Metropolitan News-Enterprise


Wednesday, May 23, 2007


Page 1


C.A.: District Violated Student’s Speech Rights by Decrying Op-Ed


By TINA BAY, Staff Writer


A school district violated the free speech rights of a journalism student by announcing that his controversial opinion editorial on illegal immigration should never have been published in the high school paper, the First District Court of Appeal held yesterday.

Div. Five reversed a ruling by Marin County Superior Court Judge John A Sutro Jr., who held that Novato Unified School District did not violate the Education Code in its response to the editorial written by then-Novato High School senior Andrew D. Smith.

Sec. 48907 of the code guarantees students in California’s public schools the right to exercise freedom of speech and press. The section excludes from protection material that “so 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.”

Sutro ruled that Smith’s piece was not protected speech under Sec. 48907 because it constituted “fighting words.” He also ruled the district did not infringe Smith’s free speech rights because it published the opinion editorial.

Controversial Statements

The article, which appeared in the Nov. 2001 issue of Novato high’s newspaper, suggested among other things that any Spanish-speaking person who cannot speak English should be suspected of being an undocumented immigrant.

“Seems to me that the only reason why they can’t speak English is because they are illegal,” Smith wrote, adding:

“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.”

The opinion editorial, titled “Immigration,” also suggested that a significant proportion of undocumented immigrants are criminals. In addition to stating that “[c]riminals usually flee here in order to escape their punishment,” Smith opined that illegal immigrants necessarily earn their money by illegal means, such as “drug dealing, robbery, or even welfare” or doing “manual labor while being paid under the table tax free.”

Smith had written the piece as part of his 2001-2002 journalism class, where peers elected him “opinions editor” for the first issue of the class-run publication.

Response to Article

Before the issue was printed, the school’s then-acting principal, Lisa Schwartz, reviewed it for spelling, grammar and violations of the district’s speech policies—which included Sec. 48907 bar against speech inciting unlawful acts or substantial disruption. Schwartz apparently found “Immigration” did not violate the district’s policy, and the piece was published and distributed at the high school on Nov. 13.

The following day, the principal and other staff members were approached by several Latino parents as well as students who said they were upset by Smith’s article.

Schwartz alerted then-district superintendent John Bernard to the situation, and Bernard—without reading “Immigration”—immediately directed her to retract any remaining copies of the newspaper.  She communicated the instruction to the journalism teacher.

The principal then called an on-campus meeting where students and parents could express their feelings about “Immigration.” There, she apologized to students and parents for “misinterpretation and misapplication of” board policy in the publication of “Immigration” and warned against any violence or threats of violence against Smith.

Bernard and about 10 teachers participated in the meeting, which at its high point was attended by nearly 150 students.

In further responsive action, Schwartz and Bernard wrote a letter of apology to parents that was sent home with all students. Expressing “deepest regrets” for the hurt caused by Smith’s piece, the officials stated:

“This article should not have been printed in our student newspaper, as it violates our District’s Board Policy regarding student publications…“

The district also instructed teachers to review the speech policy in class, and also conducted a second meeting about the article at which about 200 people attended.

The aftermath of the controversial publication included Smith receiving a death threat from a Latino student.

Smith, along with his father as a taxpayer, sued the district in May 2002 alleging violations of Smith’s right to free speech under the U.S. and California constitutions and Education Code. Challenging the district’s speech policies, the plaintiffs sought an injunction barring further infringements of speech and nominal damages of $1.

Sutro found in favor of the district and individual defendants on all causes of action.

But Div. Five held that “Immigration” did not constitute speech likely to incite disruption, and the district thus infringed Smith’s rights under Sec. 48907 by saying his article’s publication violated its speech policies.

Writing for a unanimous panel, Justice Linda M. Gemello explained:

“Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance.”

Smith’s piece contained no direct provocation or racial epithets, the justice said, noting that the article closed with a call to political action, i.e. “major reforms in immigration policy.” Although Smith testified he wanted to get people “pissed off” and wanted a response that would “cause action,” there was no evidence he intended to cause substantial disruption of the school, she wrote.

“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,” Gemello said.

Through its letter to parents, which inaccurately represented the scope of Smith’s right to free speech and chilled future efforts to distribute “Immigration,” the district understandably but impermissibly succumbed to the “fear of disruption and discontent,”  she wrote.

The justice noted:

“It is particularly troubling that the Superintendent issued the order to retract copies of [the newspaper] before he even read the opinion editorial. When faced with offensive student speech, school districts must proceed cautiously with due regard to the valuable rights at stake, rather than reacting impulsively because of protest about the speech.”

Justices Henry E. Needham Jr. and Mark B. Simons concurred in the opinion.

Smith was represented on appeal by Sharon L. Browne, Paul J. Beard II, Arthur B. Mark III, Damien M. Schiff and Scott A. Sommerdorf, of the Sacramento-based Pacific Legal Foundation.

Browne told the MetNews:

“We’re very pleased with the opinion by the First District Court of Appeal because it’s going to provide important guidance to all school districts in California on students’ free speech. We believe that it’s the first opinion of its kind to interpret the doctrines of incitement and chilled speech under California law as they relate to students’ free speech.”

Smith, who graduated in 2002, is now a corporal in the Marine Corps Reserves and presently in Thailand on training. 

His father, Dale R. Smith, was “very much relieved and felt vindicated” by the ruling, Browne said.

The district’s appellate counsel, Encino attorneys Dennis J. Walsh and Stephan Birgel, could not be reached for comment.

The case is Smith v. Novato Unified School District, 07 S.O.S. 2556.


Copyright 2007, Metropolitan News Company