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.

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.