Monthly Archives: October 1974

1974.10.00: Leon Letwin, Regulation of Underground Newspapers on Public School Campuses in California, 22 UCLA Law Review 141-218 (1974) (OCR)

View in searchable PDF format: 1974.10.00 – Letwin – Regulation of Underground Newspapers (UCLA L.Rev).OCR

22 UCLA L. Rev. 141 1974-1975

REGULATION OF UNDERGROUND NEWSPAPERS

ON PUBLIC SCHOOL CAMPUSES

IN CALIFORNIA

Leon Letwin*

TABLE OF CONTENTS

Page

  1. INTRODUCTION —————————– 142
  2. STATUTORY AND CONSTITUTIONAL DIMENSIONS ——-1-5 5
  3. Prior Censorship of Underground Papers ———– 156
  4. Education Code Section 10611 ———– 156
  5. Constitutional Considerations —— 161
  6. Potential Problems under Section 10611: Prior

Censorship in Other Forms 171

  1. Submission for “Informational Purposes” -__ 171
  2. School Seizure of Prohibited Materials after

Distribution Commences ——- 171

  1. Substantive Prohibitions on Expression in Underground

Newspapers —————–..-..———–1—7–3— —

  1. Incitement ————————— 177
  2. “Obscene . . . According to Current Legal

Standards” _- —————————————–1-8–2— –

  1. “Libelous, or Slanderous According to Current

Legal Standards” 184

  1. Exclusivity of the Section 10611 Prohibitions —– 190

* Professor of Law, University of California, Los Angeles.

Disclaimer of warranty of disinterest: I have participated as counsel for high

school students in several cases challenging the validity of regulations and practices

of the Los Angeles Unified School District which provided for prior censorship

of student underground newspapers and banned their sale. The cases are

Hummel v. Los Angeles Unif. School Dist., No. C-40089 (Sup. Ct. L.A. Cty.,

filed Oct. 2, 1972), and Bright v. Los Angeles Unif. School Dist., No. C-90087

(Sup. Ct. L.A. Cty., filed June 3, 1974). Each is still pending. The latter

case was tried on August 28, 1974, and judgment was rendered for the defendants.

That case is now on appeal. Given this background, I am scarcely a detached

and disinterested observer, a fact the reader will naturally wish to keep in

mind in evaluating the arguments put forth in this Article.

I would like to acknowledge a special debt for the assistance given me in

the preparation of this article by Richard Wasserstrom, my good friend, my colleague

at the UCLA Law School, and my partner in an occasional foray into

litigation (including the above cases). I am also grateful to my colleague Kenneth

Karst who made innumerable valuable contributions to my understanding

of the issues at stake. I acknowledge finally the contribution of my son, Michael,

whose association with alternative student newspapers has heightened my sensitivity

to the issues involved and their importance to public school education.

— 22 UCLA L. Rev. 141 1974-1975

UCLA LAW REVIEW

  1. Time, Place and Manner as an Independent

Ground for Regulating Speech —— 191

  1. Other Delegated Powers as an Independent

Ground for Regulating Speech ——- —- 192

III. THE POLICY ARGUMENTS FOR A REDUCED FIRST

AMENDMENT STANDARD FOR PUBLIC SCHOOL STUDENTS:

THE RIGHTS OF CHILDREN ARE NOT Co-Ex-

TENSIVE WITH THOSE OF ADULTS —————– 197

  1. OTHER SIGNIFICANT ASPECTS OF PRESS DISTRIBUTION 205
  2. Reasonable Time, Place and Manner Rules —— 205
  3. Sale of Underground Newspapers ————– 208
  4. Coercion ————— ————————.-.2-0. 9..
  5. Exploitation ———————————————- 209
  6. Commercialism ——————— 209
  7. Difficulties in Line Drawing ————– 210
  8. CONCLUSION ———————————–……..——— 212
  9. INTRODUCTION

Some sixty years ago Earl Wooster, a Fresno high school student,

addressed his fellow students during a school assembly.

With enthusiasm he aimed a series of criticisms at the school’s

officials centering around fire hazards in the school building. For

this he was expelled. He sought judicial relief, giving rise to the

first reported California case testing the rights of expression of

public school students.’ In this test he and the free speech principles

implicitly at stake suffered ignominious defeat, for the

courts unhesitatingly upheld the school board’s view that such student

“insubordination” represented an intolerable threat to school

discipline.2

Today high school students often choose to express grievances

about their schools and their society not through any official

school forum but rather through the non-sanctioned, underground,

or alternative newspapers found in many urban areas. If

the forum is different from the one selected by Wooster, so too,

typically, is the content. For much of what appears in these

newspapers reflects those trends of political, cultural and philosophical

radicalism current in society at large. When students

with this perspective turn their critical attention to school, what

they see is a repressive institution whose principal function is not

to “truly” educate but to condition young people to accept an unsatisfactory

status quo. They deliver their observations in accents

that are not always restrained and polite. They discuss candidly

1 Wooster v. Sunderland, 27 Cal. App. 51, 148 P. 959 (Ist Dist. 1915).

2 Id. at 55-56, 148 P. at 961.

142 [Vol. 22: 141

— 22 UCLA L. Rev. 142 1974-1975

UNDERGROUND NEWSPAPERS

and openly issues that are often taboo in the formal school curriculum-

sex, birth control, and abortion. For example, a recent

issue of the Red Tide,’ an alternative school newspaper distributed

in the Los Angeles area, included articles attacking the principal

of a high school for promulgating a dress code in an undemocratic

manner and accusing him of lying about the way the

rules were adopted;4 discussing the right of pregnant minors to

secure abortions without parental consent; describing as a myth

and a lie the generally heroic portrayal of Lincoln found in textbooks;

and discussing from an unconventional perspective “The

Hearsts and the SLA.” Despite differences in tone and content,

the underground newspapers do share one crucial quality with

Wooster’s speech: They criticize school authorities more severely

than such authorities wish to be criticized and in ways that they

find acutely objectionable.

The current legal doctrines governing the first amendment

rights of public school students appear to be markedly different

from those which existed in 1912, in large part because of the

1969 Supreme Court decision in Tinker v. Des Moines Independent

Community School District.6 Yet despite changing doctrine,

cases still reflect reluctance to recognize the right of students to

distribute alternative newspapers. This Article is an exploration

of the issues raised by these cases. 7 Three general questions will

be considered: (1) What prohibitions may school officials legitimately

impose on the substantive content of such publications?

(2) Is prior censorship a permissible technique for enforcing

them? and (3) How should such crucial incidents of newspaper

distribution as time, place, and manner regulations and the right

to sell such papers, be dealt with in the school setting?

3 3 The Red Tide, No. 3, 1974 (P.O. Box 64402, L.A., Calif. 90064).

4 The efforts of school authorities to suppress the article gave rise to the

second of the two lawsuits cited in footnote *, supra.

5 3 The Red Tide, No. 3, 1974, at 6-7.

6 393 U.S. 503 (1969).

7 I do not address myself in any systematic way to the following problems:

the power of schools to censor official or approved school newspapers, see, e.g.,

Koppell v. Levine, 347 F. Supp. 456 (E.D.N.Y. 1972); Antonelli v. Hammond,

308 F. Supp. 1329 (D. Mass. 1970) (college case); the right of students to engage

in forms of expression other than the distribution of printed matter, e.g., demonstrations,

speeches, meetings on campus; the question of student dress and hair

styles as aspects of symbolic speech, see Nimmer, The Meaning of Symbolic

Speech Under the First Amendment, 21 UCLA L. REv. 29, 57-60 (1973); the

right of non-students to distribute unapproved matter on public school campuses,

see Mandel v. Municipal Ct., 276 Cal. App. 2d 649, 81 Cal. Rptr. 173 (1st Dist.

1969); or the nature of student due process rights to a hearing before being disciplined

in connection with alleged rule violations when distributing newspapers,

see, e.g., Dixon v. Alabama Bd. of Educ., 294 F.2d 150 (5th Cir.), cert. denied,

368 U.S. 930 (1961). The issue of due process in the high school context is

now pending in Goss v. Lopez, prob. juris. noted, 415 U.S. 912 (1974) (No.

73-898).

1974]

— 22 UCLA L. Rev. 143 1974-1975

144 UCLA LAW REVIEW [Vol. 22: 141

My thesis is that the answers to these questions ought to be

no different for children of high school and junior high school

age than for adults.8 At best, age should be a suspect classification

with respect to first amendment rights, with a heavy burden

of justification for more stringent regulation of the young than

is tolerated in society generally.’ This is not because of any conception

that children are merely adults whose growth has through

some hormonal quirk been physically stunted, say, as children are

portrayed in the paintings of Brueghel. Rather, it is because of

the belief that for all their differences, their development as informed,

critical participants in a democratic society necessitates

much the same immunity from thought control as for adults.

Further, once schoolchildren’s first amendment rights are recognized,

they need all the protection the legal system can give them

to counteract the inertia resulting from the historically low estate

of children’s rights and from the generally authoritarian tradition

of the public school. An enlightened decision like Tinker cannot

alone do the job. If its promise is to be realized, it must be

accompanied by a refusal to -tolerate any denial of rights based

merely on unadorned proclamations that children are immature,

in need of protection from themselves or from others, or simply

that they are “different.’ 10

8 It is no doubt a more difficult question whether the same equality should

exist for elementary schoolchildren, and one which I have not attempted

to analyze. As a practical matter, the issue of children’s rights of expression tends

not to arise until they reach adolescence when attitudes that they have “rights”

which others are bound to respect crystallize.

In suggesting that the rights of high school and junior high school students

should be the same as those of adults, I do not mean to discount the fact that

an educational institution requires a special environment to function successfully.

But this is true alike whether the rights of minor students or adults are at issue.

To take account of the special needs of an educational institution should not and

does not imply any special, reduced rights for the young per se. See text accompanying

note 129 infra.

9 Strict review of legislation curbing speech is a well-established first

amendment principle. See, e.g., Goodpaster, The Constitution and Fundamental

Rights, 15 ARIZ. L. REV. 479, 488-90 (1973). Therefore, even if age is not characterized

a “suspect classification” for equal protection purposes, statutes and regulations

inhibiting student speech should face strict judicial scrutiny. The equal

protection perspective is useful, however, because it focuses squarely on the legitimacy

of the widespread, “self-evident” assumptions that young people are “different”

in ways that automatically justify according them a diminished version of

first amendment protections.

10 For a collection of such views, see Quarterman v. Byrd, 453 F.2d 54,

57-59 (4th Cir. 1971) and cases cited therein at 58, notes 7 & 8. But see cases

cited note 141 infra. Even so dedicated a defender of first amendment values

as Professor Emerson subscribes to this view, at least as regards obscenity:

Different factors come into play . . . where the interest at stake

is the effect of erotic expression upon children. The world of children

is not strictly part of the adult realm of free expression. The factor

of immaturity, and perhaps other considerations, impose different rules.

Without attempting here to formulate the principles relevant to freedom

— 22 UCLA L. Rev. 144 1974-1975

UNDERGROUND NEWSPAPERS

To some, the very lack of articulated reasons for treating

children differently may provide the most powerful evidence that

different treatment is warranted: The justification is so self-evident,

so rooted in consensus, that detailed explanation is superfluous.

One might be inclined to accept this rationale but for

the fact that various groups-Indians, Blacks, Chicanos and

women-have each at times been assumed to be unquestionably

“different” and entitled not so much to rights as to the “benign,”

paternalistic protection of society.

In California, rejection of a dual first amendment standard,

one for children and the other for adults, is supported not only

by constitutional considerations but also by recent legislation, particularly

Education Code section 10611 enacted in 1971.11 The

opportunity exists in California to fashion the law in a way that

would boldly reinforce the developing rights of schoolchildren,

improve the school environment, and avoid a host of unnecessary

constitutional problems.

Although these conclusions seem to me to be both sound

and reasonable, they will no doubt appear incorrect to others. In

large part this is due to fundamental disagreements as to the way

adolescents should be viewed, conceptions of the nature of education,

and the respective values of free speech and obedience to authority.

The Wooster case, decided in a different, ostensibly

alien era, reflects one point of view. The Tinker case can be

read as embracing another approach, one far more supportive of

first amendment values. Yet, far more than one might think,

the spirit of Wooster lives on in the minds of more than a few

school administrators and courts.

To better understand -the conflicting approaches, it would be

well to begin with a more careful look at Wooster and Tinker

and their philosophical underpinnings.

Wooster v. Sunderland. Wooster opened his remarks with

the complaint that various schoolrooms were fire hazards and that

of expression for children, it suffices to say that regulations of communication

addressed to them need not conform to the requirements of the

first amendment in the same way as those applicable to adults.

Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877,

939 (1963).

For first amendment equal protection cases, see Police Dep’t v. Mosley,

408 U.S. 92 (1972) (ordinance held unconstitutional as a violation of equal protection

because it selectively denied the general public a right to peacefully picket

next to schools while permitting it for labor picketing); Grayned v. City of Rockford,

408 U.S. 104, 107 (1972); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968).

See Blasi, Prior Restraints on Demonstrations, 68 MICH. L. REV. 1482, 1492-97

(1970).

13 CAL. EDuc. CODE § 10611 (West Supp. 1974) reproduced in text at

note 60 in Ira.

1974]

— 22 UCLA L. Rev. 145 1974-1975

UCLA LAW REVIEW

the exits were inadequate. In somewhat “caustic”’12 terms he

denounced the school board for compelling students to assemble

in such rooms. Shifting to another complaint, he denounced the

school board for prohibiting a student event known as a “donkey

fight.” The activity was not described but must have amounted

to a mildly attenuated form of mayhem. He then wove these

seemingly disparate complaints into a common theme of school

board irrationality: It was unfair to prohibit donkey fights in

which “boys took their own chances of being injured, and force

them to take chances of being injured in a firetrap.’ 1 3 Finally,

he “closed and climaxed his incendiary address by offering a resolution

. . .requesting the [school board] . . . to ‘no longer talk

about bonds, but to do all in its power to put such a bond issue

before the people of the district.’ “14

Wooster was brought before the board to “explain his motive.”

For the benefit of those insensitive to nuance, he explained

that his rhetoric was “intended as a slam”‘ 5 at the board.

The board concurred. It found that Wooster’s conduct “was inintended

and calculated to discredit and humiliate the [board] in

the eyes of the student body”‘ 6 and demanded an apology. None

was forthcoming and Wooster was expelled. The trial court affirmed

the board action. Wooster sought review.

The court of appeal (the case went no further) found in

favor of the school board saying:

[T]he whole tenor of the address was well calculated to …

engender …in the minds of the students a feeling of disrespect

for the defendants, and a secret if not an open hostility

to their control of the student body and management of

school affairs. Such being the natural tenor and tendency

of the plaintiff’s address, his conduct in making the same

cannot be classed as anything but a species of insubordination

to constituted authority, which required correction …

in order that the discipline of the school might be maintained

17

12 27 Cal. App. 51, 53, 148 P. 959 (1st Dist. 1915).

13 Id.

14 Id. Wooster’s remarks deserve to be reproduced more fully. The

“worst” he said is described in the following paragraph:

In the prohibition of the donkey fight and such interclass meetings,

the Board of Education showed its interest in the welfare of their students.

“They wish to protect us from cracked heads and injured bodies,

let them go one better and protect us from scorched bodies”; . . . it was

not fair of the Board of Education to forbid a donkey fight in which

the boys take their own chances of being injured and force them to

take chances of being injured in a fire trap. “You should object, and

I do object.”

Record on Appeal at 4, Wooster v. Sunderland, 27 Cal. App. 51, 148 P. 959

(1st Dist. 1915).

15 27 Cal. App. at 53, 148 P. at 960.

16 Id.

17 Id. at 55-56, 148 P. at 961.

[Vol. 22: 141

— 22 UCLA L. Rev. 146 1974-1975

UNDERGROUND NEWSPAPERS

It occurred to no one-school authorities, the court, or even

Wooster himself-that his speech should enjoy constitutional protection.

Wooster’s argument was cast in narrowly jurisdictional

terms because recourse to the first amendment was hardly the

reflexive response in the climate of the day. Legal protections

for free speech were largely undeveloped.”8 But beyond that,

the predominant attitudes toward education and the young made

it incongruous, even bizarre, to suppose that Wooster might possess

“rights” enforceable against school officials, even assuming

such speech would have enjoyed protection in the society at large.

The prevailing view of education saw its central purpose as

the transmission of the facts and skills students would someday

need to play a useful role in society. The cultivation of critical,

independent thought was not a proper schoolhouse activity. Nor,

unfortunately, is such a view merely a relic of a bygone time.

Justice Black, for one, expressed it in his dissent in Tinker: Public

schoolchildren, have “not yet reached the point of experience

and wisdom which [enable] them to teach all of their elders …

taxpayers send children to school . . . to learn, not teach”;19

and to acknowledge that schoolchildren have a right of speech

would be to subject “all the public schools in the country to the

whims and caprices of their loudest-mouthed, but maybe not their

brightest, students.”2

Given the conception of education as a one-way conduit

from teacher to pupil-as product rather than process-it was

logical to view student criticism of authority as sand in the machinery

of education, undermining discipline and distracting students

from the main task of absorbing knowledge. Moreover,

the dominant view of life and education regarded unquestioning

obedience to official behavior, or as the Wooster court described it

with such unselfconscious candor, the “subordination” by students

to “constituted authority,” as practical training of a high order.

Adult life, after all, often required the unquestioning, even

amiable acceptance of things as they were, however irrational

18 The clear and present danger test did not emerge until 1919 in Schenck

  1. United States, 49 U.S. 47, 52 (1919). In any event, not until 1925 was the

first amendment even applied to the states. See Gitlow v. New York, 268 U.S.

652 (1925). For a historical account of the first amendment’s incorporation, see

Chafee, Thirty-Five Years With Freedom of Speech, 1 KAN. L. REV. 1 (1952).

While there were free speech guarantees written into the state constitutions, such

as article 1, section 9 of the California constitution, these were not generally

treated as independent impediments to governmental power but merely as alternate

phrasings for whatever it was that the first amendment required. Compare Paulsen,

State Constitutions, State Courts and First Amendment Freedoms, 4 VANrD.

  1. REV. 620 (1951), with Falk, Foreword: The State Constitution: A More Than

“Adequate” Nonfederal Ground, 61 CALIF. L. REV. 273 (1973).

19 393 U.S. 503, 522 (1969) (Black, J., dissenting).

20 Id. at 525.

1974]

— 22 UCLA L. Rev. 147 1974-1975

UCLA LAW REVIEW

they might have appeared. 21 Quite apart from such functional

justifications, restrictions on student speech were warranted

simply because “disrespect” and “insubordination” were immoral.

Their suppression required no further justification. For this reason,

the Wooster court displayed a singular lack of interest in the

actual consequences, or lack of them, of Wooster’s speech.22

Views about morality and the goals of education are never

neatly isolated from fundamental political attitudes. In the

Wooster case, those attitudes were unambiguously conservative.

Thus the trial judge complained about Wooster’s “reprehensible”

willingness,

to drift along with the tide of modern social unrest . . . exemplified

in the impatience at restraint of all kinds and revolt

against all authority, so common at the present time, and

which, in a land governed by law can produce but one result,

viz.: disaster.2 3

Legally and socially, these attitudes crystallized to form the basis

for the doctrine of in loco parentis.14

Given the prevailing sentiments it is not surprising that the

school authorities did not consider less repressive responses to

Wooster’s criticisms: They might, for example, have simply

laughed off the incident because Wooster’s comments had not seriously

interfered with school life. Or they might have engaged

him in dialogue about his complaints, because the issues he raised

were more important than the perhaps intemperate way in which

he raised them. Or they might have welcomed his forthright

criticism of constituted authority as an excellent example of citi-

21 1 encountered this attitude in acute form a few years ago during a

parent-student discussion in a Los Angeles junior high school concerning the validity

of the hair-length regulations then in force. One parent conceded he could

find no justification for a rule regulating the hair length of male students only.

He concluded however that not all things in society were rational. Therefore

the rule should be retained so that students would learn to accept such irrational

rules.

22 “[N]o particle of evidence” was offered to show any insubordination,

Wooster claimed. The day after it was given, Wooster’s speech “was not even

commented upon by the students, and there was no insubordination, and in fact,

no reference made by any pupil to the thing which happened the night before.

.” Brief for Appellant at 10-11, Wooster v. Sunderland, 27 Cal. App. 51,

148 P. 959 (1st Dist. 1915). The trial judge’s finding of fact number six states

that Wooster’s address “created a condition of high glee and merriment” among

the students at the time it was given, which caused other unspecified conduct

“subversive” of order. Id. at 16. A defendant board member who testified at the

trial confessed he knew of no disruption or disorder caused by Wooster’s speech.

Record on Appeal at 51-52, Id.

23 Quoted in Respondent’s Brief at 17, Wooster v. Sunderland, 27 Cal.

App. 51, 148 P. 959 (lst Dist. 1915).

24 See generally Goldstein, The Scope and Sources of School Board Authority

to Regulate Student Conduct and Status: A Non-constitutional Analysis,

117 U. PA. L. REv. 373, 377-84 (1969).

[Vol. 22: 141

— 22 UCLA L. Rev. 148 1974-1975

1974] UNDERGROUND NEWSPAPERS 149

zen participation in the political process. Or, finally, they might

have regarded his speech as offering a unique educational opportunity

to explore, in microcosm, effective techniques for social

change in a democratic society. To state these alternatives is to

recognize they would have been unthinkable under the then-prevailing

conceptions of relationships between young people and

“constituted authority.”

Tinker v. Des Moines Independent Community School District.

2″ This case, decided in 1969, marks the first important judicial

reassessment of the Wooster attitude toward minors, schools,

and freedom of speech.26 Students had worn black armbands to

school in symbolic protest against the war in Vietnam. School officials

promptly banned the conduct and suspended those who disobeyed

the ban. The students unsuccessfully sought relief in two

lower courts. 27 When the case reached the Supreme Court, the

threshold issue was whether the wearing of the armbands was to be

regarded as “speech” for first amendment purposes. Concluding

the armbands were ,the functional equivalent of words, “akin”2”

to pure speech, the Court then squarely confronted the issue of

25 393 U.S. 503 (1969).

26 In the period between 1912 and 1969 the Supreme Court did on a few

occasions announce that public schools were not totally outside the ambit of first

amendment protection. The prime examples are in the freedom of religion cases,

starting with West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)

(compulsory flag salute). See also Abington School Dist. v. Schempp, 374 U.S.

203 (1963) (bible reading); Engel v. Vitale, 370 U.S. 421 (1962) (prayers). But

despite some robust rhetoric about the first amendment rights of public school

students, these cases were not read as establishing a general charter for student

rights of speech. A major reason, it seems clear, is that the rights at stake were

conceived to belong to the parents, not to the children. The battle was over the

allocation of power between parents (or perhaps organized religion) on the one

hand, and the state, on the other. The attitudes toward children in these religious

freedom cases, despite their first amendment rationale, shared rather than challenged

the presuppositions of the Wooster case. It was first Justice Douglas who

raised the issue of the child’s rights, in opposition to that of the parent’s, in Wisconsin

  1. Yoder, 406 U.S. 205, 243 (1972) (dissenting and concurring opinion).

In that case Amish parents had been prosecuted under Wisconsin’s compulsory

attendance law for refusing to send their children to school after the eighth grade.

The defense was that the requirement violated the parents’ rights under the free

exercise of religion clause. The Court agreed and overturned the conviction. It

observed that “the values of parental direction of the religious upbringing and education

of their children in their early and formative years have a high place in

our society.” Id. at 213-14. Justice Douglas argued, however, that if the views

of parent and child conflicted, it would invade the child’s rights to impose the

parent’s religious values upon him. Id. at 245. True, prior cases had expressed

“little regard for the views of the child.” Id. at 243. But cases like Tinker and

In re Gault, 387 U.S. 1 (1967), he argued, had changed all that. The majority

expressly reserved judgment on that issue, because, on the facts before it, it found

no conflict between the views of parent and child.

27 258 F. Supp. 971 (S.D. Iowa 1966), 383 F.2d 988 (8th Cir. 1967).

28 393 U.S. 503, 505 (1969). See generally, Nimmer, The Meaning of

Symbolic Speech Under the First Amendment, 21 UCLA L. RE,. 29 (1973).

— 22 UCLA L. Rev. 149 1974-1975

UCLA LAW REVIEW

whether speech on school premises was entitled to first amendment

protection. It concluded -that students did not leave their

constitutional rights at the schoolhouse gate.

One striking facet of the case is how extraordinarily modest

were the rights claimed by the students. The student expression

could not plausibly be viewed as “incendiary,” “disrespectful,” or

“insubordinate.” The form of expression selected was in fact less

likely to clash with other school activities than almost any imaginable.

It was not a group demonstration. It did not employ amplified

sound. It utilized no obtrusive posters. It blocked no

passageways. It created no litter. It was only a “silent, passive

expression of opinion.” 29 Therefore, the Court found “no evidence

whatever of petitioners’ interference, actual or nascent,

with the schools’ work or of collision with the rights of other students

to be secure and to be let alone.” 0 The wearing of armbands

“caused discussion outside of the classrooms, but no interference

with work and no disorder.”‘ It underscores the historic

absence of student rights that it took a landmark Supreme Court

decision to establish even the modest rights at issue.

The tameness of the demonstration did not impress Justice

Black who held the protests responsible for diverting the

minds of students from their scheduled class activities to “the highly

emotional subject of the Vietnam war.”’32 He gave forth a series

of exaggerated, even draconian, predictions about the consequences

of curbing the school’s authority:33 Other students would

be “ready, able, and willing to defy their teachers on practically

all orders”;34 “young, immature students . . . [would] soon believe

it is their right to control” the schools;3 5 and a “new revolutionary

era of permissiveness’ 36 would be ushered in.

29 393 U.S. at 508.

30 Id.

31 Id. at 514. Compare Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966).

32 Id. at 518. He believed the evidence also supported the conclusion that

the demonstration had had other impact in the classroom: “[A] teacher of mathematics

had his lesson period practically ‘wrecked’ chiefly by disputes with Mary

Beth Tinker, who wore her armband for her ‘demonstration.'” Id. at 517. It

is not clear that the dispute was anything more than one over whether she had

a right to wear the armband, the very issue in the case. In any event, he conceded

that the demonstrating students did not “actually disrupt the classwork,” except

in the sense indicated. Id. at 518.

33 Further evidence of Justice Black’s reaction to the forms of the protest

movements of the 1960’s is found in Cox v. Louisiana, 379 U.S. 536, 581-84

(1965) (dissenting opinion); Brown v. Louisiana, 383 U.S. 131, 151-68 (1966)

(dissenting opinion); Adderley v. Florida, 385 U.S. 39 (1966).

34 393 U.S. at 525.

