Dawson v. East Side Union High School Dist., H011079

• Decision Date: 27 September 1994
• Docket Number: No. H011079,H011079
• Citation: 34 Cal.Rptr.2d 108,28 Cal.App.4th 998
• Court: California Court of Appeals Court of Appeals
• Parties: , 94 Ed. Law Rep. 400 William D. DAWSON, as Acting Superintendent of Public Instruction, etc., et al., Plaintiffs and Appellants, v. EAST SIDE UNION HIGH SCHOOL DISTRICT, Defendant and Respondent; Whittle Communications, L.P., Intervener and Appellant.

Page 108

34 Cal.Rptr.2d 108

28 Cal.App.4th 998, 94 Ed. Law Rep. 400

William D. DAWSON, as Acting Superintendent of Public Instruction, etc., et al., Plaintiffs and Appellants, v. EAST SIDE UNION HIGH SCHOOL DISTRICT, Defendant and Respondent;

Whittle Communications, L.P., Intervener and Appellant.

No. H011079.

Court of Appeal, Sixth District, California.

Sept. 27, 1994.

Joseph R. Symkowick, Michael E. Hersher, Sacramento, for appellants.

John E. McDermott, Aimee Dominguez Silvers and Cadwalader, Wickersham & Taft, Los Angeles, for cross-appellant.

Cal. Teachers Ass'n, Diane Ross, Beverly Tucker, A. Eugene Huguenin, Jr., Ramon E. Romero, Burlingame, amicus curiae on behalf of appellant.

Celia M. Ruiz, Susan E. Brown, Priscilla S. Carson and Ruiz & Schapiro, San Francisco, for respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

These appeals require answers to four questions:

(1) Whether the trial court properly rejected the contention of the California Superintendent of Public Instruction, and other plaintiffs, that a public school district may never lawfully contract for classroom display of "Channel One," a current-events video program which contains commercial advertisements;

(2) Whether the trial court correctly concluded that "Channel One" may lawfully be used by a school district only so long as the students are not coerced to view the advertisements;

(3) Whether in the circumstances of record the trial court properly granted injunctive relief which, in practical effect, compelled a school district to adopt, as a condition of continued use of "Channel One," court-specified procedures by which students could "opt out" by choosing not to watch the programming; and

(4) Whether in the circumstances of record the trial court could properly retain jurisdiction to appoint, without a further showing of need, a qualified individual to monitor the parties' compliance with the judgment.

We shall conclude that the third and fourth questions must be answered in the negative but shall answer the first and second questions in the affirmative. We shall modify the trial court's judgment in light of our answers, and shall affirm the judgment as so modified.

Intervener Whittle Communications, L.P., a limited partnership, characterizes itself as a developer and publisher, for profit, of informational material including video programs. Beginning in 1987 Whittle developed a concept of short current-events video programs for teenaged students. Whittle determined that middle schools and high schools would want to use such programs but would find it difficult to pay for the programs or for video equipment to display the programs. Whittle concluded that it could provide both programs and equipment without direct cost to the schools, and could nevertheless realize an adequate profit, by selling commercial advertising time in its video programs to advertisers interested in penetrating the teenage market. The upshot was "Channel One," a daily 12-minute video program which integrates 10 minutes of fast-paced current-events coverage designed to appeal to teenaged students with slots for a total of two minutes of advertising in a format indistinguishable from ordinary television commercials.

Although Whittle expresses pride in the quality of its current-events coverage, it has made clear from the outset that its motivation is the profit to be made, and that its profit depends on Whittle's ability to persuade advertisers that "Channel One" is a viable advertising medium: That "Channel One" will effectively convey the advertisers' sales solicitations to a significant segment of the target market of teenaged consumers.

