Coalition, said he was disappointed with the opposition from UC and school administrators.

“I understand where they’re coming from when teachers may say ‘you’re censoring my free speech,’” said Cameron, who chairs the journalism department at Cerritos College in the Los Angeles area. “But they should understand where we’re coming from. We don’t want the schools to come in and break the law.”

Schwarzenegger signed a separate press-related bill in early July that will allow greater access to government contracts. Senate Bill 1696, also authored by Yee, is a response to a contract between the University of California at San Francisco and a private auditing firm that prohibited the school from fulfilling a January 2007 open-records request from the San Francisco Chronicle. The contract — worth $165,000 — required consent from the private firm before the requested information could be released. The school also was instructed not to release the name of the company.

The bill prevents government agencies from entering into contracts that would allow an outside firm to control the disclosure of information. The law also states that any contract for the purpose of conducting a review, audit or report between a private entity and a state or local agency is subject to the same disclosure requirements as other public records.


Fall 2008, reports