Judge issues opinion in student free speech lawsuit

CALIFORNIA — A Marin County Superior Court judge issued a written opinion in August regarding his March decision that a former student columnist’s constitutional rights were not violated by the Novato Unified School District.

Former Novato High School student Andrew Smith’s lawsuit claimed his right to free speech under both the First Amendment and the California Education Code was violated when district officials apologized to students and parents and confiscated copies of The Buzz, Novato’s student newspaper, after his article "Immigration" was printed.

California is one of six states with a statute protecting the student free expression rights. The laws are often referred to as anti-Hazelwood statutes because many were a specific response to the Supreme Court’s 1988 decision limiting students’ rights under the First Amendment.

"Immigration" contained derogatory statements about Mexican immigrants and listed reasons why Smith thought immigration laws are ineffective.

The court found that "Immigration" led to a student walkout, administrators meeting with angry parents and a fight between Smith and several Latino students.

In regards to the confiscation of newspapers, the court said, "there was no credible evidence that the District removed any editions of The Buzz after they were distributed," negating Smith’s claim to the contrary. The court found that all the copies had been distributed at the time the school gave the order to confiscate them, thus thwarting the effort.

Smith also claimed his rights were breached when the publication of his second article, "Reverse Racism," was delayed so that a counter article could be written and printed alongside it. Both articles were published during the 2001-02 school year.

The court found that Smith’s rights were not violated because he was ultimately allowed to publish both articles. The court also said Smith’s rights were not violated when "Reverse Racism" was delayed because it was the student newspaper staff’s decision to run a counter article, not a directive of the school or district.

Stella Robertson, then-editor of The Buzz, told the SPLC in January 2002 that it was the principal who was delaying publication.

In addition, the court also rejected Smith’s claim that the district’s policy regarding student publications was a violation of state and federal law.

The district has the ability "to control publication of material which is insulting, derogatory, harassing, likely to incite violence and/or likely to cause a substantial disruption to the orderly operation of the school," according to the court’s opinion, using terms found in the district’s policy.

Student press advocates raised questions about the breadth of the judge’s decision, saying it appeared to go beyond what the state law allows.

"The judge just ignored the fact that state law does not allow censorship for some of these kinds of expression, in part because the terms are so vague," said SPLC Executive Director Mark Goodman. "For example, is criticizing a school official ‘insulting’?"

Judge John Sutro also granted a request by the school district asking that Smith be forced to pay about $21,000 in legal costs.

Arthur Mark, Smith’s attorney, said appeals have been filed for both decisions, but the legal costs are a secondary issue.

"The main issue is the free speech rights of Andrew Smith and the free speech rights of the students of California," Mark said.

Mark said this case is important because it will have an impact on how administrators treat student speech, particularly at the high school level.

Stephan Birgel, the school district’s attorney, said he did not know on what grounds Smith was appealing. He said it would be an uphill battle to get an appeals court to overturn the lower court’s ruling on the legal costs. With all of the school district’s expenses documented, the court of appeals would have to feel very strongly to overturn the decision of the trial judge who oversaw three years of litigation, Birgel said.

Birgel said the $21,000 in costs does not include attorney’s fees, only expenses such as depositions, filings and travel. He could not comment on whether the school district would file suit to recover attorney’s fees as well.

by Clay Gaynor, SPLC staff writer


  • Smith v. Novato Unified Sch. Dist., No. CV022210 (Marin Super. Ct. Aug. 26, 2005)

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