To develop a market sufficient to attract the advertisers who would ultimately provide its profit, Whittle has packaged "Channel One" with other educational programming which does not contain commercials and has offered to furnish the package, known as the Whittle Educational Network, together with television sets, a satellite receiver, cabling, and other electronic equipment to be installed by Whittle, to school districts "without any charge or fee." Whittle makes quite clear that its willingness to provide this package will be conditioned in each instance on the likelihood that Whittle will thus significantly add to the market it can offer to its advertisers. Whittle acknowledges that it is "free not to contract if viewership is too small...." Whittle's printed form "district agreement" is made subject to a number of terms, conditions, and "responsibilities of the School" many of which are patently intended to provide assurances to advertisers and in other ways to serve Whittle's profit motive. For example:

(1) "The School agrees to provide to Whittle once a year upon request the annual schoolwide daily attendance figures and change of enrollment information." Whittle may terminate the agreement if enrollment declines more than 25 percent from enrollment at the beginning of the three-year agreement term; implicitly Whittle could decline to enter into an agreement with a district in which it considered enrollment insufficient. Also, although a school could elect not to have television sets installed in certain of its classrooms, "[t]he number of television sets to be installed must be mutually agreeable to Whittle and the School."

(2) Although a school can use Whittle's equipment for purposes other than to broadcast Whittle Educational Network materials, "written approval by Whittle is required should the School desire to show any other news program specifically designed for viewing by teenagers in schools and which contains advertising." Nor may the school use Whittle's wiring without Whittle's prior written consent, even after termination of the agreement, "to service equipment provided by another entity to show its programs designed for a teenage audience and containing advertisements."

(3) "The School agrees ... to either show the entire daily ["Channel One"] newscast on all installed television sets or not show it at all.... Channel One must be shown when students are present in a homeroom or classroom.... The only penalty to the School for not showing Channel One is that Whittle may terminate this agreement and remove the Equipment."

(4) "If the School does not consistently show Channel One (i.e., on at least 90% of the days the School is in session and Channel One is transmitted), then Whittle may terminate this agreement."

On the other hand Whittle's form agreement specifies that its twelve-minute "Channel One" newscasts "will include not more than two minutes of commercial content" and that the commercial content "will be limited to materials suitable for teenagers" in accordance with detailed written "standards and guidelines" attached to the agreement. The agreement also explicitly takes account of the possibility that individual students may elect not to watch "Channel One": "This agreement does not require that all teachers use Channel One or that all students or any particular student view Channel One. The School may at its discretion develop appropriate procedures to accommodate students who do not wish to view Channel One or whose parents do not wish them to view Channel One."

Beginning with pilot tests in 1988, Whittle has achieved remarkable success in persuading school districts nationwide to agree to accept Whittle Educational Network programming and equipment. The record includes videotapes of several "Channel One" segments, all of which skillfully present current-events material written to be interesting and comprehensible to teenaged viewers. Advertisements for products such as fast foods, candy bars and snacks, soft drinks and deodorants are smoothly integrated into the presentation but readily identifiable as commercial rather than editorial content. In some instances public service announcements--for example, warnings against drug abuse or drunk driving--are substituted for advertisements: The record reflects that Whittle uses such announcements to fill slots allocated to, but for which it has been unable to sell, advertising. The overall impression is of a television-like presentation of uniformly high quality, broadly comparable to current-events programs on commercial television channels, but tailored to appeal to teenaged viewers.

In August 1989 California's Superintendent of Public Instruction, in a letter addressed to county and district school superintendents, took a strong position against use of "Channel One" in California public schools. He concluded "that participation by public schools in proposals such as 'Channel One' is not permitted by state law and the California Constitution. Based on California Education Code section 46000, I cannot pay schools to have their students watch commercials. Therefore, I will not certify as 'instructional minutes' any time spent watching advertisements in any broadcast similar to that proposed by 'Channel One.' " Presumably the Superintendent of Public Instruction was referring to his statutory power to certify average daily attendance for the purpose of apportioning state funds to local school districts. (Cf.Ed.Code, §§ 14000 et seq., 46000 et seq.) He suggested that Whittle's proposal, "even if it were legal, should be resisted for ethical and educational reasons. Parents entrust their children to our public schools. We have no right--legally or morally -- to sell access to our students even if schools receive some benefit in return." The Superintendent of Public Instruction developed on these and similar arguments in considerable detail, characterizing "the crux of the issue" as "the illegal and unethical use of schools' unique access to an extremely valuable commercial audience which Whittle Communications wants to monopolize."

At the time the Superintendent of Public Instruction sent his letter, defendant and respondent East Side Union High School District had been considering "Channel One" and other elements...