Lopez v. Tulare Joint Union High School Dist.

• Decision Date: 09 May 1995
• Docket Number: No. F019400,F019400
• Citation: 34 Cal.App.4th 1302,40 Cal.Rptr.2d 762
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Ed. Law Rep. 1018 Lillian LOPEZ et al., Plaintiffs and Appellants, v. TULARE JOINT UNION HIGH SCHOOL DISTRICT BOARD OF TRUSTEES et al., Defendants and Respondents.

Page 762

40 Cal.Rptr.2d 762

34 Cal.App.4th 1302, 99 Ed. Law Rep. 1018

Lillian LOPEZ et al., Plaintiffs and Appellants, v. TULARE JOINT UNION HIGH SCHOOL DISTRICT BOARD OF TRUSTEES et al., Defendants and Respondents.

No. F019400.

Court of Appeal, Fifth District, California.

May 9, 1995.

As Modified June 6, 1995.

[34 Cal.App.4th 1305] Ann Brick, Alan Schlosser, Brobeck, Phleger & Harrison, Neil L. Shapiro, Stephen M. Knaster and Carrie M. McIntyre, San Francisco, for plaintiffs and appellants.

[34 Cal.App.4th 1306] Lita O'Neill Blatner, County Counsel, Gary de Malignon, Principal Atty., and Harold W. Wood, Jr., Deputy County Counsel, for defendants and respondents.

OPINION

HARRIS, Associate Justice.

The principal issue presented by this appeal is whether a school district is precluded by section 48907 of the Education Code ¹ and article I, section 2 of the California Constitution, from requiring, on the ground of educational suitability, that a film arts class instructor have his students delete the profanity ² in a student-produced film. We hold that school authorities may restrain such expression because it violates the "professional standards of English and journalism" provision of section 48907.

FACTS

Lillian Lopez, Oscar Maldonado, Adriann McGrew and Sarah Valenzuela (plaintiffs or students) were students at Valley High School, a continuation school in the Tulare Joint Union High School District. During the 1991-1992 academic year, the students wrote and produced a film entitled "Melancholianne" in connection with a Film Arts class. The film, intended to address the problems of teenage pregnancy, essentially depicts a day in the life of the teenage parents, Christianne and Padron, and their baby, Melancholianne.

Christianne lives in a seedy, unkempt motel room with the six-month-old baby. Padron has just been released from prison after serving time for statutory rape of another girl. Christianne encounters Padron in a local park. She hits and kicks him and he replies, "I got a new woman; she can hit harder than you and she can fuck harder than you." Christianne, who wants to have a party that night, leaves the baby with Padron warning him, "don't fuck it up." Later when the baby begins to cry, one of Padron's friends taunts, "[L]emme see you whip out your tit and nurse her." Padron spends the night with the baby at his mother's house. The film concludes with the young couple in mediation and then in court, making disparaging remarks about each other's parenting abilities. The judge rules the baby will be placed in foster care while both parents undergo counseling.

The film dialogue also includes the words "shit," "ass," "bitch," "son-of-a-bitch," "pimp" and the statement, "couldn't find twelve dudes in this county who ain't fucked the 'ho' [whore]."

The students believed the profanity made the film characters more realistic and convincing and stated in declarations that they hear such language in the "real world" everyday. Eric Moberg, the Film Arts class instructor, thought "the sparse use of profanity in the script was appropriate and good." The school principal and the district superintendent, however, upon review of a draft of the script, found the language highly offensive and educationally unsuitable. They directed Moberg to have the students remove the profanity and reference to sexual activity from the script.

Moberg and the students appealed the administrator's directive to the school board. After public hearings, the board held that "sound educational policy" as well as district administrative regulation 5.3.1.3.1 ³ required that the profanity in "Melancholianne" be deleted.

The school board made no finding on whether the profanity at issue was legally obscene, but rested its decision solely on the grounds of educational suitability. The board reasoned that, when the video is produced as part of a classroom activity, the video constitutes curriculum or "instructional material," notwithstanding student authorship. The board concluded section 48907 did not preclude its regulation of a student-authored script, when used for a classroom video project, which would be deemed educationally unsuitable if it had been prepared by someone other than the students. The school board authorized the school superintendent to take all necessary steps to carry out the purpose and intent of the resolution.

