Thirty year anniversary:

The passing of Ed Code 48907 brought protections to student journalists in California, but not their advisers

By Steve O’Donoghue
Special to J-Ideas

This past summer, the state of Oregon passed a student expression law. J-Ideas asked veteran journalism educator Steve O’Donoghue to write this piece about what it’s like to have a student expression law.

SACRAMENTO, Calif.--In 1977, a group of journalism advisers in Northern California, frustrated with interference by school authorities, researched, wrote and lobbied to have a section added to the state education code to protect student journalists. Education Code 48907 was signed into law by then Governor Jerry Brown. California became the first state, over a decade after Tinker vs. Des Moines, to spell out in law the free expression rights of students working on school publications.

Over 20 years later, the very day that the Hazelwood decision was announced, 48907 proved its worth by turning back an attempt by the principal of Homestead High School in Cupertino to censor an article about AIDS. While the rest of the scholastic journalism world was gnashing its teeth over Hazelwood, California journalism teachers and students had reason to celebrate.

A few years later advisers there lobbied to have a second section added, Ed Code 48950, which gave protection to students in private and religious schools (with the exception schools had the right to forbid articles that contradicted tenets of their faith) and spelled out legal remedies for students whose rights had been violated under 48907.

Two recent court cases reinforced the value of 48907. In Bakersfield a principal held up publication of the school newspaper at East Bakersfield High School, apparently to spike a story about gay students who had come out on campus. The student editors lined up legal representation and took the principal to court. A judge ordered the paper printed. Subsequently, exercising their rights under 48950, the students sued the principal and the district. The district settled.

A state appellate decision earlier this year gave a court victory to a student from San Marin High School in Novato. He had written a controversial opinion piece on immigration that caused an uproar at the school. School authorities attempted to punish the student and he sued the district. The state court ruled that justification for school authorities interfering in student publications had to be stronger than an article upset people; they had to prove substantial disruption of the school or educational process. Conjecture or supposition was not enough in the court’s eyes.

Both of these cases appeared to reinforce 48907 and highlight its value. But they also illuminated a flaw in the skein of protection for student publications: The students have rights but their teacher advisers don’t.

In the East Bakersfield case, veteran adviser Randy Hamm had done a yeoman job of training his staff in press law and the relevant education code sections. Consequently, when the paper was interfered with, the students carried the ball. They asserted their rights, they went to court to free their paper, and they sued the district. The adviser was conspicuously (and wisely) absent from the scene. As painful experience has shown when advisers advocate for their students they are often made victims as well.

At San Marin, it was not just a single student who was penalized; it was the entire school community. The adviser—a first year teacher with no journalism experience—was let go by the district. The student newspaper was shut down and journalism cancelled.

There is a crucial gap in the protection of student press rights in California. While the students themselves are protected, their publications, the classes they take to produce the publications in, and their teachers, are not.

The pattern we have seen in California for a number of years now is when administrators are displeased with student publications they find the best strategy is to use bureaucratic means to shut down the offending publications or to remove the adviser.

“Program need,” or similar euphemisms, is cited as cause to move the class out of the curriculum or put it at a disadvantageous time, or to reassign the adviser to a non-journalism class. At an Oakland senior high school this spring, a veteran adviser was moved to another assignment. The administration claimed this had nothing to do with a controversy over an article about masturbation the student newspaper printed earlier in the year, but was to better serve under achieving students.

The beauty of this method is that it avoids entanglements with 48907 and therefore lawyers and judges, and usually union grievances as well. A site principal can assign teachers as they see fit in most districts in the state and don’t have to justify their move, short of adhering to state credentialing rules. It is prohibitively difficult to prove that the reassignment is in fact a technique to silence student voices.

In California, journalism falls under the English credential. English, usually the largest department in a school, is a boundless source of new, inexperienced young teachers. The common pattern is for principals to assign a new English teacher with no journalism training to newspaper or yearbook. Under new rules enacted just a few years ago, districts can now let a new teacher go without explanation during the first two years. A new adviser who is on probation risks more than a nasty letter in their mailbox if they choose to stand up for student journalists. As a new adviser in Cupertino discovered this spring, they can lose their job if the administration is unhappy with student journalism.

After years of frustration seeing their colleagues abused in this manner, scholastic journalism activists led by Jan Ewell, herself a victim of a principal’s three-year vendetta that pushed her out of journalism, are drawing up legislation they hope will protect advisers from administrative retaliation.

With support from Terry Franke of CalAware (www.calaware.org), and the California Newspaper Publishers Association, and other sympathetic organizations, Jan is negotiating with the California Teachers Association to help introduce and sheppard legislation through the legislature that would amend Education Code section 44933 to prevent teachers from being punished when administrators are upset with a student publication.

It is early in the process yet and there are no guarantees this will pass at this stage, but it is a hopeful sign that the pendulum may swing in favor of California journalism teacher-advisers.

Steve O'Donoghue taught high school journalism in Oakland for 27 years at Fremont High School and advised the student newspaper, the yearbook, and a feature magazine. In 1986 he founded The Media Academy, a California State
Partnership Academy built around journalism careers. The Media Academy used journalism and writing to improve academic skills of inner city students, many of whom were immigrants and English language learners

O'Donoghue has been active in professional organizations for over 20 years and has received multiple awards.

O'Donoghue left the classroom in 2003 after 33 years and now directs the California Scholastic Journalism Initiate, an effort to revive journalism in the state schools.