35 Id.

86 Id. at 518.

[Vol. 22: 141

— 22 UCLA L. Rev. 150 1974-1975

1974] UNDERGROUND NEWSPAPERS 151

In point of fact, what the Court had done was a good deal

more modest. It recognized that students enjoyed some first

amendment rights. It delineated in a general way the scope of

those rights: Student first amendment activity was henceforth

protected unless it “materially disrupt[ed] classwork or involve[

d] substantial disorder or invasion of the rights of others.””7

Further, while the majority recognized that courts would have to

scrutinize the application of the substantial disruption standard by

school authorities,”8 it did not -attempt to specify how strict such

scrutiny would be. But the Court made it clear that any finding

of “disruption” would have to be based on fact rather than suspicion

or fear:

[I]n our system, undifferentiated fear or apprehension of

disturbance is not enough to overcome the right to freedom

of expression. Any departure from absolute regimentation

may cause trouble. Any variation from the majority’s opinion

may inspire fear. Any word spoken in class, in the

lunchroom, or on the campus, that deviates from the views

of another person may start an argument or cause a disturbance.

But our Constitution says we must take this risk…

and our history says that it is this sort of hazardous freedom

-this kind of openness-that is the basis of our national

strength and of the independence and vigor of Americans who

grow up and live in this relatively permissive, often disputatious,

society.39

Whatever uncertainties remain, factually unsupported opinions

forecasting disruption can scarcely constitute acceptable grounds

for suppression.4″

37 Id. at 513. The standard is phrased somewhat differently at another

point in the opinion: “[T]he record does not demonstrate any facts which

might reasonably have led school authorities to forecast substantial disruption

of or material interference with school activities…. .Id. at 514.

38 As it had done in Tinker. Id. at 509-10.

39 id. at 508-09.

40 That there should be strict review of the determination of “constitutional

facts” is well established doctrine. See, e.g., Rosenbloom v. Metromedia,

Inc., 403 U.S. 29, 54 (1971) (plurality opinion) (in determining applicability of

constitutional libel privilege, “[F]irst Amendment questions of ‘constitutional

fact’ compel this Court’s de novo review.”); Cox v. Louisiana, 379 U.S. 536,

545 n.8 (1965); Scoville v. Board of Educ., 425 F.2d 10, 13-14 (7th Cir.) (en

banc), cert. denied, 400 U.S. 826 (1970); Monaghan, First Amendment “Due

Process,” 83 HARV. L. REV. 518, 524-26 (1970) [hereinafter cited as Monaghan].

California courts have also recognized their responsibility for determining

whether administrative action is predicated on unconstitutional grounds, and to

this end exercise their independent judgment on the evidence. Bekiaris v. Board

of Educ., 6 Cal. 3d 575, 589-93, 493 P.2d 480, 488-91, 100 Cal. Rptr. 16, 24-

27 (1972). “[O]therwise the administrative board simply by its own findings

can absolve itself of any action in derogation of constitutional rights and insulate

such exculpation from any further scrutiny.” Id. at 592, 493 P.2d at 490-91, 100

Cal. Rptr. at 26-27. See also Adcock v. Board of Educ., 10 Cal. 3d 60, 65-68,

513 P.2d 900, 904-05, 109 Cal. Rptr. 676, 680-81 (1973); Local 1021,’L.A.

Teachers Union v. Los Angeles Bd. of Educ., 71 Cal. 2d 551, 556-58, 455 P.2d

— 22 UCLA L. Rev. 151 1974-1975

UCLA LAW REVIEW [Vol. 22: 141

Tinker, however, did not delineate the scope of the rights

it enunciated. Given the availability of the “clear and present

danger” test, with its relatively well-established meaning, it is

noteworthy that the Court neither expressly adopted nor rejected

that test in the school context. Nor did it indicate whether, or

to what degree, -the test it did articulate—“material” or “substantial”

disruption-established a lower standard of speech protection.

Markedly different interpretations are possible. 4′ It would

be possible to severely restrict it to the kind of benign, inoffensive

speech activity involved in Tinker. If so, Tinker would represent

no more than a timid first step. There is, however, another more

ambitious way to read the case: as standing for the proposition

that students enjoy basically the same first amendment rights as

do adults. “Substantial disruption,” then should be read as the

functional equivalent of “clear and present danger.” No student

speech should be barred unless it creates such a danger or violates

valid time, place, and manner rules.

There are various reasons why Tinker should be so

read.4 2 Children are increasingly recognized as capable of making

independent and reasoned decisions,43 a fact expressed in the

827, 830-31, 78 Cal. Rptr. 723, 726-27 (1969). For the same reason the California

Supreme Court has viewed skeptically the claim that courts should defer to

the “expertise” of school officials in evaluating the harm flowing from a teacher’s

efforts to exercise first amendment rights. See, e.g., id. at 556, 455 P.2d at 830,

78 Cal. Rptr. at 726. See generally Comment, The Scope of Judicial Review

of Probationary Teacher Dismissal in California: Critique and Proposal, 21

UCLA L. REV. 1257 (1974). Compare Strumsky v. San Diego Cty. Empl. Ret.

Ass’n, 11 Cal. 3d 28, 520 P.2d 29, 112 Cal. Rptr. 805 (1974) (where “fundamental

vested rights” are at stake, the reviewing court must exercise its independent

judgment as to the facts).

41 Different courts have in fact interpreted it differently, though they have

been uniform in paying allegiance to that case’s nominal standard. Compare the

relatively high burden imposed on would-be regulators of student speech in, e.g.,

Jacobs v. Board of School Comm’rs, 490 F.2d 601 (7th Cir. 1973), cert. granted,

94 S. Ct. 2638 (1974) (No. 73-1347) and Scoville v. Board of Educ., 425 F.2d

10 (7th Cir.) (en banc), cert. denied, 400 U.S. 826 (1970), with the low burden

imposed in, e.g., Katz v. McAulay, 438 F.2d 1058 (2d Cir. 1971), cert. denied,

405 U.S. 933 (1972), discussed in note 272 infra, and Baker v. Downey City Bd.

of Educ., 307 F. Supp. 517 (C.D. Cal. 1969), discussed in text accompanying

notes 220-22 infra.

42 In addition to changing attitudes toward children and toward education,

discussed in the text below, a strategic attitude probably also contributed to the

majority result. It concerned the appropriate response to the social unrest of the

late 60’s. Should the recognition of student rights be viewed as a suicidal pirouette

atop a slippery slope (see Justice Black’s dissent in Tinker, 393 U.S. at 524-

25), or as a vital safety valve for irrepressible social pressures? Probably the

majority leaned to the latter view, believing it the better part of wisdom not to

frustrate student efforts to speak out, so long as they were confined to legal boundaries.

See also Siegel v. Committee of Bar Examr’s, 10 Cal. 3d 156, 163 n.7,

514 P.2d 967, 973 n.7, 110 Cal. Rptr. 15, 21 n.7 (1973).

43 Recent research suggests that adolescence is the best time for intellectual

— 22 UCLA L. Rev. 152 1974-1975

1974] UNDERGROUND NEWSPAPERS 153

extension of voting rights to eighteen-year-olds by the twentysixth

amendment and in such legislation as was recently adopted

in California conferring a host of legal rights and duties upon

eighteen-year-olds. ” Tinker applied the protections of the first

amendment to even young children: One of the petitioners in that

case was a junior high student, aged thirteen. Another student

who defied the ban on armbands was a second-grader, aged

eight.45 Yet the majority did not suggest that children of that age

were to be denied constitutional protection. None of the opinions,

concurring or dissenting, in fact suggested that the distinctions in

age were relevant.

Not only has there been a marked change in attitudes toward

children, but also toward education. Whereas the Wooster court

implicitly viewed free speech and education as values locked in

implacable conflict, the Tinker majority viewed them as complementary.

The student discussions that Justice Black viewed as

outrageously disruptive were welcomed by the Tinker majority

as an indispensable ingredient of education.46

Furthermore, how the system itself protects the students’

rights of expression may furnish a far more meaningful lesson

about our democratic society than all the civics and government

courses in the curriculum. A powerful reason for scrupulous adherence

to constitutional norms, the Court has noted, is that those

in authority should not by their own conduct “teach youth to discount

important principles of our government as mere platitudes.”

4 The general view has been well stated:

development, that the ages of ten to fourteen are extremely fruitful for academic

learning, and that this is so precisely because “it is the time when the child

finally approaches the full development of his intellectual capacity and, in addition,

is capable for the first time of making independent and reasoned decisions.

.” L.A. Times, Feb. 17, 1974, pt. II, at 1, col. i (reporting a study by the

Stanford Research Institute).

See also the works of Piaget, Elkind, Kohlberg, Muuss, Kay, Gesell and Ilg

cited by Justice Douglas in Wisconsin v. Yoder, 406 U.S. 205, 245 n.3 (1972)

(concurring and dissenting opinion).

44 Law of Dec. 14, 1971, ch. 1748, §§ 1-78, (1971] Cal. Stats. 1971.

45 Though the eight-year-old was not a party to the lawsuit, Justice Black

read the case as protecting “the right of school pupils to express their political

views all the way ‘from kindergarten through high school.'” 393 U.S. at 516.

46 Id. at 512. Boredom, estrangement and intellectual passivity-rather

than overutilization of first amendment rights by students-are today widely

seen as the critical problems of public education. Dr. Wilson Riles, California

State Superintendent of Public Instruction, recently created a new state

commission to deal with the “monumental task of reforming public schools for

California’s -nearly 2 million junior and senior high school students.” L.A.

Times, July 14, 1974, pt. I, at 3, col. 5. The article points out, “The 35-member

commission began its seven-month assignment against a backdrop of campus violence,

student boredom and estrangement, widespread dropouts, and academic failure

that stamps many of the secondary schools as education’s most critical problem.”

Id.

4T West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).

— 22 UCLA L. Rev. 153 1974-1975

UCLA LAW REVIEW

[H]ow [educators] teach and how they act may be more

important than what they teach. . . . [C]hildren are taught

a host of lessons about values, ethics, morality, character, and

conduct every day of the week, less by the content of the

curriculum than :by the way schools are organized, the way

teachers and parents behave, the way they talk to children

and to each other, the kinds of behavior they approve or reward

and the kinds they disapprove or punish. These lessons

are far more powerful than the verbalizations that accompany

them and that they frequently controvert.48

This simply applies to the educational context the view which

others have urged as to the importance of governmental adherence

to high moral standards. As Justice Brandeis observed,

“[o]ur government is the potent, the omnipresent teacher. For

good or for ill, it teaches the whole people by its example. 49

Finally, student criticism of “constituted authority” is natural

and healthy. One function of speech is to create “dissatisfaction

with conditions as they are.”‘ 0 Surely a student is entitled to expound

the view that schools ‘are “grim, joyless places”;51 that they

frequently extinguish the natural curiosity of the young; and that

they have failed dismally to provide equal educational opportunity

for all races and classes. One need not accept student criticisms

of the educational or social order, to agree that an educational

system worthy of the name would provide ample scope for the

debate of such issues outside the classroom, if not within. 2

To adopt the attitudes described above is, of course, to reject

the in loco parentis model of Wooster’s day,13 with its paternalistic

and authoritarian underpinnings. Tinker, with its recognition of

students as “persons” 54 endowed with legal rights, can and should

be read as doing just that.

48 C. SILBERMAN, CRISIS IN THE CLASSROOM 9 (Vintage Edition, 1971).

49 Olmstead v. United States, 277 U.S. 438, 485 (1928). The comment

was directed to fourth amendment violations by public officials. Much of the

argument over the scope of the exclusionary rule in respect to illegally seized evidence

has turned on the issue of the importance of this criterion. See, e.g., United

States v. Calandra, 414 U.S. 338 (1974).

50 Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

51 The characterization is found in C. SILBERMAN, supra note 48, at 10.

52 While recognizing the need of effective discipline in operating

schools, the law requires that the school rules be related to the state interest

in the production of well-trained intellects with constructive critical

stances, lest students’ imaginations, intellects and wills be unduly

stifled or chilled. Schools are increasingly accepting student criticism

as a worthwhile influence in school administration.

Scoville v. Board of Educ., 425 F.2d 10, 14 (7th Cir.) (en banc), cert. denied,

400 U.S. 826 (1970).

53 See note 24 supra.

54 393 U.S. at 511. But see, In re Gault, 387 U.S. 1, 28 (1967): “Under

our Constitution the condition of being a boy does not justify a Kangaroo court.”

See also, id. at 61 (Black, J., concurring).

[Vol. 22: 141

— 22 UCLA L. Rev. 154 1974-1975

UNDERGROUND NEWSPAPERS

The suggestion that attitudes toward educational policy properly

played a role in the Court’s decision in Tinker may trigger

the response that courts have no business constitutionalizing their

notions of educational policy, that the Supreme Court is not “the

school board for the country.” 55 As a generality, no doubt true.

But when conflicts arise between educational and first amendment

values, the resolution inescapably implies some assessment

of each. The critical quesion becomes not whether a balance

should be struck, but who will strike it. If courts decline to make

any “educational” decisions, then school authorities will inevitably

make all the constitutional ones.5″

  1. STATUTORY AND CONSTITUTIONAL DIMENSIONS

As recently as 1970, it was clear that California public school

students had no right under state law to distribute underground

newspapers. California law complied neatly with the presuppositions

of the Wooster case. Education Code sections 9012 and

9013 barred “partisan” publications and “propaganda” from public

school grounds.57 After the decision in Tinker, however,

change was not long in coming. In Rowe v. Campbell Union

High School District 5″ a high school student challenged the power

of school authorities under sections 9012 and 9013 to bar distribution

of underground student newspapers on campus. A

three-judge federal district court found the two sections unconstitutionally

vague and overbroad. Prodded by Rowe as well as

by Tinker the California legislature in 1971 enacted Education

Code section 10611. 9 In sweeping terms the legislature enunciated

the right of “public school” students (not merely high

school students) “to exercise free expression” on school grounds:

55 The proposition remains true though the case from which these words

are taken, Minersville School Dist. v. Gobitis, 310 U.S. 586, 598 (1940), was

overruled in West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

56 See cases cited note 40 supra. It is instructive to note that after Justice

Black’s genuflection toward the educational expertise of school administrators in

Tinker, he warmly defended the particular educational values he wished the majority

to defer to. 393 U.S. at 517-26.

57 Law of May 23, 1968, ch. 182, § 31, [1968] Cal. Stats. § 31 (repealed

1971).

58 Civ. No. 51060 (N.D. Cal. 1970) (Hamlin, Cir. J., Zirpoli & Peckham,

JJ.). The court issued two opinions. The first, Memorandum and Order filed

September 4, 1970 [hereinafter cited as Rowe 1]; the second, Memorandum and

Order Supplementing Memorandum and Order of September 4, 1970, filed

February 4, 1971 [hereinafter cited as Rowe 11]. Though they had an enormous

impact on state law as hereafter described, neither, curiously, was certified for

publication. See also Poxon v. Board of Educ., 341 F. Supp. 256 (E.D. Cal.

1971) (where the court noted that earlier (.in an unpublished order) it had declared

Cal. Educ. Code section 9021 “patently unconstitutional” and on that

ground declined to convene a three-judge court since there was no substantial

federal question as to statute’s unconstitutionality). Id. at 257.

59 EDUC. CODE § 10611 (West Supp. 1974).

1974] 155

— 22 UCLA L. Rev. 155 1974-1975

UCLA LAW REVIEW

Students of the public schools have the right to exercise

free expression including, but not limited to, the use of bulletin

boards, the distribution of printed materials or petitions,

and the wearing of buttons, badges, and other insignia, except

that expression which is obscene, libelous, or slanderous

according to current legal standards, or which 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, shall be prohibited.

Each governing board of a school district and each

county superintendent of schools shall adopt rules and regulations

relating to the exercise of free expression by students

upon the premises of each school within their respective jurisdictions,

which shall include reasonable provisions for the

time, place, and manner of conducting such activities. 0

The statute rejects any double standard for the first amendment

rights of public school students. It confers no power on

school authorities to license or censor underground papers prior

to their distribution. Furthermore, even after distribution, the

legislation limits the school’s authority to discipline students for

their speech. Nothing in the statute permits school officials to

punish students for speech simply because it is grating, disrespectful,

vulgar, controversial, or inappropriate. If they are to justify

speech regulations, they must do so within the parameters of the

specific statutory prohibitions against obscenity, defamation, and

incitement.6′

  1. Prior Censorship of Underground Papers
  2. Education Code Section 10611

Following enactment of section 10611, numerous California

school districts adopted rules formally recognizing the right of students

to distribute independent publications on campus. At the

same time they established”2 systems for prior review and censor-

60 Id.

61 There are, to be sure, dangers of vagueness and overbreadth even in

respect to these prohibitions. But this is a general feature of these standards

wherever they are used. It is not the result of any effort to fashion especially

expansive restrictions for schoolchildren.

62 In some districts the process by which the rules were “established” is

characterized by a strange and wondrous degree of informality, vagueness, selfcontradiction,

and generalized irregularity. An illustration is the evolution of the

rules relating to prior censorship in Los Angeles, as described by the plaintiff

in the complaint in Hummel v. Los Angeles Unif. School Dist., No. C-40089

(Sup. Ct. L.A. Cty., filed Oct. 2, 1972), attacking the constitutionality of the

regulations then in force at University High School in Los Angeles. For my

involvement in the case, see note * supra. The school authorities had propounded

a mishmash of regulations set forth in a number of documents. They

had displayed a cavalier indifference to making clear which documents or regu-

[Vol. 22: 141

— 22 UCLA L. Rev. 156 1974-1975

1974] UNDERGROUND NEWSPAPERS 157

ship by school officials to insure that students did not exceed the

boundaries set by section 10611. Most commonly they adopted,

with only minor variation, the regulations proposed by the California

School Board Association (CSBA), reproduced in the appendix.

63 Although the words “prior censorship” or “prior restraints”

never crept into these regulations, precisely that type of

control was intended. The operative words are that “no students

shall distribute” certain types of material. 64 To insure they do not,

student material must be submitted to school authorities for advance

review and approval.6″ Clearly the school boards adopting

these regulations have assumed that section 10611 contemplates

not merely puishment after-the-fact for violations of its terms, but

also authorizes a licensing procedure prior to publication.

In point of fact it does not. Nowhere does section 10611

or any other statute authorize, or even mention, prior restraint

or review by school authorities. “Any system of prior restraints

of expression,” the Supreme Court has repeatedly pointed out,

bears “a heavy presumption against its constitutionality.”6 It

borders on the incredible to suppose that the legislature would

resort to such a highly extraordinary and constitutionally disfavored

technique by indirection and implication.

A superficially tempting response might be to point out that

lations they deemed in effect at any given time, or what the relationship between

the varying documents was. No effective dates were given. If any of the

documents superseded the others, the school authorities chose not to share this

information with the students. This was no minor matter since the standards

varied from document to document. Even assuming that each standard itself were

unobjectionable, in combination they made a mockery of due notice. The situation

somewhat improved with the subsequent adoption of Board Administrative

Regulation 1276-1 and Office of the Superintendent, Student Rights and Responsibilities

(1972) (handbook for Los Angeles City public schools).

Compare the circumstances in Noonan v. Green, 276 Cal. App. 2d 25, 80

Cal. Rptr. 513 (3d Dist. 1969), where the record was “delightfully vague” as to

whether the dress requirement was

a “rule,” a “regulation,” or a “policy.” The record fails to show . . .

in just what form the requirement exists, and whether any evidence of

it appears in writing in any of the records of the . . . Board . . . or

of the . . . High School principal. Nor does it appear who adopted

the requirement in the first place.

Id. at 28, 80 Cal. Rptr. at 515-16.

See also Note, Prior Restraints in Public High Schools, 82 YALE L.J. 1325

n.3 (1973) describing a scheme in Massachusetts “almost calculated to foster uncertainty”

in respect to whether prior restraints were contemplated by statewide

regulations.

03 Local Board Policy on Student Rights and Responsibilities [hereinafter

cited as CSBA Regulations], reproduced at pp. 215-17 inlra.

64 Id. at § III, p. 216 infra.

65 Approval or disapproval must usually be given within a stated period.

See id. at § IIA2(c) at p. 216 infra. Commonly an appeal procedure is established

within the school hierarchy for reviewing censorship decisions. See id.

at § IV.

66 Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), quoted with

approval in New York Times Co. v. United States, 403 U.S. 713, 714 (1971).

— 22 UCLA L. Rev. 157 1974-1975

158 UCLA LAW REVIEW [Vol. 22: 141

section 10611 does after all label certain categories of speech as

“prohibited.” Surely “prohibit” means to choke off at the source,

to prevent, to restrain. 67 One could, of course, use the term that

way. But a moment’s reflection will indicate that such a meaning

is not inevitable. The law “prohibits” much it does not seek to

prevent in advance. That a course of conduct is “prohibited”

signals some sanction will follow. It does not specify the sanction.

Parking may be “prohibited,” but the usual remedy is a

fine. Such generalities aside, however, a study of the judicial

and legislative background of section 10611 makes it abundantly

clear that the legislature’s use of the word “prohibited” was not

intended to authorize prior restraints by school authorities.

Quite the contrary.

This statute, as mentioned above, was the legislature’s response

to the decision of a three-judge federal district court in

Rowe v. Campbell Union High School District.68 Two successive

opinions of that court considered the constitutionality of prior censorship

of student publications.69 The views expressed in those

opinions decisively influenced the form and content of section

10611 enacted shortly thereafter. These views are therefore critically

important to an understanding -of that section, particularly

the intended meaning of “prohibited.”

After declaring Education Code sections 9012 and 9013 unconstitutional

in its first opinion, the court announced it was retaining

jurisdiction of the case. It ordered the parties to submit

proposed regulations governing the distribution of printed materials

on school grounds for its review. By way of dictum, the

court speculated that “a system of prior review may be constitutionally

permissible in the secondary school setting.” 70 The

school authorities thought they recognized an invitation when they

heard one and returned with a proposed set of rules providing

for school censorship. It was these provisions that the court reviewed

in its second opinion. Its discussion made clear that its

earlier words were no more than tentative dictum. Without offering

a “minute textual analysis,” the court rejected the school

district’s proposed system of prior restraint as “too encompassing

and potentially devastating to withstand constitutional scrutiny. ‘ 71

It continued:

It may be that no system of prior restraint in the area

of student publications can be devised which imposes a re-

67 “Prohibit: to forbid by law; to prevent;-not synonymous with ‘regulate’

…. BLACK’s LAW DICTIONARY 1377 (rev. 4th ed. 1968).

68 Civ. No. 51060 (N.D. Cal. 1970). See note 58 supra.

69 Id.

70 Rowe I, supra note 58, at 11-12.

71 Rowe II, supra note 58, at 1-2.

— 22 UCLA L. Rev. 158 1974-1975

UNDERGROUND NEWSPAPERS

straint sufficiently short-lived and procedurally protected to

be constitutional. 72

To avoid constitutional defect the court went on to suggest

a method for prohibiting objectionable speech which would altogether

exclude schools from the business of prior restraints. This

paragraph is of critical importance, since the subsequent legislation

tracks its suggestions so closely:

What may well be best-although perhaps not constitutionally

compelled-is a simple prohibition against the distribution

of certain categories of material. This could be coupled

with the prior submission of the material to school authorities

for informational purposes only, and with reasonable time,

place, and manner regulations. This straightforward system

would allow the unfettered distribution of student publications

except in those instances where the content of the material

is outside the protections of the First Amendment. In

such an instance, the school authorities could prevent distribution

by prior court order.73

If, then, there was to be prior restraint of forbidden expression,

it was to be by court order in injunctive proceedings, not

by administrative decision of school authorities. A reading of Education

Code section 10611 demonstrates that the statute follows

precisely the path charted by the court in the paragraph quoted

above. Section 10611 proclaims a general right of free speech

for students but couples it-to use the court’s phrase-with “a

simple prohibition against the distribution of certain categories of

material.” Nowhere does it approve school-imposed prior restraints.

To be sure it “prohibits” certain speech. But the Rowe

court had also employed that word in counseling against school

censorship. Both -the court and the legislature used “prohibit” not

to authorize prior school censorship but to oppose it.

Confirmation of this interpretation is found in views expressed

by the State Board of Education just prior to the adoption

of section 10611. In a memorandum to the Board in September,

1971, Dr. Wilson Riles, State Superintendent of Public Instruction,

drew attention to the statute’s imminent adoption. He submitted

a set of guidelines and proposed that -the Board adopt

them to “help the schools to comply with the mandates” 7 of the

forthcoming law. These guidelines “prohibited” certain cate-

72 Id. at 2.

73 Id. (emphasis added).

74 Memorandum to State Board of Education from Dr. Wilson Riles [hereinafter

cited as Riles Memorandum] accompanying proposed Guidelines for

Student Expression on Campus, September 24, 1971 (on file in the office of the

Secretary of the California State Board of Education in Sacramento, annexed to

the minutes of a Board meeting of October 15, 1971, at which time the Guidelines

were adopted).

1974]

— 22 UCLA L. Rev. 159 1974-1975

UCLA LAW REVIEW

gories of expression, thus following closely the language of the

soon to be adopted statute as well as that of the Rowe opinion.

But the guidelines expressly rejected any scheme of prior censorship.

“There should be no prior censorship or requirements of

approval of the contents or wording of the printed materials related

to student expression on campus.”7′ 5 Prior submission of

student publications was required, but plainly only for the informational

purposes suggested by the Rowe court. Here again

“prohibited” was used as a term in contradistinction to prior censorship

by school authorities.

Fortunately, further information is available shedding light

on the significance of the State Board’s guidelines. The drafting

had not been entirely voluntary. With a touch of irony, Dr. Riles

noted that the court in the Rowe case had “suggested” 76 that the

State Board develop guidelines for statewide application. Not

only had the idea for such guidelines emanated from the court,

but the end product had been reviewed, modified and approved

by the court.77 These guidelines, Dr. Riles explained to the State

Board, would inform school districts of “the limits of their authority,

to the extent that overly restrictive regulations, if tested in

court, would fail.” ‘ The State Board adopted them as suggested

guidelines for local boards on October 15, 197 1.7

It is apparent that Dr. Riles and the State Board of Education

believed all of the following: that prior censorship was beyond

“the limits” of authority of school districts; that these limits were

mandated by the Rowe court and by section 10611; and that the

word “prohibited” was thoroughly consistent with the rejection of

school censorship. There is not the slightest reason to believe that

the legislature attached any different meaning to that word than did

the Rowe court, the State Board, or Dr. Riles. The statute’s purpose,

therefore, was not to usher in a regime of prior censorship by

school authorities but to foreclose it.”0

75 California State Board of Education, Proposed Guidelines for Student

Expression on Campus 1, Sept. 24, 1971.

