EL DORADO UNION HIGH SCHOOL DISTRICT

BOARD POLICY


Students

FREEDOM OF SPEECH / EXPRESSION

BP 5145.2

 

Note: California law and court cases have addressed the application of federal and state constitution principles of freedom of speech and of the press in a school setting and have established parameters for student expression.


Education Code 48907 mandates districts to establish a written “publications code” related to student’s rights to freedom of speech and of the press. Also see AR 5145.2 for further language implementing this mandate.

The Governing Board believes that free inquiry and exchange of ideas are essential parts of a democratic education. The Board respects students’ rights to express ideas and opinions, take stands on issues, and support causes, even when such speech is controversial or unpopular.


(cf. 6144 - Controversial Issues)


ON-CAMPUS EXPRESSION


Students 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. (Education Code 48907)


Student expression on district or school Internet web sites and on-line media shall generally be afforded the same protections as print media.


(cf. 1113 - District and School Web Sites)


Note: In California, Education Code 48907 grants students broad rights of freedom of press and provides that student content can be restrained only when it is obscene, libelous, or slanderous, or incites students to commit unlawful acts, violate school rules or substantially disrupt school operations.


When determining what type of content might be restrained, the courts have found age to be a critical factor (Hazelwood , Bethel v. Fraser).


Students’ freedom of expression shall be limited only as allowed by law in order to maintain an orderly school environment and to protect the rights, health, and safety of all members of the school community.


Students are prohibited from making any expressions or distributing or posting any materials that are obscene, libelous or slanderous. Students also are prohibited from making any expressions that so incite students as to create a clear and present danger of the commission of unlawful acts on school premises, the violation of school rules, or substantial disruption of the school’s orderly operation. (Education Code 48907)


(cf. 5145.7 - Sexual Harassment)

(cf. 5145.9 - Hate-Motivated Behavior)


The use of “fighting words” or epithets is prohibited if the speech is abusive and insulting rather than a communication of ideas, and the speech is used in an abusive manner in a situation that presents an actual danger that it will cause a breach of the peace.


Note: The right of school administrators to exercise “prior restraint” (e.g., censorship) of materials is generally limited to those instances in which administrators believe that the material violates the law, such as defamatory material or material that might subject the district to liability (Leeb v. DeLong).

School officials shall not engage in prior restraint of material prepared for official school publications except insofar as the content of the material violates the law. (Education Code 48907)


Note: Education Code 48950 provides that no district maintaining high schools shall make or enforce any rule subjecting a high school student to disciplinary sanctions solely on the basis of speech or other communication that would be constitutionally protected if engaged in outside of campus. Students enrolled in a school that makes or enforces such a rule may take civil action for injunctive and declaratory relief.

The Superintendent or designee shall not discipline any high school student solely on the basis of speech or other communication that would be constitutionally protected when engaged in outside of school, but may impose discipline for harassment, threats, or intimidation unless constitutionally protected. (Education Code 48950)


(cf. 5137 - Positive School Climate)

(cf. 5144 - Discipline)

(cf. 5144.1 - Suspension and Expulsion / Due Process)

(cf. 5144.2 - Suspension and Expulsion / Due Process: Students with Disabilities)


OFF-CAMPUS EXPRESSION


Note: Courts have generally found that schools may impose discipline for conduct that occurs outside the school only when the off-campus conduct poses a direct threat to the safety, welfare, or discipline of other students or staff. Since this area of law is unclear and constantly evolving, it is strongly recommended that districts consult with legal counsel when developing policy and prior to applying discipline for off-campus Internet speech.

Off-campus student expression including, but not limited to student expression on off-campus Internet web sites, is generally constitutionally protected but shall be subject to discipline when such expression poses a direct threat to the safety of students or school personnel.


Conduct by a student outside of class which for any reason materially disrupts classwork or involves substantial disorder or invasion of the rights of others is not protected by the constitutional guarantee of free speech.




Legal Reference:

            EDUCATION CODE

                    48907 Exercise of free expression; rules and regulations

                    48950 Speech and other communication

                    51520 Prohibited solicitations on school premises

            UNITED STATES CODE, TITLE 20

                    4071-4074 Equal Access Act.

            CALIFORNIA CONSTITUTION

                    Article 1, Section 2 Freedom of speech and expression

            COURT DECISIONS

                    Lavine v. Blaine School District, (2001) 257 F.3d 981

                    Emmett v. Kirkland School District No. 415, (2000) 92 F.Supp. 2d 1088

                    J.S. v. Bethlehem Area School District, (2000) 757 A.2d 412 (Pa. Commw. 2000)

                    Beussink v. Woodland R-IV School District, (1998) 30 F.Supp. 2d 1175 (E.D. Mo. 1998)

                    Muller v. Jefferson Lighthouse School, (1996) 98 F.3d 1530

                    Hazelwood School District v. Kuhlmeier, (1988) 108 S. Ct. 562

                    Leeb v. DeLong, (1988) 198 Cal.App.3d 47

                    Perumal et al v. Saddleback Valley Unified School District, (1988) 198 Cal. App. 3d 64

                    Bethel School District No. 403 v. Fraser, (1986) 478 U.S. 675

                    Collin v. Smith, (1978) 447 F. Supp. 676, affd. (1978) 578 F. 2d 1197, cert. den. (1978) 439 U.S. 916

                    Bright v. Los Angeles Unified School District, (1976) 134 Cal. Rptr. 639, 556 P.2d 1090, 18 Cal. 3d 350

                    Tinker v. Des Moines School District, (1969) 393 U.S. 503

                    Harper v. Poway Unified School District, (2005) 445 F.3d 1166


Management Resources:

CDE LEGAL ADVISORIES

         Limitations on Student Expression in School-Sponsored Publications, March 4, 1988

NSBA PUBLICATIONS

        Digital Discipline: Off-Campus Student Conduct, the First Amendment and Web Sites, School Law in Review 2001

 

 

Policy Adopted:  6/2/92

Last Revised:       2/26/02, 7/06