Opinion
WIENER, Acting P. J. Plaintiffs Alan DiBona and J. Scott Gundlach, a college teacher and student respectively, appeal following the entry of summary judgment in favor of defendants Robert L. Matthews and James Hardison, administrators with the San Diego Community College District. Plaintiffs claim there are issues of fact which remain to be litigated in their claim that defendants violated their constitutional rights by cancelling a drama class because of the subject matter of the play DiBona had selected for the students to perform. We agree and reverse the summary judgment.
Factual and Procedural Background
Viewed in the light most favorable to the plaintiffs, the record before the court on the motion for summary judgment reveals the following story. The Educational Cultural Complex (ECC) is a branch of the San Diego Community College District located in Southeast San Diego. ECC offers college and adult education courses. Alan DiBona began teaching at ECC on a part-time basis in the fall of 1985. He taught the Drama 250 course during the fall and spring semesters and was asked to again teach the same course for the summer session. The curriculum for Drama 250 requires that the students produce and perform a play.
Although his formal teaching contract for the summer was not signed until April 1986, DiBona began to prepare for the class in March. He selected a play written by Dennis McIntyre entitled “Split Second.” The play concerns a Black New York City police officer who, in the course of a routine arrest of a White suspect, is subjected to a flurry of racial slurs and epithets. In a split-second loss of control, the officer shoots and kills the suspect. He then places a knife in the hand of the victim and fabricates a story that the shooting was in self-defense. According to DiBona, “[t]he play centers around the morality of [the officer’s] actions, exploring one man’s rationalization of why he should not tell the truth and the repercussions of his decision.”
[1334]ECC does not require that teachers obtain the approval of the college administration for plays to be performed in drama classes. DiBona nonetheless gave a copy of the script to Sylvia M’Lafi Thompson, the ECC cultural affairs adviser, and discussed the content of the play with defendant Robert Matthews, the ECC president. In late May, DiBona made copies of the play available to students interested in taking the class.
Summer session classes were scheduled to begin at ECC on Monday, June 16. DiBona made special arrangements for the class to begin meeting on Monday, June 9. Over the course of the week auditions were held. By Friday, June 13, DiBona and plaintiff Scott Gundlach—an ECC student and the play’s assistant director—had selected and notified the cast. Other students were assigned technical functions such as lighting and costumes.
Approximately 14 students met on Saturday to do an initial read-through of the play. Only two or three were formally enrolled in Drama 250 at that point. The remainder including Gundlach signed “add” cards on Saturday. Defendant James Hardison, the dean of arts and sciences at ECC, conceded it was generally understood that students did not preenroll for drama classes because most preferred to wait for the results of the auditions before deciding whether to take the class. DiBona collected the “add” cards and instructed the students to bring any necessary additional fees to class on Monday.1 He indicated he would submit everything to the registrar’s office on Monday evening.
On Monday morning June 16, Matthews received a call from the past president of ECC informing him that certain church leaders in the community were upset about the “Split Second” play and asking him to look into it. Matthews spoke with DiBona at about 2:30 that afternoon. He explained he had received some phone calls which included “negative remarks about the proposed production” and indicated “there might be some unrest” as a result of the play. Matthews told DiBona he “was not prepared or had no desire to take on our religious community, . . .” At Matthews’s request, DiBona provided him with a copy of the play. Matthews quickly skimmed the script, focusing on the first two scenes. He concluded the plot “was weak, and that the language was inappropriate in an educational setting.” Meeting with DiBona a few minutes later, Matthews expressed his opinion that “this play would not be produced publicly at [ECC].” He refrained from further comment because he wanted to consult with Dean Hardison.
[1335]At about 5 p.m. Matthews met with DiBona, Gundlach, and two other students interested in working on the play.2 Although he had still not read the bulk of the script, Matthews reiterated his concerns with the “community opposition” to the play. According to DiBona, “He told me . . . that he didn’t want organized opposition from the ministers of the community and that he was responsible to the community . . . and that he felt that the language was unacceptable for [ECC].” DiBona and the students attempted to explain that while the language in the first scene was strong, it was appropriate given the theme of the entire play. Matthews agreed to read the complete script that night.