76 Riles Memorandum supra note 74 (quotation marks in original).

77 Dr. Riles’ memorandum states:

A proposed draft [of guidelines] was presented to the Educational

Programs Committee of the State Board of Education at its meeting of

March 11, 1971. It was recommended that the draft be submitted to

the court for approval.

On June 23, 1971, the three Judge court heard arguments regarding

the Proposed Guidelines and gave its approval to the guidelines as

amended pursuant to the court’s findings and recommendations.

Id.

78 Id.

79 Minutes of the California State Board of Education for its meeting of

October 15, 1971, note 74 supra.

80 These guidelines were promulgated as suggestions only, not as rules.

Education Code section 1052 gives school districts the power to prescribe rules

[Vol. 22: 141

— 22 UCLA L. Rev. 160 1974-1975

UNDERGROUND NEWSPAPERS

A reading of the statute consistent with its origin, then, is

that school authorities can promulgate rules requiring prior submission

“for informational purposes only.” The time between

the submission of student material and distribution must be short,

a matter of hours at most. When the specified period expires,

the right to distribute arises automatically: Neither consent nor

approval by school officials may be required. Distribution can

be restrained only in the extraordinary circumstance that school

authorities in the interval go forward with litigation and secure

injunctive relief.

It is clear that under this interpretation of section 10611,

most of the censorship schemes currently imposed by California

schools are patently illegal, since they erroneously assume that

school authorities enjoy a do-it-yourself power to license the underground

press.

  1. Constitutional Considerations
  2. The First Amendment. Constitutional considerations

furnish powerful additional support for interpreting section 10611

so as to preclude prior restraint. Prior restraint is traditionally and

appropriately viewed as a heavy-handed and dangerous remedy,

one likely to fall harshly on protected as well as unprotected

speech.”‘ However, prior restraints have not been totally rejected.

One view holds that the dangers inherent in that technique

can be avoided through use of procedural safeguards, coupled

with sufficiently precise censorship criteria to limit administrative

discretion.82

The leading case articulating the requirements of what Professor

Monaghan has called “first amendment due process”8′ 3 is

Freedman v. Maryland. 8 4 There a state law employed a classic licensing

scheme, one similar to the school censorship plans.

not inconsistent with those of the State Board. The state guidelines were not in

fact adopted in most districts. See text accompanying note 280 infra. Regrettable

as this may be, it does not affect the meaning of the word “prohibited” as used

in those guidelines or in section 10611.

81 Among the classic statements are that prior restraint bears “a heavy

presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 70 (1963), and that “liberty of the press” has meant “principally

. ..immunity from prior restraints or censorship.” Near v. Minnesota, 283 U.S.

697, 716 (1931). See generally T. EMERSON, THE SYSTEM OF FREEDOM OF Ex-

PRESSION, 503-12 (1970); Emerson, The Doctrine of Prior Restraint, 20 LAw &

CONTEMP. PROB. 648, 655-60 (1955).

82 See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965); Freund, The

Supreme Court and Civil Liberties, 4 VAND. L. REV. 533, 537-39 (1951). See

also Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968).

83 Monaghan, supra note 40, at 518.

84 380 U.S. 51 (1965) (movies). See also Kingsley Books, Inc. v. Brown,

354 U.S. 436 (1957) (books).

1974]

— 22 UCLA L. Rev. 161 1974-1975

UCLA LAW REVIEW

It required a movie exhibitor to submit any film to an administrative

board for prior approval. If the board disapproved the

film the matter ended there, unless the distributor assumed the

burden of seeking judicial review. The statute imposed no time

limits on either the administrative or judicial decisions. A unanimous

Court invalidated the statute and laid down the following

requirements: First, that the burden of proving the expression

was unprotected must rest on the censor. Second, to ensure that

the censor’s adverse determination did not for all practical purposes

become final, he was obliged either to permit the expression

or within a specific brief period go to court to prevent it.

He could not thrust the burden of seeking judicial review on the

would-be exhibitor. Finally, the procedure had to assure prompt

judicial determination. Over the objections of Justices Black and

Douglas that prior restraints were an unsalvageable evil whatever

the procedures,”5 the view has, for better or worse, prevailed

since Freedman that with the procedural protections identified

above they may at times be tolerable.8 6

However, ,this concession, in the context of Freedman, cannot

be taken as wholesale authority for prior censorship. Cases

in which prior restraints have been condoned have generally been

limited to those which aimed only at pornographic expression,

rather than at the broader categories of speech prohibited in section

  1. Furthermore, the media that have been the subject

of the censorship have generally been movies or books, rather

than newspapers. Finally, in the case of movies alone has routine,

prior administrative licensing been approved, even with the

Freedman procedural safeguards. 7 In contrast, those censorship

schemes aimed at books and magazines that have withstood judicial

scrutiny ‘have avoided the technique of administrative licensing.

They have placed the burden upon the administrative officials

first to discover the obscene material and then to seek injunctive

relief against its distribution on an ad hoc basis. 88

Because of their extraordinary role as institutional critics and

because of their special vulnerability to censorship, newspapers

have been conspicuously exempt from prior restraints imposed ei-

85 E.g., Freedman v. Maryland, 380 U.S. 51, 61-62 (1965) (concurring

opinion).

86 E.g., cases cited note 84 supra.

87 Language can be found suggesting that motion pictures are more appropriately

subjected to prior restraint than books. Freedman v. Maryland, 380

U.S. 51, 60-61 (1965); Time Films Corp. v. Chicago, 365 U.S. 43, 49-50 (1961);

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-03 (1952). This probably is

a tribute of sorts to movies for their unique capacity for effective and massive

dissemination of pornography.

88 See, e.g., Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957).

162 [Vol. 22: 141

— 22 UCLA L. Rev. 162 1974-1975

UNDERGROUND NEWSPAPERS

ther by courts or by administrative officials. This special immunity

was manifest in the Pentagon Papers case, New York Times

Co. v. United States,89 where the Government sought to enjoin

publication of classified Government documents by the New York

Times and the Washington Post on grounds of national security.

The Supreme Court denied the injunction. The decision did not

necessarily rely on the premise -that the publication was immune

from all governmental sanctions. Justices Stewart and White, for

example, found criminal laws “of very colorable relevance” 90 to

the disclosure at issue. But the leap from after the fact punishment

for illegal disclosure to prior censorship was one the Court

was unprepared to take. Censorship required greater justification

than the Government offered.

Yet what the Government had sought was, from certain perspectives,

much more modest and benign than that sought by

school authorities in their prior licensing schemes. First, the governmental

objective in the Pentagon Papers case was not a rou-

,tine, ongoing system of censorship. It was rather to block the

publication of specific material on a one-time basis, on grounds

of urgent necessity. Second, the Government claimed no right

to advance review of newspapers to determine whether they contained

censorable material. Third, the Government accepted the

burden of initiating litigation to secure judicial approval for its

ends. Fourth, the Government could not only claim that the interest

it allegedly sought to protect was of transcendent importance

but that it, the Government, was uniquely equipped to determine

the need for secrecy.9′ In contrast, there is little reason

to suppose that school officials are uniquely qualified, if qualified

at all, to decide what is defamatory or obscene under “current

legal standards,” the test provided by section 10611.92

The censorship schemes of the kind that many schools have

sought to fasten upon student underground papers are thus

unique. They focus upon newspapers; the object of the censor-

89 403 U.S. 713 (1971) (per curiam decision with six concurring and

three dissenting opinions). Justice Brennan observed that no prior instance could

be found where the United States had even sought to enjoin the publication of

newspaper information. Id. at 725.

90 Id. at 730. See also Near v. Minnesota, 283 U.S. 697, 718-19 (1931).

91 403 U.S. at 728 n.3 (1971) (citing United States v. Curtiss-Wright Corp.,

299 U.S. 304, 320 (1936)).

92 One can sympathize with the comments of a principal addressing a

local school board about the problems of deciding what was obscene or slanderous:

“There’s too much litigation in this area for a school principal to make a

determination.” Official tape recording of a meeting of the Los Angeles School

Board meeting, March 16, 1972. A similar view is expressed in Baughman v. Freienmuth,

478 F.2d 1345, 1350 (4th Cir. 1973).

19741

— 22 UCLA L. Rev. 163 1974-1975

164 UCLA LAW REVIEW [Vol. 22: 141

ship is not only obscenity but libel and incitement as well; they

employ routine, prior, administrative licensing, dependent on no

showing of urgent need; and they do not even afford the minimal

Freedman procedural protections.

Such an extraordinary scheme might be justified on the

ground that defamation, obscenity, and incitement do not, and

ought not, enjoy constitutionally protected status,93 particularly

when addressed to a youthful audience. There are compelling

reasons for rejecting this argument when offered to justify newspaper

censorship. Even assuming that governmental censorship

would be benignly disinterested, censorship here raises peculiar

problems. While its proclaimed object may be to bar only unprotected

expression, its practical impact is inevitably broader. Protected

and unprotected speech may be hopelessly intertwined. To

ban a newspaper because of a given article is to ban it totally,

however protected its other themes. 4 Moreover, the delay of

hours or even days necessary for the prior administrative review,

and of course the far greater delay if judicial review were sought,

would in the case of a newspaper be tantamount to suppression.

Thus the court observed in Rowe v. Campbell Union High

School District:

It does not follow that procedural safeguards acceptable

in one area of speech will be equally acceptable in another.

  • . . In Freedman, a movie censorship obscenity case in

which the distributor’s main interest was economic, i.e., income

from the presentation of his film, the Court was willing

to countenance the slight delay required for an administrative

decision followed by prompt judicial review. The

93 In Near v. Minnesota, 283 U.S. 697, 716 (1931), the court said that

the general presumption against the validity of prior restraints did not apply to

“exceptional cases” such as obscenity and incitement to violence. See, e.g., Roth

  1. United States, 354 U.S. 476, 483-85 (1957); Chaplinsky v. New Hampshire,

315 U.S. 568, 571-72 (1942).

94 Constitutional policy appropriately aims at minimizing governmental

impact on protected speech. It therefore should make the obscenity determination

turn on the predominant theme of the material as a whole, rather than the characterization

of the individual article. See Papish v. Board of Curators of the Univ.

of Mo., 410 U.S. 667 (1973) (per curiam); Kois v. Wisconsin, 408 U.S. 229

(1972); Roth v. United States, 354 U.S. 476, 489-90 (1957); United States v.

One Book Entitled “Ulysses” by James Joyce, 72 F.2d 705 (2d Cir. 1934); United

States v. Head, 317 F. Supp. 1138, 1141-44 (E.D. La. 1970). Cf. Flying Eagle

Pub., Inc. v. United States, 273 F.2d 799 (1st Cir. 1960), aff’d on rehearing, 285

F.2d 307 (1st Cir. 1961). But see Scherr v. Municipal Ct., 15 Cal. App. 3d

930, 93 Cal. Rptr. 556 (1st Dist. 1971) (holding the redeeming matter must relate

to the allegedly obscene matter to be “redeemed”).

This is particularly so when the promotional practices of the publishers suggest

no overall design of “commercial exploitation of erotica solely for the sake

of their prurient appeal.” Ginzburg v. United States, 383 U.S. 463, 466 (1966).

If such a policy were rigorously followed, the particular objection discussed in

the text at this point would lose much of its force.

— 22 UCLA L. Rev. 164 1974-1975

1974] UNDERGROUND NEWSPAPERS 165

Court noted that “films differ from other forms of expression”

. . . as justification for allowing prior submission to

a censor. When a student publisher’s interests are not economic,

but political or social, and the effectiveness of the

item may be severely diminished by even a brief delay in

its distribution, it may be that even one day’s restraint is an

impermissible burden.9 5

Furthermore, a dissident underground newspaper is likely

to find itself the annoyingly persistent critic of the very officials

responsible for prior review. It is not unlikely that those officials

will be tempted to equate their good with the common good and

to crack down on critics under cover of their authority to prohibit

“libel,” “slander,” and “incitement.” To empower them to do

so is to invite precisely the suppression of ideas “with which they

do not wish to contend,”9 or to invite students to do the job

themselves through self-censorship.”‘ To permit them not only

95 Rowe 11, supra note 58 at 3 n.l. In Baughman v. Freienmuth, 478 F.2d

1345, 1348-49 (4th Cir. 1973) the court determined that a 3-day notice period

prior to distribution failed to comply with the minimal requirement of speedy administrative

determination. “[Wlhatever period is allowed, the regulation may

not lawfully be used to choke off spontaneous expression in reaction to events

of great public importance and impact.”

See Justice Harlan’s dissent in A Quantity of Books v. Kansas, 378 U.S. 205,

224 (1964), in which he noted the danger of delay in respect to publication

of “controversial political writing.” The fact that he was in dissent does not detract

from the weight of his comments, since he wished to affirm a state censorship

scheme aimed at obscene material, and regarded it as a strong argument in

favor of censorship that the material was not of a kind where time was of the

essence; Briscoe v. Reader’s Digest Ass’n, 4 Cal. 3d 529, 483 P.2d 34, 93 Cal.

Rptr. 866 (1971): “Particularly deserving of First Amendment protection are reports

of ‘hot news,’ items of possible immediate public concern or interest.” Id.

at 535, 483 P.2d at 38, 93 Cal. Rptr. at 870.

Closely related to the question of the competency of school authorities to

judge “urgency” is their competency to weigh the importance of the speech in

question. The issue in Hatter v. Los Angeles High School Dist., 452 F.2d 673

(9th Cir. 1971) was the right of students to urge a boycott of the school’s annual

chocolate drive and to wear a tag with the “militant slogan: ‘Boycott Chocolates’.”

Id. at 674. The lower court upheld the school’s disciplinary action and

sought to distinguish ‘Tinker on the ground that the issue here was “without weight

or substance . . . and raises no question of constitutional proportions.” Id. at

  1. The court of appeals disagreed:

That these policies may not directly affect the adult community or concern

the nation as a whole is of no moment. . . . [Students] are entitled

in the absence of compelling countervailing considerations to exercise

their First Amendment right to freely express themselves upon

those issues which concern them. It is not for this or any other court

to distinguish between issues and to select for constitutional protection

only those which it feels are Id. of sufficient social importance.

96 Tinker v. Des Moines Indep. Comm. School Dist., 393 U.S. 503, 511

(1969). In contrast, when the object of the censorship is obscenity, it is less

likely “that decision makers will have interests” that will affect their determina.

tions. A Quantity of Books v. Kansas, 378 U.S. 205, 223 (1964) (Harlan, J.

dissenting).

97 Such forced self-censorship was condemned in Bantam Books, Inc. v.

— 22 UCLA L. Rev. 165 1974-1975

UCLA LAW REVIEW

to censor on an ad hoc basis but also to require routine advance

clearance of material is to compound the danger.

Nor is it an answer to say that the school’s censorship decision

is appealable to the courts. As already noted, delay itself

may render -this an illusory remedy. But in addition the CSBA

guidelines cast the burden of seeking judicial review not on the

censor but on the publisher. And the question of who goes

through the courtroom door first is not simply one of litigational

etiquette. It determines whether the weight of inertia is harnessed

for, or against, first amendment rights. To impose the

initial burden on the student makes judicial review a function of

the vagaries of student finances and energies. 98 Since the student

is likely to go to court only when the issue is of great moment,

the probability of success high, and the cost not ruinous,

review will be atypical, not routine. School officials will inevitably

approach the censorship task with less diffidence than if judicial

scrutiny were a certainty. This system therefore invites

censorship with greater frequency and with lesser justification

than if the burden of seeking judicial review were upon the

schools. It consequently invites: one of the great dangers inherent

in administrative censorship: “that the public may never be

aware of what an administrative agent refuses to permit to be

published or distributed.” 99

The decisions since Tinker have, however, varied widely in

their treatment of prior restraints of student newspapers, and the

Supreme Court has yet to speak. At least one court has flatly

rejected school censorship. 10° Others have taken a more tolerant

view, generally supporting the result with unelaborated and

unilluminating assertions that minors are different from adults

and that their rights are not to be measured by the standards which

prevail in the non-school world.’ 0′ Even these courts, however,

Sullivan, 372 U.S. 58 (1963). There the practice of the Rhode Island morality

Commission was to attempt to dissuade book dealers from selling books that the

Commission had reviewed and declared objectionable for minors. The Commission

did not formally regulate or suppress the books. The court, however, looked

through “forms to the substance” and found that the bookseller’s “self-censorship”

was in reality coerced and therefore unconstitutional.

98 Antonelli v. Hammond, 308 F. Supp. 1329, 1335 n.5 (D. Mass. 1970)

(college newspaper) where the court noted the importance of this consideration

and reasoned that “safeguards are more essential to protect publishers of a

student newspaper than distributors of a motion picture.” In the latter case,

the substantial investment in producing a movie provides the impetus for litigating

constitutional claims which is absent in the context of student newspapers. The

same contrast of course obtains between student and commercial newspapers.

99 A Quantity of Books v. Kansas, 378 U.S. 205, 223 (1964) (Harlan, J.

dissenting).

100 Fujishima v. Board of Educ., 460 F.2d 1355 (7th Cir. 1972).

101 Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir. 1973); Sullivan v.

166 [Vol. 22: 141

— 22 UCLA L. Rev. 166 1974-1975

1974] UNDERGROUND NEWSPAPERS 167

have insisted upon varying degrees of procedural protection to

validate school censorship schemes. In Fujishima v. Board of

Education’ the Court of Appeals for the Seventh Circuit took

-the anti-censorship view, declaring any requirement of prior

school approval unconstitutional per se. It reached this result by

combining the anti-censorship thrust of Near v. Minnesota..3 with

Tinker’s extension of first amendment rights to students. It drew

a sharp distinction between a school’s power to punish and its

power to prevent speech. The former was permissible under

Tinker. The latter was not.

Tinker in no way suggests that students may be required to

announce their intentions of engaging in certain conduct beforehand

so school authorities may decide whether to prohibit

the conduct. Such a concept of prior restraint is even

more offensive when applied to -the long-protected area of

publication.

The Tinker forecast rule is properly a formula for determining

when the requirements of school discipline justify

punishment of students for exercise of their First-Amendment

rights. It is not a basis for establishing a system of

censorship and licensing designed to prevent the exercise of

First-Amendment rights.’ 0 4

Eisner v. Stamford Board of Education”5 is the leading case

upholding a school licensing requirement and suggesting also that

Houston Indep. School Dist., 475 F.2d 1071 (5th Cir. 1973); Shanley v.

Northeast Indep. School Dist., 462 F.2d 960 (5th Cir. 1972); Quarterman v.

Byrd, 453 F.2d 54 (4th Cir. 1971); Eisner v. Stamford Bd. of Educ., 440 F.2d

803 (2d Cir. 1971).

102 460 F.2d 1355 (7th Cir. 1972).

103 283 U.S. 697 (1931).

104 Fujishima v. Board of Educ., 460 F.2d 1355, 1358 (7th Cir. 1972),

building on an earlier decision of that circuit, Scoville v. Board of Educ., 425

F.2d 10 (7th Cir.) (en banc), cert. denied, 400 U.S. 826 (1970).

Grave doubt about prior censorship of school newspapers on any terms has

also been voiced in other cases. See Riseman v. School Comm., 439 F.2d 148

(1st Cir. 1971), where school officials enforced a flat ban on distribution of unapproved

materials on schoolgrounds to prevent distribution of an anti-war leaflet.

The court did not expressly hold prior restraint per se unconstitutional. Its preliminary

injunction, however, permitted the school to promulgate time, place and

manner rules “provided that no advance approval shall be required of the content

of any such paper.” Id. at 149 n.2.

See also Rowe 11, supra note 58, at 2 (“It may be that no system of prior

restraint in the area of student publications can be devised which imposes a restraint

sufficiently short-lived and procedurally protected to be constitutional.”);

Antonelli v. Hammond, 308 F. Supp. 1329, 1335 n.6 (D. Mass. 1970) (expressing

“extreme” doubt about the constitutionality of prior restraints in a college case

and noting that “obscenity in a campus newspaper is not the type of occurrence

apt to be significantly disruptive of an orderly and disciplined educational process.”

Id. at 1336); Poxon v. Board of Educ., 341 F. Supp. 256 (E.D. Cal. 1971)

(barring prior censorship because of the absence of a showing that “less offensive

alternatives to a prior restraint system are unavailable.” Id. at 257).

105 440 F.2d 803 (2d Cir. 1971).

— 22 UCLA L. Rev. 167 1974-1975

168 UCLA LAW REVIEW [Vol. 22: 141

a severely emasculated version of the Freedman protections will

suffice on the school campus. Eisner only required the school

system to make its censorship decision within a “definite brief

period” 1061 but placed no burden on it to initiate judicial review.

It was left to the students to seek such relief because “it would be

highly disruptive to the educational process if a secondary school

principal were required to take a school newspaper editor to court

every time the principal reasonably anticipated disruption and

sought to restrain its cause. ‘ 10 7 One may well ask if it is less

disruptive to require the student editor to take the principal to

court every time the latter unreasonably prohibits publication.

The court’s reference to the principal’s “reasonable” anticipation

of disruption is, of course, question-begging. That is precisely

the issue demanding judicial resolution. The court offered no

justification for this reversal in the school context of the usual

burden of initiating judicial review of censorship decisions. The

court simply posited the fact they were students as a self-evident

justification for differential treatment.

Unfortunately the Eisner approach has been followed by

some other courts.’ There is, however, some reason to hope

that those courts which permit school censorship will at a bare

minimum require the full panoply of Freedman protections, including

the requirement that the authorities initiate judicial review

of their own actions.’ 0 9

106 Id. at 810.

107 Id.

108 See cases cited supra note 101.

109 The most interesting development in this direction has been in the

course of two cases in the fourth circuit, Quarterman v. Byrd, 453 F.2d 54 (4th

Cir. 1971) and Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir. 1973). In

Quarterman a student had distributed a paper which included the following comment

for which he was expelled:

IF WE HAVE TO-WE’LL BURN THE BUILDINGS OF OUR

SCHOOLS DOWN TO SHOW THESE PIGS THAT WE WANT AN

EDUCATION THAT WON’T BRAINWASH US INTO BEING RA-

,CIST.

453 F.2d at 56. The school’s scheme was, however, held unconstitutional because

there were no substantive criteria to guide censorship decisions, and also because of

the lack of expeditious internal review procedure as required by Eisner. The court

indicated, however, that nothing more was required. The burden of securing judicial

review therefore lay upon the student.

By the time the court returned to the question in Baughman, the school had

promulgated “specific” censorship standards aimed at disruptive, libelous and obscene

speech. Now the court decided that while “libelous” or “obscene” might

be permissible standards for post-publication sanctions, they were intolerably

vague for purposes of prior administrative restraints. “[W]e think letting students

write first and be judged later is far less inhibiting than vice versa.” 478 F.2d at

  1. The terms “libelous” and “obscene,”

are not sufficiently precise and understandable by high school students

and administrators untutored in the law to be acceptable criteria. Indeed,

such terms are troublesome to lawyers and judges. . . . [A] Jus-

— 22 UCLA L. Rev. 168 1974-1975

1974] UNDERGROUND NEWSPAPERS 169

The best and constitutionally most appropriate resolution of

!the censorship issue is, however, -that adopted by the seventh circuit

in Fujishima v. Board of Education:” a ban on prior censorship

by school officials. That is, fortunately, the position adopted

in California by Education Code section 10611.

  1. Prior Censorship and Equal Protection. An acute equal

protection issue arises when prior censorship is the means

selected for regulating libel in underground newspapers, 1′ for

libel is normally a private wrong. Criminal sanctions are extraordinary.”

2 Civil remedies normally depend solely on the initiative

of -the aggrieved party, not that of public officials. And when

the aggrieved party seeks civil redress, he generally enjoys no

right to injunctive relief; he is remitted, for what it may be worth,

to civil damages.” 3 Even then, if it is a newspaper such as the

Los Angeles Times, which defames someone, it may avoid liability

even in the limited area where damages are constitutionally

permissible by making the appropriate statutory retraction. 114 It

can be said to enjoy a substantial immunity from any remedy, provided

it subsequently sets the record straight.

tice of the Supreme Court has confessed that obscenity “may be undefinable.”

Id.

School authorities were left, then, with the unenviable task of defining those

terms with a degree of precision that no one had ever been able to do. Alternatively,

the court implied, school authorities could submit their censorship decisions

to prompt judicial review, and perhaps thereby cure the vagueness of these standards.

Id. at 1349-50. But this option, it will be noted, is simply the Freedman

requirement-judicial review initiated by censor-that had been earlier rejected in

Quarterman.

110 460 F.2d 1355 (1972), discussed in text accompanying notes 100-04

supra.

111 For first amendment-equal protection cases, see authorities cited supra

note 10 (last paragraph).

112 The definition and punishment for criminal libel is set forth in

CAL. PENAL CODE §§ 248-49 (West 1970). Both sections are essentially

dead letters. In Garrison v. Louisiana, 379 U.S. 64, 69 (1964), the Court spoke

of “the virtual disappearance of criminal libel prosecution.” It agreed with the

observation that under modem conditions, “it can hardly be urged that the maintenance

of peace requires a criminal prosecution for private defamation.”

“13 Northwest Pac. R.R. v. Lumber Union, 31 Cal. 2d 441, 443-50, 189

P.2d 277, 281-83 (1948). See, Developments in the Law-Injunctions, 78 HARV.

  1. REV. 994, 1008-12 (1965). Even prison authorities are denied the right to

censor passages from the letters of inmates in their custody on no weightier justification

than the desire to eliminate “unflattering or unwelcome opinions or factually

inaccurate statements.” Procunier v. Martinez, 94 S. Ct. 1800, 1811 (1974)

(emphasis added).

114 CAL. CIV. CODE § 48 (West 1954). Newspapers, of course, enjoy a

broad immunity from liability for damages for negligent defamation under New

York Times Co. v. Sullivan, 376 U.S. 254 (1964) and its progeny. See text accompanying

notes 173-78 infra. Non-public figures may, however, constitutionally

recover for “actual damages” if they are negligently defamed. Gertz v.

Robert Welch, Inc., 94 S. Ct. 2997 (1974). But CAL. CIV. CODE § 48a(4)b

(West 1954) probably restricts recovery even beyond that permissible under

Gertz.

— 22 UCLA L. Rev. 169 1974-1975

170 UCLA LAW REVIEW [Vol. 22: 141

Why then a publicly initiated, routine, administrative, restraint

against student newspapers for doing what the commercial

press can do with impunity or only at a limited risk of money

damages? Not only is there no affirmative justification, but the

discriminatory treatment imposes special hardship on economically

marginal student papers as compared to affluent commercial

ones. This latter distinction might, of course, be seized upon as

the very justification for the differential treatment. If student

papers do damage, they lack the wherewithal of the commercial

press to pay for it. Hence the need for prior restraint. This

argument will not do. For if their financial capacity to compensate

is limited, so correspondingly, is their circulation, their influence,

and their ability -to harm. There is no justification for reserving

such heavy legal artillery for the relatively powerless student

press, compared to the commercial press with its indisputable

capacity for mischieviously ruining careers.

