Existing law establishes the California Community Colleges, under the administration of the Board of Governors of the California Community Colleges, as one of the segments of public postsecondary education in this state.

This bill would make nonsubstantive changes to those provisions.

SENATE COMMITTEE ON EDUCATION

Senator Benjamin Allen, Chair

2017 - 2018 Regular

Bill No: Hearing Date: April 26, 2017

Subject:

SUMMARY

This bill allows a person to use an electronic listening or recording device in a California Community College classroom without the consent of the instructor if the person reasonably believed that he or she was recording activities that violate state or federal law or regulation, or local policy. This bill also prohibits a person acting on behalf of a higher educational institution from preventing a student from disclosing, or retaliating against a student for disclosing, information to a government or law enforcement agency and other entities if the student has reasonable cause to believe that the information discloses a violation of law.

BACKGROUND

Existing federal law prohibits Congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (First Amendment to the United States Constitution)

Existing state law:

1. Provides that every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. Existing law prohibits a law from restraining or abridging liberty of speech or press. (California Constitution, Article I, Section 2)
   
2. Prohibits the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, and an administrator of any campus of those institutions, from making or enforcing a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction. (Education Code § 66301)
   
3. Provides that #1 and 2 do not prohibit an institution from adopting rules and regulations that are designed to prevent hate violence from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally. (EC § 66301 and § 94367)
   
4. Prohibits the use by any person, including a student, of any electronic listening or recording device in any classroom without the prior consent of the instructor, except as necessary to provide reasonable auxiliary aids and academic adjustments to disabled students. (EC § 78907)

ANALYSIS

This bill:

1. Exempts a person from the prohibition against using an electronic listening or recording device in a classroom without the consent of the instructor if the person, including a student, reasonably believed that he or she was recording activities in the classroom that violate state or federal law or regulation, or applicable local agency policy.
   
2. Prohibits a community college district or campus from prohibiting or limiting the use of a recording that is subject to the exception in a disciplinary action against an instructor.
   
3. Prohibits an administrator, professor, teacher or other faculty member, or any other person acting on behalf of a higher education institution from doing any of the following:
   
   1. Preventing a student from disclosing information to a government or law enforcement agency, to a person with authority over the student or another employee who has authority to investigate, discover, or correct the violation or non-compliance, or to the media or social media, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the student has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or non-compliance with a local, state, or federal rule or regulation, or applicable local agency policy.
      
   2. Retaliate against a student for disclosing information, or because he or she believes that the student disclosed or may disclose information, to entities or individuals described above if the student has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or non-compliance with a local, state, or federal rule or regulation, or applicable local agency policy.
      
   3. Retaliate against a student for refusing to participate in an activity that would result in a violation of state or federal statue, or a violation of or non-compliance with a local, state, or federal rule or regulation, or applicable local agency policy.
      
   4. Retaliate against a student for having exercised his or her rights pursuant to this bill at any other higher education institution.
      
   5. Retaliate against a student because the student is a family member of a person who has, or is perceived to have, engaged in any acts protected by this bill.
      
4. Provides that a disclosure of information includes a report made by a student of a higher education institution to an administrator, professor, teacher or other faculty member, or any other person acting on behalf of the institution.
   
5. Provides that, in addition to other penalties, an administrator, professor, teacher or other faculty member, or any person acting on behalf of a higher education institution is liable for a civil penalty of up to $10,000 for each violation of this bill.
   
6. Provides that this bill does not apply to actions by an administrator, professor, teacher or other faculty member, or any other person acting on behalf of a higher education institution against a student who violates confidentiality of the lawyer-client privilege, or the physician-patient privilege, or who discloses trade secret information.

STAFF COMMENTS

1. Need for the bill. According to the author, “The Education Code prohibits the recording of classroom activity. It was recently used to protect an instructor who was publicly shaming students and to punish the student who attempted to bring transparency to the situation. This ‘no recording’ law goes too far when it attempts to silence the truth. SB 677 would ensure that students who witness activities in the classroom which violate state or federal law or regulation and/or a local agency policy are free to document and report the situation to the necessary authorities or to the media, including social media. In an educational environment, students should feel the freedom to question their instructors – and even more so, should be protected when they seek to expose activities which violate laws or school policies. SB 677 is patterned after the whistleblower protection given to employees in the workplace, which are some of the best protections in the nation. Just as employees must feel free to document and report violations in the workplace, students must be given the same protection and freedom to ensure that professors and administrators are not using their authority to silence those with differing opinions.”
   