The class met as scheduled Monday evening. DiBona and Gundlach briefed the class on their meeting with Matthews, explaining that for the time being, the play was “on hold.” DiBona suggested it was pointless to submit the “add” cards and additional fees to the registrar pending resolution of the controversy. The students discussed potential alternatives open to them and whether the administration reaction had been influenced by the Sagon Penn case currently being tried in San Diego County Superior Court.3
Sometime on Monday or Tuesday, Matthews asked Hardison to read the play. When they discussed the issue again, they agreed the play was inappropriate for presentation at ECC. Hardison termed the characters “a little weak,” the plot “anticlimactic," and concluded “it’s not very uplifting.” He thought “Split Second” “would [not] fit into the category of. . . Tennessee Williams or any of the [sic] George Bernard Shaw’s works, in my opinion. Just is not of that caliber." Matthews suggested that Hardison talk to DiBona.
DiBona spoke with Hardison on Tuesday evening.4 According to DiBona, “Hardison . . . told me the decision to cancel the class was due to the sensitivity of the community to the subject matter. [He] said perhaps the play would do well in La Jolla, but not in Southeast San Diego. Hardison [1336]said the community needed to be uplifted, and suggested the class put on ‘The Wiz.’ ”5 DiBona declined Hardison’s suggestion to use another play, pointing out that he had been preparing “Split Second” for months. He then asked whether it would be possible to conduct the class and perform the play privately so that the students could receive credit. Hardison said he would check with Matthews. The next evening, Hardison told DiBona he and Matthews had decided there would be no class with “Split Second” as the subject matter.
At about this same time, Hardison received a list of classes at ECC with insufficient enrollment. The Drama 250 class was included on this list because only three students were officially registered. As noted previously, due to the controversy over “Split Second” DiBona had never submitted the “add” cards for 11 of the 14 students to the registrar’s office. (See ante, p. 1335.) Hardison testified it was the “general practice” at ECC to drop classes with less than 10 students. ECC records reflect that Drama 250 was cancelled on Tuesday, June 17. DiBona stated and Hardison confirmed, however, that Hardison never mentioned class enrollment during their discussions. In fact, DiBona never heard the class had been cancelled due to low enrollment until after this litigation began.
After the administration decision was communicated to the students, they decided to rehearse and perform the play off campus. None of the students including Gundlach received course credit, and DiBona was not paid pursuant to his contract for teaching a summer session course.
DiBona and Gundlach filed this action alleging violation of their constitutional rights and seeking declaratory and injunctive relief. At that time, DiBona was no longer a teacher and Gundlach no longer a student at ECC. DiBona, however, was employed as a teacher at the City College campus of the San Diego Community College District. Gundlach was enrolled as a student at the District’s Mesa College campus.
Matthews and Hardison moved for summary judgment arguing that the case was moot, that DiBona and Gundlach lacked standing, and that there was no violation of plaintiffs’ constitutional rights. The trial court agreed with defendants, reasoning as follows: “[A]fter going through it very carefully, I just feel that the defense position, with regard to the fact that there is [1337]no justiciable issue, is appropriate under these circumstances, that to . . . render an opinion would be contrary to the law’s admonition that we not engage in moot acts or advisory opinions.
“I further agree with the position which is espoused in the moving papers . . . that there is no standing with regard to the remaining parties ....
“And then, finally, I found the argument persuasive that this really didn’t involve a violation or an improper . . . impact on the First Amendment rights of the parties who brought the action.”6
The court later expanded on its view that the plaintiffs’ First Amendment rights had not been affected: “. . . I don’t think that there was censorship here. I don’t think that there was an improper denial or cancellation of that class. And I do think that what did occur, under these circumstances, most assuredly was reasonable.
“And I think I’m capable of taking a little bit of judicial notice as to what the political atmosphere in Southeast San Diego and in the City of San Diego was at about the time that this arose, with regard to a certain well known and well publicized criminal action that was proceeding through our courts.
“And I think that what happened was that the administration weighed the potential of the harm that could have been caused by that play, the fact that obviously, justifiable or not, there were segments of the society that was going to be exposed to it that had evidenced the fact that they were not very happy with it, that the Saigon [sic\\ Penn situation was a very volatile and potentially violent situation.
“I think all of these things were properly in consideration. I don’t view it at all as being a First Amendment matter at all. And, even if it were, I think it’s the same situation about the ability to yell, ‘Fire’ in a crowd of a theater. I think, under those circumstances, calmness and awareness of the problem justified the action that was taken.
“[Plaintiffs’ Counsel]: So it is your Honor’s feeling that the decision— that the administrators had the discretion to act as they did in order to prevent controversy within the campus or the community.
