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22 UCLA L. Rev. 141 1974-1975
REGULATION OF UNDERGROUND NEWSPAPERS
ON PUBLIC SCHOOL CAMPUSES
TABLE OF CONTENTS
- INTRODUCTION —————————– 142
- STATUTORY AND CONSTITUTIONAL DIMENSIONS ——-1-5 5
- Prior Censorship of Underground Papers ———– 156
- Education Code Section 10611 ———– 156
- Constitutional Considerations —— 161
- Potential Problems under Section 10611: Prior
Censorship in Other Forms 171
- Submission for “Informational Purposes” -__ 171
- School Seizure of Prohibited Materials after
Distribution Commences ——- 171
- Substantive Prohibitions on Expression in Underground
Newspapers —————–..-..———–1—7–3— —
- Incitement ————————— 177
- “Obscene . . . According to Current Legal
Standards” _- —————————————–1-8–2— –
- “Libelous, or Slanderous According to Current
Legal Standards” 184
- 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
- Time, Place and Manner as an Independent
Ground for Regulating Speech —— 191
- 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
- OTHER SIGNIFICANT ASPECTS OF PRESS DISTRIBUTION 205
- Reasonable Time, Place and Manner Rules —— 205
- Sale of Underground Newspapers ————– 208
- Coercion ——–——— ————————.-.2-0. 9..
- Exploitation ———————————————- 209
- Commercialism ——————— 209
- Difficulties in Line Drawing ————– 210
- CONCLUSION ———————————–……..——— 212
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
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
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.
— 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
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
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,
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
13 CAL. EDuc. CODE § 10611 (West Supp. 1974) reproduced in text at
note 60 in Ira.
— 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
12 27 Cal. App. 51, 53, 148 P. 959 (1st Dist. 1915).
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.
17 Id. at 55-56, 148 P. at 961.
[Vol. 22: 141
— 22 UCLA L. Rev. 146 1974-1975
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
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
- 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.
- 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.
— 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”
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
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
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
- 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.
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.
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
[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,
Whatever uncertainties remain, factually unsupported opinions
forecasting disruption can scarcely constitute acceptable grounds
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.”
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
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″
- 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,  Cal. Stats. § 31 (repealed
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).
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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
- Prior Censorship of Underground Papers
- 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-
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
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 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.
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
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
— 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.
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
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
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
- Constitutional Considerations
- 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
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).
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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
- 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
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
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).
— 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
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
- 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
- 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.
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.
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
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.
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-
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
- 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.
- 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.”
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
110 460 F.2d 1355 (1972), discussed in text accompanying notes 100-04
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.
- 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)
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
— 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.
- 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
- 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.
- 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.
- School Seizure of Prohibited Materials after Distribution
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.
- 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.
— 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
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.
- Substantive Prohibitions on Expression in
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;
- FREUND, THE SUPREME COURT OF THE UNITED STATES: ITS BUSINESS, PURPOSES
AND PERFORMANCE 65 (1961).
— 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
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
defining the scope of rights of college students is therefore in
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
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
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).
— 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
— 22 UCLA L. Rev. 176 1974-1975
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.
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.
- 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.
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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
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.
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
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
- 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
- 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
- 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
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
[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
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
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 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.
- “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,
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
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
- “Libelous, or Slanderous According to Current Legal
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
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.
- 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
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.
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.
- 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.
- 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.
- 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.
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
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
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
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.
- 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
“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
- Time, Place and Manner as an Independent Ground for
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
[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.
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).
— 22 UCLA L. Rev. 191 1974-1975
UCLA LAW REVIEW
- 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
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
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
- California, 413 U.S. 15, 32 (1973). See also Hamling v. United States, 94
- 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-
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
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
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,
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.
— 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
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
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
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
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
— 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
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
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).
— 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
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.
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
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).
— 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
- 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
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
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
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.
— 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
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
- 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.
- 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
— 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
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.
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.”2“2
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.”
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
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
- 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
- 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.
- 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
where else. Either a total ban or, the argument goes, the unrestrained
hawking of Hershey Bars, magazines, clothing, etc.
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.
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
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.
— 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.
- 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”
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
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
- 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
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
— 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
In many, probably most, schools the right to distribute inde-
273 Law of Oct. 8, 1971, ch. 947, §§ 1-2,  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
- 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
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).
— 22 UCLA L. Rev. 212 1974-1975
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.
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.
— 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
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
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
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
(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:
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.
- 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
- TIME-The time of distribution shall be limited to the
hours before school begins, during the lunch hour, and after
school is dismissed.
- MANNER-The manner of distribution shall be such
(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
— 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
- 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.
- 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.
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:
- Are obscene to minors according to current legal definitions.
- Are libelous or slanderous according to current legal definitions.
- 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
- 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.
- Are distrilbuted in violation of the time, place and manner
As provided in Education Code Section 10611.
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
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.
Knowing violation of this policy by any student is sufficient cause
for suitable disciplinary action to be taken.
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
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.
— 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