2. Recording in college classrooms. This bill seeks to address situations that were recently in the news, where students at two California public postsecondary institutions video recorded their instructors making statements against the current President of the United States and in favor of gun control; apparently the students believed such statements violated either a law of campus policy and posted the videos online to draw attention to those events. It is unclear if those students also notified the campus administration.
   
   Could this bill restrict instructors from speaking freely in their classrooms, even to engage students in spirited discussion that is meant to spark critical thinking? Could the privacy of other students who may be in a video recording be violated?
   
3. Whistleblower protections. This bill prohibits an administrator, professor, teacher or other faculty member, or any other person acting on behalf of a higher education institution from preventing a student from disclosing information to a government or law enforcement agency, to a person with authority at the college or university, or to the media or social media, if the student has reasonable cause to believe that the information discloses a violation of laws or policies. This bill also prohibits retaliation against a student for disclosing information. Existing law provides individuals with the right to provide information to a government or law enforcement agency, and prohibits retaliation for such. If a student has reasonable cause to believe that a violation of laws or policies has occurred, a student should contact a government or law enforcement agency; it is unclear why violations of law would be reported to the media or social media.
   
4. Heard by the Senate Judiciary Committee. This bill is being heard in the Senate Judiciary Committee on April 25, one day prior to the scheduled hearing in this Committee. Presumably, the Senate Judiciary Committee will consider issues related to whistleblower protections, First Amendments rights, privacy rights, the standard of having reasonable cause, and the civil penalty provisions of this bill.

SUPPORT

None received

OPPOSITION

Academic Senate of the California State University

California Faculty Association

California Federation of Teachers

California Scholars for Academic Freedom

California Teachers Association

Faculty Association of California Community Colleges

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 677 (Author:Moorlach)

Version: March 23, 2017

Hearing Date: April 25, 2017

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

California Community Colleges: prohibited acts: electronic listening or recording devices

DESCRIPTION

This bill would allow any person to use an electronic listening or recording device in California community college classrooms without the consent of the instructor if the person had a reasonable belief that the person was recording activities in the classroom that violate state or federal law or regulation, or applicable local agency policy. It would also prohibit any person acting on behalf of a higher education institution to prevent a student from, or to retaliate against a student for, various actions, including disclosing information to a government or law enforcement agency, or other authority, or to the media, or to social media, if the student has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, or applicable local agency policy.

BACKGROUND

The First Amendment of the United States Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In the student speech context, the First Amendment protects certain speech from retaliation. To establish a First Amendment retaliation claim in such circumstances, a student must show: (1) the student was engaged in constitutionally protected activity; (2) the defendant’s actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) the protected activity was a substantial or motivating factor in the defendant’s conduct. Valid complaints and grievances against a teacher are constitutionally protected speech.

In California, every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right, and no law may restrain or abridge liberty of speech or press. (Cal. Const., art. I, Sec. 2.) In addition, California law specifically prohibits the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, an administrator of any campus of those institutions, and any private postsecondary educational institution, from making or enforcing any rule that would subject a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

This bill seeks to establish “whistleblower protections for students” to prevent them from being “suspended, or worse,” for disclosing suspected violations of laws, regulations, and agency policies. This bill would overlap with the protections above in large part.

This bill would also amend current law prohibiting nonconsensual recording of California community college classrooms by allowing any person to use listening or recording devices in a classroom, without consent, if they reasonably believe they are recording activities in violation of law, regulation, or agency policy.

CHANGES TO EXISTING LAW

Existing law prohibits retaliation against students for engaging in protected speech, including complaints or grievances against teachers or professors. (U.S. Const. First Amendment; Cal. Const., art. I, Sec. 2; Pinard v. Clatskanie Sch. Dist. 6J (9th Cir. 2006) 467 F.3d 755, 764; Lachtman v. Regents of University of California (2007)158 Cal.App.4th 187, 214.)