“The Court: Within the community. And bearing in mind what they are. And what the nature of the institution was and the fact that they [1338]utilized public monies, the geographic location of it. All of those things, I think, were considerations.”
Plaintiffs’ counsel then argued that the administrators’ actions were invalid because they failed to use objective criteria in deciding whether the play was “appropriate.” The court responded: “You see, that’s where I part company with your reasoning. I think they did act in an objective, competent manner. I think to have done otherwise, to say, ‘Oh, good heavens. We’ve got First Amendment rights we have to be aware of and let them put it on and let the devil take the hindmost would have been unconscionable, under the circumstances.
“I think they did act in a fair and objective way in how they arrived at their determination. Under the circumstances and facts that existed at this time, this play was not an appropriate one to be placed in the public purview.”
Discussion
County Counsel on behalf of the defendant college administrators seeks to defend the court’s grant of summary judgment on the same three theories raised and relied on below. We address these arguments seriatim.
Standing
Defendants argue that the case is not justiciable because neither DiBona nor Gundlach has standing to assert a violation of their free speech rights under the United States and California Constitutions. The contention need not detain us long. As the court explained in California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16 [61 Cal.Rptr. 618], “One who invokes the judicial process does not have ‘standing’ if he . . . does not have a real interest in the ultimate adjudication because the actor has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.” (Id. at pp. 22-23.)
In a controversy of this nature, it is difficult to conceive of persons who could more properly present the relevant facts and argue the relevant issues than the teacher who was prevented from teaching the class and a student who was precluded from taking it. Here, DiBona suffered actual injury because defendants’ actions allegedly denied him both the monetary benefits of his teaching contract with the community college district and the ability to select the course of instruction for the class. (See post, fn. 7.) Defendants assert Gundlach lacks standing because he was never officially [1339]enrolled in the class. The facts are at least susceptible of the interpretation, however, that Gundlach would have been enrolled but for the allegedly unconstitutional acts by the defendants. Under these circumstances, the issue is not one of standing; Gundlach has a sufficiently personal interest at issue to properly present the case. The question is simply whether Gundlach can prove the causal link necessary to establish his entitlement to relief.
Mootness
The second arrow in defendants’ justiciability quiver is their argument that the case is moot because the 1986 summer session has long since ended, neither DiBona nor Gundlach continues to be associated with ECC, and the trial court was without power to grant any form of relief even were it determined the defendants acted unconstitutionally. Defendants ignore the fact that Gundlach continues to seek academic credit for having completed the Drama 250 course. DiBona stated that the production of “Split Second” which the students staged off campus would have fully satisfied the course requirements had it been performed at ECC. As we have explained, the mere fact that Gundlach was never formally enrolled in the course does not necessarily preclude his obtaining relief. If Gundlach can show he satisfied all the course requirements for Drama 250 except those made impossible by defendants, the court could properly conclude that course credit should be awarded and order appropriate declaratory and injunctive relief.
Even were the award of course credit inappropriate, an exception to the mootness doctrine exists where the issue is “capable of repetition, yet evading review.” (Southern Pacific Terminal Co. v. ICC (1911) 219 U.S. 498, 515 [55 L.Ed. 310, 316, 31 S.Ct. 279].) Defendants impliedly concede the three-month-long summer session is sufficiently short that absent application of such an exception, defendants’ actions would evade considered appellate review. (See Roe v. Wade (1973) 410 U.S. 113, 125 [35 L.Ed.2d 147, 161, 93 S.Ct. 705]; Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 563 [65 L.Ed.2d 973, 981, 100 S.Ct. 2814] (plur. opn.).) They contend, however, there is no “reasonable expectation that the same complaining party [will] be subjected to the same action again.” (Weinstein v. Bradford (1975) 423 U.S. 147, 149 [46 L.Ed.2d 350, 353, 96 S.Ct. 347].)
The argument misperceives the degree of certainty necessary to invoke the exception. Here, DiBona continues to teach drama and Gundlach continues to be enrolled as a student in the San Diego Community College District. While they are now not teaching or studying at the District’s ECC location, we think such a requirement would be unnecessarily restrictive. DiBona may again teach or Gundlach may again take classes at ECC. [1340]Moreover, although defendants were administrators at ECC at the time the lawsuit was filed, they have since been moved to other positions within the district. Because defendants are district employees, we assume any relief of a declaratory nature granted to plaintiffs here will inure to the benefit of all the district’s teachers and students.7 Finally, were it critical to the maintenance of the lawsuit, plaintiffs should be given the opportunity to amend their complaint to add the district as an additional defendant.
