Above The Law?

Student newspaper advisers are something of an endangered
species these days. They often get caught in the middle when
administrators and student journalists clash over content, and in more
than a few cases on college campuses

in recent years, advisers — sometimes faculty members with tenure or
tenurelike protections, but often vulnerable staff members — have found
themselves losing their jobs. (High school newspaper advisers are even
more vulnerable.)

“All you have to do is look around the country to see how many
conflicts there are,” said Mark Goodman, the Knight Chair of Scholastic
Journalism at Kent State University and former executive director of
the Student Press Law Center. “This has really gained steam.”

It was with several recent such controversies in mind, and numerous
instances of censorship at high schools in California, that the state’s
Legislature overwhelmingly approved legislation this month that would
prohibit a college or school district from firing, suspending or
otherwise retaliating against an employee for acting to protect a
student’s free speech. Last week, with the measure, SB 1370,
sailing for passage and a trip to the governor’s office for Arnold
Schwarzenegger’s hoped-for signature, the University of California
quietly revealed its opposition to the bill.

In a letter to State Sen. Leland Yee, the legislation’s sponsor,
a lobbyist for the university system “respectfully” warned Yee that the
university did not expect to abide by the requirement if it was
enacted. “The University of California must maintain its ability to
correct situations in which a member of its teaching corps or a
University employee has failed to comply with academic teaching
standards, violated UC policies, broken rules or laws, or misused
University resources.” wrote Happy Chastain, senior legislative
director for state government relations in the UC president’s office.
“Under the provisions of SB 1370, UC is concerned that its ability to
act in such circumstances would be restricted and expose the University
to frivolous and unwarranted litigation.”

The last-minute opposition from UC officials infuriated Yee and
other supporters of the bill. Not only did they challenge the
university’s logic for fighting the measure, disputing the suggestion
that it would restrict its institutions’ ability to punish faculty
members who teach inappropriate material in the classroom; more
broadly, they also expressed surprise that the university could assert
the right not to abide by the law.

“We think their interpretation is wrong,” said Adam Keigwin, a
spokesman for Senator Yee. While the university is constitutionally
exempted from certain laws passed after a certain date, “in this case
we are modifying the public records act, which they do fall under, and
they are going to have to fall under this one.”

SB 1370 is only the latest piece of legislation aimed at ensuring
the speech rights of student journalists. At the core of the effort is
1992’s California Education Code Section 66301,
broadly protected the right of college students not to be punished
solely “on the basis of conduct that is speech or other communication
that, when engaged in outside a campus of those institutions, is
protected from governmental restriction by the First Amendment to the
United States Constitution” or California’s own Constitution.

In 2006, the California Legislature approved a measure (AB 2581)
sponsored by Senator Yee that, in the wake of 2005’s controversial Hosty v. Carter decision,
prohibited colleges in the state from censoring student newspapers or
exercising “prior restraint” of student speech or the student press.

The reason Yee followed up with the pending legislation, SB 1370,
said Keigwin, his aide, is because campus media advisers are often
thrust into the position of defending (or not defending) the student
journalists whose work they oversee. If campus administrators can
readily dismiss a faculty or staff member who stands up for student
journalists, and replace him or her with someone who won’t, Yee
asserts, the 2006 legislation can be seriously undermined.

“Since administrators are unable [under AB2851] to exercise prior
restraint with regard to a student publication, they lean on advisers
to do what they legally cannot,” said Jim Ewert, legal counsel for the
California Newspaper Publishers Association, which supports the Yee
measure. “When advisers refuse, they are punished because
administrators know they will face no legal consequences. SB 1370 is
necessary to close this gaping loophole in the law.”

Added Keigwin: “Without this bill, the speech [protected by AB 2581] is in jeopardy.”

Last Monday, on the day that the state Assembly approved Yee’s legislation, the University of California — for the first time, according to aides to Yee — expressed its opposition to the measure. In the letter to Yee,
Chastain noted that the university “feels strongly about academic and
speech freedoms,” but argued that existing laws and university policies
“already afford substantial freedom of speech protections for students
and faculty.” The fact that the issue raised by the proposed
legislation may not be an issue at UC, Chastain suggests, is
“evidenced, in part, by our inability to identify a single example of
the University of California acting to discipline employees for
supporting the free speech of University students.”

