California's student free expression act enters unchartered territory

When the principal of the charter school Orange County High School of the Arts (OCHSA) in Santa Ana, Calif., stopped the printing of the school's student newspaper in reaction to two articles -- one about OCHSA's theme of the year and one that was about the school's contract with a Christian food vendor -- Editor-in-Chief Taylor Erickson was in shock.

"I was alone in the principal's office with no one there to support me," Erickson said. "It was really intimidating and it really struck me as odd ... the administration never really gave a hoot about what we were writing until that very moment."

The paper was censored based on claims of raciness in one article and irrelevance in the other. While Erickson said the reasons for censorship did not seem justifiable to the student journalists or the adviser, the students had not just outrage but the law in their corner, because of the state's student free expression law, which is supposed to drastically limit the amount of censorship student journalists have to deal with.

On Feb. 22, 1977, California's student free expression law was established, granting student journalists in California added protection against administrative censorship that supplements their First Amendment rights. The law, written into Section 48907 of California's education code, states "There shall be no prior restraint of material prepared for official school publications except insofar as it violates this section."

Violations include anything obscene, libelous, or slanderous.

Dr. Ralph Opacic, president and executive director of OCHSA, released a public response Sept. 15 stating OCHSA's status as a charter school exempts it from Section 48907 of California's education code (the student free expression law). He said that state law exempts charter schools from the Education Code with limited exceptions pursuant to Section 47610 of the education code, otherwise known as the charter school mega-waiver. Based on the mega-waiver, Opacic argued it is clear the student free expression law does not apply to charter schools.

Opacic's declaration raised a tricky legal issue: should charter schools, which are publicly funded, be free from California's strong legal protections against censorship and retaliation?

Susan Wolf, former senior media consultant with the California Charter Schools Association, explains that charter schools are independent public schools that have more freedom to be creative within their curriculums. She said they are held to the same standards as public schools, but can be more innovative in certain processes, such as the hiring and firing of staff members. Otherwise, they operate just like public schools.

"Charter schools are exempt from many laws that school districts follow under the education code with some specific exceptions, but, in addition to considering whether or not the education code might apply, charter schools take into consideration the general application of federal and constitutional laws when determining matters related to this topic," she said,In addition to the fundamental differences between charter schools and public schools, Peri Lynn Turnbull, senior vice president of communications for the California Charter Schools Association, said parental choice, programmatic autonomy and accountability for results are the three more specific aspects that make charter schools different.

"In California, charter schools are exempt from a significant part of the education code," Turnbull said. "There are a number of things they don't have to do, so it gives them flexibility while still being held accountable for their results. It's really programmatic flexibility with the expectation for results."

To California State Senator Leland Yee, Opacic's claim of exemption seemed contrary to the purpose of charter schools. The controversy promoted Yee to suggest a bill that makes charter schools' responsibility to obey the student free-speech law clear as day. Student free expression laws are slowly spreading across the country. They clearly define the difference in rights between public and private schools, but can be slightly ambiguous when it comes to magnet and charter schools.

Other than California's, the first student free expression law was established in Massachusetts after the 1988 decision in Hazelwood School District v. Kuhlmeier significantly limited the First Amendment rights of high school student journalists working on school-sponsored publications. States that followed suit include Kansas, Arkansas, Colorado, Oregon and Iowa. California's law, however, was established in 1977 before the

Hazelwood decision. States with anti-Hazelwood laws, or student free expression laws, have essentially returned to students the same free expression rights that existed prior to Hazelwood -- at least they thought so.A major detraction from school administrators' desire to obey student free expression laws is the confusion that stems from state laws seemingly "trumping" federal laws, since the Hazelwood

decision was written by Supreme Court justices, according to Mike Hiestand, legal consultant at the Student Press Law Center.

But Hiestand said it is legitimate for states to require more than the minimum set by the Hazelwood decision.

The one thing states cannot do is require less than what was set by federal law -- including charter schools.

"We've been working with the California Newspaper Publishers Association to draft legislation that will clear up any ambiguity in the law," said Adam Keigwin, chief of staff for Senator Yee. "We don't believe there is any; we believe that the law covers charter schools. We don't want anyone to misinterpret it, so we will make it crystal clear in the law."

Yee started the process of drafting legislation in September. He said his original intent in proposing the student free expression law was to cover all students -- it was never supposed to exempt charter schools from any First Amendment protection. Yee's new bill can do one of two things: It will either amend the charter school mega-waiver that explains from what sections of the code charter schools are exempt, or it will add an additional section to the code that clarifies charter schools' responsibility to obey the student free expression law.

"Either way, what is interesting to me is that you've got a charter school principal that somehow thinks we should not respect students' First Amendment rights," Yee said. "I'm hoping that this principle will adopt within schools an understanding and respect for students' First Amendment rights. Our students' rights are extremely important. The foundation of democracy is based on the ability to criticize even principals and school boards."

The proposal is set to be considered when the legislature convenes in January 2010.

For purposes of law, charter schools are public schools "with a twist," according to "Law of the Student Press," a publication of the Student Press Law Center. The text also states that a growing number of court decisions have found charter school employees are subject to the same constitutional limitations on other public schools, compliant with state laws. As a result, student journalists should have the same First Amendment rights as in public schools, as guaranteed by federal and state laws.

Because of the creativity level of the curriculum, students of OCHSA and other charter schools are required to apply or audition to get in, Erickson said -- which is why she thinks a charter school refusing to be subject to a student free expression law is contradictory.

"I was so disillusioned with the principal and the assistant principal back in September because OCHSA has a mantra that says we want to facilitate and nurture an education in the arts ... it just seemed like their actions was so hypocritical to what OCHSA stands for," Erickson said.

Turnbull said in California, families apply to have their children attend a charter school. Parents make a choice to send their child to that particular school.

"There is a fairly significant component to the family decision making, so I think that's probably pretty powerful," she said.

Jim Ewert, legal counsel for the California Newspaper Publishers Association, explained that the student free expression law in California's education code was not meant to govern how school districts operate; it was meant to provide students enrolled in campuses throughout the state with particular rights. While the charter school mega-waiver does exempt charter schools from some aspects of the education code, it is geared more toward flexibility in creating curriculum and meeting state standards, Ewert said.

"For charter schools -- which are sort of quasi-private/public -- to claim that they are not subject to recognizing student rights is a pretty tortured interpretation," he said. "Nevertheless, to make absolutely crystal clear that they are, I think it's Yee's intent to add charter schools to the list."

reports, Winter 2009-10