Constitutional Issues
Having disposed of the alleged procedural barriers, we now confront the fundamental question whether the evidence before the court on defendants’ motion for summary judgment establishes as a matter of law that plaintiffs’ constitutional rights were not violated. Defendants first argue the evidence establishes the class was cancelled for reasons unrelated to First Amendment concerns. They assert it is uncontested Hardison authorized and Matthews approved the cancellation on June 17 because of low enrollment.8 This argument misconstrues the central issue. The record reflects that beginning on June 16, Matthews and Hardison expressed their opinions that “Split Second” would not be performed at ECC. While it is true only three students were formally enrolled on June 17, it is equally clear that eleven other students wanted to enroll and would have enrolled had defendants not acted to prohibit performance of the play. Under these circumstances, it cannot be said that the cancellation of the class was unrelated to [1341]the content of the play and plaintiffs’ attempted exercise of their constitutional rights in performing it.
Of course, the mere fact that defendants considered the content of the play in deciding to cancel the class does not in itself establish a violation of plaintiffs’ constitutional rights.9 Under the guise of free speech, the First Amendment does not transfer control of a public school’s curriculum from school administrators to individual teachers and students. Equally important, however, “[n]either teachers [n]or students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 506 [21 L.Ed.2d 731, 737, 89 S.Ct. 733].) As with so many First Amendment issues, the question is one of identifying permissible governmental purposes and balancing the competing interests. To paraphrase the Supreme Court in Tinker, our problem lies in the area where the exercise of First Amendment rights by students and teachers collides with the discretion of school administrators in deciding what is appropriate instructional material. (Id. at p. 507 [21 L.Ed.2d at p. 738].)
The facts before the court on the motion for summary judgment10 suggest three principal reasons for the cancellation of the class articulated by Matthews and Hardison at various points in time: (1) there was opposition to the play from the religious community; (2) the subject matter of the play was sensitive given the community unrest in the wake of the Sagon Penn trial; and (3) the language of the play was “inappropriate.”11
[1342]A
Plaintiffs contend the first and second justifications were the “real” reasons for cancellation of the class. The sequence of events would certainly support such a conclusion since Matthews admitted it was a phone call regarding opposition from religious groups which triggered his initial inquiries of DiBona. Moreover, the trial judge specifically accepted the pending Penn criminal case as a valid reason justifying ECC’s caution in producing a play raising similar issues.
Both the United States and California Supreme Courts have spoken to the question of whether government may regulate the content of speech because of concern that it may provoke dissension, dispute or disturbance. More than 40 years ago in Terminiello v. Chicago (1949) 337 U.S. 1 [93 L.Ed. 1131, 69 S.Ct. 894], Justice Douglas wrote: “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound and unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, [citation], is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” (Id. at p. 4 [93 L.Ed. at p. 1134].)
Twenty years later in Tinker v. Des Moines School Dist., supra, 393 U.S. 503, Justice Portas repeated Terminiello’’% rationale in rejecting a school district’s argument that the wearing of black armbands by some students might provoke a disturbance: “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom [1343]of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk [citation]; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” (Id. at pp. 508-509 [21 L.Ed. 2d at p. 739].)
Because it concerned conduct on a state college campus, the California Supreme Court’s opinion in Braxton v. Municipal Court (1973) 10 Cal.3d 138 [109 Cal.Rptr. 897, 514 P.2d 697] is of particular interest. Writing for the court, Justice Tobriner echoed themes similar to those articulated in Terminiello and Tinker. “[Njeither the ‘content’ of speech nor freedom of association can be restricted merely because such expression or association disrupts the tranquility of a campus or offends the tastes of school administrators or the public. Protest may disrupt the placidity of the vacant mind just as a stone dropped in a still pool may disturb the tranquility of the surface waters, but the courts have never held such ‘disruption’ falls outside the boundaries of the First Amendment.” (Id. at p. 146.)