Echoing criticism made by the Association of California School Administrators,
she said that the proposed legislation would inappropriately tie the
hands of college officials to “take appropriate measures if a faculty
member or UC employee fails to observe instruction standards or
University policies that are appropriate to the academic environment
and are based upon course criteria and academic issues.”

What would happen, the university suggested, if “during delivery of
a course in mathematics, a student uses class time to promote opinions
unrelated to mathematics or the course materials, and … the
instructor of record not only allows this behavior to persist, but also
reinforces the student’s beliefs in class.” In such a case, in which
“the course is not being taught according to the curriculum approved by
the University,” Chastain wrote, UC must retain “the right to take
appropriate measures to ensure that our standards and policies are
upheld.”

Supporters of the media adviser law were surprised by the
last-minute nature of the university’s opposition (”It came totally out
of the blue,” said Keigwin, “on the day after it passed the second
house — that’s just not the way you do things”) and by some of its
assertions. They argued, for instance, that the example cited in
Chastain’s letter is an illegitimate comparison, because the university
would have every right to punish a faculty member who is not teaching
the curriculum.

“The letter cites as a hypothetical example a math instructor who
allowed a student to promote opinions unrelated to the subject during
class time, suggesting that under the law, the university would be
prohibited from punishing the teacher for tolerating the disruptive
student speech,” Goodman, the Kent State professor, wrote in a post on the blog
of the Center for Scholastic Journalism. “Of course, the letter never
explains why the University believes that off-topic student speech in
the classroom would be protected by the law in the first place, a
requirement for the university employee protections of the bill to come
into play.”

In addition, just because UC has not punished a media adviser or
other employee for protecting the free speech rights of students does
not mean that university employees do not feel constrained and do not
need protection, said Keigwin, the Yee spokesman. The Student Press Law
Center has received numerous complaints in recent years about free speech being impaired
at UC campuses, and since Yee introduced his bill, his office has
received complaints about as many as a dozen cases “where the adviser
felt some pressure to steer the paper in a certain way,” said Keigwin.
“Speech has still been squelced at the college level.”

More fundamentally, Goodman and others are perplexed by the
university’s assertion that it would not be obliged to abide by SB 1370
should it become law. In an e-mail message late Sunday, a UC spokesman,
Brad Hayward, said that the university’s Constitutional status gives it
“discretion in implementing state law…. In this particular case, the
bill proposes to amend Section 66301 of the California Education Code,
which is within Part 40 of the Education Code. Another section of Part
40, Section 67400, states,
“No provision of [Part 40] shall apply to the University of California
except to the extent that the Regents of the University of California,
by appropriate resolution, make that provision applicable.”

In this case, Hayward and Chastain warn, the regents do not plan to
let the media adviser provision apply if it should become law.

How is it that the university sees itself as not being subject to
the media advisers’ legislation but bound, presumably, by the
underlying free speech legislation on which it is based? Goodman asked.
“I don’t see a legal distinction between one and the other. Why do they
think this one is problematic when the underlying statute is not?”

Told of the university’s assertion that it has the right to opt out
of the underlying free speech law, too, Goodman said via e-mail that
the issue “all does come back to whether they support the protections
in 66301 — that the university should not have the authority to
discipline students or engage in prior restraint of their expression
when that expression would be protected by the First Amendment or the
California Constitution if the expression occurred off campus.” He
added: “If they do agree with that, then they should have not a
problem with SB 1370 as it only protects university employees from
punishment for student expression that is already protected by 66301.”

Goodman said he hoped that the university, even if it sticks to its
current position, might see fit to embrace the principle contained in
Yee’s bill. “If they believe this legislation is unnecessary, they
should have no problem adopting a policy that they will not remove
advisers for defending protected content” in student publications, he
said.

– By Doug Lederman

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