Existing law prohibits the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, and an administrator of any campus of those institutions, from making or enforcing a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of article I of the California Constitution. A student enrolled in an institution that violates this section may commence a civil action against it for such violation. (Ed. Code Sec. 66301(a), (b).)

Existing law prohibits a private postsecondary educational institution from making or enforcing a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of article I of the California Constitution. A student enrolled in an institution that violates this section may commence a civil action against it for such violation. (Ed. Code Sec. 94367.)

Existing law prohibits a school district operating one or more high schools, a charter school, or a private secondary school from making or enforcing a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution. A pupil who is enrolled in a school at the time that the school has violated this section may commence a civil action against it for such violation. (Ed. Code Sec. 48950.)

Existing law prohibits persons from preparing, selling, or otherwise distributing or publishing any contemporaneous recording of an academic presentation for any commercial purpose. (Ed. Code Sec. 66450.)

Existing law prohibits the use by any person, including a student, of any electronic listening or recording device in any California community college classroom without the prior consent of the instructor, except as necessary to provide reasonable auxiliary aids and academic adjustments to disabled students. Any person, other than a student, who willfully violates this section is guilty of a misdemeanor. Any student violating this section shall be subject to appropriate disciplinary action. (Ed. Code Sec. 78907.)

This bill would prohibit an administrator, professor, teacher or other faculty member, or any other person acting on behalf of a higher education institution, from the following:

• preventing a student from disclosing information to a government or law enforcement agency, to a person with authority over the student or another employee who has authority to investigate, discover, or correct the violation or noncompliance, or to the media or social media, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the student has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, or applicable local agency policy;
• retaliating against a student for disclosing information, or because he or she believes that the student disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the student or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or to the media or social media, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the student has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, or applicable local agency policy;
• retaliating against a student for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation or applicable local agency policy;
• retaliating against a student for having exercised his or her rights under this section at any other higher education institution; and
• retaliating against a student because the student is a family member of a person who has, or is perceived to have, engaged in any acts protected by this section.

This bill would subject any person in violation of the above provision to a civil penalty of $10,000 for each violation.

This bill would provide that a report made by a student of a higher education institution to an administrator, professor, teacher or other faculty member, or any other person acting on behalf of the institution is a disclosure of information to a government or law enforcement agency. It would not apply to certain privileged situations.

This bill would permit a person to use any electronic listening or recording device in any classroom without the prior consent of the instructor if the person reasonably believed the person was recording activities that violate the law or local agency policy. It would prohibit a community college district or campus from limiting the use of a recording falling under this exception in a disciplinary action against an instructor.

COMMENT

1. Stated need for the bill

According to the author:

California Education Code section 78907 currently prohibits students from recording in a classroom without the instructor’s consent. A student who violates this section shall be subject to disciplinary action. Students, however, should be able to bring transparency into the classroom when laws, regulations and/or local agency policies are being violated. Without whistleblower protection and the ability to record, which current law does not provide, students may find themselves suspended, or worse, for doing so.

[Education Code Section 78907] was recently used to protect an instructor who was publicly shaming students and to punish the student who attempted to bring transparency to the situation.

This “no recording” law goes too far when it attempts to silence the truth. Senate Bill 677 would ensure that students who witness activities in the classroom which violate state or federal law or regulation and/or a local agency policy are free to document and report the situation to the necessary authorities or to the media, including social media.

Senate Bill 677 would create whistleblower protections for students who have reasonable cause to believe that a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, or applicable local agency policy has occurred in the classroom or on campus. The bill would additionally allow students to record the incident as well.

2. Student speech

The author states that current law does not protect students from retaliation, such as suspension, for reporting violations of law, regulations, or local agency policies. However, a basic tenet of the First Amendment of the United States constitution is that a student cannot be retaliated against for engaging in constitutionally protected speech. Although these protections are at their apex in public colleges and universities, protections still exist for students at private colleges and universities in California.

Education Code Sections 66301 and 94367explicitly provide protections similar to those sought by this bill for students at California’s public universities and community colleges and private postsecondary educational institutions, with certain exceptions for those institutions controlled by a religious organization. Other laws prevent persons from retaliating against others for reporting crimes and serving as witnesses. For example, it is a federal crime to take any action harmful to any person for providing truthful information relating to the commission or possible commission of a Federal crime. (18 U.S.C. Sec. 1513.)