The facts of this case present a classic illustration of “undifferentiated fear” of disturbance on the part of school administrators. DiBona was given the authority to select curriculum materials. The administration became interested in the subject matter of the class only after “community” opposition was first manifest. When they reacted to this pressure by cancelling the class, there were no facts known to either Matthews or Hardison indicating a “clear and present danger” of any evil, let alone a “serious substantive” one. Nor was there any suggestion that the production of the play would “ ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school’, . . .” (Tinker, supra, 393 U.S. at p. 509 [21 L.Ed. 2d at p. 739], quoting Burnside v. Byers (5th Cir. 1966) 363 F.2d 744, 749.) Rather, school officials were merely concerned with “avoiding] the discomfort and unpleasantness that always accompany” an unpopular or unorthodox point of view. (Tinker, supra, 393 U.S. at p. 509 [21 L.Ed. 2d at p. 739].)
Similar issues were similarly resolved in Brown v. Board of Regents of University of Nebraska (D.Neb. 1986) 640 F.Supp. 674. There, the University of Nebraska cancelled the scheduled showing of a controversial film, “Hail Mary,” after several members of the public and a state senator complained that the film blasphemed certain religious beliefs. The director of the campus art gallery (within which the theatre showing the film was [1344]housed) ordered cancellation of the film because it was “ ‘offensive to a segment of society and did not merit the efforts it would take to defend it.’ ” (Id. at p. 677.) The director was also concerned that the negative publicity concerning the film would adversely affect the university’s and the gallery’s ongoing budgetary battles in the Legislature. (Ibid.) In a suit for declaratory relief, the district court relied on Tinker in holding that the decision to cancel the film violated the constitutional rights of persons wishing to view it. “It was not the fact of controversy that caused the cancellation of ‘Hail Mary’. It was that the prospect of a religious battle in the uneasy political setting of the time . . . threatened the peace and stability of the Sheldon Gallery. Even if the cause had been only the fact of controversy, however, cancellation would not have been justified, because action taken by an arm of the state merely to avoid controversy from the expression of ideas is an insufficient basis for interfering with the right to receive information.” (Id. at p. 679.)
Here, Matthews’s expressed desire to avoid “taking on” the religious community is clearly an insufficient basis for cancellation of the class. As to the “politically sensitive” nature of the play’s subject matter, not only is it a constitutionally inappropriate reason for censorship, ultimately it may also be counterproductive for the community. A central premise of the constitutional guaranty of free speech is that difficult and sensitive political issues generally benefit from constructive dialogue of the sort which might have been generated by “Split Second.”
B
Defendants suggest their decision may be upheld and the summary judgment affirmed based on the independent ground that the language used in “Split Second” was “inappropriate” for a school play. While it is clear the trial court did not rely on this ground (ante, fn. 6), our obligation is equally clear to affirm the judgment if there is an adequate independent basis which establishes as a matter of law that defendants must prevail. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [112 Cal.Rptr. 786, 520 P.2d 10].)12
We have previously alluded to the fact that school administrators possess considerable discretion in deciding on the content of school curriculum. (See, e.g., Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260, [134527]3 [98 L.Ed.2d 592, 606-607, 108 S.Ct. 562]; Epperson v. Arkansas (1968) 393 U.S. 97, 104 [21 L.Ed.2d 228, 234, 89 S.Ct. 266].) The appropriateness of language used in a play has—at least in certain contexts—traditionally been viewed as the sort of factor which may legitimately be considered in making curriculum decisions. For varying reasons, however, we conclude it cannot support defendants’ decision to cancel the Drama 250 class and prohibit the performance of “Split Second.”
Numerous cases have considered the question under what circumstances school officials may regulate the performance of dramatic productions or the availability of written materials on grounds of inappropriate language or content. Nearly all these cases, however, have involved minors rather than adult college students.13 For instance, in Board of Education v. Pico, supra, 457 U.S. 853, the Supreme Court approved reversal of a summary judgment entered in favor of a school board which decided to remove certain books from a junior high and high school library, allegedly because of vulgarity and sexually explicit language. Although the splintered nature of the opinions in the case makes an express holding somewhat difficult to discern, several of the dissenting opinions are explicitly or implicitly premised on the students’ status as minors. (Id. at p. 893 [73 L.Ed. 2d at p. 464], dis. opn. of Burger, C. J. (“teenage pupils”); p. 897 [73 L.Ed. 2d at p. 466], dis. opn. of Powell, J. (“I certainly would not require a school board to . . . teach such values to children”); p. 920 [73 L.Ed.2d at p. 480], dis. opn. of Rehnquist, J. (“[T]he government as educator is subject to fewer strictures when operating an elementary and secondary school system than when operating an institution of higher learning”).)