  1. The California Constitution as an Independent State

Ground. In California, due weight must be given to the state constitution

as an independent ground for invalidating schemes of the

CSBA type. Article I, section 9 provides:

Every citizen may freely speak, write, and publish his sentiments

on all subjects, being responsible for the abuse of that

right; and no law shall be passed to restrain or abridge -the

liberty of speech or of the press.”15

Recent cases furnish impressive testimonial to the fact that

-the California Supreme Court has not underestimated the importance

of the distinct wording and history of state constitutional

protections.” 6 Considerations of federalism may at times limit

the sweep of national constitutional standards. This is, however,

no reason for diffidence on the part of a state court interpreting

identical words in a state constitutional provision. But the words

of article I, section 9 are not identical to those of the first amendment:

The emphasized words are not found in the federal document.

What is striking about -them is the assumption that the

speech has already occurred. The focus is on post-facto remedies

for any abuses, arguably to the exclusion of prior restraints.

Whether or not -the first amendment would bar prior restraints,

it is eminently reasonable to so read the California provision.” 17

115 CAL. CONST. art. 1, § 9 (emphasis added).

116 E.g., People v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, 100 Cal. Rptr.

152, cert. denied, 406 U.S. 958 (1972) (attaching decisive importance to the difference

between the California ban against “cruel or unusual punishment” as compared

to the federal ban against “cruel and unusual punishment”). See other California

precedents reviewed in Falk, Foreword: The State Constitution: A More

Than “Adequate” Nonfederal Ground, 61 CALIF. L. REV. 273 (1973).

117 The California Supreme Court has thus far expressly left open the

— 22 UCLA L. Rev. 170 1974-1975

UNDERGROUND NEWSPAPERS

  1. Potential Problems under Section 10611:

Prior Censorship in Other Forms

It was argued above that section 10611 was never intended

to confer power of prior censorship upon school authorities, and,

in any event, that such a power could not constitutionally be conferred.

Assuming this to be the case, it is nonetheless possible

for section 10611 to be applied in ways ostensibly legal that will

however produce the prohibited result in fact if not in form.

  1. Submission for “Informational Purposes”

If school authorities are permitted to require advance submission

of student materials, even only for informational purposes,

this may prove objectionably burdensome. First, the inevitable

delay in distribution may inhibit spontaneous reactions

to events.118 Second, it inevitably breaches the anonymity of the

would-be distributors.1 9 Third, given the paternalism and petty

tyranny that traditionally marks the system of in loco parentis,

it is likely that compulsory submission will simply turn into an

occasion for school authorities to pressure students into self-censorship

rather than a meaningful opportunity for dialogue. 120 True,

prior submission may provide a form of “declaratory relief,” giving

students advance information of the official attitude toward

the proposed distribution. But it is likely to be declarative of

the administrator’s values and fears a good deal more than of the

law. 12 The end result may simply be a system of disguised censorship.

  1. School Seizure of Prohibited Materials after Distribution

Commences

While school authorities cannot ban distribution ab initio,

question whether article I, section 9 affords broader speech protection than does

the first amendment. Diamond v. Blan, 11 Cal. 3d 331, 335 n.4, 521 P.2d 460,

463 n.4, 113 Cal. Rptr. 468, 471 n.4 (1974). See also, id. at 335, 521 P.2d at

463, 113 Cal. Rptr. at 475 (Mosk, J., dissenting).

In a number of cases, California courts have attached some significance to

the distinctive wording of article 1, section 9. Compare Werner v. Southern Cal.

Ass’d Newsp’s, 35 Cal. 2d 121, 124, 216 P.2d 825, 827 (1950); Dailey v. Superior

Ct., 112 Cal. 94, 97-98, 44 P. 458, 459-60 (1896); with Bloom v. Municipal Ct.,

36 Cal. App. 3d 117, 111 Cal. Rptr. 253, 261 (2d Dist. 1973) (holding that article

I, section 9 provides no broader freedom of speech than the first amendment

in respect to criminal prosecution for obscene material).

118 See note 95 & accompanying text supra.

119 See note 190 infra.

120 Such self-censorship is the type condemned in Bantam Books, Inc.

  1. Sullivan, 372 U.S. 58 (1963), note 97 supra. For one example of such

“friendly conversations” between the authorities and students, see Tinker v. Des

Moines Indep. Comm. School Dist., 393 U.S. 503, 510 n.5 (1969).

121 See note 230 infra.

19741

— 22 UCLA L. Rev. 171 1974-1975

UCLA LAW REVIEW

suppose they claim the power, after the first copy is distributed,

to step in without court order and stop distribution, confiscate the

papers, suspend the distributors, and banish them from campus

for violating speech regulations. In that case, what remains of

the ban against prior censorship?

This is an acute problem because of the peculiarity of the

school situation. In the case of the commercial press, to bar prior

censorship virtually guarantees distribution. Administrative (and

one would hope, political) difficulties would normally preclude

a governmental sweep of the newsstands, the doorsteps and the

mails, and the en masse arrest of distributors. In the school setting,

however, the contrary is true. Distributors are few in number

and operate in a confined geographical area. The authorities

can therefore readily enforce their will as soon as distribution

commences, even though precluded from doing so any earlier.

The analagous problem has arisen in non-school contexts.

Even in respect to allegedly obscene matter, the Supreme Court

has refused to allow comprehensive seizures that would effectively

bar distribution based solely on the discretion of enforcement

officials. It must be preceded by some form of independent

judicial review.1 22

This proposition was most recently reaffirmed in Roaden v.

Kentucky’28 where the Court held a seizure of obscene films unconstitutional,

even though the seizure was incident to the arrest

of the film exhibitor. The Court assumed that with respect to

garden variety contraband, such a seizure would have been valid.

But here the material was of a type that “fell arguably within

First Amendment protection, and the taking brought to an abrupt

halt an orderly and presumptively legitimate distribution or exhibition.”‘

24 It was therefore in effect a prior restraint. The

seizure then had to meet higher procedural standards than normal.

Here there had been no prior judicial determination of obscenity.

There had been no warrant. “Nothing prior to seizure

afforded a magistrate an opportunity to ‘focus searchingly on the

question of obscenity.’ “125 Nor had there been any exigent circumstance

warranting seizure without prior judicial review. It

was therefore forbidden. Official efforts to suppress-by-seizure

should face similar hurdles on the school campus. 2 6

122 Marcus v. Search Warrant of Prop., 367 U.S. 717, 732 (1961). See

generally Monaghan, supra note 40, at 532-39 (1970).

123 413 U.S. 496 (1973). To the same effect see Flack v. Municipal Ct.,

66 Cal. 2d 981, 429 P.2d 192, 59 Cal. Rptr. 872 (1967).

124 Roaden v. Kentucky, 413 U.S. 496, 504 (1973).

125 Id. at 506.

126 In Rowe 11, supra note 58, the court expressed somewhat differently

its view about the requirement of prior judicial review. After recommending a

[Vol. 22: 141

— 22 UCLA L. Rev. 172 1974-1975

UNDERGROUND NEWSPAPERS

Suppose, however, that the ground for summary seizure is

neither obscenity nor libel, but rather that the material threatens

imminent and dangerous disruption. Here, if anywhere, school

authorities may seem on sound ground in summarily terminating

distribution. This may well be the strongest ground for doing

so, but it ought not to be sufficient.’ 27 There is, of course, a theoretical

possibility that the student press may illegally incite disruption-“

theoretical” because instances where such occurences

have been documented are not easy to come by. But if there

is such a risk, it is minor compared to the risks our society is

prepared to accept on a daily basis and everywhere in respect

to the press at large.

While the power to summarily terminate student distribution

might on rare occasions prevent illegal disruptions, it is far more

likely to be used against “protected” speech by school authorities

operating under unrefined and expansive notions of “disruption.”

In balancing these risks, the prudent course is to reject ex parte

restraints by school officials, and to compel them to go into court

when they seek to suppress speech. If the situation is sufficiently

urgent, the system should be prepared to hear their complaint

with appropriate dispatch. 28 There is, to be sure, a risk in delay.

But if that risk is not imposed upon the school authorities it inevitably

falls upon the student distributors. As a practical matter, the

school system, with routine access to an institutionalized legal

staff, is far better equipped to secure prompt judicial resolution

than are students.

  1. Substantive Prohibitions on Expression in

Underground Newspapers

Just as section 10611 denies school authorities any special

scheme excluding school authorities from the business of prior restraints and leaving

it to the courts to “prevent distribution” (see material quoted supra note 73)

it observed that “school officials could also seize the material without a court order;

however, it must be noted that if they do so, they act at their peril.” Id.

at 4 n.2.

127 But see Braxton v. Municipal Ct., 10 Cal. 3d 138, 514 P.2d 697, 109

Cal. Rptr. 897 (1973), where the court upheld a statute permitting temporary banishment

of students from the campus for certain forms of advocacy, so long as,

the campus administrator reasonably finds that the situation is such an

exigent one that the continued presence on the campus of the person

constitutes a substantial and material threat of significant injury

to persons or property.

Id. at 145, 514 P.2d at 700, 109 Cal. Rptr. at 900.

128 This approach leaves school authorities free to mete out any appropriate

punishment to students after distribution, following a due process hearing. The

student would also be subject to any applicable criminal or juvenile court sanctions.

The problem that this approach might also effectively operate as an impermissible

prior restraint is not considered here. See Monaghan supra note 40;

  1. FREUND, THE SUPREME COURT OF THE UNITED STATES: ITS BUSINESS, PURPOSES

AND PERFORMANCE 65 (1961).

1974]

— 22 UCLA L. Rev. 173 1974-1975

174 UCLA LAW REVIEW [Vol. 22: 141

powers to employ prior restraints against underground newspapers,

so too it denies any expansive powers to regulate the speech

content of such publications. The substantive rights of expression

of students under the statute parallel those of similarly

situated adults.

Educational institutions, whatever their students’ ages, of

course, have functional requirements which may justify speech restrictions

not warranted elsewhere. Reasonable time, place and

manner rules can, for example, be enforced to prevent classroom

disruption. 29 To bar a demonstration through a classroom, however-

as through a jail enclosure, a hospital operating room, or

a courtroom-is a limitation that does not turn on the age of the

participants but on the nature of the enterprise. One need not

-and section 10611 does not-presuppose any special status for

children to arrive at these conclusions.

Time, place and manner rules aside, section 10611 implies

no more stringent regulation of student speech than would be

generally permissible. The evidence for this proposition is powerful.

First, the very phrasing of the prohibitions indicates no

intention to fashion a special body of rules simply because children

are involved. The prohibitions utilize familiar first amendment

standards, including “libel” and “obscenity”‘130 as limited

by “current legal standards.’ 1 31

Second, at the same time section 10611 was adopted the

legislature adopted an analogous statute for the community colleges.”

2 The substantive speech standards in that statute are

identical to those of section 10611. By employing identical language,

the legislature plainly intended the same standards to apply

on public school campuses as apply on college campuses,

which are populated by adults. A review of several of the cases

129 See Grayned v. City of Rockford, 408 U.S. 104, 120 n.45 (1972)

(dictum). For a general discussion of time, place, and manner rules, see text

accompanying notes 249-57 infra.

130 See note 93 supra.

131 There is an ambiguity in the phrase “current legal standards.” A

breathtakingly broad meaning is that the legislature had in mind only constitutional

standards; in other words, that it wanted to prohibit all speech which it

was within the state’s constitutional power to prohibit, whether or not such speech

had in fact been banned under general state law. The narrower meaning is that

it meant to prohibit only speech already proscribed for the population generally

under state laws, as further limited by the constitution. I reject the first reading

because there is not the slightest evidence that it intended such a highly unusual

form of draftsmanship which would, furthermore, probably render the statute unconstitutionally

vague. It is one thing to define a court’s civil jurisdiction in terms

of “any basis not inconsistent with the Constitution,” as in CAL. CODE OF CIv.

PRO. § 410.10 (West Supp. 1974). It is another to define speech restrictions in

terms which are no more specific.

182 CAL. EDUC. CODE § 25425.5 (West Supp. 1974).

— 22 UCLA L. Rev. 174 1974-1975

UNDERGROUND NEWSPAPERS

defining the scope of rights of college students is therefore in

order.

In Papish v. Board of Curators of the University of

Missouri.. a university student had been expelled for distributing

an underground newspaper containing “indecent” speech. The

offending items included an article entitled “Mother Fucker Acquitted,”

describing a certain trial, and a cartoon of policemen

raping the Statute of Liberty and the Goddess of Justice. Such

speech, the Court noted, would have been constitutionally protected

in the community at large.134 The sole issue was whether

it was entitled to the same protection on campus. The Court held

that it was. There was no room under the first amendment for

a “dual standard in the academic community with respect to the

content of speech.”‘ 1 5

Papish dealt with the dual standard issue in relation to

speech that was concededly not disruptive, merely offensive to

“conventions of decency.”‘ 6 In Healy v. James’1 7 the issue was

whether a dual standard should apply to potentially disruptive

speech. A state-supported college had denied an SDS chapter

campus recognition because the administration did not believe

that the group was independent of the national SDS, a group it

saw as committed to disruption and violence. The Court held the

denial of recognition unconstitutional, since the administrator’s

fear was unsubstantiated by the record. In discussing the first

amendment standard applicable to the college, the Healy Court

rejected,

the view that, because of the acknowledged need for order,

First Amendment protections should apply with less force on

college campuses than in the community at large. Quite to

the contrary, “[t]he vigilant protection of constitutional freedoms

is nowhere more vital than in the community of American

schools.”‘138

In Braxton v. Municipal Court,’8′ the California Supreme

Court acted on the same premise. The issue was the constitutionality

of a statute which punished those who “willfully disrupted

‘the orderly operation” of a college or university and who failed

133 410 U.S. 667 (1973) (per curiam).

134 Id. at 670, citing Kois v. Wisconsin, 408 U.S. 229 (1972); Gooding v.

Wilson, 405 U.S. 518 (1972); Cohen v. California, 403 U.S. 15 (1971), See also

Hess v. Indiana, 414 U.S. 105 (1973) (demonstration begun on university campus

and moved onto a public street); Rosenfeld v. New Jersey, 408 U.S. 901 (1972).

135 Papish v. Board of Curators of the Univ. of Mo., 410 U.S. at 671

(1973) (per curiam).

136 id. at 669.

137 408 U.S. 169 (1972).

138 Id. at 180.

i3o 10 Cal. 3d 138, 514 P.2d 697, 109 Cal. Rptr. 897 (1973).

1974]

— 22 UCLA L. Rev. 175 1974-1975

176 UCLA LAW REVIEW [Vol. 22: 141

thereafter to depart when summarily “banished” from the campus

by college officials. To avoid declaring it unconstitutional, the

court narrowed the statute so that it applied only to speech that

constituted “incitement to violence,” or in the case of conduct intertwined

with speech, only to conduct that was “physically incompatible

with the peaceful functioning of the campus.”‘140 It

adopted, in short, an approach for ,the college campus no different

than that which applies to the general community.

It would be a significant step of course to transport this approach

from the college setting to the high school or secondary

school as a matter of constitutional mandate. But that step is under

way.14′ It is facilitated by the fact that in each of the cases

mentioned above, the court seemed to assume that it was merely

giving effect to the same standard Tinker had applied to public

schools. The Braxton court expressly said so, describing Tinker

as merely applying to the high school context “a principle long

recognized in constitutional adjudication.”‘ 42 What the court

deemed vital, then, was not the differences but the similarities

140 Id. at 146, 514 P.2d at 701, 109 Cal. Rptr. at 901 (emphasis deleted).

141 In Scoville v. Board of Educ., 425 F.2d 10 (7th Cir.) (en banc), cert.

denied, 400 U.S. 826 (1970), the court held unconstitutional the expulsion of high

school students for distribution on campus of material that was sharply critical

of school authorities. See note 239 & accompanying text infra. The court cited

Dickey v. Alabama Bd. of Educ., 273 F. Supp. 613 (M.D. Ala. 1967) (a “university

publication case”) in support of the students’ position. It then commented

on the significance of a university case for public school purposes: “The fact

that it involved a university is of no importance, since the relevant principles and

rules apply generally to both high schools and universities.” Scoville v. Board of

Educ., 425 F.2d at 13 n.5. Similarly in Rowe 1, supra note 58, at 4, a high

school case, the court cited college speech cases and concluded: “The fact that

many of these cases involve college students is not of significance in ascertaining

general legal principles . . .” On the other hand, the Rowe court said that

“standards of free speech for students in school are not identical with those of

adults. However, as with all limitations on fundamental rights, each restriction

must be carefully justified and limited.” Id. at 6. There are frequent assertions

in other cases to the effect that the rights of public school students are not the

same as those for college students or adults. See note 10 supra.

142 10 Cal. 3d at 146, 514 P.2d at 702, 109 Cal. Rptr. at 902. Tinker has

thus come to be cited not only in support of the rights of public school students,

but those of teachers, e.g., Adcock v. Board of Educ., 10 Cal. 3d 60, 65, 67-68,

513 P.2d 900, 903, 905, 109 Cal. Rptr. 676, 679, 681 (1973); Local 1021, L.A.

Teachers Union v. Los Angeles Bd. of Educ., 71 Cal. 2d 551, 557-58, 455 P.2d

827, 831, 78 Cal. Rptr. 723, 727 (1969), and college students, e.g., Papish v.

Board of Curators of the Univ. of Mo., 410 U.S. 667, 670 (1973) (per curiam);

Healy v. James, 408 U.S. 169, 180 (1972); Braxton v. Municipal Ct., 10 Cal.

3d 138, 146, 150, 514 P.2d 697, 701-02, 704, 109 Cal. Rptr. 897, 901-02, 904

(1973); Antonelli v. Hammond, 308 F. Supp. 1329, 1337 (D. Mass. 1970).

It does not of course necessarily follow that the recognition of a constitutional

right in behalf of college students implies its existence for public school

students. The a fortiori argument only works in the other direction. The point

is, however, that a number of the courts have identified the underlying constitutional

principle as common to both; they have not thought in terms of a dual

standard,

— 22 UCLA L. Rev. 176 1974-1975

UNDERGROUND NEWSPAPERS

between public school students and college students. The reading

suggested below of the substantive prohibitions in section

10611 will therefore not only effectuate the legislative intent

but avoid constitutional pitfalls as well.

  1. Incitement

The statute prohibits expression,

which so incites students as -to create a clear and present

danger of the commission of unlawful acts on school premises

or ithe violation of lawful school regulations, or the

substantial disruption of the orderly operation of the school. 148

The provision has two facets: The first prohibits incitement

to the violation of laws or of school regulations, whether or not

there would be any adverse impact on school functioning; the second

prohibits incitement which threatens school operations,

whether or not any law or school regulation would be violated.

The first provides specific standards-those defined by other laws

or rules-but it requires no showing of functional need. The

second seeks to protect a functional need, but it is not carefully

delineated and circumscribed. It is doubtful that either would

be constitutionally adequate, unless construed narrowly to combine

the virtues of each: sufficient precision with a substantial,

functional justification for any restrictions.

  1. Incitement Threatening “Substantial Disruption of the

Orderly Operation of the School.” This facet represents an effort

to codify the Tinker test, insofar as it establishes that speech may

be regulated only if the dangers are immediate and serious.

There remains serious doubt, however, as to whether this test is

either sufficiently narrow or specific without further constriction

by interpretation. 44 The critical issue is the meaning of “incitement

to disruption.” The California Supreme Court recently confronted

that issue in a college case, Braxton v. Municipal Court.1 5

It held that speech could constitutionally be restrained as “willful

disruption” only where it constituted an “incitement to violence

or conduct physically incompatible with the peaceful functioning

of the campus.”‘146 “We agree,” said the court, “with the Attor-

143 CAL. EDuc. CODE § 10611 (West Supp. 1974).

144 It may seem anomalous to suggest that a standard (“substantial disruption”),

adopting the very words of Tinker, is unconstitutionally vague. But

it does not at all follow that a regulation is sufficiently specific for prospective

enforcement merely because it adopts the general language announced by a court

by way of post hoc explanation of a particular result. Jacobs v. Board of School

Commr’s, 490 F.2d 601, 605 (7th Cir. 1973), cert. granted, 94 S. Ct. 2638

(1974) (No. 73-1347).

’45 10 Cal. 3d 138, 514 P.2d 697, 109 Cal. Rptr. 897 (1973).

146 Id. at 150, 514 P.2d at 704, 109 Cal. Rptr. at 904.

19741

— 22 UCLA L. Rev. 177 1974-1975

UCLA LAW REVIEW

ney General in his statement: ‘[T]he word “disrupt” is commonly

understood to mean a physical or forcible interference, interruption,

or obstruction.’ “147 Speech which merely “disrupts the tranquility

of a campus or offends the tastes of school administrators or the

public”‘4 s was held constitutionally protected. Thus narrowly interpreted,

the court upheld the statute.

The Braxton court also considered whether the willful disruption

standard, narrowed in this manner, was nevertheless unconstitutionally

vague. It might well have been, but for the fact

that the court limited the statute to conduct already defined as

criminal: “[S]ince . .. [other criminal] statutes provide ascertainable

standards . . . the instant enactment is not void for

vagueness.”‘ 49

The same standards for vagueness and overbreadth that applied

to the Braxton statute should apply to section 10611. A

recent seventh circuit decision, citing Braxton, has declared a high

school regulation unconstitutional for failure to meet such standards.

In Jacobs v. Board of School Commissioners'”0 the challenged

regulation prohibited distribution of literature, the content

or manner of which was “likely to produce a significant disruption

of the normal educational processes, functions or purposes” in

school “or injury to others.””1 To illustrate the vagueness of the

standard, the court posed a series of rhetorical questions:

Is decorum in the lunchroom a “normal educational …

purpose”? If an article sparks strident discussion there, is

the latter a “disruption”? When does disruption become

“significant”? The phrase “injury to others” is also vague.

Does it mean only physical harm? Does it include hurt feelings

and impairment of reputation by derogatory criticism,

short of defamation, since libelous material is already covered

by [another] proviso .. . ?152

147 Id. (emphasis in original).

Clearly the fact that intrastudent communication may cause students to think

about important extracurricular issues while in the classroom-the fact that the

ideas have not simply rolled off impervious or deadened minds-would justify

suppression neither under this statute nor under Tinker. See note 32 & accompanying

text supra. In Rowe 1, supra note 58, the court, interpreting Tinker,

classified disruption as “intellectual” or “actual” (physical). While “disagreeable

and sometimes impolite contents of student publications” may “disrupt” the controlled

intellectual environment administrators may desire, “this concept of ‘disruption’

is simply unacceptable under Tinker.” And, “the fact that students may

think about the newspapers during class is not a ‘disruption’ justifying restriction.”

Id. at 8.

148 10 Cal. 3d at 146, 514 P.2d at 701, 109 Cal. Rptr. at 901.

149 Id. at 152, 514 P.2d at 705, 109 Cal. Rptr. at 905. But for this fact the

statute probably would have fallen. The court explained it adopted this interpretation

“in order to overcome the vice of vagueness.” Id. at 151, 514 P.2d at 705,

109 Cal. Rptr. at 905 (original emphasis deleted).

150 490 F.2d 601 (7th Cir. 1973), cert. granted, 94 S. Ct. 2638 (1974) (No.

73-1347).

151 Id. at 604.

152 Id. at 605.

[Vol. 22: 141

— 22 UCLA L. Rev. 178 1974-1975

1974] UNDERGROUND NEWSPAPERS 179

Finding no answers the court held the statute unconstitutionally

vague. It also found the standard overbroad, citing Braxton as

authority for the proposition that expression didn’t necessarily lose

its first amendment protection, simply because it “may lead to

disorder.”’15 The use of Braxton is significant, suggesting the

doctrine that illegal “incitement” in the high school context is to

be evaluated under the same standard that applies on the college

campus.1 54

Particularly welcome is the recognition in Jacobs that public

school students are entitled to adequate prior notice of the limits

the state seeks to impose on their speech. It has been argued

that the need for such notice is somehow attenuated for schoolchildren.

If anything, the contrary is true. 5 ‘ Everything school-

153 Id. at 606.

154 It may also support the view that the Tinker substantial disruption test

is merely the clear and present danger test applied to the high school context. See

also Mandel v. Municipal Ct., 276 Cal. App. 2d 649, 81 Cal. Rptr. 173 (1st Dist.

1969), involving criminal vagrancy charges against an adult who passed out handbills

on school grounds announcing the organization of a student strike, scheduled

for some three weeks later, against the war in Vietnam and urging those who

“want to help” to attend a planning meeting. The court held this urging fell

short of “inciting or producing imminent lawless action-absentation from

school.” It was protected advocacy. Id. at 673, 81 Cal. Rptr. at 188. The court

cited as authority Brandenburg v. Ohio, 395 U.S. 444 (1969) which, of course,

echoes the classic clear and present danger test.

155 Nor is it an answer to an argument that a particular regulation of

expression is vague to say that it was adopted for the salutary purpose

of protecting children. The permissible extent of vagueness is not directly

proportional to, or a function of, the extent of the power to regulate

or control expression with respect to children.

Interstate Cir., Inc. v. City of Dallas, 390 U.S. 676, 689 (1968).

In the school arena, as elsewhere, numerous courts have required precision

of regulation. Jacobs v. Board of School Commr’s, 490 F.2d 601, 605-06 (7th

Cir. 1973), cert. granted, 94 S. Ct. 2638 (1974) (No. 73-1347); Quarterman v.

Byrd, 453 F.2d 54, 59-60 (4th Cir. 1971); Riseman v. School Comm., 439 F.2d

148 (1st Cir. 1971). As to the college context, see Wright, The Constitution

on the Campus, 22 VAND. L. REv. 1027, 1061-67 (1969); Note, Bringing the

Vagueness Doctrine on Campus, 80 YALE L.J. 1261, 1264-65 (1971). Cf. Eisner

  1. Stamford Bd. of Educ., 440 F.2d 803 (2d Cir. 1971).

But see Esteban v. Central Mo. St. Coll., 415 F.2d 1077, 1088 (8th Cir.

1969) (Blackmun, J.), cert. denied, 398 U.S. 965 (1970) (“flexibility and reasonable

breadth, rather than meticulous specificity” required), cited approvingly in

Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). But “[wie do not hold

that any college regulation, however loosely framed, is necessarily valid.” Esteban

  1. Central Mo. St. Coll., 415 F.2d at 1089.

In Grayned v. City of Rockford, 408 U.S. at 112 (1972), the Court reasoned

that imprecision in a statute’s words might be mitigated if the specific context

in which it is to operate helps clarify its meaning. There the statute, a time,

place, and manner rule, was specifically written for the school context where “the

prohibited disturbances are easily measured by their impact on the normal activities

of the school.”

