BILL NUMBER: SB 438 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 14, 2010
AMENDED IN SENATE DECEMBER 16, 2009
AMENDED IN SENATE MAY 6, 2009
AMENDED IN SENATE APRIL 23, 2009
INTRODUCED BY Senator Yee
FEBRUARY 26, 2009
An act to amend Sections 48907 and 48950 of the Education Code,
relating to education.
LEGISLATIVE COUNSEL'S DIGEST
SB 438, as amended, Yee. Charter schools: freedom of speech and
of the press.
Existing law grants to public school pupils the right to exercise
freedom of speech and of the press, as specified. Existing law
requires each governing board of a school district and each county
board of education to adopt rules and regulations in the form of a
written publications code that includes reasonable provisions for the
time, place, and manner for conducting expressive activities within
the agency's jurisdiction. Existing law also prohibits school
districts operating one or more high schools and private secondary
schools from making or enforcing a rule that subjects a high school
pupil to disciplinary sanctions solely on the basis of conduct that
is speech or other communication that is protected by specified
provisions of the United States Constitution and the California
Constitution.
The Charter Schools Act of 1992 requires a charter school to
comply with the act and all of the provisions of the school's
charter, but provides that a charter school is otherwise exempt from
the laws governing school districts, except for specified provisions.
This bill would make those provisions regarding free speech and
expressive activities applicable to charter schools. By requiring
charter schools to perform additional duties, the bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature in
enacting this act to construe and clarify the meaning and effect of
existing law with respect to the right of pupil expression.
SECTION 1. SEC. 2. Section 48907 of
the Education Code is amended to read:
48907. (a) Pupils of the public schools, including charter
schools, shall have the right to exercise freedom of speech and of
the press including, but not limited to, the use of bulletin boards,
the distribution of printed materials or petitions, the wearing of
buttons, badges, and other insignia, and the right of expression in
official publications, whether or not the publications or other means
of expression are supported financially by the school or by use of
school facilities, except that expression shall be prohibited which
is obscene, libelous, or slanderous. Also prohibited shall be
material that so incites pupils as to create a clear and present
danger of the commission of unlawful acts on school premises or the
violation of lawful school regulations, or the substantial disruption
of the orderly operation of the school.
(b) The governing board or body of each school district or charter
school and each county board of education shall adopt rules and
regulations in the form of a written publications code, which shall
include reasonable provisions for the time, place, and manner of
conducting such activities within its respective jurisdiction.
(c) Pupil editors of official school publications shall be
responsible for assigning and editing the news, editorial, and
feature content of their publications subject to the limitations of
this section. However, it shall be the responsibility of a journalism
adviser or advisers of pupil publications within each school to
supervise the production of the pupil staff, to maintain professional
standards of English and journalism, and to maintain the provisions
of this section.
(d) There shall be no prior restraint of material prepared for
official school publications except insofar as it violates this
section. School officials shall have the burden of showing
justification without undue delay prior to a limitation of pupil
expression under this section.
(e) "Official school publications" refers to material produced by
pupils in the journalism, newspaper, yearbook, or writing classes and
distributed to the student body either free or for a fee.
(f) This section does not prohibit or prevent the governing board
or body of a school district or charter school from adopting
otherwise valid rules and regulations relating to oral communication
by pupils upon the premises of each school.
(g) An employee shall not be dismissed, suspended, disciplined,
reassigned, transferred, or otherwise retaliated against solely for
acting to protect a pupil engaged in the 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.
SEC. 2. SEC. 3. Section 48950 of the
Education Code is amended to read:
48950. (a) A school district operating one or more high schools,
a charter school, or a private secondary school shall not make or
enforce a rule subjecting a high school pupil to disciplinary
sanctions solely on the basis of conduct that is speech or other
communication that, when engaged in outside of the campus, is
protected from governmental restriction by the First Amendment to the
United States Constitution or Section 2 of Article I of the
California Constitution.
(b) A pupil who is enrolled in a school at the time that the
school has made or enforced a rule in violation of subdivision (a)
may commence a civil action to obtain appropriate injunctive and
declaratory relief as determined by the court. Upon motion, a court
may award attorney's fees to a prevailing plaintiff in a civil action
pursuant to this section.
(c) This section does not apply to a private secondary school that
is controlled by a religious organization, to the extent that the
application of this section would not be consistent with the
religious tenets of the organization.
(d) This section does not prohibit the imposition of discipline
for harassment, threats, or intimidation, unless constitutionally
protected.
(e) This section does not supersede, or otherwise limit or modify,
the provisions of Section 48907.
(f) The Legislature finds and declares that free speech rights are
subject to reasonable time, place, and manner regulations.
(g) An employee shall not be dismissed, suspended, disciplined,
reassigned, transferred, or otherwise retaliated against solely 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.
SEC. 3. SEC. 4. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.