Similarly in Bethel School Dist. No. 403 v. Fraser (1986) 478 U.S. 675 [92 L.Ed.2d 549, 106 S.Ct. 3159], the court approved the imposition of discipline on a high school student for utilizing an explicit sexual metaphor in a speech to fellow students at a school assembly. More recently in Hazelwood School District v. Kuhlmeier, supra, 484 U.S. 260, a high school principal’s decision to remove two articles from a student newspaper was upheld based on his conclusion that the privacy interests of students alluded to in an article on teen pregnancy were inadequately protected and because a person criticized in an article on divorce was given no opportunity to respond. (Id. at pp. 274-276 [98 L.Ed. 2d at pp. 607-608].) In reaching its conclusion, the court suggested that teachers and administrators have more discretion in regulating the content of school-sponsored expressive activity so long as the regulation is “reasonably related to legitimate pedagogical concerns.” (Id. at p. 273 [98 L.Ed. 2d at p. 606]; see also Seyfried v. Walton (3d Cir. 1981) [134666]8 F.2d 214 (approving school superintendent’s decision to prohibit performance of high school play because of sexual content); Bell v. U-32 Bd. of Educ. (D.Vt. 1986) 630 F.Supp. 939 (upholding school board’s decision not to produce high school play dealing with violence, sexual activity, and drug and alcohol abuse).)
Defendants contend as college administrators they should be afforded the same broad discretion in controlling their curriculum as school administrators at the elementary and secondary level. As a general proposition, however, where children are concerned the legitimate role of the government in regulating speech is substantially broader. (See, e.g., Ginsberg v. New York (1968) 390 U.S. 629 [20 L.Ed.2d 195, 88 S.Ct. 1274] (government may prohibit the sale to minors of sexually explicit material which would be constitutionally protected if sold to adults); see also FCC v. Pacifica Foundation (1978) 438 U.S. 726 [57 L.Ed.2d 1073, 98 S.Ct. 3026].) In contrast, as the Supreme Court explained in Healy v. James (1972) 408 U.S. 169 [33 L.Ed.2d 266, 92 S.Ct. 2338], “[T]he precedents of this Court leave no room for the view that . . . First Amendment protections should apply with less force on college campuses than in the community at large.” (Id. at p. 180 [33 L.Ed.2d at p. 279].) In Papish v. University of Missouri Curators (1973) 410 U.S. 667 [35 L.Ed.2d 618, 93 S.Ct. 1197] the court considered the question whether a student could be disciplined for distributing a newspaper on campus containing ’’indecent” language and material. In a per curiam opinion, the court invalidated the student’s expulsion explaining, “We think Healy makes it clear that the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’ ” (Id. at p. 670 [35 L.Ed.2d at p. 622].)
Relying principally on Hazelwood School District v. Kuhlmeier, supra, 484 U.S. 260, defendants suggest that the broad pronouncements of Healy and Papish have been undercut by more recent decisions recognizing an enhanced governmental interest in regulating school-sponsored expressive activities such as the play in this case. They suggest this more deferential standard is equally applicable in the college and adult education context.
We question whether the rationale underlying the “school sponsorship” rule would allow its wholesale extension to educational settings involving adults. The general public is likely to view school-sponsored student speech as bearing the “imprimatur of the school” (Hazelwood, supra, 484 U.S. at p. 271 [98 L.Ed. 2d at p. 605]) largely because of the greater control elementary and secondary schools exercise over the conduct of minor students. Defendants have cited no authority—and we are aware of none—which would allow a college or university to censor instructor-selected curriculum [1347]materials because they contain “indecent” language or deal with “offensive” topics.
Moreover, there was no danger anyone likely to be offended would be forced to participate in or view the play. DiBona made the script available to students several weeks before the first class so they could decide whether they wished to audition. Assuming the play was performed publicly, no one would have been required to attend.14
In any event, we may assume school sponsorship is a factor which under some circumstances can be considered at the college level. We nonetheless cannot validate defendants’ decision here to cancel the Drama 250 class. Although Hazelwood mentions a school’s production of a play as the type of expressive activity which may be viewed as “sponsored” (484 U.S. at p. 271 [98 L.Ed.2d at p. 605].), one can produce a play without advocating or subscribing to every idea the author of the play intends to communicate. No one could reasonably argue that a school which presented a play by Shakespeare was thereby advocating the social and sexual mores of 17th century England which are implicit and often explicit in Shakespeare’s works. Moreover, defendants’ objection here was based on the indecency of the language used in “Split Second,” particularly its first scene.15 But in contrast to a school paper—which if it allowed students to express themselves using profanity would implicitly condone its use—“Split Second” does not advocate the use of vulgar speech. If anything, the play suggests that the use of profanity and racial slurs may cause people to react emotionally rather than rationally. As the trial court in this case recognized, profane speech is unfortunately the accepted vocabulary of some segments of our society. (Ante, fn. 6.) “Split Second” simply recognizes this reality and uses it to create the emotional tension necessary to develop the moral and philosophical issues which are central to the play.