Compare Karp v. Becken, 477 F.2d 171 (9th Cir. 1973) where the court

held school authorities were justified in taking protest signs from students because

of a reasonable forecast of disruption; but “absent justification, such as a violation

of a statute or school- rule, they cannot discipline a student for exercising those

[first amendment] rights.” Id. at 176 (emphasis added).

— 22 UCLA L. Rev. 179 1974-1975

UCLA LAW REVIEW

children do is under the observation of the adult authorities and

occurs in a pervasively authoritarian environment. The possession

by school officials of a vague and ill-defined power threatens

freedom much more than it would in the more anonymous and

less hierarchical outside community. There is no reason to doubt

that many who argue for a vague definition of student rights understand

this full-well. They are skeptical about student claims

of “right” and correctly perceive that murky standards enhance

the school’s power at the expense of the student’s.

The fact that section 10611 does not impose criminal sanctions

should not validate standards that are otherwise vague or

overbroad. 156 Suspension or expulsion is drastic punishment and

should entitle students to -the protections of specificity. Specificity

tells the student what is prohibited so he may act accordingly,

discourages the kind of discriminatory rule enforcement

that unfettered administrative discretion breeds, and avoids the

self-censorship that is the natural result of efforts to avoid an

ill-defined prohibited zone.157

  1. Incitement to the Violation of Laws or of School Regulations,

Without Regard to any Disruptive Potential. The problem

with this facet of the prohibition is overbreadth. “Laws” and

“school regulations,” and the interests they are designed to protect,

are of varying importance. The existence of a “clear and

present” danger of a rule violation does not establish that an important

school interest is at stake. Conduct that violates even

a trivial rule may be punishable. But it does not follow that the

speech “inciting” it may be.”58 The principle of the Braxton case

should apply here as well. The inciting speech should be

deemed punishable only if it genuinely and substantially inter-.

feres with school functions.

156 While section 10611 is not in the first instance criminal, if the student

challenges its authority, its ultimate enforcement could be by criminal or juvenile

law.

157 See Grayned v. City of Rockford, 408 U.S. at 108-09 (1972).

158 It was precisely this view for which Justice Brandeis argued in his

concurring opinion in Whitney v. California, 274 U.S. 357, 377-78 (1927):

[E]ven imminent danger cannot justify resort to prohibition of

these functions essential to effective democracy, unless the evil apprehended

is relatively serious. Prohibition of free speech and assembly

is a measure so stringent that it would be inappropriate as the means

for averting a relatively trivial harm to society. . . . [I]t is hardly conceivable

that this Court would hold constitutional a statute which punished

as a felony the mere voluntary assembly with a society formed to

teach that pedestrians had the moral right to cross unenclosed, unposted,

waste lands and to advocate their doing so, even if there was imminent

danger that advocacy would lead to a trespass.

While Whitney has been overruled by Brandenburg v. Ohio, 395 U.S. 444, 449

(per curiam) (1969), it was on grounds that reinforce the prestige of Justice

Brandeis’ concurrence.

[Vol. 22: 141

— 22 UCLA L. Rev. 180 1974-1975

1974] UNDERGROUND NEWSPAPERS

Efforts to suppress speech may fail this test not only on account

of the triviality of the interest to be protected, but also because

such interest lacks an adequate nexus with legitimate school

concerns. It is difficult, for example, to imagine what school

function would be imperiled if an underground publication “incited”

students registered with the draft to destroy their draft

cards. 159 A possible response may be that if school authorities

tolerate the incitement to violation of any law, they neglect ‘their

responsibility for the moral and civic training of the young. Putting

to one side whether sound moral and civic virtues are inculcated

by teaching the unquestioning duty to obey the law,’ 60 the

proper question is not whether teachers should stand mute but

whether they should attempt to convey the lesson by speech suppression.

In the public school context, no less than in other contexts,

speech should be treated with greater diffidence than conduct;

restrictions should be tolerated only to protect vital school

functions. Braxton and Jacobs may well require this as a matter

of constitutional law, even in the high school context. There is

also good evidence that this is precisely what the legislature had

in mind in prohibiting the particular categories of speech that it

did in section 10611.161 In any case the school will in the long

159 See, e.g., Baughman v. Freienmuth, 478 F.2d 1345, 1349 (4th Cir. 1973)

(prohibition against material which “‘advocates illegal actions, or is grossly insulting

to any group or individual'” held unconstitutional “unless there is ‘a substantial

distribution of written material so it can reasonably be anticipated that . . .

there would be a likelihood that the distribution would disrupt school operation.'”)

160 Wasserstrom, The Obligation to Obey the Law, 10 UCLA L. REv. 780

(1963).

161 To illustrate the point, consider the alternate possible theories as to

why the legislature prohibited what it did.

The first is to make clear that students were not exempt from the usual restraints

on speech. This explanation is unsatisfactory. Even if the statute stated

no limits, it is hard to believe this would have been taken as exempting students

from universal speech restrictions. Not only were limitations unnecessary for this

purpose, but if they were so intended, a negative implication inevitably arises because

of what the statute failed to prohibit, e.g., fraud, invasions of privacy, copyright

infringement, etc. Unless one assumes the legislature intended to grant students

immunity in these areas, it must be concluded that in listing the prohibitions

it did, it had some purpose in mind other than defining the limits of student

speech.

The second hypothesis is that the legislature was prescribing more stringent

standards for student speech in certain areas than apply in the community at large.

The trouble with the theory is that several of the prohibitions are expressly tied

to “current legal standards.” The legislature thus merely reiterated the standards

that govern in the community at large; it did not custom-tailor tighter ones for

the school.

The remaining and most plausible explanation is that the legislature was not

defining the limits of the student speech. It was rather defining the limits of

legitimate school authority over that speech. That authority, in turn, was restricted

to types of speech in which the school, as such, had an arguably important

interest to protect. This theory is quite consistent with the prohibitions in section

10611 against incitement to disruption of school operations, and against obscenity

— 22 UCLA L. Rev. 181 1974-1975

UCLA LAW REVIEW

run better educate by demonstrating its commitment to the values

of free speech than by turning itself into an auxiliary mechanism

for automatic enforcement of general law unrelated to school operations.

  1. “Obscene . . .According to Current Legal Standards”

This provision, by definition, seems unobjectionable, since

it merely incorporates the state law of obscenity, assuming it to

be constitutional. 62 Although directing the student to consult

“current legal standards”‘ 63 is hardly a model of legislative specificity,

courts prepared to swallow the monumental uncertainties

inherent in the definition of obscenity may not blanch at any additional

uncertainty produced by this non-definitional standard.

One question that arises is whether gection 10611 provides

a different, and watered-down, test for obscenity because minors

are involved, such as that affirmed in Ginsberg v. New York.1 4

The answer under California law is no, for California has not

adopted a variable obscenity test in its Criminal Code.’ 65 Thus

section 10611, which merely prohibits obscenity as otherwise defined

by California law, does not create such a test.

The issue of obscenity needs to be approached with special

sensitivity in underground newspapers. Many “obscene” articles

will upon closer inspection turn out to have as their predominant

objective not sexual stimulation but rather the stimulation of revulsion

toward societal hypocrisies perceived by the publishers.

Thus in one case, a radical underground paper wished to criticize

(generally assumed to be of particular harm to the young). Even this, however,

does not satisfactorily explain the prohibition against libel, for reasons discussed

in text accompanying notes 185-87 infra. Yet, on balance, it best explains the

form of the legislation. It argues for reading the statute narrowly, as conferring

power only to regulate speech which has a definite impact on school operations.

162 Quite an assumption, in light of Miranda v. Hicks, Civ. No. 73-2775

(C.D. Cal. 1974) (3 judge court) (per curiam), declaring California’s obscenity

statute unconstitutional as failing to meet the notice requirements of Miller v.

California, 413 U.S. 15 (1973). Contra, People v. Enskat, 33 Cal. App. 3d

900, 109 Cal. Rptr. 433 (2d Dist. 1973), hearing denied, Cal. S. Ct. Oct. 24,

1973.

163 As to ambiguity in this phrase, see note 131 supra.

164 390 U.S. 629 (1968).

165 As defined in California obscenity takes no account of the age of the

person exposed to it. CAL. PENAL CODE § 311 (West Supp. 1974). A subsequent

section does make it a crime to distribute “harmful matter” to minors. Id. at §

313.1. The definition of “harmful matter” in Penal Code section 313 is the same

as the definition for obscenity except that the latter requires it to be “utterly without

redeeming social importance,” and the former requires only that it be “utterly

without redeeming social importance for minors” (emphasis added). Although

section 313 no doubt constitutes a different standard as to what children may

be exposed to, it is not embraced within the definition of “obscenity.” It is therefore

doubtful that it is included within the prohibitions of section 10611.

182 [Vol. 22: 141

— 22 UCLA L. Rev. 182 1974-1975

1974] UNDERGROUND NEWSPAPERS 183

the magazine, Playboy, for its “degrading” attitudes toward sex,

Its chosen method was to ask, rhetorically, “What sort of man

reads Playboy?”‘ 66 By way of answer it portrayed “a nude, longhaired

young man masturbating in front of a wall covered with

nude female pin-ups.”‘ 67 Shocking and repellant, no doubt; but

not obscene. Rather, a constitutionally protected way of expressing

“disgust at Playboy and at the social outlook that magazine

represents.”” 68

A closely related point, and one particularly important in the

school context, is that “current legal standards” do not permit the

prohibition of speech which is merely “vulgar” or “offensive.”

Even that word which many would regard as -the quintessential

vulgarity of contemporary American discourse is not constitutionally

“obscene.” When Mr. Cohen strolled down a Los Angeles

courthouse corridor wearing a jacket emblazoned with the

words “Fuck the Draft” he may have offended and irritated, but

surely he appealed to no one’s prurient interest. 169 The express

incorporation of “current legal standards” in the prohibition of

section 10611 against obscenity thus precludes school authorities

from regulating mere vulgarity in political discourse by characterizing

it as obscene.170 There is in fact good reason to doubt

166 United States v. Head, 317 F. Supp. 1138, 1145 (E.D. La. 1970).

167 Id. at 1140.

168 Id. at 1145. See also Bazaar v. Fortune, 476 F.2d 570, 572-73 (5th

Cir.) aff’d as modified, 489 F.2d 225 (5th Cir. 1973); Kois v. Wisconsin,

408 U.S. 229 (1972) (per curiam) (dissemination of allegedly obscene pictures

was rationally related to an article which was itself entitled to first amendment

protection, whether or not the picture standing alone would have been).

169 Cohen v. California, 403 U.S. 15, 19-20 (1971). The constitutional

distinction between vulgarity and obscenity made in Cohen was affirmed as recently

as Papish v. Board of Curators of the Univ. of Mo., 410 U.S. 667 (1973).

See also Hess v. Indiana, 414 U.S. 105 (1973) (per curiam 6-3 decision) (“We’ll

take the fucking street later (or again)” spoken to an antiwar gathering, held not

punishable as obscene or as fighting words or as having a tendency to lead to

violence.) Id. at 107.

170 This does not prevent school authorities from attempting the same goal

by simply calling the language a “breach of good taste” rather than obscenity.

But, of course, Education Code section 10611 confers no regulatory power over

a breach of good taste. The effort has nonetheless been made to regulate such

language through provisions substantially in the following form that were in effect

for varying periods in numerous school districts since adoption of Education Code

section 10611, e.g., Los Angeles, Pasadena, Long Beach:

Students are expected to use good taste in their manner of expressing

ideas. . . . [L]anguage . . .must not be vulgar or profane. Vulgar

. .. includes that which is lewd, profane, coarse, crude, or offensive

and all language which infringes on the minimum standards of propriety

and the accepted norm of public behavior on or near school campuses.

In Los Angeles, see Section llA2a of Local Board Policy relating to students’

rights of expression, set forth in the complaint in Hummel v. Los Angeles Unif.

School Dist., No. C-40089 (Sup. Ct. L.A. Cty., filed Oct. 2, 1972). That regulation

has since been superseded by Los Angeles Bd. of Educ. Reg. 1276-1.

— 22 UCLA L. Rev. 183 1974-1975

184 UCLA LAW REVIEW [Vol. 22: 141

whether the legislature constitutionally could achieve such a result’

71-though it made no effort to do so in section 10611.172

  1. “Libelous, or Slanderous According to Current Legal

Standards”‘171

This ground of prohibition provides school authorities with

an essentially illusory power, if they stay within its permissible

scope. Under “current legal standards” even speech harshly critical

of “constituted authority” and false to boot, enjoys a wide de-

For Pasadena, see Weger v. Pasadena School Dist., No. C-1 1605 (Sup. Ct.,

L.A. Cty., minute order, June 27, 1972, denying preliminary injunction against

enforcement of the quoted by-law); Long Beach, Rules & Regs. for Student

Expression on Campus, Rule 3(a) issued by Office of the Director of High

Schools, Long Beach Unif. School Dist.

171 Despite the “difference in maturity and sophistication between students

at a university and at a high school,” Jacobs v. Board of School Commr’s, 490

F.2d 601, 610 (7th Cir. 1973), cert. granted, 94 S. Ct. 2638 (1974) (No.

73-1347), held that the distinction between vulgarity and obscenity applied to the

high school context just as elsewhere. See also Fujishima v. Board of Educ., 460

F.2d 1355, 1359, n.7 (7th Cir. 1972); Scoville v. Board of Educ., 425 F.2d 10,

14 (7th Cir.) (en banc), cert. denied, 400 U.S. 826 (1970); Vail v. Board of

Educ., 354 F. Supp. 592, 599 (D.N.H. 1973). Contra, Baker v. Downey Bd.

of Educ., 307 F. Supp. 517, 526-28 (C.D. Cal. 1967). Baker, however, rested,

in part on currently suspect authority (id. at 525): Goldberg v. Regents of the

Univ. of Cal., 248 Cal. App. 2d 867, 57 Cal. Rptr. 463 (1st Dist. 1967). See

Braxton v. Municipal Ct., 10 Cal. 3d 138, 147 n.4, 514 P.2d 697, 702 n.4, 109

Cal. Rptr. 897, 902 n.4 (1973). The “continued vitality” of Baker is equally

doubtful.

In several cases in which the Supreme Court reversed efforts to punish for

“offensive,” “profane,” or “indecent speech,” the speech was within the earshot

of children. In Rosenfeld v. New Jersey, 408 U.S. 901 (1972), the utterance

occurred under the following inauspicious circumstances:

Appellant addressed a public school board meeting attended by about

150 people, approximately 40 of whom were children and 25 of whom

were women. In the course of his remarks he used the adjective

“M …… F -…….”. . on four occasions, to describe the teachers, the

school board, the town and his own country.

  1. at 904 (Powell, J., dissenting). Even the dissenters, Justices Powell and

Blackmun and the Chief Justice, acknowledged the need “to tolerate . . .such

a debasement provided it occurs without subjecting unwilling audiences to the type

of verbal nuisance committed in this case.” Id. at 909.

See also Papish v. Board of Curators of the Univ. of Mo., 410 U.S. 667,

676 (1973) (per curiam).

In Cohen v. California, 403 U.S. 15, 16 (1971), the Court, however, left

open the possibility that offensive speech might be punished if the statute gave

“notice that certain kinds of otherwise permissible speech or conduct would nevertheless

. . . not be tolerated in certain places.” Id. at 19.

172 Older legislative and administrative provisions arguably did. See CAL.

EDuC. CODE § 10854 (West 1969) & 5 CAL. ADMIN. CODE §§ 300-01 (1969).

These would have to bend under the present constitutional pressures or break.

173 See also CAL. EDUC. CODE § 10852 (West 1969): “No student …

shall .. .commit any act that injures, degrades, or disgraces, or tends to injure,

degrade or disgrace any fellow student….” This was intended as an anti-hazing

statute. If it can be applied to student political expression it is vague and

overbroad. If it were narrowly construed to embrace defamation “according to

current legal standards,” it adds nothing to section 10611.

— 22 UCLA L. Rev. 184 1974-1975

1974] UNDERGROUND NEWSPAPERS 185

gree of constitutional protection in the non-school world. 74 Thus

if the complaining party falls within the class of “public officials”‘

175 or “public figures,”‘176 he must demonstrate “upon clear

and convincing proof that the defamatory falsehood was published

with knowledge that it was false or with reckless disregard” 77

of its truth. The effect of this standard is to cast aside reasonableness,

good taste, or accuracy as appropriate tests for limiting

expression about public figures. This is not out of indifference

to the harm they may suffer from attacks upon their reputation

but from a recognized need to insure “that debate on public issues

should be uninhibited, robust, and wide-open,” by protecting

even “vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.’ i7 The libel privilege

protects public figures from intentionally or recklessly false

attacks but protects the speech interest by reducing pressures toward

self-censorship that a broad risk of tort liability inevitably

creates.

Applying this standard in the school context, libelous utterances

against school board members, principals or teachers should

be similarly privileged. 179 When school boards or school princi-

174 I have considered, and rejected, the proposition that such speech might

nevertheless still be “libelous” as a matter of state law (hence within the reach

of the statute), even though it is privileged as a matter of constitutional law and

thus immune from punishment under “current legal standards.” Not only is this

too subtle a reading of the statutory words, but it gratuitously interprets them

so as to render the statute unconstitutional. Finally California statutes define

libel as a “false and unprivileged publication.” CAL. CIV. CODE § 45 (West

1954) (emphasis added). As to a further ambiguity in the phrase “current legal

standards,” see note 131 supra.

175 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

176 See Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967). The same can no

longer be said of persons who are neither public officials nor public figures, even

though they are involved with “events of public interest.” Gertz v. Robert Welch,

Inc., 94 S. Ct. 2997 (1974). That case refused to extend the libel privilege

to defamation of private individuals. Even in this category, however, under Gertz

the state may not impose liability without fault. And if it chooses to impose

liability for mere negligence short of malice, it may only permit recovery for “actual,”

not punitive, damages.

177 Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52 (1971). The severity

of this test is suggested in St. Amant v. Thompson, 390 U.S. 727 (1968).

178 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

179 In Reaves v. Foster, 200 So. 2d 453 (Miss. 1967), the state supreme

court in a unanimous decision applied the constitutional privilege to comments

severely critical of a school principal, since he was “a public official or one connected

with public affairs.” id. at 459.

See also Baughman v. Freienmuth, 478 F.2d 1345, 1351 (4th Cir. 1973);

Pickering v. Board of Educ., 391 U.S. 563, 573-75 (1968) (school board members);

Trujillo v. Love, 322 F. Supp. 1266, 1270-71 (D. Colo. 1971) (college

case); Klahr v. Winterble, 4 Ariz. App. 158, 166, 418 P.2d 404, 412 (1966)

(applying the qualified privilege to protect a university student editor for alleged

libelous statements against a member of the university’s student senate as a matter

of state law, without regard to whether it was constitutionally mandated, because

— 22 UCLA L. Rev. 185 1974-1975

186 UCLA LAW REVIEW [Vol. 22: 141

pals promulgate general rules of governance-a dress code, regulations

governing students’ rights of expression on campus, or a

discipline code-they do so in their public capacity. These regulations

are often matters of acute public interest, both on the

campus and in the community. They have as much impact on

students’ lives as policies formulated by non-school officials have

on the lives of citizens generally. School officials should

be no less subject to public criticism.

Underground newspapers can be expected to focus on just

such issues. Thus “under current legal standards,” criticism found

in them would seldom be appropriately punishable as civil (or

criminal)””° libel. However even as constitutionally circumscribed

the mere existence of the power on the part of school officials

creates a potentially powerful in terrorem effect. The significance

of the Sword of Damocles, as Justice Marshall recently

reminded us, is that it hangs, not that it falls.’ 8′ If the prospective

critic knows he may be called before the very officials he has criticized

to show that his statements are either true, or, at any rate,

not maliciously false, he will have ample reason to confine his utterances

to those that are tame and unambiguous rather than “uninhibited,

robust, and wide-open.’ 1′ 2

In addition, to permit the very school official who believes

he was maliciously libeled (or a close associate) to hear the

charges and determine the punishment may be an efficient procedure

but leaves something wanting in the way of due process.

While the due process rights of California students have not received

an enthusiastic reading by several intermediate California

it would be inappropriate “that there be one law of libel in this state for ‘public

officials’ off the campuses of our state universities and another law of libel be

applicable to the student government officers upon such campuses .. “).

The test thus far laid down for who constitutes a “public official” for purposes

of this doctrine is the quite vague one of whether the individual has “substantial

responsibility for or control over the conduct of governmental affairs.”

Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). It took a meaning on the facts of

the case because the Court held that a supervisor of a county ski recreation area

could qualify for this characterization, but remanded the case to the state courts

for further examination of the issue. The court observed it did not detract from

his status as a public official that the subject matter of the publication may only

have been of “local interest . . . at least here, where publication was addressed

primarily to the interested community….” Id. at 83 (emphasis added). The

implications are obvious for underground papers aimed at a student audience concerning

matters of interest primarily to the school community. See cases cited

at W. PROSSER, THE LAW OF TORTS 821 n.18 (4th ed. 1971).

180 Criminal libel, as proscribed, e.g., by Cal. Penal Code section 248 is subject

to the same constitutional limits as civil libel. Garrison v. Louisiana, 379

U.S. 64, 67 (1964).

181 Arnett v. Kennedy, 94 S. Ct. 1633, 1682 (1974) (dissenting opinion).

182 See note 178 supra.

— 22 UCLA L. Rev. 186 1974-1975

1974] UNDERGROUND NEWSPAPERS 187

courts,1 8s an “impartial decision maker” seems a minimal requirement

when significant penalties are possible. 84 At very least the

decision maker should not be the same individual straining to

vindicate himself from a “malicious” attack on his personal integrity.

185

183 E.g., Charles S. v. Board of Educ., 20 Cal. App. 3d 83, 97 Cal. Rptr. 422

(1st Dist. 1971); Perlman v. Shasta Jr. Coll. Dist. Bd. of Trustees, 9. Cal. App.

3d 873, 88 Cal. Rptr. 563 (3rd Dist. 1970). See also Baker v. Downey Bd. of

Educ., 307 F. Supp. 517, 522-23 (C.D. Cal. 1969).

The issue of public school students’ due process rights is presently pending

in Goss v. Lopez, prob. furis, noted, 415 U.S. 912 (1974) (No. 73-898).

See generally Seavey, Dismissal of Students: “Due Process,” 70 HARv. L.

REV. 1406 (1957); Van Alstyne, Student Academic Freedom and the Rule-Making

Powers of Public Universities: Some Constitutional Considerations, 2 L. IN

TRANS. Q. 1 (1965); Developments in the Law-Academic Freedom, 81 HARV.

  1. REv. 1045, 1128-57 (1968).

For a treatment of the due process issue in California high school expulsion

cases, see Boone, Expulsion in California Public High Schools-Due Process a

Decade After Dixon, 8 S. DIEGO L. REV. 333 (1971).

184 Such penalties here might consist of suspension or expulsion. See

Perlman v. Shasta Jr. Coll. Dist. Bd. of Trustees, 9 Cal. App. 3d 873, 883, 88

Cal. Rptr. 563, 569-70 (3d Dist. 1970).

No less is required in parole revocation preliminary hearings. Morrissey v.

Brewer, 408 U.S. 471, 488-89 (1972) (due process requires a “neutral and detached

hearing body.” Id. at 489); in hearings to terminate public assistance prior

to the termination, Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (“of course, an

impartial decision maker is essential”). In Sullivan v. Houston Ind. School Dist.,

475 F.2d 1071, 1077 (5th Cir. 1973), the court observed that the mere fact that

school administrative personnel are involved in the initiation and investigation of

charges does not per se disqualify them from conducting hearings. But when “a

school official’s involvement in an incident is such as to preclude his affording

the student an impartial hearing,” he is disqualified. It stated, however, that a

procedural defect in an initial hearing could be cured by subsequent fair hearings.

  1. This overlooks the inertial effect of adverse findings by school officials upon

the reviewing bodies, which are part of the same administrative hierarchy. Often,

these reviewing bodies may in fact be advised by the same attorney who had initially

advised the school officials.

See also Murray v. West Baton Rouge School Bd., 472 F.2d 438, 443 (5th

Cir. 1973). See generally Wright, The Constitution on the Campus, 22 VAND.

  1. REV. 1027, 1074-82 (1969).

185 Even trial judges, with their historic powers of summary contempt over

litigants or their attorneys, do not have carte blanche power to judge the alleged

contemnor if they defer punishment until the end of the trial when no exigency

any longer requires immediate action. In Mayberry v. Pennsylvania, 400 U.S.

455 (1971), the judge who had been “vilified” by a party waited until the conclusion

of the trial and then adjudicated him in contempt. The Supreme Court held

that as a matter of due process, the defendant was entitled to a hearing before

another judge. “[A] judge, vilified as was this . . . judge, necessarily becomes

embroiled in a running, bitter controversy. No one so cruelly slandered is likely

to maintain that calm detachment necessary for fair adjudication.” Id. at 465.

See also Offutt v. United States, 348 U.S. 11, 14 (1954); In re Dellinger, 461

F.2d 389, 392-97 (7th Cir. 1972). Cf. Sacher v. United States, 343 U.S.

1 (1952).

See also, In re Murchison, 349 U.S. 133, 137 (1955) (judge who was part

of accusatory process as a one-man grand jury could not later try witness for contempt

for refusal to answer question by the judge-grand jury: “prosecuting judges”

cannot be “trial judges of the charges they prefer”).

— 22 UCLA L. Rev. 187 1974-1975

UCLA LAW REVIEW

Suppose, however, as a concession to this argument, that

school authorities abandoned any effort to punish libel directed

against themselves and concerned themselves only with alleged

libel against non-school personnel. It seems clear that school

officials have neither special talents nor appropriate mechanisms

for determining the factual issues involved. One does not, after

all, know the truth of a libelous statement when one sees it. The

school is not the place to stage a trial concerning student statements

about persons and events bearing no relationship to the

school.

More importantly, it is difficult to understand why such defamation

concerns school officials at all. Perhaps the thought is

that the usual libel remedies are worthless in respect to a judgment-

proof student, and that school discipline is a useful remedial

adjunct. But this is surely overkill. First of all, if students’ ability

to respond in damages is limited, so too, is their ability to cause

harm, given the limited circulation and influence of student papers.

Secondly, in the unlikely event their statements do cause

significant harm the design of California law is to restrict the damage

remedy permitted against a newspaper. It gives the paper

an option to retract the offending statement in timely fashion. If

the paper does so, it is liable solely for special damages, not for

general or exemplary damages. 186 Underground newspapers

could not be denied the same protection without violating equal

protection norms. If the underground paper availed itself of the

right to retract, at most it would be liable for special damages.

