The Brown Act: Applying the Rules to Real Life Situations

The Brown Act: Applying the Rules to Real Life Situations

Student Speech & Safety: Rights and Limitations May 10, 2018 Presented by: Bryan G. Martin, Senior Counsel Cerritos Fresno Irvine Marin Pasadena Pleasanton Riverside Sacramento San Diego Topics Free Speech in School Duty to Maintain Safe Schools What if Students Walk Out of School?

Alternatives & Responses to Student Walkouts 2 Free Speech in School 3 Free Speech in School The First Amendment to the U.S. Constitution and California

Constitution, Article 1 2 guarantee the right of free speech and expression. Public school students do not shed their constitutional rights at the schoolhouse gate. (Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503) 4

Free Speech in School The California Supreme Court held 45 years ago: The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. It is the classroom and academic institutions which are the marketplace of ideas and where the exchange of ideas and arguments are to be fostered, not curtailed. (Adcock v. Board of Education (1973) 10 Cal.3d 60, 67.) 5

Free Speech in School Some forms of speech are not constitutionally protected: Obscenity Slander Libel

Fighting words Incitement to imminent criminal acts 6 Free Speech in School Acceptable restrictions on speech depend on the nature of the forum: School facilities (classrooms, libraries, internet access) are not public forums if they have not been opened for indiscriminate use by the general public. Instead they are reserved for specific intended

purposes, communicative or otherwise. 7 California Law Education Code section 48907(a): Students 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 . But schools must prohibit:

Expression that is obscene, libelous, or slanderous. Expression that so incites students 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. 8 California Law Education Code section 48907(b): Each school district governing board 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. 9 California Law Education Code section 48907(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. 1 0 Board Policy 5145.2 Freedom of Speech/Expression Required by Education Code 48907 Generally mirrors Education Code 48907

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. Bullying, harassment or intimidation in the form of speech, written expression or through electronic media will not be tolerated and will be subject to disciplinary action. 11 Limitations on Free Expression in School Under Tinker, a school cannot limit a students right to free

speech if it is unlikely to substantially disrupt the schools activities or learning or interfere with other students rights. A school can regulate students speech if the school shows facts that reasonably lead school authorities to forecast substantial disruption of or material interference with school activities or interference with the rights of other students to be secure and to be let alone. 12

Limitations on Free Expression in School When school officials reasonably forecast substantial disruption, considering the totality of the relevant facts, expression can be restrained. (Dariano v. Morgan Hill Unified School District (N.D. Cal. 2011) 822 F.Supp.2d 1037 [school officials required student to turn his flag shirt inside out on Cinco de Mayo]) School officials need not wait for disruption to occur. (Karp v. Becken (9th Cir. 1973) 477 F.2d 171) Cannot simply speculate about disruption. Consider history of incidents, especially threats and violence. No hecklers veto cannot restrain speech on the expectation

that others will disagree or protest. (Forsyth County, Ga. v. Nationalist Movement (1992) 505 U.S. 123) 13 Duty to Maintain Safe Schools 14 Student Safety: Right and Obligation AT SCHOOL The California Constitution, article I, 28(c) establishes the right to

attend safe schools. School districts have a heightened duty to make schools safe. (Constantinescu v. Conejo Valley Unified School District (1993) 16 Cal.App.4th 1466) Districts have a general duty to supervise the conduct of children on school grounds during school sessions, school activities, and lunch periods. The duty to supervise students at school includes a duty to enforce rules and regulations necessary to protect the students. (Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741.) 15

Student Safety: Right and Obligation AWAY FROM SCHOOL Districts are not liable for the conduct or safety of students when the students are not on school property, unless the district has: Undertaken to provide transportation to and from school premises; or Undertaken a school-sponsored activity off the premises; or Otherwise specifically assumed such responsibility or liability; and

Failed to exercise reasonable care under the circumstances. (Education Code 44808) 16 Student Safety: Right and Obligation Negligence standards: Each person has a duty to act with reasonable care under the circumstances. Generally, there is no duty to control the conduct of another, or to warn those endangered by such conduct. There are significant exceptions to this general rule.