Our conclusions do not leave college administrators powerless to control college curriculum. Although the “legitimate pedagogical concerns” at the college and university level may be more limited than in elementary and secondary schools, they are not nonexistent. Certainly college [1348]officials may limit the drama curriculum to works of an acceptable literary quality and they undoubtedly are entitled to broad deference where such determinations are made in advance rather than, as here, some time after the class had already begun to meet.
At least where adults are concerned, however, literary quality cannot be measured simply by counting the number of “indecent” words in a book or play. (See ante, fn. 15.) As Justice Harlan recognized in Cohen v. California (1971) 403 U.S. 15 [29 L.Ed.2d 284, 91 S.Ct. 1780], taking a page from McLuhan, no bright line can be drawn between the manner of communication and the content of the ideas communicated. “[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able . . . to discern little social benefit that might result from running the risk of opening the door to such grave results.” (Id. at p. 26 [29 L.Ed.2d at p. 294].)
Disposition
Judgment reversed.
Work, J., concurred.
In his deposition, Gundlach explained it was unnecessary for him to pay any additional fees because he was enrolled in other classes and had already paid the maximum fee.
Coincidentally, one of the two students was Matthews’s son, Brian.
Sagon Penn, a young Black man living in Southeast San Diego, was charged with murder and attempted murder in the shootings of two police officers and a civilian ride-along. Penn was stopped by one of the officers for an alleged traffic violation. He admitted shooting the victims using a gun belonging to the officer who originally stopped him. He claimed, however, that the officer used the traffic stop as a pretext to verbally abuse and physically assault him because he was Black. After a hung jury in his first trial, a second jury acquitted Penn of all major charges. Following the second trial, the remaining charges were dismissed. (See generally, e.g., Jury Acquits Penn in Slaying of S.D. Officer, Los Angeles Times (S.D. Cty. ed., July 17, 1987) pt. I at p. 1, col. 2.)
DiBona also spoke with Matthews by phone on Tuesday. Having now read the entire play, Matthews stated he continued to object to the language of the script. DiBona suggested modifying some of the objectionable language but Matthews remained unpersuaded.
“The Wiz,” an adaptation based on Frank L. Baum’s book The Wonderful Wizard of Oz, was described by one source as “the most successful all-black musical presented in the 1970’s.” (Laufe, Broadway’s Greatest Musicals (1977) p. 425.) Featuring elaborate costumes and a rock music score, the play won the 1975 Tony Award for best musical and spawned a 1978 movie version starring Diana Ross. (Lynch, Musicals! A Directory of Musical Properties Available for Production (1984) p. 168.)
Commenting on the language in the play, the court added: “And I read the play, by the way. And maybe somebody would have been offended, but having sat nine months in a criminal department—that was everyday testimony.”
DiBona has not attempted to join a breach of contract claim with the request for declaratory relief. Relying on Bachis v. State Farm Mutual Auto. Ins. Co. (1968) 265 Cal.App.2d 722 [71 Cal.Rptr. 486], defendants contend declaratory relief as to DiBona is improper because he possesses a “fully matured cause of action for damages . . . and ... no declaration concerning future rights and duties is necessary, proper or even possible . . . .” (Id. at p. 723.) They further assert that amendment of the complaint would be improper because DiBona failed to comply with the one-year claim filing requirement of Government Code section 911.2. (See Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071 [195 Cal.Rptr. 576].)
Because there is no breach of contract action before us, we have no occasion or basis to comment on the applicability of the claim requirement or whether it may be excused. Assuming, however, that DiBona is unable or unwilling to pursue his contractual rights, he may still benefit from a declaration of his rights with regard to the selection of material to be performed in drama classes in the San Diego Community College District because he continues to be employed by the District as a drama instructor. Accordingly, the issues are not moot as to DiBona.
