• Are benches at school an “open forum” for speech?

    Date: 06.24.11 | by Judge Tom.

    Three outside benches at La Jolla High School in California are designated by the administration as “senior benches.” They are reserved for seniors for “student-to-student communications on school or personal events,”¬†explained Principal Dana Shelburne.

    In March, 2011, following the anti-government protests in Iran, students painted “Freedom in Iran” on the benches. Shelburne ordered the messages painted over. The next day, senior Yumehiko Hoshijima, painted a similar message including “Ed. Code 48907″*. The latter refers to a California education law about student expression. Yumehiko’s messages were also painted over.

    In May, 2011, Yumehiko filed a lawsuit in San Diego Superior Court claiming his right to free speech was violated by the school. He asserts that the benches were an “open forum” for all speech. The school responded by saying the benches were not open forums. Two bulletin boards on campus are available for additional student speech including the “Freedom for Iran” message.

    Senior benches at La Jolla High

    The parties reached a temporary agreement pending a full trial on the issues. The benches will remain in place and be available for student expression. Students will not be disciplined for their writings until the matter is resolved.

    For a recent story about student expression on a school wall, see the story of James Tate here.

    *Sec. 48907: Student exercise of free expression (California law, in part, 2010):

    (a) Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils 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.

    The seminal case of Hazelwood v. Kuhlmeier  (1988) from the Supreme Court will likely be referred to in deciding the issues here.

    Judge Tom

    This post was written by Judge Tom. Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published 'Teen Cyberbullying Investigated' (Free Spirit Publishing). When he's not answering teens' questions, Judge Tom can be found hiking, traveling and reading.

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    3 Comments subscribe to these comments.

    • Oklahoma City Divorce Attorney Matt Ingham
      Sun, 26 Jun 2011 at 11:21

      The benches can be and should be open forum, but subject to school regulations that are lawful. If school authorities were to allow the open, unregulated communication to be posted on the benches, then ultimately some lug head would post a message that is offensive. The offensive post would cause a substantial disruption on campus.
      Great point! Thanks for your comment.

    • Beth W.
      Sun, 31 Jul 2011 at 08:51

      Benches on campus might be an ‘open forum’, but they should be a regulated ‘open forum’.

    • Divorce Lawyers Tulsa
      Sat, 27 Aug 2011 at 08:47

      Yes they are open forum, but they are a ‘regulated’ open forum…in my opinion :)

      Judge Tom what do you think?
      Yes, we would agree. If the speech becomes threatening, disrupts the school environment or results in an unsafe learning environment for another student, then the school of course would have the right to censor that speech.

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