This bill would overlap with and add to the existing protections by prohibiting anyone acting on behalf of a higher education institution from preventing or retaliating against students for disclosing information that the student has reasonable cause to believe is a violation of federal or state law or local agency policies. The language is modeled after provisions of the California Labor Code. Section 1102.5 of the Labor Code prohibits an employer from, among other things, making or enforcing policies that prevent an employee from disclosing information that the employee has reasonable cause to believe discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. It also prohibits an employer from retaliating against an employee for disclosing such information. One difference is that this bill would not only protect students who are providing this information to law enforcement or other authorities, but also their ability to disclose the information on social media. It would also apply to disclosures regarding suspected violations of “local agency policy.”

3. Chilling speech in classrooms

Current law prohibits the use of listening or recording devices in community college classrooms with limited exception. The author points to one recent example where a student secretly recorded his professor making negative comments about then-President elect Donald Trump and his supporters. The student shared the video online. Although he was initially suspended, due to violating district policy, the punishment was rescinded. The professor that was secretly recorded was reportedly subjected to threats and was forced to temporarily leave her home. This bill would allow any person, regardless of whether they are a student, to record in community college classrooms without the consent of the professor or other students if they reasonably believe that they are recording activities that violate the law or applicable local agency policies.

Writing in opposition, the Academic Senate of the California State University expresses “serious concerns” about this bill, including “potential academic freedom, transparency [,] and due process issues.” Also in opposition, the Faculty Association of California Community Colleges writes that this bill would “allow anyone in the classroom with an agenda to try to expose . . . a faculty member whose perspective they may not agree with” and creating a “chilling effect on free speech in the classroom.”

As a matter of public policy and democratic values, institutions of higher education must be about free, robust exchange of ideas and arguments on the merits. Allowing the covert recording of classrooms encourages a surveillance environment for teachers and students. Under surveillance, intellectual freedom and creativity languish.

Existing law protects the privacy of those in the classroom that seek to engage material without having to worry about a recording of it popping up on Facebook or Snapchat, while still allowing students and other participants to report crimes. Engagement on the most sensitive topics will be affected the most, with a severe chilling on speech in the classroom. California Scholars for Academic Freedom write that this bill would foster an unnecessarily adversarial relationship between students and faculty. The group states: “Worse still, this bill will provide political and interest groups with an opportunity to silence dissent and limit academic freedom by allowing the recording and reporting of class lectures and discussions out of context, and, in this age of social media sensationalism, with no concerns for accuracy, transparency[,] and due process.”

The California Federation of Teachers, the California Faculty Association, the California Teachers Association, and the Faculty Association of California Community Colleges write collectively in opposition. They state that this bill “would contribute to a chilling effect on free speech in the classroom” and would create “a hostile learning environment where anyone could be subject to harassment, or blackmail for their beliefs.”

The United States Supreme Court and the California Supreme Court have both long held inviolate the sanctity of academic freedom and the free and open exchange of ideas in the classroom. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” (Shelton v. Tucker (1960) 364 U.S. 479, 487.) “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers [and students] concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . . The classroom is peculiarly the ‘marketplace of ideas.’ The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection’ [Citation.]” (Keyishian v. Board of Regents (1967) 385 U.S. 589, 603; see also White v. Davis (1975) 13 Cal. 3d 757, 767-771.)

Opening up classrooms to secret recordings will chill speech in one of the most sacrosanct locations for engaging ideas and thought. In the context of surveillance, albeit directly by the government, the California Supreme Court has stated that such covert information gathering “may potentially impose a significant inhibiting effect on the free expressions of ideas.” (White v. Davis (1975) 13 Cal. 3d 757, 768.) This bill would risk upending this long-held principle of our democracy based on as little as a non-student’s reasonable belief that a local agency policy has been broken.

Support: None Known

Opposition: Academic Senate of the California State University; California Faculty Association; California Federation of Teachers; California Scholars for Academic Freedom; California Teachers Association; Faculty Association of California Community Colleges

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation: None Known

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