Calif. Supreme Court denies school's appeal in case over immigration editorial

CALIFORNIA — A lower court’s decision upholding a high school student’s free-press rights will stand after the California Supreme Court declined to review the case, which began with a controversial opinion piece on race relations.

In its Sept. 12 ruling, the court also denied the Novato Unified School District’s request to depublish the lower court’s decision, making the case available to use as precedent in future student press lawsuits.

A California appellate court ruled in May that the district infringed upon Andrew Smith’s rights by claiming that his opinion pieces on immigration and race relations violated the district’s speech policies. They also awarded Smith the $1 in nominal damages he sought.

His lawyer, Paul Beard, called it “a complete and total victory.”

Smith’s victory is significant in that it upholds the 1971 California Education Code section 48907, which guarantees student free-speech rights in public high schools. The law was the first of its kind by a state to give extra free speech protection to students beyond the First Amendment. Currently, seven states offer such protection to high school students.

Under the California law, students are only prohibited from using speech that is obscene, libelous, slanderous or “incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.”

The case goes back to 2001 when Andrew Smith published his first article, “Immigration,” in the November issue of the Novato High School’s newspaper The Buzz. In response to the article, some students walked out of school and protesters complained to the principal that many of the arguments Smith made in his opinion piece were racist.

“If a person looks suspicious then just stop them and ask a few questions and if they answer “que?’ detain them and see if they are legal,” Smith, then a senior, wrote as his solution to finding illegal immigrants. He also said that he is “sick of these people waltzing in and abusing our country” and that “America shouldn’t be taking this while bending over.”

The school’s principal, Lisa Schwartz, had any remaining copies of the paper collected. She also apologized in a letter sent home to parents, saying that the article should not have been printed because school policy allows administrators to limit student’s rights of expression “in order to maintain an orderly school environment and to protect the rights, health, and safety of all members of the school community.”

She required students to submit all future articles of The Buzz to her for review. She also held several open forums in which community members criticized Smith’s article, according to court documents.

Smith wrote another opinion piece in February 2002 titled “Reverse Racism.” He argued that non-minorities receive harsher treatment in the legal system and expressed his frustration over “politically correct names” for minority groups.

“I bet minorities must love confusing the hell out of us white people… I can’t comfortably say “black person’ without the possibility of offending someone. I have to say “African American,’” he wrote.

Schwartz, according to court documents, told students who worked on The Buzz that it would be good journalism to balance Smith’s editorial with an opposing viewpoint. Sources disagree on whether Schwartz suggested this to students as an option or told them it was the only way the article would be printed.

Smith teamed up with Pacific Legal Foundation, who filed a lawsuit on his behalf in May 2002 to have “Reverse Racism” published. The judge decided not to force administrators to run the article because they agreed to publish it in the next issue.

“I felt singled out,” Smith said. “Without the help of Pacific Legal Foundation, I would never have been able to print anything.”

On May 14, 2002, The Buzz published “Reverse Racism” alongside a counterpoint article. Smith continued to fight in court, arguing that the measures school officials took to delay publication were unconstitutional.

Marin County Superior Court ruled in favor of the school in March 2005, concluding that the editorial was speech that would incite disruption of the orderly operation of the high school. When Smith appealed, the Southern California ACLU and the Student Press Law Center filed a brief on his behalf.

A California appellate court overturned the ruling in May of this year, issuing its opinion that “speech that seeks to communicate ideas, even in a provocative manner, may not be prohibited merely because of the disruption it may cause due to reactions by the speech’s audience.”

Smith, now in the Marines, said his victory was long overdue.

“I like the fact that in the end it turned out I was right, legally, and things shouldn’t have been handled the way they were,” he said.

Smith’s case is only the third on record addressing the California free speech statute, and it is the first one to look at the “incite” provision, Beard said.

“Whenever free speech issues come up, this will set an important precedent for trial courts and school districts,” he said. “It will offer a high level of protection to free speech.”

For More Information:

Smith v. Novato Unified Sch. Dist., No. S154067 (Cal. petition and depublication request denied Sept. 12, 2007).

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