It is, however, unlikely that anything said in an underground

school newspaper would cause significant economic loss for which

special damages could be appropriately recovered.187 Therefore,

to provide school punishment as a supplement to the normal damage

remedy is to do so with respect to a wrong that is rarely

punishable under constitutional standards; that will rarely cause

186 CAL. CIV. CODE § 48a (West 1954).

187 CAL. CIv. CODE § 48a4(a) (West 1954) stringently restricts “special

damages” to the following:

all damages which plaintiff alleges and proves that he has suffered in

respect to his property, business, trade, profession or occupation, including

such amounts of money as the plaintiff alleges and proves he has

expended as a result of the alleged libel, and no other ….

Libel judgments against university and high school presses are rare. “A survey

for the University of California in 1969 failed to turn up ‘a single case of

libel judgment against a college or university newspaper or against a college or

university.'” G. STEVENS & J. WEBSTER, LAW AND THE STUDENT PRESS 26

(1973), quoting Advise and Dispense, Syllabus 20 (1971). Stevens and Webster

go on to say that in the research for their book, apparently of nationwide

scope, they uncovered “only one judgment against a school district for libel in

a student publication.” Some libel suits have however been filed, and have “created

problems” for the defendants. G. STEVENS & J. WEBSTER, supra at 26-42.

[Vol. 22: 141

— 22 UCLA L. Rev. 188 1974-1975

19741 UNDERGROUND NEWSPAPERS 189

significant harm in the school context; and that state law rarely

chooses to compensate even when it causes harm, because it prefers

to broadly immunize the press from accountability for falsehood.

The gain from school involvement is punishing libelous

utterances is therefore hardly worth the risks.1 88

There may be concern that school authorities would themselves

be subject to tort liability if they tolerated libelous utterances

by students, just as if they negligently permitted students to inflict

physical harm’89 on others. This is, of course, a circular argument,

for if school officials had no regulatory power, they could

not be held liable for failing to exercise it.’ 90

One might well conclude that there is a national problem

here of extraordinary proportions given the magnitude of the concern

demonstrated by school authorities to regulate libelous statements.

The reverse seems true. 9′ What school officials instinctively

react to is not so much libel as something akin to seditious

libel: expression which is harshly critical and which

therefore tends to undermine “constituted authority” regardless

of its truth’ 9 2– or perhaps especially because of it. But that is

188 It might be argued that school authority to punish libel is needed to

protect student victims of defamation by underground papers. Precisely because

damage remedies are so ineffective, the claim goes, it is necessary for school authorities

to fashion protective remedies for a group that stands in peculiar need

of them. But there is no evidence whatever that this is anything more than an

imaginary problem. It fails to justify embarking on a course with such clearly

dangerous potential.

189 CAL. GOV’T CODE § 81 5 .2(a) (West 1966) makes school districts

liable, on respondeat superior principles, for negligent acts or omissions of employees

for which the employee himself is liable, for example, the negligent supervision

of school ground activity. The concern, here, is over physical safety. See

Dailey v. Los Angeles Unif. School Dist., 2 Cal. 3d 741, 470 P.2d 360, 87 Cal.

Rptr. 376 (1970) and the cases analyzed there. Safety regulations, of course,

involve none of the constitutional dangers of speech regulations. Furthermore,

California law provides that at most school authorities are liable for actual, rather

than punitive damages. CAL. GoV’T CODE § 818 (West 1966). It is hard to

imagine a student establishing “actual” damages from a libelous statement by a

co-student.

190 In any event, to impose such a responsibility upon school authorities

would probably make sense only if coupled with a power to compel students to

submit every written statement to school authorities for advance verification of

its truthfulness. As was argued above, this would be an impermissible form of

prior censorship. Further it presupposes that the authors or distributors of the

publication be required to identify themselves to facilitate accountability. Such

a bar on anonymity would raise its own serious constitutional difficulties. See

Jacobs v. Board of School Commr’s, 490 F.2d 601, 607 (7th Cir. 1973), cert.

granted, 94 S. Ct. 2638 (1974) (No. 73-1347), following Talley v. California,

362 U.S. 60 (1960).

191 See note 187 supra.

192 School authorities often appear to be relying on the spirit of Penal Code

  • 251. Under that statute, truth is not an absolute defense to criminal libel. It

constitutes a defense only if the “matter charged . . . was published with good

motives and for justifiable ends.” CAL. PENAL CODE § 251 (West 1970). But

a similar statute was held unconstitutional in Garrison v. Louisiana, 379 U.S. 64

— 22 UCLA L. Rev. 189 1974-1975

UCLA LAW REVIEW

a reaction that the legal system should not treat with great solicitude.

All in all, there is excellent reason to interpret the libel aspect

of the statute very narrowly: as forbidding schools to inject

themselves into an area which raises difficult first amendment issues,

which thrusts school officials into the unseemly, if not unconstitutional,

position of sitting in judgment on their own critics,

which itself creates the very risks of liability that the rule may

have been designed to avert, and for no perceptible gain in return.

This means, first, that the constitutional privilege for nonmalicious

libel must be scrupulously observed. Second, that even

if the libel is allegedly “malicious,” school authorities should have

power to intervene only after courtroom litigation has determined

that to be the fact. Finally, that school authorities should possess

even this power only in the unlikely case that the libel is found

to have substantially disrupted school functions. Otherwise they

should be held powerless to interfere administratively with student

speech on this ground. Persons believing themselves aggrieved

by libelous utterances should be remitted to the usual

remedy the law provides: a civil lawsuit for damages.

  1. Exclusivity of the Section 10611 Prohibitions

The following critically important question now arises. Are

the prohibitions of the first paragraph of the statute exclusive?

Or may school authorities by virtue of the power reserved them

in the second paragraph, regulate all those objectionable, offensive,

or dangerous kinds of speech that they are denied power

over in -the first-articles, for example, employing “vulgarity” or

“profanity,” discussing birth control methods, graphically describing

brutal behavior, or severely criticizing school authorities?’

The argument that school authorities have such powers under

the statute rests on one or two improbable theories: that the

given prohibition (for example, against vulgarity) relates to the

insofar as it refused to recognize the same qualified privilege in the context of

criminal libel as had been laid down in New York Times Co. v. Sullivan, 376

U.S. 254 (1964), for civil damage actions. Even in the private-figure category

defined by Gertz v. Robert Welch, Inc., 94 S. Ct. 2997 (1974), truth would be

an absolute defense.

A further point to be borne in mind is that much of what underground papers

say that is most offensive to school officials will in any event neither be “true”

nor “false,” but matters of opinion-for example, in respect to the use of such

loose and undefined terms as “unfair,” “fascist,” etc. “‘However pernicious an

opinion may seem, we depend for its correction not on the conscience of judges

and juries but on the competition of other ideas.'” Branch 496, Nat’l Ass’n of

Letter Carriers v. Austin, 94 S. Ct. 2770, 2781 (1974).

193 I assume here, solely for purposes of argument, that the above kinds of

speech could be constitutionally barred by state legislation, so as to focus on the

issue of legislative intent.

190 [Vol. 22: 141

— 22 UCLA L. Rev. 190 1974-1975

UNDERGROUND NEWSPAPERS

“manner” of expression,194 regulation of which has been expressly

reserved to local school boards by the statute; or that the

legislative directive to school boards to adopt regulations including

time, place, and manner rules implies a power to impose other

restrictions as well. There are good reasons for rejecting both

theories.

  1. Time, Place and Manner as an Independent Ground for

Regulating Speech

As a constitutional proposition, it is clear that time, place,

and manner rules may not be used as a covert, auxiliary mechanism

for regulating speech because of its content. 95 The time,

place, and manner power is the power only to regulate the physical

mode and circumstances of speech on ideologically neutral

grounds. “For example,” said the Supreme Court by way of illustrating

plausible regulations:

[T]wo parades cannot march on the same street simultaneously,

and government may allow only one. A demonstration

or parade on a large street during rush hour might

put an intolerable burden on the essential flow of traffic, and

for that reason could be prohibited. If overamplified loudspeakers

assault the citizenry, government may turn them

down. 1 9 6

What may not be done under the “time, place, and manner”

rubric is to regulate speech because of “its message, its ideas,

its subject matter, or its content.’ 19 7 And, of course, with good

reason. Under any other rule, impermissible objections to the

content of speech could be enforced simply by disingenuous characterization.

198

To read a broader meaning into ,the word ‘,manner” in section

10611, one would have to engage in the implausible assumption

that -the legislature intended to assign the word a totally idiosyncratic

and probably unconstitutional meaning; moreover, that

after conferring a broad right of expression and defining a series

of specific limitations in the first paragraph of the statute, it intended

to give local school boards a roving commission to impose

further limitations in the second with no discernible standards to

guide their discretion.

194 A theory adopted, e.g., in Baker v. Downey Bd. of Educ., 307 F. Supp.

517, 527 (C.D. Cal. 1969).

195 Papish v. Board of Curators of the Univ. of Mo., 410 U.S. 667, 670

(1973) (per curiam); Police Dep’t v. Mosley, 408 U.S. 92, 98-99 (1972). See

Cohen v. California, 403 U.S. 15, 24-26 (1971). See generally Kalven, The Concept

of the Public Forum: Cox v. Louisiana, 1965 S. CT. REV. 1, 23-27.

196 Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).

197 Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972).

198 See Cohen v. California, 403 U.S. 15, 26 (1971).

19741

— 22 UCLA L. Rev. 191 1974-1975

UCLA LAW REVIEW

  1. Other Delegated Powers as an Independent Ground

for Regulating Speech

Section 10611 (because of the words “shall include”) could

imply a delegation of some regulatory powers beyond those

needed merely to fashion time, place and manner rules. Perhaps

here lies the power of local boards to promulgate their restrictions

on speech content over and above those set forth in the first paragraph

of the statute. Several considerations argue strongly to the

contrary.

As already noted, the very structure of the first paragraph

of the statute suggests the legislature took unto itself the task of

circumscribing the right it recognized. In confining itself to the

exceptions it did, it accomplished all it thought it should or constitutionally

could.

Second, usual presumptions of statutory interpretation militate

against interpreting a general statutory delegation as conferring

authority to regulate in the constitutionally sensitive area

of speech.’ If courts are to be compelled to resolve constitutional

issues generated by locally imposed speech restrictions, the

power to impose them should rest on firmer foundations than a

vague and questionable delegation.

Third, even if the statute were clearly intended to delegate

such powers, there is good reason to hold the delegation invalid.

Traditional separation-of-powers doctrine holds that “legislative”

powers cannot be delegated to administrative bodies-that to be

valid any delegation must be accompanied by ascertainable standards

to guide administrative discretion.2 0° Such are notably lack-

199 Gutknecht v. United States, 396 U.S. 295, 306-07 (1970); Greene v.

McElroy, 360 U.S. 474, 506-08 (1959); Kent v. Dulles, 357 U.S. 116 (1958)

(“Since we start with an exercise by an American citizen of an activity included

in constitutional protection [the right to travel abroad], we will not readily infer

that Congress gave the Secretary of State unbridled discretion to grant or withhold

it.” Id. at 129.)

200 E.g., Kugler v. Yocum, 69 Cal. 2d 371, 375-77, 445 P.2d 303, 305-06,

71 Cal. Rptr. 687, 689-90 (1968); Blumenthal v. Board of Med. Examr’s, 57 Cal.

2d 228, 235-37, 368 P.2d 101, 104-06, 18 Cal. Rptr. 501, 504-06 (1962). There

has, to be sure, been much criticism of this doctrine on the grounds that it is

neither sound in principle nor an accurate description of the “real” law of delegation.

See generally K. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 2.01-2.10

(Supp. 1970). Whatever its status elsewhere, the doctrine maintains its vitality

in California. In Kugler v. Yocum, 69 Cal. 2d at 375, 445 P.2d at 305, 71 Cal.

Rptr. at 689, the court noted “that the doctrine prohibiting delegation of legislative

power, although much criticized as applied . . . is well established in California.”

On principles of limited delegation, the court in Alexander v. Thompson, 313 F.

Supp. 1389, 1395-97 (C.D. Cal. 1970), expressed great doubt about the validity

of a school board hair-length regulation, though abstaining from entering final

judgment in deference to the state courts which had not yet had the opportunity

to consider the issue. Compare King v. Saddleback Jr. Coll. Dist., 445 F.2d 932

(9th Cir. 1971), cert. denied, 404 U.S. 979 (1971).

[Vol. 22: 141

— 22 UCLA L. Rev. 192 1974-1975

19741 UNDERGROUND NEWSPAPERS 193

ing under section 10611. True, local school boards have often

predicated their authority to act on nothing more specific than

the general language of school board enabling acts,21′ natural

enough when school power over children was deemed absolute.

But there is today no longer any reason to exempt school administrators

from prevailing administrative law norms.

Fourth, the power to define prohibited speech ought to be

reserved to the deliberate decision of the state legislature rather

than left to local option. If each school board had autonomous

power, permissible speech would vary in crazy-quilt fashion from

district to district among the 1100 school districts of the state.

This would raise serious equal protection questions. It is an insufficient

answer to argue that such differentiations are the inevitable

price of decentralization. That value is not an absolute, and

it must yield where the inequalities of treatment involve fundamental,

first amendment rights.2 0

201 Goldstein, The Scope and Sources of School Board Authority to Regulate

Student Conduct and Status: A Nonconstitutional Analysis, 117 U. PA. L. REV.

373, 375 (1969).

CAL. EDUC. CODE § 1052 (West Supp. 1974), provides:

The governing board of any school district shall prescribe rules not

inconsistent with law . . . for the government and discipline of the

schools under its jurisdiction.

202 In its landmark decision striking down California’s school financing

scheme on equal protection grounds, the state supreme court said,

[W]here fundamental rights or suspect classifications are at stake, a

state’s general freedom to discriminate on a geographic base will be significantly

curtailed by the equal protection clause.

Serrano v. Priest, 5 Cal. 3d 584, 612, 487 P.2d 1241, 1261, 96 Cal. Rptr. 601,

621 (1971). See generally Horowitz & Neitring, Equal Protection Aspects of Inequalities

in Public Education and Public Assistance Programs from Place to Place

within a State, 15 UCLA L. REv. 787 (1968); Karst, Serrano v. Priest, A State

Court’s Responsibilities and Opportunities in the Development of Federal Constitutional

Law, 60 CALIF. L. REV. 720, 738-40 (1972).

The United States Supreme Court held in San Antonio School Dist. v. Rodriguez,

411 U.S. 1, 29-44 (1973), that education was not, for equal protection purposes,

a fundamental right. No one, presumably, would argue that free speech

was not. See Dombrowski v. Pfister, 380 U.S. 479 (1965). In any event, for

purposes of Calfornia law it must be noted that the decision in Serrano apparently

rests not only on the fourteenth amendment but independently on the California

constitution. Serrano v. Priest, 5 Cal. 3d at 596 n.11, 487 P.2d at 1249

n.ll, 96 Cal. Rptr. at 609 n.11. See Karst supra at 743-48.

Concern over random variations in rights depending on the accident of locale

was expressed also in Morrison v. State Bd. of Educ., 1 Cal. 3d 214, 226-27, 461

P.2d 375, 384, 82 Cal. Rptr. 175, 184 (1969).

In the obscenity area a local standard is constitutionally permissible. Miller

  1. California, 413 U.S. 15, 32 (1973). See also Hamling v. United States, 94
  2. Ct. 2887 (1974), affirming that “contemporary community standards” can

be based on the standards of the “local community or vicinage.” It is, of course,

open to the state to determine whether the relevant community is to be the whole

state rather than any subdivision thereof. See, In re Giannini, 69 Cal. 2d 563,

577-80, 446 P.2d 535, 545-47, 72 Cal. Rptr. 655, 665-67 (1968); State v. J-R

Distributors, Inc., 82 Wash. 2d 584, 610, 512 P.2d 1049, 1065 (1973).

— 22 UCLA L. Rev. 193 1974-1975

194 UCLA LAW REVIEW [Vol. 22: 141

There is however a more compelling principle than that of

equal protection to support the case against local rule in this context.

As Professor Sandalow has pointed out,20 8 from at least the

time of the Federalist Papers it has been recognized that local

political processes and institutions may be inadequate to secure

first amendment values. Minority interests may be so feebly entrenched

in a given community that they cannot secure effective

protection at that level. Local school boards are frequently less

responsible, less skillful, less concerned with legalities 20 4 and less

charitable toward first amendment claims than is a statewide legislature.

In West Virginia State Board of Education v. Barnett,20 5

Mr. Justice Jackson expressed the Court’s concern about “village

tyrants,” observing that “small and local authority may feel less

sense of responsibility to the Constitution, and agencies of publicity

may be less vigilant in calling it to account.”206 Judicial

vindication does not provide adequate protection to the wouldbe

speaker 20 7 since litigation is costly, time-consuming, uncertain

and frustrating. First amendment rights should be made self-enforcing

and as independent of the burdens of litigation as possible.

Even if one were prepared to assume the local regulations

would most often be constitutional, this would not vindicate the

delegation of first amendment regulatory power to local units.

To say a regulation is constitutional is neither a concession that

it is wise nor that it adequately weights the community interest

in free speech. Here as elsewhere the Constitution provides a

floor, a minimum level of aspiration, rather than an optimum

resolution of conflicting values. One way to weight the balance

in favor of the speech interest is to shift regulatory power from

the local to the state level, where more heterogeneous influences

can be brought to bear.208 One need not overstate the protection

203 He nicely explores the tension between local autonomy and the

protection of constitutional values in Sandalow, The Limits of Municipal

Power Under Home Rule: A Role for the Courts, 48 MINN. L. REv. 643, 708-

21 (1964).

204 See, e.g., p. 214 infra (esp. last paragraph).

205 319 U.S. 624 (1943).

200 Id. at 637.

207 See the discussion on this point in Sandalow, supra note 203, at 712-17.

208 It is for this reason that the Report of the California Commission on

the Law of Pre-Emption concluded:

[R]egulation of some types of conduct should reflect a broader consensus

than the regulation of other types of conduct which can more appropriately

be left to a local viewpoint. . . . [Slimilarly, freedom of expression

should be regulated on a statewide consensus. Regulation of such

conduct requires the making of delicate judgments concerning governmental

control of individuals. For the protection of individuals against

varying local pressures and sensibilities, these judgments, if to be made

at all, should be made by the larger and more broadly based State legislative

body.

Reprinted in 2 WASH. U. URB. L. ANN. 130, 134 (1969).

Such reasoning is, in part, the justification for limiting the scope of the powers

delegable to administrative agencies:

— 22 UCLA L. Rev. 194 1974-1975

UNDERGROUND NEWSPAPERS

which state legislatures will accord constitutional values in times

of stress to recognize that the opportunity for whim and caprice

is greater at the local level.

In sum, any attempt by local boards to regulate the content

of student speech by way of a claimed delegation of power under

section 10611 should be viewed as the exercise of a power that

was never granted and that would be unconstitutional if granted.

To be sure, the delegation of some powers, in addition to

time-place-and-manner rulemaking, was implied in the statute.

However, the purpose was not to permit further restriction of the

content of speech, but rather the traditional reason for delegation

to an administrative body: to permit it “to fill up the details by

prescribing administrative rules and regulations to promote the

purposes of the legislation and to carry it into effect.”209 Such

details might include regulations to explain the nature of the

speech prohibited by the statute. The prohibitions are, after all,

technical and not readily understandable by young people untutored

in the law-nor even by persons who are. Additionally,

regulations compatible with due process will be needed to effectuate

a disciplinary mechanism for dealing with ‘alleged violations.

210 It seems eminently reasonable to interpret the statute’s

delegation of power as providing for these kinds of regulations

and no others.

It remains, finally, to consider the possibility that the power

of local boards to regulate speech content beyond that permitted

by section 10611, can be predicated on legislation that preceded

the adoption of section 10611. Reliance might, for example, be

placed on the general enabling statute giving school boards the

power to prescribe rules “for the government and discipline of

the schools under its jurisdiction” ;2 n” a statute requiring students

to “submit to the authority of the teachers of the schoo”; 212 one

conferring the power to punish students “when such action is

deemed an appropriate corrective measure” 213 or when necessary

[The purpose of the doctrine that legislative power cannot be delegated

is to assure that “truly fundamental issues [will] be resolved by

the Legislature” and that a “grant of authority [is] . . . accompanied

by safeguards adequate to prevent its abuse.”

Kugler v. Yocum, 69 Cal. 2d 371, 376, 445 P.2d 303, 306, 71 Cal. Rptr. 687,

690 (1968) citing Wilke & Holzheiser, Inc. v. Department of Alcoh. Bev. Contr.,

65 Cal. 2d 349, 369, 420 P.2d 735, 748, 55 Cal. Rptr. 23, 36 (1966).

209 First Indus. Loan Co. v. Daugherty, 26 Cal. 2d 545, 549, 159 P.2d 921,

923 (1945).

210 The issue of public school students’ entitlement to due process protections

is pending before the Supreme Court. Goss v. Lopez, prob. juris. noted,

415 U.S. 912 (1974) (No. 73-898).

211 CAL. EDuC. CODE § 1052 (West Supp. 1974).

212 Id. § 10609 (West 1969).

213 Id. § 10854.

1974]

— 22 UCLA L. Rev. 195 1974-1975

196 UCLA LAW REVIEW [Vol. 22: 141

“to maintain proper and appropriate conditions conducive to

learning”;”‘ or one which permits disciplinary action for various

sorts of wrongdoing ranging in specificity from “misconduct”2 5 to

“[clontinued willful disobedience, habitual profanity or vulgarity,

open and persistent defiance of the authority of the school personnel

. . .or any threat of force or violence directed toward

school personnel.” 16 Furthermore, various criminal laws might

be invoked. One who “upbraids, insults or abuses ,any teacher

of the public schools, in the presence or hearing of a pupil” ‘

or who “willfully disturbs any public school” 21 8 is guilty of a misdemeanor.

Further regulations issued by the State Department

of Education bear on student discipline.21 9 Each statute or regulation

mentioned either expressly or by implication confers a

regulatory power upon school boards which might be asserted as

ground for regulating first amendment rights. For example, in

Baker v. Downey City Board of Education,220 a case decided prior

to the adoption of section 10611, disciplinary efforts were triggered

by student distribution of Oink, an underground paper, just

outside of the school grounds. It contained “profane and vulgar

words” and a photograph of President Nixon vulgarly retouched

“by the adding and positioning of a finger. ‘221 Without great

specificity the court found adequate statutory authority for disciplining

the students.222

Whatever the validity of such an approach prior to section

10611, it has none since. In section 10611 the legislature, under

214 Id. § 13557 (West Supp. 1974).

215 Id. § 10605 (West 1969).

216 Id. § 10602 (West Supp. 1974).

217 Id. § 13559 (West 1969). See also, id. § 13560.

218 Id. § 16675 (West Supp. 1974).

219 One requires students to refrain from “profanity.” 5 CAL. ADMIN.

CODE § 301 (1969). Another is a catchall:

Every pupil shall attend school punctually and regularly; conform to the

regulations of the school; obey promptly all the directions of his teacher

and others in authority; observe good order and propriety of deportment;

be diligent in study; respectful to his teacher and others in authority;

kind and courteous to schoolmates; and refrain entirely from the

use of profane and vulgar language.

Id. at § 300.

220 307 F. Supp. 517 (C.D. Cal. 1969).

221 Id. at 520.

222 Id. at 525. Several of the provisions are of such generality that argument

predicated upon them is not much different from the argument that school

authorities have “inherent” power to maintain an atmosphere “conducive to an

orderly program” of school work, which the court also adopted. Id. The court

in fact cites as authority for its conclusion a leading case that found the University

of California to have “inherent” power to punish for use of “profane and

obscene” language. Goldberg v. Regents of the Univ. of Cal., 248 Cal. App. 2d

867, 57 Cal. Rptr. 463 (1st Dist. 1967). The continued validity of that case is

much in doubt, as noted in Braxton v. Municipal Ct., 10 Cal. 3d 138, 147 n.4 ,

514 P.2d 697, 702 n.4, 109 Cal. Rptr. 897, 902 n.4 (1973).

— 22 UCLA L. Rev. 196 1974-1975

UNDERGROUND NEWSPAPERS

the pressure of Tinker and Rowe,223 specifically addressed itself

to the issue of student rights of expression. It firmly recognized

the right on the one hand, and limited it on the other. Clearly

it intended section 10611 to be the definitive word on the subject.

Normal interpretive techniques would narrow the earlier statutes

in light of the later, especially where such a reading would

be required to save the statutes from almost certain constitutional

invalidity on grounds of vagueness and overbreadth. Numerous

school boards have in fact assumed that -their powers over

student speech are strictly limited to those specified in section

106 11.224

III.. THE POLICY ARGUMENTS FOR A REDUCED FIRST AMENDMENT

STANDARD FOR PUBLIC SCHOOL STUDENTS: THE

RIGHTS OF CHILDREN ARE NOT CO-EXTENSIVE

WITH THOSE OF ADULTS2 2 5

It is necessary to consider the policy arguments that might

be mustered in support of a variable, reduced standard for children’s

first amendment rights. The resolution of these arguments

is bound to influence educational administrators and courts alike

as they choose between affirmative support for students’ rights

of expression and some form of resistance thereto.

The tendency among school authorities to resist is strong.2″‘

Illustrative of deeply ingrained attitudes are the words of the

legal advisor to the school districts of one county, as he recommended

the adoption of a set of highly restrictive guidelines to

“implement” Education Code section 10611:227

The proposed policy reflects, in the opinion of this office,

the most restrictive policy permitted by the law at this time.

We cannot assure you that at some future time the court in

reviewing the same would not require greater permissiveness

on ,the part of the district.228

223 See, Rowe I & Rowe 11 supra note 58.

224 In the regulations they have adopted (see pp. 213-18 infra) if not always

in their conduct, they have abandoned any claim to plenary or “inherent”

non-statutory powers to regulate student speech. Id. at p. 216, § IV.

225 In Tinker v. Des Moines Ind. School Dist., 393 U.S. at 515, Justice

Stewart, concurring, taxed the majority with uncritcially assuming that the rights

were indeed co-extensive. See also note 10 supra.

226 For an account of the dreary reality in respect to official school papers,

see COMMISSION OF INQUIRY INTO HIGH SCHOOL JOURNALISM, CAPTIVE VOICES

(1974).

227 CAL. EDUC. CODE § 10611 (West Supp. 1974) reproduced in text accompanying

note 60 supra.