Special relationships, such as school to student, support a duty to protect against foreseeable risks. The public policy of preventing future harm is ordinarily served by imposing the costs of negligent conduct upon those responsible. (Regents of University of California v. Superior Court (2018) 230 Cal.Rptr.3d 415) 17 Student Safety: Right and Obligation Special Circumstances: Where the district creates or helps to create the danger, it has a duty to warn and to protect individuals from the danger.

Where the district knows or should know of a dangerous condition, it has a duty to take reasonable steps to protect individuals from danger. (Constantinescu v. Conejo Valley Unified School District (1993) 16 Cal.App.4th 1466 [dangerous lot at school]; Joyce v. Simi Valley Unified School District (2003) 110 Cal.App.4th 292 [schoolyard gate near busy intersection]) 18 What if Students Walk

Out of School? 19 When Safety & Discipline Collide Students may be disciplined for the act of leaving campus without permission. (Corales v. Bennett (9th Cir. 2009) 567 F.3d 554, 563) The incidental effect on the students expressive conduct is permissible, and First Amendment rights are not infringed by punishing the act of leaving campus. Students may be disciplined for acts that occur off campus while going to or coming from school. (Education Code 48900(s)) Discipline for merely leaving school cannot be a suspension for a

first offense. (Education Code 48900.5 [requiring other means of correction]) 20 When Safety & Discipline Collide If students are not disciplined for the act of leaving campus for other reasons, they must not be disciplined for leaving campus to engage in expressive activities. See Corales v. Bennett (9th Cir. 2009) 567 F.3d 554 [plaintiffs argued that students were not disciplined for violating rule against leaving campus, but for their expressive choice to

participate in immigration protests] Singling out students who leave specifically to engage in protests would violate the First Amendment. 21 When Safety & Discipline Collide The conundrum: What is the prudent response if students leave campus for a planned or unplanned protest? Stand by as young students take to the city streets? Restrain them from leaving? Designate staff to follow or go with them?

Contact law enforcement? Punish the students after the fact? 22 Legal & Practical Considerations If a student who leaves campus is injured, a lawsuit will follow regardless of the Districts response. If the District did nothing to preserve safety when students went off campus, it will be accused of negligence. Pick your plaintiff. Keeping kids safe is a defensible objective!

If designated staff follow or accompany them, the students may be less likely to engage in high-risk behavior. The Districts actions to safeguard students (or not) will be judged by the media and public opinion along with the courts. 23 Alternatives & Responses to Student Walkouts

24 Best Practices A district may respond or react to student speech in ways that do not censor or chill further First Amendment activities. (Smith v. Novato Unified School District (2007) 150 Cal.App.4th 1439, 1459 [district did not violate free speech rights by holding meetings and sending a letter home to parents disavowing students controversial editorial]) A school does not infringe on a students right to free speech merely by facilitating a peaceful avenue for self-expression by persons upset by the students speech. (Id. at p. 1460) But standing by while students chant racial insults at a classmate is

unacceptable. (Doe v. Los Angeles Unified school District (C.D. Cal. Feb. 27, 2017) 2017 WL 797152) 25 Best Practices Use advance notice of a demonstration to prepare rather than prevent. Establish protocols with staff ahead of time. Encourage students to stay in class and at school. Caution students (and parents) about consequences of leaving class/campus without permission.

Use the opportunity to engage students in peaceful, healthy debate about prominent issues. 26 Best Practices Consider designating time and space on campus for students to express themselves. Do not physically restrain students from leaving campus (unless there is imminent danger). Arrange for security or law enforcement monitoring if students are leaving campus.

Train designated personnel to act reasonably in the interest of student safety. Continue to encourage students to return to school. 27 Disclaimer This AALRR presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in

individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The firm is not responsible for inadvertent errors that may occur in the publishing process. 2018 Atkinson, Andelson, Loya, Ruud & Romo 28 Question Answer Session

Thank You For questions or comments, please contact: Bryan G. Martin (559) 225-6700 [email protected]

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