California eyes new free-speech protections in schools

Eleven-year teaching veteran Teri Hu was adviser to The Voice, the student newspaper of Irvington High School in Fremont, Calif., when school administrators told her not to let it publish a story critical of school policies on teaching assistants. Two months after she refused, Ms. Hu became "former" adviser to The Voice.

Janet Ewell, a tenured teacher in Garden Grove, was enjoying the praise in her 2002 school evaluation until she came to the part about her performance as advisor to journalism students. "[The principal] let me know he didn't like three student editorials, one about school bathrooms, one about the cafeteria and one about teachers who are not available to help students," recalls Ms. Ewell. "Then he told me I wouldn't be advising them the next fall."

Scenarios like those above occurring in schools across California have prompted the state to take the national lead again in protecting free speech rights on campuses. Two years ago, the state was the first to pass a bill preventing college administrators from censoring student newspapers.

Now, legislation is moving forward to protect both high school and college faculty advisers from being punished by administrators for students' articles or editorials.

"It is quite disheartening to hear that after we specifically prohibited prior restraint … that many are engaging in this type of nefarious activity and even firing quality teachers because of content in student newspapers," says Sen. Leland Yee, author of a new bill that would prohibit an employee from being dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for acting to protect student's free speech.

Pressure on teachers

The California Newspaper Publishers Association reports 12 cases over the past two years in which teachers were fired or reassigned because of something written by students.

The number of cases of coercion, pressure or other manipulation by administrators against student newspaper advisers is far higher, they say – and much more goes unreported.

"It is rampant in every area of this state," says Jim Ewert, a lawyer for CNPA, who logged many of the infractions while manning a student hotline and took his findings to Senator Yee.

Last week, the state legislature's bipartisan Senate Judiciary Committee unanimously approved Yee's bill. The Journalism Teacher Protection Act, as it is called, must head to the Senate floor and Assembly before reaching the governor's desk. But observers say the bill appears to be headed for a repeat of Yee's previous free-speech bill, which moved easily into law in 2006.

Still, the new measure is opposed by school administrators associations concerned about the potential for teachers to abuse the law to get out of disciplinary actions, transfers, or other reprimands.

"[We] have heard numerous situations whereby a teacher has used poor judgment under the guise of freedom of speech," said Laura Preston, legislative advocate for the Association of California School Administrators, in written testimony. "The school principal must be able to utilize discretion when coming in contact with these situations. Teachers are the adults that must be held accountable for their students, even in the case of a school newspaper, yearbook or other written materials."

First Amendment on campus

Nationally, the first recognition of students' free-speech rights came with a 1969 US Supreme Court decision. In the case of Tinker v. Des Moines School District, a number of students who wished to wear black armbands to protest the Vietnam War were denied access to the school and disciplined. The court ruled on that First Amendment rights applied to pubic schools.

In 1988, however, the Supreme Court in Hazelwood v. Kuhlmeier found a public high school could refuse to publish the works of student editors.

Prompted in part by federal decisions, California lawmakers have consistently tried to offer more free-speech protection on campuses.

Yee's 2006 bill extending protection to college students, for example, was spurred by a federal court ruling in favor of university administrations' power to censor stories they deem undesirable.

In the case of Hosty v. Carter, involving the editors of the student newspaper at Governors State University in Illinois who had to seek prior approval for articles critical of the administration, the 7th US Circuit Court of Appeals found in 2005 that the students' rights were not violated.

The ruling led Christine Helwick, general counsel for the California State University system to send a memo to the presidents of every CSU campus stating: "The Hosty case appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers."

It was then that Yee moved ahead with his bill to extend First Amendment protections to college journalists.

Preventing misuse of the law

Proponents of the new legislation counter the criticism from administrators that the law will be open to misuse. "The other side has concerns that this law will become an additional tool for teachers to sue districts and make it more difficult for administrators to make personnel decisions," says Mr. Ewert.

But the language of the bill addresses this, he says, by focusing only on protection of speech and not on other kinds of insubordination.

"Administrators can still take whatever job actions they deem necessary on other matters," says Ewert. And he says the bill offers one more assurance: "The burden falls on teachers/employers to demonstrate that any retaliations were based on the content of articles, not other reasons."