While ECC records indicate the class was cancelled on Tuesday the 17th, the dates are not completely certain. It appears that as late as Tuesday evening, DiBona and Hardison were still discussing alternatives to a public performance of “Split Second.” It was not until Wednesday that DiBona was notified there would be no drama class with “Split Second” as its subject. (See ante, p. 1336.) In addition, Matthews acknowledged that classes cancelled due to low enrollment could be reinstated if it became clear that a sufficient number of students wished to add the course.
Although raised as an issue by plaintiffs, we have not found it helpful to characterize this case as one involving an attempt by government to regulate the content of presentations in a public forum. (See generally, e.g., Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983) 460 U.S. 37, 45-46 [74 L.Ed.2d 794, 804-805, 103 S.Ct. 948].) As we read the record, defendants’ objection was not to the performance of “Split Second” at the ECC theater but rather to its production as part of the curriculum in an ECC drama class. Likewise, plaintiffs are complaining not because they could not perform the play—clearly they did perform it at an alternate location. They are seeking, in Gundlach’s case, credit for having completed the class and in DiBona’s case, a basis to claim entitlement to agreed-upon salary for the 1986 summer session.
The record before us is not the typical record we see following a court’s decision to grant summary judgment. In addition to declarations supporting each side’s submissions, we have the full text depositions of each of the four principals: DiBona, Gundlach, Matthews and Hardison. It is thus tempting to assume that the record following a full trial would not be dissimilar to that before us now.
With this in mind, it is important to recognize that plaintiffs filed no cross-motion for summary judgment and the question before us is limited to deciding whether there are issues of fact which remain to be litigated. We answer this question in the affirmative. For the guidance of the trial court on remand, we have on occasion commented on the state of the factual record before us assuming that a full trial will not result in substantial changes. These comments should in no way be taken as an expression of opinion on the outcome of the case should the evidence at trial prove to be significantly different.
Matthews and Hardison also criticized the play because it was not “uplifting” and because the plot and characters were “weak.” (See ante, pp. 1334, 1335.) We do not read the [1342]record to suggest that defendants believed the class could be cancelled because the play was insufficiently optimistic. To use Hardison’s own frame of reference (ante, p. 1335), the plays of Tennessee Williams would have difficulty qualifying if “uplifting” were a necessary prerequisite.
As to the strength of the plot and characters, no one would question the authority of teachers and administrators, in selecting plays to be performed or books to be read, to evaluate the literary quality of the work being considered. Here, however, as in virtually all college-level settings, the administration had delegated to the faculty member the authority to evaluate literary quality and select a play. ECC had no policy requiring or even allowing for the submission and review of materials before they were used in class. Moreover, Matthews and Hardison could point to no objective criteria they looked to in assessing the play’s literary value. (See Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 284 [50 L.Ed.2d 471, 482, 97 S.Ct. 568].) Significantly, DiBona was never told the play was unacceptable because it possessed insufficient literary value. This record provides no basis for concluding as a matter of law that the class was cancelled because of the quality of the play.
Although we conclude defendants’ proffered justification regarding the play’s indecent language is also an insufficient basis to support censorship, we note that it is at least a question of fact as to what was defendants’ true motivation in canceling the class. (See Board of Education v. Pico (1982) 457 U.S. 853, 883 [73 L.Ed.2d 435, 457, 102 S.Ct. 2799] (conc. opn. of White, J.).)
In Hazelwood School District v. Kuhlmeier, supra, 484 U.S. 260, the court expressly reserved the question of the extent to which the content of college-level expressive activities could be regulated by school officials. (Id. at p. 274, fn. 7 [98 L.Ed. 2d at p. 607].)
In Piarowski v. Illinois Community College (7th Cir. 1985) 759 F.2d 625, the court upheld a college’s decision to remove certain sexually graphic artwork from a display on a central campus mall and place it instead in a less conspicuous location. Interestingly, the court assumed the college could not constitutionally prohibit the display of the art on campus (id. at p. 630) but it concluded the college was not obligated to subject unwitting passers-by to expressive displays some might find offensive under circumstances which might imply college approval. (Ibid.) Here, of course, defendants rejected a proposal by plaintiffs to offer only a private performance of the play to which the general public would be denied access. (Ante, p. 1336.)
Defendants inform us that “[i]n the first eleven pages of the script . . . , more than 40 vulgar and profane words are used.”