[Historical Note: The Red Tide was a revolutionary high school underground newspaper and youth organization that existed from 1971-1981. See: http://theredtide.wordpress.com/]
Red Tide, Vol. II, No. 1 [Issue #5]
Red Tide Sues School Board
[By Michael Letwin]
Last year we had a lot of hassles with rules and regulations in writing and distributing the Red Tide. As a result, we took the trouble of learning about the law and finding legal help to challenge rules and law that we do not believe to be legal or constitutional. We did this not only to help the Red Tide, but to help all of those in school who want to freely express their views.
By the time you read this article, the Red Tide will most probably have its first law suit in the state Superior Court of L.A. County. We are challenging the L.A. Board of Education rules that do not allow students to sell material, and that say that we have to submit material to the administration’s prior censorship before distributing it, on the grounds that these rules are both illegal according to state law and that they are unconstitutional under the state and federal constitutions.
What we are arguing is that state law section 10611 (the law which allows distribution of material) does not authorize prior censorship. As a matter of fact, a judge in the case that brought about the new law stated:
“What may be best — although 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 [not for acceptance or rejection — R.T.] and with reasonable time, place and manor 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 protection of the First Amendment [U.S. Constitution — R.T.]. In such instance, the school authorities could prevent distribution by prior court order”.
This means that if the administration doesn’t like a student publication, they have to go to court and show why the publication is illegal or unconstitutional, after the material is circulated. The new law comes directly from this court decision. It suggested submission for “informational purposes only,” not for prior censorship.
BOARD DOESN’T CARE
The State Board of Education, which is different from the L.A. School Board, also proposed that:
“There should be no prior censorship or requirements of approval of the contents or wording of the presented materials related to student expression on campus.”
But the L.A. School Board went ahead and adopted them anyway.
The prior censorship rule is also unconstitutional as Article One Section 9 of the State Constitution points out:
“Every citizen may speak freely, write and publish his sentiments on all subjects being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of the speech of the press.”
What will the School Board do with its power to censor us? Let’s look at what it says about our right to say, hear, read and write. The L.A. School Board states in its “Local Board Policy”:
“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 and pictorial language which infringes on the minimum standards of propriety and the accepted norm of public behavior on or near school campuses.”
To think that the Board of Ed. or a school administrator knows what is, for minors, “vulgar, obscene” etc., is not only stupid, but displays and arrogance typical of the people who run our schools. What might be offensive to us, and if it is to anyone, they are not forced to read that material, but they should be given the choice for themselves.
So we see that prior censorship is in no way acceptable under the legal and constitutional definitions of our society.
We also have the issue of sale of material. One can search in vain in Section 10611 for any statement which prohibits sale of material. The Education Code section barring sale was repealed last year. However, the present Board Rules prohibit “the exhibition or sale to pupils or employees of any article whatsoever”. In a case in 1971, Poxon v. Board of Ed., 341 F. Supp. 258 (E.D. Calif.), August 31, 1971, the rules barring solicitation of donations, funds and membership were declared unconstitutional.
Constitutionally, to refuse the right to sell material in effect means to condemn a publication to its doom. Who will pay for the publication of a newspaper if we can’t sell it? Only those with a great deal of spare money can afford such a luxury, and although the law is amply bent in their direction, we feel that it is too blatant an issue not to be spotted as unconstitutional.
HOW TO WIN
How do we go about winning the case? Well, what we want is an injunction against the School Board and all of its employees to keep them from enforcing the unconstitutional and illegal rules that we are challenging. This injunction can be obtained from a court, so the first thing we do is go to court and ask for a T.R.O. (Temporary Restraining Order) to keep the administration from enforcing the rules until a trial can be started which would be about two weeks from the time of the first appearance.
We will present a general argument to get this. If we get it, we can start distributing right away. When our case comes up we present a long and detailed argument where we explain to the judge why we believe that the rules are illegal and unconstitutional. If we convince the judge, then we get a Preliminary Injunction.
A few weeks after that we have to appear and the School Board’s lawyer has to appear and each side will argue its case. If we win, then the rules will be struck down by the judge. If we lose at this stage, then we have to appeal to a higher court. If the School Board loses, then they can also appeal.
WILL WE WIN
We have a good chance of winning at the lower stages, but even if we don’t we will almost surely win at an appeal. If we do win, it will mean a striking down of these types of rules all over the state of California, a step forward for student rights.
DOES THE SYSTEM WORK
But people must look at what we can expect from the legal system. We believe that it is an institution that was set up to maintain the present economic system, and that since it is, we can expect only limited and occasional victories from it. However, the rhetoric of this country is one of democracy and therefore many times we will win on the more blatant cases.
Also we believe that the legal system in this country is here to, and will on the whole, serve the rich. Liberals often say, “Angela Davis went free, and that proves that the legal system works”. It does not!
Angela Davis was kept in jail for 22 months, 17 of them in solitary confinement, without even being convicted! Within this time her health deteriorated due to bad medical conditions, she lost part of her eyesight and developed varicose veins.
She had to spend vast sums for her defense, money she was able to raise only because of her status as a public figure. The prosecution had absolutely no case against her and the jurors saw this and therefore Angela went free.
But what if Angela was a poor black woman, who was not well known and could not raise money, and get lawyers to bust their asses in her defense without the normal fees? Would she have gone free then, even if she wasn’t guilty? Or would she have gotten life imprisonment because she did not have the resources to prove herself innocent?
Millions of people have been railroaded into jail because they don’t have the ability to prove themselves innocent.
Or what if the Red Tide was not a newspaper based in a predominantly white middle class area, and what if the American Civil Liberties Union was not willing to put up the money for a court case; then would the system work?
This society is not based on people’s needs, but rather on profits. The institutions in this society are made to serve that society, so why is there any reason to think that the legal system is any different? We will sometimes get justice, if we are lucky enough to get honest jurors, and a half-way decent judge who still cares about “justice”, but we should realize that the courts are not the monuments to democracy that we are led to believe.
It is ironic that the people who talk about the law being sacred are often the ones who do not obey it. Our case is a perfect example of this.
We do not think that the law is neutral or sacred, but when it can be used to the people’s advantage, then we will use it. But our goal remains not to reform the existing system, but to change it at its roots.
At the time of this article, we do not yet know whether we have won the first of our obstacles, the Temporary Restraining Order. If we did win, then this paper will not have been submitted for prior approval and will be sold. If we didn’t, then we will have to submit it to prior approval.