228 Memorandum from the School’s Division Chief of the Office of County

Counsel for Los Angeles County to school districts in Los Angeles County, February

4, 1972 (copy included in Points and Authorities in Support of Complaint

for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction

1974]

— 22 UCLA L. Rev. 197 1974-1975

UCLA LAW REVIEW

The implicit assumption is clear: The appropriate perspective for

school authorities is to figure out how to grant as little as the

law requires-or less. This unsympathetic, even adversarial,

stance toward the student’s right of speech expresses itself in

other ways. Most California school boards have yet to promulgate

rules to facilitate such expression, even though they are expressly

required to do so by Education Code section 10611.229 These

same authorities rarely will be found informing students of their

newfound rights, much less encouraging their utilization. Indeed,

at times they will discourage or forbid exercise of these rights with

apparent indifference to the legality of their action as, for example,

when they condition the right of distribution of a newspaper

upon its prior approval by parental or other community groups. 230

Sometimes such conduct simply reflects considerations of expediency:

It is politically more palatable to be thought laggard in according

students their legal rights than to be viewed as overly permissive;

but, more commonly the cause lies in administrators’ conceptions

of sound educational and moral policy.

I shall consider seven such conceptions that might be offered to

justify special restrictions upon children’s rights of speech: Restrictions

are needed in order to (1) protect students from psychological

harm, (2) further their moral development, (3) protect

the school from disruption, (4) maintain a school atmosphere

conductive to education, (5) preserve effective parental control

over the child’s moral development, (6) protect a captive auand

Declaratory Relief, Exhibit 1, at 2 in Hummel v. Los Angeles Unif. School

Dist., No. C-40089 (Sup. Ct. L.A. Cty., filed Oct. 2, 1972).

The county counsel’s reluctance to guarantee judicial acceptance of the proposed

guidelines is certainly understandable. The proposed guidelines include the

awesomely broad regulation quoted in note 170 supra.

229 The requirement is found in the second paragraph of the statute,

reproduced in text accompanying note 60 supra. Also viewing this as mandatory

is, CAL. DEP’T OF JUSTICE, LAW IN THE SCHOOL 74 (1973) (an official guide).

230 An example drawn from my experience will illustrate the point. On

October 12, 1972, a student sought to distribute the then-current issue of the Red

Tide on the campus of a Los Angeles junior high school. He was denied permission.

In subsequent conferences between myself and the school principal, the latter

reiterated his refusal to permit distribution, explaining that he had submitted the

issue for review to the school’s area supervisor, the parents’ advisory council, and

the school faculty. They had all agreed, he said, that the issue was not suitable

for distribution. He explained: One article advocated a socialist form of government.

Another was critical of school authorities at another Los Angeles public

school and would therefore have a demoralizing effect on his own school administration.

Yet another dealt with birth control, which he said was unsuitable for

junior high school students. When I argued that none of these were permissible

grounds for restriction under Education Code section 10611, his response was not

to disagree. He rather appeared to regard that fact irrelevant, and said he would

permit distribution only if ordered to do so by a court.

See generally, Compliance with Student Rights Court Decisions, in D. Knu’

& M. YUDOF, EDUCATIONAL POLICY AND THE LAW 181-87 (1974).

[Vol. 22: 141

— 22 UCLA L. Rev. 198 1974-1975

UNDERGROUND NEWSPAPERS

dience from partisan views, and (7) serve important pragmatic objectives

of school administrators. Throughout the ensuing discussion,

it should be borne in mind that the issue under consideration

is not the right of school authorities to regulate student

discussion, either as to form or content, within the classroom.

It is the scope of students’ right of expression on school grounds,

outside of the classroom, through the medium of independent

newspapers.” 1

First, is the argument that certain matter is psychologically

harmful to young people, either directly or through the undesirable

behavior it may stimulate. Examples might be sex or birth

control information,23 2 graphic portrayals of violence, “unpatriotic”

criticism of public authorities, or vulgar language. By hypothesis

this speech would enjoy constitutional protection in the

society at large. There are, to be sure, risks in permitting students

access to the full range of such speech for they are not immune

from the human tendency to accept or express nonsensical,

bizarre and even dangerous ideas. But the opportunity to cope

with such ideas is a part of growth and education. It is also the

price paid for allowing the unconventional insight, sometimes so

hard for the contemporaneous observer to differentiate from the

bizarre and the dangerous.

To predicate suppression of such speech upon the danger

of “psychological harm” is, moreover, to seek support in a scientific

quagmire. If a high degree of proof of harm is required,

the effort is almost certain to fail, given the divergencies in scientific

viewpoint. If a low degree is required the test becomes an

almost infinitely elastic premise for repression. The first alternative

is unworkable, the second is unacceptable.

Ginsberg v. New York 23 might be offered as authority for

231 It can be conceded that students stand no better off than the general

public; what is unprotected elsewhere will fare no better on school grounds. Compare

Goldberg v. Regents of the Univ. of Cal., 248 Cal. App. 2d 867, 871 n.4,

57 Cal. Rptr. 463, 466 n.4 (1st Dist. 1967), where the court suggested that a

higher degree of protection for speech properly applied on a college campus than

elsewhere. To compel the campus “to recognize and enforce precisely the same

standards and penalties that prevail in the broader social community” would serve

neither the school nor the community. “Thus, in an academic community, greater

freedoms and greater restrictions may prevail than in society at large . . . .” Id.

at 880, 57 Cal. Rptr. at 472. Ironically, the proposition was announced in a decision

a good deal more concerned with enforcing the “greater restrictions” than

the “greater freedoms.”

The notion of a preferential constitutional status for students in either colleges

or public schools, however, seems unjustifiable in principle. Not that education

can survive without freedom of inquiry; but neither can the community at

large. This is not an argument for reducing the protections available to students

but for securing them alike for all.

232 See, e.g., CAL. EDUC. CODE § 8506 (West Supp. 1974) barring sex

education in the classroom without parental approval.

233 390 U.S. 629 (1968).

1974]

— 22 UCLA L. Rev. 199 1974-1975

UCLA LAW REVIEW

a contrary view. The Court there held that in respect to obscenity,

a watered-down definition could constitutionally be applied

to children. It reasoned that parents and the state each

had an interest in insulating children from the harmful material.

The required proof of harm was of a low order. While the state

legislature had found that obscenity was “a basic factor in impairing

the ethical and moral development of our youth and a clear

and present danger,” Mr. Justice Brennan, speaking for five

members of the majority, was “very doubtful that this finding expresses

an accepted scientific fact. ‘234 The best that could be

said for it was that it was not an irrational belief. But that, the

Court held, was quite enough. It would be well to reject this approach

even in respect to obscenity. But so long as it survives

there, it should be seen as sui generis, reflecting the acute concerns

of this society over the exposure of its young to sexually

arousing materials, whether or not those materials precisely meet

the adult definition of obscenity.

A further reason for rejecting this ground is that school prohibitions

at best offer only a negligible degree of insulation from

“undesirable” material, given its ubiquitous availability outside of

school. The school’s own library or classroom may in fact offer

access to sexually frank material, interlaced with four-letter

words, making the suppression of similar materials in underground

papers a peculiarly useless and arbitrary act.235

Assuming, however, that schools are permitted to restrict

generally protected speech in order to insulate the child from psychological

injury, mere speculative harm should be an impermissible

predicate for repression. Something approaching a clear

and present danger test should be required. Furthermore, the

restrictions should be in “precisely delineated areas. ‘ 236 Finally,

the determination of need should reflect a general societal conclusion

evidenced in state legislation, rather than the haphazard determinations

of 1100 school boards, or, even worse, of thousands

of individual schools scattered throughout the State of California.

234 Id. at 641.

235 See, e.g., Shanley v. Northeast School Dist., 462 F.2d 960, 972

(5th Cir. 1972); Vought v. Van Buren Pub. Schools, 306 F. Supp. 1388, 1395

(E.D. Mich. 1969).

moday’s students in high school are not insulated from the shocking

but legally accepted language used by demonstrators and protestors in

streets and on campuses and by authors of best-selling modern literature.

Scoville v. Board of Educ., 425 F.2d 10, 14 (7th Cir.) (en banc), cert. denied,

400 U.S. 826 (1970).

236 Ginsberg v. New York, 390 U.S. 629, 649 (1968) (Stewart, J., concurring).

The requirement of “precise delineation” was given added meaning in

Interstate Cir., Inc. v. City of Dallas, 390 U.S. 676 (1968), decided the same

day as Ginsberg, holding unconstitutionally vague an ordinance designed to protect

children from “unsuitable” films, See text accompanying notes 149-57 supra.

200 [Vol. 22: 141

— 22 UCLA L. Rev. 200 1974-1975

UNDERGROUND NEWSPAPERS

Second, school authorities may seek to base special restrictions

of speech on their responsibility for moral education. California

law directs teachers to:

endeavor to impress upon the minds of the pupils the principles

of morality, truth, justice, patriotism, and a true comprehension

of the rights, duties, and dignity of American citizenship,

including kindness toward domestic pets and the humane

treatment of living creatures, to teach them to avoid

idleness, profanity, and falsehood, and to instruct them in

manners and morals and -the principles of a free government.

237

But it is a non-sequitur, if not a contradiction, to derive the power

to supress non-classroom speech from the duty to educate.

Student error should be combated by education, not by fiat.2 “8

Nor should educational authorities neglect what may be the

most effective tool of all for genuine moral education: the example

they set through their personal behavior for such qualities

as honesty, decency, human respect, and commitment to democratic

values. They should not be permitted to “teach” by routine

supression of speech that is constitutionally protected outside of

the school. If they are, not only will constitutional values be sacrificed

but, paradoxically, the system will likely end up teaching

not the evils of immorality, but simply the efficacy of superior

force.

A third justification for the suppression of certain student

speech may be the fear that it will disrupt orderly school processes:

speech, for example, which is “intemperate,” or disrespectful

of school authorities. But the school’s power to curb

“disruptive” speech is precisely the one demarked in Tinker. If

the case can be made that the speech truly and substantially disrupts,

it derives no immunity from Tinker. But the fact that

it is deeply irritating, offensive or disrespectful does not per se

render it disruptive.

A striking example of the distinction is afforded by the

newspaper that was the subject of litigation in Scofield v. Board

of Education. 239 It described portions of an official school pamphlet

as “ridiculous”; it described school attendance procedures

as “idiotic and asinine”; it urged students not to accept any future

“propaganda” materials issued by the school and to destroy it if

accepted; it imputed to the senior dean “a sick mind” and called

him “a threat to our community.” It also included the random

237 CAL. EDUC. CODE § 13556.5 (West 1969).

238 See Ladd, Allegedly Disruptive Student Behavior and the Legal Authority

of School Officials, 19 J. Put. L. 209, 237 (1970). See, id. at 218-40 for a useful

discussion by an educator of the educational values served through recognition of

first amendment interests.

230 425 F.2d 10 (7th Cir.) (en banc), cert. denied, 400 U.S. 826 (1970).

1974]

— 22 UCLA L. Rev. 201 1974-1975

UCLA LAW REVIEW [Vol. 22: 141

statement, “Oral sex may prevent tooth decay.” Such language,

the court held, was not disruptive per se and therefore did not

constitutionally warrant the distributor’s expulsion.240

Fourth, the school might justify suppression on the ground

that an atmosphere of quiet, decency and respect is indispensable

to the learning process. 4‘ It would of course be ludicrous to

suggest that an appropriate atmosphere is irrelevant to educational

objectives, or that the school’s interest in educational tone is exhausted

so long as students stay within the boundaries set by

Tinker. But again the issue is not whether the school has a legi-

240 See also Jacobs v. Board of School Commr’s, 490 F.2d 601, 603-06

(7th Cir. 1973), cert. granted, 94 S. Ct. 2638 (1974) (No. 73-1347). Baughman

  1. Freienmuth, 478 F.2d 1345, 1351 (4th Cir. 1973) (school officials may not

“choke off criticism either of themselves or of school policies, which they find

disrespectful, tasteless, or offensive”). Rowe 1, supra note 58, at 7-9; Dickey v.

Alabama Bd. of Educ., 273 F. Supp. 613 (M.D. Ala. 1967) (a pre-Tinker case

holding unconstitutional a state college rule precluding editorial criticism of governor

or state legislature since the rule had nothing to do with maintenance of

order).

A similar view has in fact been taken in CALIFORNIA DEP’T OF JUSTICE, LAW

IN THE SCHOOL (1973) (an official guide). It notes that student expression enjoys

wide constitutional protection and observes that this fact “is sometimes frustrating

to school administrators in light of the extreme, scurrilous, and malicious

examples of communication which sometimes appear on school campuses. Still,

it is just this sort of communication which the First Amendment was designed

to protect.” Id. at 73.

Cf. Norton v. Discipline Comm., 419 F.2d 195, 198-200 (6th Cir. 1969),

cert. denied, 399 U.S. 906 (1970): “The University administration was referred

to with an obscenity and called ‘despots.’ The vicious attack on the administration

was calculated to subject it to ridicule and contempt, and to damage the reputation

of the University.” Id. at 198; Baker v. Downey Bd. of Educ., 307 F. Supp.

517, 522 (C.D. Cal. 1969) discussed in text accompanying notes 220-21 supra.

In Shanley v. Northeast School Dist., 462 F.2d 960, 971 (5th Cir. 1972), the court

expressed the view that school authorities possessed the power to limit speech

“reasonably” even though it might not be “obscene, libelous or defamatory.” But

see its rejection of school claims that “negative” criticism warranted suppression.

Id. at 972 n.10.

Suppression Or punishment has sometimes been justified not on the ground

that the speech was disruptive under Tinker but that the students’ disobedience

of an administrative prohibition against the distribution forfeited their right to a

determination of the merits of their claim. E.g., Sullivan v. Houston Indep.

School Dist., 475 F.2d 1071, 1075-76 (5th Cir. 1973) and cases cited therein. This

gives potent effect to an unconstitutional school rule and provides incentive to

school authorities to regulate overbroadly, in the knowledge that though the rule

is unconstitutional it has substantial staying power. This approach was implicitly

rejected in Tinker, where the constitutional issue was raised by student disobedience

of the rule prohibiting the wearing of the armbands. This fact in no way

inhibited the Court from reaching the merits of the case.

241 As the point was phrased in Goldberg v. Regents of the Univ. of Cal.,

248 Cal. App. 2d 867, 879, 57 Cal. Rptr. 463, 472 (1st Dist. 1967):

[T]he University has the power to formulate and enforce rules of student

conduct that are appropriate and necessary to the maintenance

of order and propriety, considering the accepted norms of social behavior

in the community, where such rules are reasonably necessary to

further the University’s educational goals.

— 22 UCLA L. Rev. 202 1974-1975

UNDERGROUND NEWSPAPERS

timate interest, but whether that interest may be vindicated by

suppressing otherwise protected speech. The answer should be

no.42 There is, first, grave doubt that a sound educational atmosphere

is promoted by suppression of speech. Furthermore, once

one tolerates repression in the name of an intangible and undefinable

“atmosphere,” it is hard to see the end. If the line is not

drawn at Tinker with its standard of substantial disruption, where

can it be drawn short of Wooster?

Fifth, school authorities may seek to justify restrictions on

what pupils hear in order to preserve effective parental control

over the child’s moral development. Restrictions at school, the

reasoning goes, preserve parental options at home.24 If valid

at all, this argument justifies no roving prohibition against communication

that is normally legal. To accept it is, here again,

to validate a virtually boundless ground for suppression. Moreover,

parents differ widely in their beliefs as -to what serves their

child’s best interests. There is no corporate “parental desire.”

To offer that as a rationale for school restrictions is not a neutral

act of deference; it is, at best, to favor parents who regard certain

intrastudent communication as undesirable in preference to those

who regard it a useful component of their child’s education.

However, since school authorities, not parents, would make the

actual decisions, this rationale would merely end up expanding

the effective power of school authorities by patent fiction. Even

if there were a fairly uniform and ascertainable body of parental

desires, to make those desires decisive would conflict with the

minor’s interest in developing as an independent, thinking person.

Once he goes to school his attitudes necessarily and properly become

subject to peer influences with respect to politics, religion,

morality, sexual attitudes, etc. That he has the right to deal with

such issues is, to a point, guaranteed by Tinker. Some of the

parents in Tinker no doubt regarded criticism of the war in Vietnam

as profoundly unpatriotic and immoral. But that surely

would provide no more justification for suppression of the antiwar

protest than when the school authorities attempted it in their

own name.

242 For an argument to the contrary, see Haskell, Student Expression in the

Public Schools: Tinker Distinguished, 59 GEO. L.J. 37, 53-58 (1970).

243 Precisely such a rationale was among the grounds for upholding New

York’s anti-obscenity statute, with its reduced obscenity standards for minors, in

Ginsberg v. New York, 390 U.S. 629, 639 (1968). See also Henkin, Morals and

the Constitution: The Sin of Obscenity, 63 COLUM. L. REV. 391, 413 n.68

(1963), cited by the Court in Ginsberg, 390 U.S. at 639 n.7. Professor Henkin

wishes to distinguish laws which “impose a morality on children” from those

“which support the right of parents to deal with the words of children as they

see fit.” The case for the constitutionality of the latter he finds a good deal

stronger than for the former. Henkin supra at 413 n.68.

1974] 203

— 22 UCLA L. Rev. 203 1974-1975

UCLA LAW REVIEW

Sixth, school officials may argue that pupils are a captive

audience who therefore require special protection and isolation

from the “partisan” political and moral blandishments of other

students.244 This claim no doubt rests on the unarticulated premise

that official education is politically neutral, disinterested, objective

and balanced, and therefore the only food fit for a captive

audience. But even if school officials desired it, such neutrality

is a theoretical will-o’-the-wisp. The argument, then, is at best

question-begging. It attempts to convert the fact of captivity,

with its inherent tendency toward intellectual orthodoxy, into an

argument for yet more stringent captivity, rather than for the reverse.

To be sure, students are a captive audience. School attendance

is compulsory. The state’s control over their intellectual

diet is virtually monolithic in the classroom. It selects the teachers

and the curriculum. It prescribes textbooks.2 45 It controls

the school library, permitting exclusion of all books “of a sectarian,

partisan, or denominational character. ‘246 The teacher defines

the issues for discussion and also the spectrum of “reasonable”

views to be explored. Perhaps such powers are necessary

in any formalized classroom teaching effort. But the restrictions

within the classroom need a counterpoint in the form of a broad

right to hear divergent points of view outside the classroom. “In

our system,” the Tinker Court said, “students may not be regarded

as closed-circuit recipients of only that which the State chooses

to communicate. They may not be confined to the expression of

those sentiments that are officially approved. 247

Seventh, school authorities may feel pressed to crack down

on speech for purely public relations reasons. The “pragmatic”

administrator may feel the failure to do so will be taken as tacit

approval of objectionable speech, with unpleasant political consequences.

Here again, to accept this reasoning would virtually

244 See, e.g., Rowe I, supra note 58, at 5, where the school district unsuccessfully

attempted to justify its ban on partisan expression on the basis of “the immaturity

of the students and the fact that they are allegedly a ‘captive audience.’ “

The captive status of pupils Was also relied on by Justice Stewart in his Tinker

concurrence, 393 U.S. at 515, to justify greater limitations on the scope of student

first amendment rights than he believed the majority was prepared to recognize.

See also Ginsberg v. New York, 390 U.S. 629, 648 (1968) (Stewart, J., concurring).

245 See CAL. EDuc. CODE §§ 9201-03, 9240, 9240.5, 9242, 9243 & 9400

(West Supp. 1974).

246 Id. § 7102 (West 1969). This section is of doubtful constitutionality

in light of its vagueness and overbreadth. See, e.g., Rowe I, supra note 58, declaring

unconstitutional a similarly worded prohibition against expression on

public school campuses.

247 393 U.S. at 511.

204 [Vol. 22: 141

— 22 UCLA L. Rev. 204 1974-1975

UNDERGROUND NEWSPAPERS

deny students the protection of the first amendment.248 Moreover

it would in the long run exacerbate the very problems the

administrators seek to avoid. The more officials suppress, the

more they implicitly endorse what is permitted. As every lawyer

knows, there is a good deal of the pragmatic in maximizing one’s

non-responsibility for what others have said and done.249

  1. OTHER SIGNIFICANT ASPECTS OF PRESS DISTRIBUTION

First amendment rights may effectively be taken away if

school officials are permitted unnecessarily to restrict important

incidents of press distribution. It is not only prior censorship and

content controls which may undermine first amendment rights.

There are two other critical areas.

  1. Reasonable Time, Place and Manner Rules

Speech may, of course, be subjected to reasonable time,

place and manner rules. But these rules can be drawn in the

spirit of a heavy preference for first amendment values, or the

opposite. All too often the latter perspective prevails. Such

regulations should not be left exclusively to school administrators,

already preoccupied with “maintaining order” and with public relations,

and not given to philosophic resignation in the face of

pointed student criticism. Standards can and should be developed

for evaluating such regulations.

Since the only justification for such restriction lies in the institution’s

functional needs, an appropriate approach would focus

closely on those needs. It would disclose that they are not uniform

from place to place on the campus. The classroom, at one

end of the spectrum, requires a high level of structure and discipline

(at least in conventional education). The playground does

not. Since students are permitted to talk, read, or play there

more or less without restriction, why not also to engage in generally

unrestricted first amendment activity?

To recognize such a right would in no way imply that students

may stage a rally in the school library, the principal’s office,

or in the midst of a flower bed. These areas have been dedicated

to special purposes which preclude other uses. But if by

248 See Bazaar v. Fortune, 476 F.2d 570, 579-80 (5th Cir.), a!’d as modified,

489 F.2d 225 (5th Cir. 1973).

249 Compare Professor Black’s argument in favor of judicial review of

allegedly unconstitutional legislation. C. BLACK, JR., THE PEOPLE AND THE COURT

52-53 (1960). He points out that the power to strike down invalid legislation

serves to legitimate what is left standing. For his purposes this was a thoroughly

desirable result. But the logic remains the same whether one desires the result

or not.

1974] 205

— 22 UCLA L. Rev. 205 1974-1975

UCLA LAW REVIEW [Vol. 22: 141

usage or rule, the place in question has been dedicated to student

uses that are not basically incompatible with speech activity, it

ought to be treated as a “public place” or “forum,” one that is

open,

for purposes of assembly, communicating thoughts between

citizens, and discussing public questions. Such use of the

streets and public places has, from ancient times, been a part

of the privileges, immunities, rights, and liberties of citizens.

250

This solicitude for first amendment activity in public areas

ought -to be duplicated for students on the public portions of

school grounds. 251 In such areas the test should not simply be

whether time, place and manner restrictions are minimally “reasonable,”

but whether they serve a compelling state interest, that

of maintaining an undisrupted school session without “unnecessarily

interfer[ing] with First Amendment rights.”22

To be sure, “public place” is not a self-defining term.258

Some areas are neither like classrooms nor like playgrounds, but

somewhere in-between; school corridors, for example. The proposed

approach to time, place and manner regulation offers no

250 The broad dictum is that of Justice Roberts in Hague v. Committee for

Ind. Org., 307 U.S. 496, 515 (1939). See generally Kalven, The Concept of the

Public Forum: Cox v. Louisiana, 1965 S. CT. REV. 1.

251 [A] school is not like a hospital or a jail enclosure. It is a public

place, and its dedication to specific uses does not imply that the constitutional

rights of persons entitled to be there are to be gauged as if

the premises were purely private property.

Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. at 512 n.6.

See also Local 1021, L.A. Teachers Union v. Los Angeles Bd. of Educ., 71

Cal. 2d 551, 561-62, 455 P.2d 827, 833-34, 78 Cal. Rptr. 723, 729-30 (1969).

252 Grayned v. City of Rockford, 408 U.S. 104, 119 (1972). In this case,

the Court was called upon to pass on a city ordinance which prohibited members

of the public from making noise in public areas that would disturb adjoining

schools. The ordinance survived constitutional attack because the Court read it

as “narrowly tailored” to interfere only with expressive activity carried out in such

a time, place and manner as to be “basically incompatible” with normal school

activities. Id. at 116. It did not employ a more relaxed test of mere reasonableness.

Moreover it apparently regarded this approach applicable to the open portions

of school grounds as well.

Just as Tinker made clear that school property may not be declared

off-limits for expressive activity by students, we think it clear that the

public sidewalk adjacent to school grounds may not be declared off-limits

for expressive activity by members of the public. But in each case,

expressive activity may be prohibited if it “materially disrupts classwork

or involves substantial disorder or invasion of the rights of others.”

[Citing Tinker].

Id. at 118.

This approach is, of course, not inconsistent with permitting restrictions

aimed at the fair allocation of time and space among competing speakers, what

Professor Kalven has called “the Roberts Rules of Order function.” Kalven, Supra

note 250, at 23-25.

258 See, e.g., Cox v. Louisiana, 379 U.S. 536 (1965); Edwards v. South

Carolina, 372 U.S. 229 (1963).

— 22 UCLA L. Rev. 206 1974-1975

1974] UNDERGROUND NEWSPAPERS 207

definitive solution in such cases. But it does state a pro-first

amendment bias which would appropriately influence the resolution

of problems that arise. Beyond that, it performs one of the

great potential functions of equal protection doctrine: It sidesteps

direct, substantive review of the resource allocation decisions of

the state. It leaves school officials free to determine whether

a given area should be made into a classroom or a playground,

a closed or an open area. It demands only that, once having made

their decisions, they administer them in good faith not in a discriminatory

way against first amendment interests. 254

The implications for underground papers are great. So long

as distribution takes place outside the classroom, it will rarely

warrant any time or place restrictions. Leafletting and canvassing

are “rarely ‘incompatible’ with classes, research, or the administrative

functions of an educational institution.”255 If the distribution

does not clog a narrow corridor, if it is not carried out raucously

so as to interfere with classes or other important activities,

254 They would have this latitude at least so long as they did not attempt

to confine speech “to a telephone booth.” Tinker v. Des Moines Ind. Comm.

School Dist., 393 U.S. at 513. Compare Justice Jackson’s observation:

[T]here is no more effective practical guaranty against arbitrary and

unreasonable government than to require that the principles of law

which officials would impose upon a minority must be imposed generally.

. . . Courts can take no better measure to assure that laws will

be just than to require that law be equal in operation.

Railway Expr. Acy., Inc. v. New York, 336 U.S. 106, 112-13 (1949) (concurring

opinion). See Wirta v. Alameda-Contra Costa Trans. Dist., 68 Cal. 2d 51, 434

P.2d 982, 64 Cal. Rptr. 430 (1967) where a women’s peace organization was denied

the right to advertise a peace message in the advertising spaces on defendant’s

buses because of a policy to permit only commercial advertising and electoral campaigning.

The court reasoned that by permitting such advertising the defendant

had evidenced its “considered conclusion” that advertising was consistent with its

primary function of providing transportation.

We conclude that defendants, having opened a forum for the expression

of ideas by providing facilities for advertisements on its buses, cannot

for reasons of administrative convenience decline to accept advertisements

expressing opinions and beliefs within the ambit of First Amendment

protection.

Id. at 55, 434 P.2d at 985, 64 Cal. Rptr. at 433. This approach, as a matter

of federal constitutional law, was rejected in Lehman v. City of Shaker Hts., 94

  1. Ct. 2714 (1974). Public transit users were found a captive audience, whom

the municipality could shield from uninvited political advertising. Quite remarkably,

however, it manifested this concern for the captives only in respect to political

advertising, permitting commercial advertising. This strikingly reverses the

appropriate priorities between the two, if they are to be treated differently. See

  1. at 5121 (Brennan, J., dissenting).

