Morro Bay law presentation, 1993
(This is based on the handout prepared for the 1993 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, an attorney and professor of communications at California State University, Fullerton).
Must student governments at California community colleges hold open meetings? Or are they exempt from the Ralph M. Brown Act and the state's other open meeting laws?
Throughout the last decade, there has been no definitive answer to those questions. But last September an Attorney General's Opinion was issued that said--in unequivocal terms--that the Brown Act does apply to student governments.
This may at last resolve a difficult problem for community college journalists--a problem that has had a long history. A year ago at the 1992 Morro Bay law presentation, the lead item concerned SB1538, an ambitious bill introduced in the State Senate to reform the Brown Act, California's open meeting law for local governments. The Morro Bay law handout last year described the many improvements proposed in SB1538--but lamented the fact that it didn't address the problem of closed meetings of community college student governments.
The handout noted that community college student governments fell under the Bagley-Keene Act (a separate open-meeting law for state rather than local governments) until that law was amended in 1984. No open-meeting law has specifically applied to community college student governments since then. However, the handout suggested that the Brown Act could be interpreted to cover student governments. Here's what it said:
"However, the Brown Act does require multi-member boards and committees that act as advisory bodies to governing boards to hold open meetings if they were created by an official act of the governing board. It could be argued that most student governments must hold open meetings under that provision of the Brown Act. In fact, a California Attorney General's opinion--which carries considerable legal weight--declared that faculty senates at community colleges must hold open meetings for this reason. It might be possible to obtain a similar Attorney General's opinion applying the Brown Act to student governments."
Coincidentally, just as that was being written Jerry Simmons, one of Rich Cameron's students at West Valley College (and also the student trustee on the district's governing board), persuaded Assembly Member Dominic Cortese to request an Attorney General's Opinion on this issue. In September, the A.G.'s office responded by ruling that the Brown Act does indeed cover student governments. Any member of the Legislature could have requested an Attorney General's Opinion on this problem at any time in the last decade, but it didn't happen until one community college student--acting on what he learned in his journalism classes--made the crucial contact!
This Attorney General's Opinion, which essentially carries the force of law for government agencies, should go a long way toward ending the problem of student government secrecy at California community colleges. The opinion concludes that student governments are indeed advisory bodies to community college district governing boards (as suggested above) and thus subject to the Brown Act. The full text of the A.G.'s opinion is attached. (Alternate copy: The full text of the A.G.'s opinion may be obtained at any law library; its legal citation is 75 Ops. Cal. Atty. Gen. 143)
Therefore, student government bodies now must comply with all of the provisions of the Brown Act: they must post an agenda 72 hours before the meeting (except in emergencies), they cannot act on matters not on the agenda (again, except in emergencies), and the meetings must be open to the press and public except when certain specific kinds of business are being conducted (e.g., discussions of pending litigation with an attorney, the hiring and firing of employees, matters affecting public safety and the security of public buildings, certain real estate and labor negotiations, etc.). Because student governments rarely spend much time discussing exempt subjects, their meetings should almost always be open.
Ironically, within days after this A.G.'s opinion was issued (giving
campus journalists the thing we had hoped to see included in SB1538) SB1538
itself was vetoed by Gov. Pete Wilson. The result: community college journalists
were the only journalists in the state who got what they wanted
added to the Brown Act last year!
During the 1992 fall elections, the perennial question of political endorsements in community college newspapers arose again, stirring concerns about the applicability of California Education Code Section 7054 to the campus press. Here's what Section 7054 says:
"Except as provided in Sections 7056, 35174 and 72632, no school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the passage or defeat of any school measure of the district, including, but not limited to, the candidacy of any person for election to the governing board of the district."
The other sections cited in 7054 are not helpful. Section 7056 authorizes "an officer or employee" to engage in political fund-raising for ballot issues during non-working hours. Section 35174 does not apply to community colleges, and Section 72632 allows community college board members and employees to prepare information leaflets and make public appearances to discuss any "school measure" (i.e., a proposed tax increase or bond issue).
How does Section 7054 affect the campus press? Over the years a number of administrators on various campuses have contended that 7054 forbids editorials on ballot issues because the typical student newspaper uses "district funds, services, supplies, or equipment." On the other hand, of course, numerous court decisions have held that the college press is at least a limited First Amendment forum--not subject to administrative censorship.
