Former student wins California high school censorship appeal

CALIFORNIA — A California Court of Appeal affirmed the rights of high school student journalists in a decision released Tuesday that found a former student columnist was unlawfully disciplined by his school’s condemnation of a controversial editorial as a violation of school policy and stating it should not have been published.

The case, Smith v. Novato Unified School District, began in 2002 when Andrew D. Smith, a former student at Novato High School and current U.S. Marine, authored two opinion pieces for his school’s student newspaper, The Buzz.

The first controversial editorial, titled “Immigration,” contained derogatory statements about Mexican immigrants and listed reasons why Smith thought immigration laws are ineffective. Another, “Reverse Racism,” which explored Smith’s views on everything from school fights to the O.J. Simpson case, was delayed but eventually published with a counter article.

Several Latino parents complained about “Immigration” to Principal Lisa Schwartz, who then held several meetings with parents and students and after conferring with the district superintendent ordered that all remaining copies of the newspaper be taken from distribution points.

Schwartz and the school superintendent sent a letter to parents that explained the immigration editorial and stated the “article should not have been printed in our student newspaper,” and claimed it violated the district’s speech policy.

Smith sued the school district and the Marin County Superior Court issued a ruling against him in August 2005, stating that Smith’s constitutional rights were not violated by the school district. The Superior Court also ordered Smith pay the district’s legal fees.

Smith appealed to the Court of Appeal, which reversed that decision, affirming that California Education Code section 48907, which provides protection for high school student journalists, “mandates that a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption.” The court also held that section 48907 “provides broader protection for student speech in California public school newspapers” than the standard set by the 1988 U.S. Supreme Court decision in Hazelwood v. Kuhlmeier.

The unanimous decision by a three-judge panel states that the “Immigration” editorial was “not inciting speech that the District was authorized to prohibit under section 48907.”

“We cannot allow the reactions to ‘Immigration’ by the reading audience (that is, the ‘heckler’s veto’) to silence Smith’s communication of unpopular views,” the judges’ opinion said. “‘Immigration’ is protected speech.”

The opinion also says that the school violated section 48907 by publicly stating the article should not have been published and was illegal.

“High school students are more likely to be chilled by a school’s display of authority,” the opinion says.

The court also found that the school officials were not immune from liability, as their actions “were a flawed attempt to implement the speech policies adopted by the District.”

“The Principal and Superintendent made their determination that ‘Immigration’ violated the District’s speech policies in the span of a few hours, and nothing in the record reflects any consultation with the Board of Trustees or counsel,” the opinion reads. “In fact, the Superintendent directed the Principal to retract The Buzz immediately upon learning of the protests and without ever reading the opinion editorial.”

Paul Beard, Smith’s attorney with the Pacific Legal Foundation, said “the case couldn’t have come out better for us,” and that he is not sure whether to expect an appeal from the school to the California Supreme Court.

“We’ve had no word from the school district nor have we seen any comments by the district in the media, so presumably they’re mulling it over,” Beard said.

Beard said he has not had a chance to talk to Smith, who is a Marine serving in Thailand, but spoke to his father he said who was both “vindicated” and “emotional” at the news.

The Student Press Law Center joined with the American Civil Liberties Union of Southern California and the law firm Caldwell Leslie Newcombe & Pettit in submitting a friend-of-the-court brief with the California Court of Appeal in August 2006 supporting Smith’s appeal.

The brief argued that if the lower court’s ruling was upheld, such a precedent would succeed in creating a chilling effect on students expressing controversial opinions.

By Scott Sternberg, SPLC staff writer

Case: Smith v. Novato Unified Sch. Dist., No. A112083 (Cal. 1st. App. Dist. May 21, 2007).

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