255 Braxton v. Municipal Ct., 10 Cal. 3d 138, 149, 514 P.2d 697, 704, 109

Cal. Rptr. 897, 904 (1973) (college case). This proposition, to be sure, leaves

open the possibility that different time, place and manner rules would be warranted

by differences in physical plant, as for example between a large institution

and a small one, or a campus with large open areas and a single building school

without any. See Grayned v. City of Rockford, 408 U.S. 104, 120 n.45 (1972).

But only a detailed factual inquiry could determine which way the differences cut.

— 22 UCLA L. Rev. 207 1974-1975

UCLA LAW REVIEW

“reasonable time and place” should mean any time, any place.2 56

Official judgments that students already have “enough” other

times and places to distribute, should never justify unneeded restrictions

on students’ rights to communicate with other students.\

Consequently the rule in vogue in many California schools

that restricts newspaper distribution to times before school, after

school and during lunch hours,25 without regard to circumstances,

school size, the number of students, the number of potential distributors,

etc. should be held arbitrary and unconstitutionally restrictive.

  1. Sale of Underground Newspapers

Most of the regulations thus far promulgated by the various

school districts after passage of Education Code section 10611 bar

the sale of underground newspapers. 258 It iis a simple economic

fact, of course, that printed communication entails costs.

To deny a newspaper revenue is to threaten its effective right

of expression or to make it depend on the distributors’ affluence,

raising serious equal protection issues. 259 Once it is granted that

students have a right to distribute newspapers, the right to charge

for them should follow automatically unless compelling reasons

dictate the contrary.

In certain contexts courts, engaging in a “balancing of…

conveniences,” have banned sale of otherwise protected publications.

260 What possible school “conveniences” then might count

against the students’ right to sell their paper? Four arguments

deserve consideration. First, sale entails the risk -that the potential

buyer will be coerced. Second, there is a danger that the

buyer will be exploited, that he may unwisely allocate, say, his

lunch money to the purchase of underground papers. Third,

there is something objectionable about “commercialism” in the

school environment. And fourth, even if a ban on sale is undesirable

in the case of underground newspapers, if the line is not

drawn there it will be impossible to draw a principled line any-

256 In Jacobs v. Board of School Commr’s, 490 F.2d 601 (7th Cir. 1973),

cert. granted, 94 S. Ct. 2638 (1974) (No. 73-1347), the court invalidated a high

school time, place and manner rule on the ground that school authorities had

failed to show that the rule was drawn sufficiently narrowly “to further the state’s

legitimate interest” without unnecessarily impinging on student communication.

Id. at 609.

See also Local 1021, L.A. Teachers Union v. Los Angeles Bd. of Educ., 71

Cal. 2d 551, 561-62, 455 P.2d 827, 833-34, 78 Cal. Rptr. 723, 729-30 (1969).

257 See text accompanying note 282 infra.

258 See CSBA Regulations, § IIA2(b), at p. 215 infra.

250 See authorities cited supra note 9 (last paragraph).

260 Breard v. City of Alexandria, 341 U.S. 622, 644 (1951).

208 [Vol. 22: 141

— 22 UCLA L. Rev. 208 1974-1975

UNDERGROUND NEWSPAPERS

where else. Either a total ban or, the argument goes, the unrestrained

hawking of Hershey Bars, magazines, clothing, etc.

  1. Coercion

There is no demonstrable experience that sale of papers carries

a significant risk of coercion. School regulations neither require

nor even permit inquiry as to whether any particular past

effort has proved coercive or whether any future effort is likely

to be. The ban is absolute and indifferent to circumstances or

history. It therefore entails the use of a meat cleaver to deal

with a problem that is speculative and discrete. The state should

be required to show that coercion is a genuine problem which

cannot be remedied by less drastic means.

  1. Exploitation

The argument here is that students require protection as to

how they spend their money. This, of course, is simply an expression

of paternalism, unjustified when used to interfere with

rights of a free press. In a day when the teenage market is in

the hundred million dollar range and the object of systematic, intense

and generally uninhibited exploitation by the commercial

world, it unjustifiably downgrades first amendment interests to offer

commercial naivet6 as a ground for suppressing newspaper

sales. It stands in stark contrast also with school permissiveness

in other areas. If school authorities are prepared to adopt laissez

faire principles that permit students to lunch on potato chips and

Coca-Cola in the school cafeteria, it is not clear why students

should require special protection against “wasting” a dime on an

underground paper.

  1. Commercialism

Breard v. City of Alexandria 261 might be offered as support

for the proposition that commercialism defeats the claim to first

amendment protection for sale of underground papers. In

Breard the Supreme Court was confronted with a municipal ordinance

that prohibited door-to-door solicitation for the sale of

“goods, wares and merchandise” without the owner’s permission.

The issue was whether the regulation could constitutionally be

applied to the solicitation of subscriptions to magazines. The

Court held it could. Sale introduced a “commercial” feature, 262

which downgraded the first amendment claim. The right of “op-

261 Id. at 641-45.

262 Id. at 642.

1974] 209

— 22 UCLA L. Rev. 209 1974-1975

210 UCLA LAW REVIEW [Vol. 22: 141

portunists, for private gain” 23 simply did not stand on the same

footing as that of the selfless door-to-door distributor of religious

tracts, as the Jehovah’s Witnesses.264

There are two reasons to reject Breard in the school context.

First, the sale of the student press is “commercial” in only the

most attenuated sense of the word. Its publishers generally have

no profit-making motive, much less the capacity. The “commerce”

is intended solely to facilitate first amendment rights: “It

should be remembered that the pamphlets of Tom Paine were

not distributed free of charge.”2 65 Subsequent cases have, in

any event, made clear that the mere fact of commercial distribution

does not vitiate first amendment protections; most certainly

newspapers do not lose their protected status simply because they

are commercial enterprises. 66

Second, even Breard did not mean that rights of distribution

were restricted to charities or to ineptly run, losing, business ventures.

The Court was, however, prepared to take account of a

non-speech value it regarded of critical importance. It was concerned

over the “uninvited intrusion into the privacy of [the]

home” ,267 “unwanted knocks on the door by day or night,”26 ,

and the plight of “the hospitable housewife, peering on Monday

morning around her chained door” only to be confronted with

a “possibly persistent solicitor”269 offering an unwanted bargain.

Whether this decision adequately weighted the speech interest

can be and has been debated.2 70 But what seems beyond doubt

is that there is no comparable right of privacy for students wandering

about school grounds. If student publishers have the right

to offer them a newspaper free of charge, it interferes little more

with their privacy to be asked for a dime in return.

  1. Difficulties in Line Drawing

The argument advanced here is that there is no satisfactory

way to draw a line between the sale of newspapers and the sale

of all other commodities the commercial sector is capable of gen-

263 Id. at 625.

264 See Martin v. Struthers, 319 U.S. 141 (1943).

265 Murdock v. Pennsylvania, 319 U.S. 105, Il1 (1943).

266 E.g., New York Times Co. v. Sullivan, 376 U.S. 254, 265-66 (1964).

See also Peterson v. Board of Educ., 370 F. Supp. 1208 (D. Neb. 1973) declaring

unconstitutional a school regulation designed to preclude commercialism when applied

to an underground paper, containing advertising, and sold on a “fee-or-donation”

basis.

267 341 U.S. at 625.

268 Id. at 626-27.

269 Id. at 644.

270 See, id. at 649-50 (Black, J., dissenting).

— 22 UCLA L. Rev. 210 1974-1975

1974] UNDERGROUND NEWSPAPERS 211

erating. This problem is not insuperable, because distinction can

be made between materials which are “expressive” and -those

which are not. The boundaries are fuzzy but no more so than

elsewhere when decisions have to be made as to what to embrace

within the preferred category of “expressive activity.”‘ 271 A

blanket ban on sale of newspapers is too high a price to pay for

the administrative convenience of a categorical rule.

Courts that have been faced with bans on sale of underground

papers in both the public school and university context

have held prohibitions of sale that operate irrespective of circumstance

unconstitutional. 27 2 There is evidence that the flat prohibition

against sale violates California statute as well. One will

search Education Code section 10611 in vain for authority to bar

students the right to sell their newspapers. To be sure, Education

Code section 9013 had specifically barred “subscriptions to

the funds of any organization not directly under the control of

school authorities.” But that very section was declared unconstitutional

by the Rowe court and thereafter repealed by the state

271 For example, the problem frequently arises in efforts to draw the line

between mere conduct and symbolic speech. See generally Nimmer, The Meaning

of Symbolic Speech Under the First Amendment, 21 UCLA L. REV. 29

(1973).

272 Jacobs v. Board of School Commr’s, 490 F.2d 601, 607-09 (7th Cir.

1973), cert. granted, 94 S. Ct. 2638 (1974) (No. 73-1347) (high school); Peterson

  1. Board of Educ., 370 F. Supp. 1208 (D. Neb. 1973) (high school). See

New Left Educ. Proj. v. Board of Regents of Univ. of Tex. Syst., 326 F. Supp.

158 (W.D. Tex. 1970), rev’d on other grounds, 404 U.S. 541 (1972) (university).

Katz v. McAulay, 438 F.2d 1058 (2d Cir. 1971), cert. denied, 405 U.S. 933

(1972), may be cited as support for the opposing view. It is perhaps distinguishable

on the ground that it dealt not with a ban on the sale of underground newspapers,

but rather with a general prohibition against solicitation of contributions

on school grounds. See Peterson v. Board of Educ., 370 F. Supp. 1208 (D. Neb.

1973) (distinguishing Katz on this ground). Assuming it is relevant authority

here, it is entitled to little weight if Tinker is intended to be followed, not merely

cited.

The authorities in Katz barred students from distributing leaflets asking for

funds for the legal defense of the “Chicago Eight,” then on trial before Judge

Julius Hoffman. The court denied injunctive relief. Citing no evidence, it found

a rational basis for suppression by opining that solicitation was “plainly harmful,”

and student coercion was “foreseeable.” Katz v. McAulay, 438 F.2d at 1061.

Assuming arguendo that the solicitation was “speech,” the court acknowledged

the ban was permissible only if school authorities could reasonably forecast

“material and substantial” interference with school discipline. But no such showing

had been made. The evidence, the court said, “disclosed minimal potential

interference at most,” id., with school discipline. Why then the denial of relief?

The court offered only an unadorned comment in a footnote that the rights of

high school students do not match those of college students. Id. at n.5.

It is no easy task to square this reasoning with Tinker. The factual underpinnings

required to justify speech suppression were, by the court’s own observation,

conspicuously absent. And if there was something about the high school

context which required this result, one has only the court’s ipse dixit to vouch

for it.

— 22 UCLA L. Rev. 211 1974-1975

UCLA LAW REVIEW [Vol. 22: 141

legislature simultaneously with its enactment of section 10611.273

The legislature’s failure to reincorporate a bar against sale in section

10611 evidences an intent to the contrary. Other recent legislation,

in fact, explicity indicates such opposite intent.274

CONCLUSION

In many, probably most, schools the right to distribute inde-

273 Law of Oct. 8, 1971, ch. 947, §§ 1-2, [1971] Cal. Stats. 1971. See text

accompanying notes 58-59 supra.

274 Education Code section 9021 bars solicitation of students by teachers

“or others” to “subscribe or contribute to the funds of, to become members

of, or to work for, any organization not directly under the control

of the school authorities” (with the exception of certain charities). By its very

terms, the statute may be inapplicable to newspaper sales, since in normal

usage the purchase of a paper constitutes neither “subscribing” nor “contributing”

to the funds of an organization. The statute seems centrally concerned with regulation

of charitable contributions, ‘where the use of words like “subscribe” and

“contribute” are quite natural. If it is applicable, however, two developments

are noteworthy. First, in the one reported case in which there was an

attempted application of the statute to an underground newspaper, Poxon

  1. Board of Educ., 341 F. Supp. 256, 257 (E.D. Cal. 1971), the court held

the statute “patently unconstitutional.” That decision was first enunciated by the

court in an earlier, unpublished, order to which the court makes reference. An

examination of that earlier order reveals that the court there held that “California

Education Code § 9021 is unconstitutional on its face, in violation of the First

Amendment” and enjoined its enforcement. Id. (Order of Apr. 1, 1971). Second,

in 1973, perhaps in reaction to the Poxon decision, the legislature added the following

paragraph to the section:

Nothing in this section shall be construed as prohibiting the solicitation

of pupils of the public school on school premises by pupils of

that school for any otherwise lawful purpose.

CAL. EDUC. CODE § 9021 (West Supp. 1974).

The most plausible reading of the statute is that it totally exempts students

(as opposed to teachers) from the operation of the statute, so long as that solicitation

is for an “otherwise lawful” purpose. The legislature may have concluded

that teacher solicitation created far more significant risks of producing involuntary

contributions.

Assuming, contrary to the arguments above, that the ban on sale of newspapers

is neither per se unconstitutional nor a violation of state law, obvious constitutional

problems may be generated by the manner in which school authorities

go about applying the ban. Suppose school authorities permit sale or solicitation

for “approved” newspapers (Los Angeles City School rules, for example, appear

to contemplate sales of school newspapers as one means of financing

them. “Sources of revenue include the following: . . . The sale of single

copies of the newspaper, when it is distributed. (The price usually is 10 cents

per copy.)” Los Angeles City Unified School District, Senior High Schools,

Journalism 2 and 3, An Instructional Guide (Experimental), 80 (1970 Publication

No. X-94)) or for other purposes (e.g., charitable contributions), may

they then selectively ban sale of underground newspapers? And assuming

such distinctions are not inherently invalid, may school authorities constitutionally

undertake to so make them under a statute which provides no standards for

decision-making? Supposing the answer is yes, may the administrators proceed

on an ad hoc basis without announcing in advance valid standards that will guide

their decision-making? There is, of course, strong support for the proposition that

to leave such decisions to unfettered administrative discretion would render them

unconstitutional. See Kunz v. New York, 340 U.S. 290 (1951).

212

— 22 UCLA L. Rev. 212 1974-1975

UNDERGROUND NEWSPAPERS

pendent, unofficial newspapers is as yet undemanded, unknown,

unutilized. In those instances when .the issue has arisen, school

authorities have most often responded cautiously, reluctantly, and

even with overt opposition. This way of recognizing student first

amendment rights is both understandable and appropriate only

if one’s starting point is that children are presumptive firstamendment

paupers bereft of legal rights. Each advance then

represents a significant exception to a time-honored, generally

satisfactory status quo, and each requires its own meticulous justification.

There is however another, far preferable perspectiveone

that sees schoolchildren as persons endowed with a full complement

of rights. It is the speech restrictions, then, which require

meticulous, extraordinary justification, and the indisputable

faot that children are younger than adults falls short of the mark.

Prohibitions upon speech content beyond those permissible in the

external community; prior censorship requirements; unnecessary

restrictions upon time, place, and manner of distribution; and flat

prohibitions upon the sale of newspapers would all be recognized

for the constitutional evils they are, rather than viewed as mere

qualifications upon a privilege graciously conferred.

The virtues of the latter approach are those that generally

argue for a regime of free expression. It is, moreover, misguided

to see speech values as fundamentally at war with educational

values. Good constitutional doctrine is equally good educational

doctrine. The capacity and willingness of the young to think independently,

to question and to challenge, to criticize constituted

authorities and established ways, are not superfluous luxuries.

The development of such talents ought to be central objectives

of educational policy.

Appendix

There are fifty-eight counties and over 1100 school districts275 in

California. Each school district is presided over ,by its own board.276

The county counsel, or in counties without one, the district attorney is

charged with the duty of advising and representing school districts. 277

To discover what regulations were adopted by the various school districts

pursuant to Education Code section 10611, letters of inquiry

were sent to the county counsel (or to the district attorney) of each

275 CAL. STATE DEP’T OF EDuc., CALIFORNIA” PUBLIC SCHOOL DIRECTORY

1973 at 457-61.

276 CAL. EDUC. CODE §§ 921, 1052 (West 1974).

277 CAL. GOV’T CODE § 27642 (West 1970). Jaynes v. Stockton, 193 Cal.

App. 2d 47, 14 Cal. Rptr. 49 (1961). In charter counties the duty is determined

by the terms of the county charter.

1974] 213

— 22 UCLA L. Rev. 213 1974-1975

UCLA LAW REVIEW

county, except Los Angeles County where information acquired independently

was available. The inquiries were directed to the county

attorneys rather than to the respective boards in order to avoid the

task of polling over 1100 school districts. It was assumed that within

any given county the regulations were likely to have been drafted by

or with the advice of county counsel, were probably uniform throughout

the county, and were in any event known to the county counsel.

Each assumption proved unfounded, if not naive.

Between August 1 and October 1, 1973, responses were received

-from twenty-four counties, twenty-two of them (about 40 percent of the

total) containing useful information. 27 8 Five of the responses 279 indicated

-that, so far as the informant knew, no regulations had been adopted

pursuant to section 10611 by any school district within the county. It

seems likely that the rate of non-adoption is even larger among the nonresponding

counties. The remaining responses indicated that at least

some districts within the county had adopted regulations and sometimes

copies of the regulations were included. Rarely was the information

complete for the county.

Given the limited sample received, no useful purpose would be

served by attempting statistical analysis, though a number of impressions

seem warranted:

1) Although section 10611 requires implementing regulations,

many school districts have adopted none. It seems a reasonable guess

that only a small proportion of the over 1100 school districts in the

state have adopted such regulations or have informed students of their

rights under section 10611.

2) Where regulations have been adopted this has frequently

been done without assistance of the formal legal adviser to the

school boards.

One county counsel commented: “[A]s is common in this county

and probably other small counties, the enclosed policy was not reviewed

by this office prior to its adoption.” Another said, “Presumably

most, if not all, of these districts have adopted rules and regulations

(‘policies’) pursuant to Education Code section 10611, but to

the best of the undersigned’s memory (and some file-checking) only one

district consulted this office for advice concerning such regulation.”

And with respect to that district, “very little attention was paid to our

observations.”

278 (1) Alameda; (2) Alpine; (3) Amador; (4) Colusa; (5) El Dorado;

(6) Humboldt; (7) Lake; (8) Lassen; (9) Marin; (10) Mendocino; (11) Modesto;

(12) San Bernardino; (13) San Diego; (14) San Mateo; (15) Santa

Cruz; (16) Solano; (17) Sutter; (18) Tehama; (19) Tulare; (20) Tuolumne;

(21) Ventura; (22) Yuba.

279 Responses received from the county counsel of Alpine, Humboldt, Mendocino,

Solano, and Tuolumne counties.

214 [Vol. 22: 141

— 22 UCLA L. Rev. 214 1974-1975

1974] UNDERGROUND NEWSPAPERS 215

School boards may, of course, receive legal advice from sources

other than the county counsel. Some of the large school districts,

Los Angeles for example, have their own “house counsel.” How common

it is for school districts to have such independent legal advice

was not determined.

3) Copies of some thirty sets of regulations promulgated by various

school districts were received in response to the questionnaire. Almost

half of them substantially follow the regulations proposed by

School Personnel Committee of the California School Board Association

,(CSBA), distributed to school districts through the state by letter

dated December 27, 1971. Since those have had such a substantial

impact, they are reproduced here.

LOCAL BOARD POLICY ON STUDENT RIGHTS

AND RESPONSIBILITIES

(Implementing Education Code Section 10611)

SECTION I-Statement of Intent

The process of educating students for responsible citizenship in a

democratic society requires reasonable opportunity for them to exercise

the rights of freedom of speech and expression in the context of

the public school environment.

The purpose of this policy is to insure the exercise of these rights

with due regard to the rights of others and the need for reasonable

restrictions in the operation of the public school system.

In order to provide this experience for students within the framework

of Education Code Section 10611, the Board establishes the

following policies, to be supplemented by administrative rules and

regulations as reasonably required:

SECTION II

Students of the District have the right to exercise free expression

including; but not limited to, the use of bulletin boards, the distribution

of printed materials or petitions, and the wearing of buttons,

badges, and other insignia.

  1. CIRCULATION OF PETITIONS, CIRCULARS, NEWSPAPERS,

AND OTHER PRINTED MATTER-Students

shall be allowed to distribute petitions, circulars, leaflets,

newspapers, and other printed matter subject to the following

specific limitations:

  1. TIME-The time of distribution shall be limited to the

hours before school begins, during the lunch hour, and after

school is dismissed.

  1. MANNER-The manner of distribution shall be such

that:

(a) Coercion is not used to induce students to accept

the printed matter or to sign petitions.

(b) Funds or donations are not collected for the material

distributed.

— 22 UCLA L. Rev. 215 1974-1975

216 UCLA LAW REVIEW [Vol. 22: 141

(c) Leaflets and printed material to be distributed shall

be submitted to the designated school official at least

– hours prior to such distribution. Approval or

disapproval of such distribution shall be indicated within

six (6) hours or by the same time the next school day.

The official may limit the number of students or groups

of students who may distribute materials in any one day.

(d) Materials are not left undistributed or stacked for

pickup while unattended at any place in the school or on

school grounds.

  1. BUTTONS, BADGES, AND OTHER INSIGNIA OF SYMBOLIC

EXPRESSION – Students should be permitted to

wear buttons, badges, armbands, and other insignia as a

form of expression, subject to the hereinafter mentioned prohibitions.

  1. BULLETIN BOARDS – Students shall be provided with

bulletin boards for use in posting student materials on campus

locations convenient to student use. Where feasible,

location and numbers of such bulletin boards shall be by

joint agreement of local school student government representatives

and the local school administration.

SECTION III

In the exercise of the student rights described above, no student

shall distribute materials, wear buttons or other displays nor post notices

or other materials which:

  1. Are obscene to minors according to current legal definitions.
  2. Are libelous or slanderous according to current legal definitions.
  3. Incite students so as to create a clear and present danger

of the imminent commission of unlawful acts on school

premises or of the violation of lawful school regulations or

of the substantial disruption of the orderly operation of the

school.

  1. Express or advocate racial, ethnic, or religous prejudice

so as to create a clear and present danger of imminent commission

of unlawful acts on school premises or of the violation

of lawful school regulations or of the substantial disruption

of the orderly operation of the school.

  1. Are distrilbuted in violation of the time, place and manner

requirements.

As provided in Education Code Section 10611.

SECTION IV

The principal of each school shall designate a person (principal,

vice-principal, or other administrator) to review material and exercise

administrative responsibilities as required by this policy. The

name of the designated person shall be suitably posted and his decision

shall be final in regard to the prohibitions named in Section III

— 22 UCLA L. Rev. 216 1974-1975

UNDERGROUND NEWSPAPERS

of this policy. However, any student may appeal a decision concerning

this policy to the (Associate/Superintendent, Superintendent) who

shall render a decision within a reasonable time or no later than one

school day after receipt of the appeal. The appeal shall be based

solely on the standards established in Education Code Section 10611.

SECTION V

Knowing violation of this policy by any student is sufficient cause

for suitable disciplinary action to be taken.

SECTION VI

The designated local school administrator shall develop administrative

rules and regulations to implement this policy, in conjunction

with student government representatives. In case of a disagreement,

the decision of the designated Administrator shall be final.

The proposed guidelines of the State Board of Education adopted

October 15, 1971,280 and presumably thereafter disseminated to school

districts through the state, were not mandatory and they seem to have

attracted a much smaller following. A comparison of the two sets

of proposed guidelines follows.

Prior Censorship. The CSBA guidelines provide for prior censorship

by school authorities; the State Board guidelines disavow it.

The State Board guidelines settle for prior submission of material to

school authorities for informational purposes. They provide (section

3(c)): “Leaflets and printed material to be distributed shall be

submitted to the appropriate school officials at least —–h-o urs prior

to such distribution. The official may prohibit distribution of printed

material by more than —–s-tu dents or groups of students in any one

day.,’

Time of distribution. Each of the two proposed schemes employs

the same time limitation (see CSBA Regulation IIAl) and thereby

incorporates a notable degree of inflexibility. It does not invite or

permit consideration of whether other times are available when distribution

might be permitted without significantly interfering with

school activities.28 2

One San Mateo district has resisted such rigidities, providing: “The

time of distribution shall not be limited except when such restrictions

are deemed necessary to prevent interference with individual class

programs.” This permits distribution in those time periods allowed

by the CSBA and State Board guidelines, and all other reasonable

times as well.

280 See note 74 & accompanying text supra.

281 For this excerpt from the State Board. guidelines as well as the references

thereto below, see id.

282 See notes 256-58 & accompanying text supra.

19741 217

— 22 UCLA L. Rev. 217 1974-1975

UCLA LAW REVIEW

Prohibited materials. The provisions in the two sets of rules are

quite similar. Each prohibits that which is obscene “to minors,” a definition

not found in the statute. Each prohibits “incitement” essentially

as defined in the statute but adds the word “imminent” before the

phrase “commission of unlawful acts.” Each includes a provision such

as in section 111(4) of the CSBA rules, not found in the statute.

This can be viewed merely as a specific form of that which is generally

proscribed by section 111(3), or it can be read far more broadly.

In many instances the regulations adopted by the districts make

clear that the district’s power to regulate speech is predicated solely on

the authority of section 10611 and is no broader than provided

therein. In the words of the CSBA recommended regulations, section

IV: “The appeal shall be based solely on the standards established

in Education Code Section 10611.”

Required time for advance submission. Each set of rules is silent

on this issue. CSBA section IIA2c, for example, leaves a blank

line to be filled in at local option. The period of advance submission

most commonly adopted by the districts is twenty-four hours, though

in one instance it is as long as seventy-two hours, 283 in another as short

as four hours.

Required time for initial school approval or disapproval. The

CSBA rules specify that approval or disapproval must be given by

school authorities within six hours of submission (section IIA2c). Several

of the districts which require submission forty-eight hours in advance

require the school authorities to give their decision after twenty-four

hours. The theory perhaps is that students will then have twenty-four

hours prior to the intended time of distribution in which to attempt to

achieve a judicial reversal of a school decision barring distribution.

Review mechanism. Those regulations patterned after the CSBA

rules (providing, that is, for prior restraints) establish a mechanism for

reviewing the decision of the school official to whom materials are initially

submitted for approval (CSBA section IV). The review is normally

to a high administrative official within the district who must

render a decision, usually within one day of the appeal. In a few

occasions a further appeal to the district school board is also permitted.

Sometimes the rules specify no time limit by which such administrative

review must be decided.

Fund raising. Both CSBA and the State Board proposals preclude

collecting funds for the material distributed, i.e. selling it, and

most of the regulations adopted so specify.

283 See note 95 & accompanying text supra.

218 [Vol. 22: 141

— 22 UCLA L. Rev. 218 1974-1975

Advertisements