Like the Hatch Act (which curtails editorializing by newspapers funded by the federal government), Section 7054 could be interpreted by a court to limit the editorial freedom of student newspapers--but that hasn't happened yet. In fact, several years ago a federal judge ruled that a similar provision in Title V of the California Administrative Code does not preclude political endorsements by student newspapers at California State Universities. However, his decision was an oral one, issued from the bench; it carries little weight as a legal precedent.
If a lawsuit were ever to arise under Section 7054, it seems likely that it would be decided on First Amendment grounds: if the student newspaper in question had a history of acting as an open forum for student opinion on a variety of subjects, it could not be prevented from editorially supporting or opposing a candidate or ballot measure. Perhaps the safest way to handle this potential problem is to include a statement in the staff box making it clear that opinions expressed in unsigned editorials are those of the editorial board and not the district, and that opinions expressed in signed editorials, letters and columns are those of the authors alone.
None of this is likely to deter nervous administrators from attempting
to forbid political endorsements in campus newspapers. What administrators
fear, of course, is a possible lawsuit against the district by a disgruntled
candidate, alleging a Section 7054 violation by the student newspaper.
While there has apparently never been such a lawsuit, it could happen someday.
The 1991 Morro Bay law handout discussed Freedom Newspapers v. Superior Court, an appellate court decision concerning one of the technicalities in California's libel and retraction statute. The court held that a demand for a retraction has to be served on the publisher and not the editor to be legally valid. But who is the publisher of a community college newspaper? The student editor? The adviser? The college president?
It turns out that it doesn't matter. Last November, the California Supreme
Court ruled on the Freedom Newspapers case, holding that the demand
can be served on the editor or any other senior executive, as long as the
publisher is actually aware of the demand. This is an important point because
a legally valid demand for a retraction is a prerequisite to a libel suit
for general or punitive damages in California. If there is no valid demand,
the plaintiff is limited to special damages (i.e., out-of-pocket monetary
losses), which are usually difficult to prove in libel cases.
In the aftermath of the U.S. Supreme Court's R.A.V. v. St. Paul decision, which overturned a city ordinance banning "hate speech" and raised doubts about the constitutionality of many campus speech codes, the California legislature has adopted a new state law governing freedom of expression on campus.
Under the new law (Education Code Section 66301), students may not be punished for engaging in any form of expression on campus that would be protected off campus by the First Amendment or the free-speech/free-press provision of the California Constitution. Students whose free-expression rights are violated on campus will be allowed to sue to halt the censorship, and the court may order the college to pay the student's attorney's fees. A copy of the new law is attached.
The full impact of the new law may not be entirely clear for awhile. Its apparent intent is to give college students more free expression rights than they might have under the limited public forum theory embodied in landmark high school cases such as Tinker v. Community School District and Hazelwood School District v. Kuhlmeier. One thing does seem clear: campus speech codes cannot now prohibit anything short of direct, verbal assaults on individuals at California colleges and universities. The Supreme Court ruling in the R.A.V. v. St. Paul case narrowly construed the classic "fighting words doctrine" from the 1942 Chaplinsky v. New Hampshire case. In R.A.V., the court's majority opinion, written by Justice Antonin Scalia, suggested that this doctrine could not be used to justify censorship of communications that might express hostility based on such factors as race, religion or sexual orientation unless the message created an imminent danger of provoking an immediate violent reaction.
While the legislature apparently enacted Section 66301 to curb the adoption
of campus "hate speech" codes, the new state law could also be interpreted
by the courts to give the student press more freedom. If students cannot
be punished for engaging in any expressive activity on campus that would
be protected by the First Amendment off campus, does that mean the student
press has the same degree of First Amendment protection from censorship
by government officials as, say, the Los Angeles Times??? That may
be precisely what it does mean, since it abolishes the limited public forum
theory at California colleges and universities. Now a college campus is
to be treated as a full First Amendment forum, according to the new law's
statement of legislative intent (contained in the enabling legislation,
California Education Code Sections 67380-67382, which require community
and four-year colleges to release reports of campus crime statistics, were
strengthened during 1992 by AB3739. It requires college officials to provide
these reports within two days after receiving a request from any employee,
student, or applicant for admission. The law still includes a provision
exempting community colleges until the legislature provides state funding
to pay for the crime reports. However, AB3739 also includes language intended
to provide a funding mechanism for community colleges through the "State
Mandates Claims Fund." This would appear to make campus crime reporting
mandatory for community colleges as well as four-year schools.