PROCEDURAL HISTORY

The students, with the assistance of the American Civil Liberties Union, brought an action against the school district board of trustees and the school administrators (collectively the Board) for declaratory and injunctive relief challenging the authority of the Board to censor the videotape script.

Plaintiffs alleged, during the 1991-1992 school year, they were students at Valley High School, members of the Valley Film Arts Club and some were enrolled in the school's Film Arts class. During the preceding five school years, Valley High School students had written and produced videos which were shown to students and the public and were entered in off-campus film competitions. Plaintiffs, along with other students, wrote, produced and starred in the video "Melancholianne." Their teacher, Eric Moberg, approved the script. However, school principal Dan Neppel advised Moberg he would not allow the film to be released or shown unless the profanity, which he viewed as educationally unsuitable, was deleted. The Board upheld that decision and by Resolution No. 92-12 concluded that sound educational policy required that the profanity in "Melancholianne" be deleted.

Plaintiffs alleged the Board's conduct (1) deprived them of their right of freedom of expression under article I, section 2 of the California Constitution (first cause of action); (2) violated section 48907 (second cause of action); (3) entitled them to a declaratory judgment that they had the right to complete and show "Melancholianne," and the Board had no right to censor or restrict release of the videotape (third cause of action); and (4) entitled them to a preliminary and permanent injunction prohibiting the Board from interfering with the completion and distribution of the film and otherwise seeking to chill the exercise of their constitutional and statutory rights, including taking any reprisal against plaintiffs or Moberg (fourth cause of action).

The court (Judge Conn) granted the students' request for a preliminary injunction on the ground that censorship of "Melancholianne" violated section 48907.

The Board then filed an answer to the students' first amended complaint denying many of the allegations in the complaint and raising a number of affirmative defenses.

Because there were no material facts in dispute, the parties filed cross motions for summary judgment. The court (Judge Sevier) granted the Board's motion for summary judgment and denied the students' motion. In ruling for the Board, the court found: (1) the students' free speech rights under section 48907 are no greater than those guaranteed by the United States Constitution; (2) while students have recognized free speech rights, school districts may limit certain types of speech under section 48907; (3) the Board may prohibit the words and phrases: "fuck," "shit," "bitch," "son-of-a-bitch," "ass," and "tit" in a student video production because they constitute "obscene expression" as a matter of law within the meaning of section 48907; and (4) those words and phrases may also be prohibited under that section because they constitute a per se violation of lawful school regulations.

DISCUSSION

Standard of Review

The issue before us, whether section 48907 authorizes the prior restraint at issue, is a question of law upon which we exercise our independent judgment. (Wright v. City of Santa Clara (1989) 213 Cal.App.3d 1503, 1505, 262 Cal.Rptr. 395.)

Historical Development of Student Free Speech Rights

The First Amendment of the United States Constitution provides in part: "Congress shall make no law ... abridging the freedom of speech...." Article I, section 2, subdivision (a) of the California Constitution (hereafter, article I, section 2(a)) guarantees that "[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."

The purpose of both the First Amendment and article I, section 2(a) was to abolish governmental censorship and to constitutionalize society's substantial interest in protecting the right to comment on issues of public concern. (Note, Prior Restraint and the Public High School Student Press: The Validity of Administrative Censorship of Student Newspapers Under the Federal and California Constitutions (1987) 20 Loyola L.A.L.Rev. 1055, 1068, hereafter Prior Restraint.) Under a literal interpretation of either provision, legislators and school authorities may not exercise prior restraint over student publications. The courts, however, did not recognize any semblance of that construction for nearly half a century after they rejected prior restraints of the adult press. During this period, students did not have any recognized free speech and press rights. Instead, it was generally accepted that school officials stood in the stead of parents, i.e., in loco parentis, and had parent-like authority to control student conduct and expression. (Prior Restraint, supra, 20 Loyola L.A.L.Rev. at pp. 1070-1071.)

Judicial recognition of students' free speech rights came with the landmark United States Supreme Court ruling in Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. The Tinker court recognized that school officials generally had comprehensive authority to prescribe and control conduct in the schools, but this authority did not extend to administrative censorship of public school students' nondisruptive expression. Students did not "shed their constitutional rights to...