Smith v. Novato Unified Sch. Dist., No. A112083 (Cal. App. May 21, 2007)
A California appeals court has ruled that school district officials violated a student’s free speech rights under the California education code when they publicly announced that his editorial article, which they had allowed to be published, should not have been published because it was not protected speech. However, the court concluded that officials had not violated the student’s free speech with regard to a second editorial that was not initially published, but appeared later in the student newspaper with a counter-viewpoint. The court also found that the individual defendants were not entitled to immunity under the state government code.
Andrew Smith, the "Opinions Editor" for the Buzz, a student newspaper at Novato High School (NHS), wrote an editorial about illegal immigration that disparaged Spanish-speaking immigrants. He suggested that most of them are in the U.S. illegally, are involved in criminal activity, and should be prevented from entering the U.S. NHS’s acting principal, Lisa Schwartz, approved the editorial for publication after reviewing it, but was later confronted by angry Latino parents and students who had read the piece. During a meeting with parents and students, the principal apologized for the "misinterpretation and misapplication of" the school board’s policy, which had led to publication of the editorial. Later that day Ms. Schwartz and the superintendent sent parents a letter stating that under board policy, the editorial should not have been published. Ms. Schwartz also informed the school board that she had "misinterpreted Board policy in allowing [the editorial] to be published because Board policy allows student ‘rights of expression’ to be limited ‘as allowed [] by law in order to maintain an orderly school environment and to protect the rights, health, and safety of all members of the school community.’" Andrew later submitted an editorial for the Buzz, titled "Reverse Racism," that contained provocative statements about race relations. Ms. Schwartz approved it for publication with the suggestion that a counter-viewpoint editorial be added. The students in the journalism class voted to bump the article until the next issue because there was not sufficient time for someone to write a counter-point. Andrew’s editorial appeared in a later issue of the Buzz, along with two opinions expressing an opposing viewpoint.
Andrew sued Novato Unified School District (NUSD) and various school district officials, seeking to enjoin school officials from any further infringement of his speech and nominal damages. The suit alleged violations of his right to free speech under the U.S. and California Constitutions and the California Education Code. The trial court ruled in favor of all defendants on all claims. The appellate court defined the issues in the case as: (1) whether each of Andrew’s editorials are protected speech under § 48907; (2) if so, whether NUSD’s responses to the articles infringed on Andrew’s right to exercise free speech under § 48907; (3) whether the individual defendants were entitled to immunity under the state’s government code; and (4) whether NUSD’s speech policies are facially invalid.
Examining the plain language of § 48907, the court found that a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption." Applying that standard to the circumstances surrounding publication of the first editorial, the court concluded that while the disruption following publication constituted "substantial disruption of the orderly operation of the school and that there was a ‘clear and present danger’ of disruption as required by section 48907," it "was not inciting speech that the [NUSD] was authorized to prohibit under section 48907." While Andrew communicated his viewpoint in a disrespectful and unsophisticated manner, his editorial contained no direct provocation or racial epithets but rather called for enforcement of immigration laws and political action. The court therefore found that the editorial was protected speech under § 48907. The court then addressed whether the actions taken by school officials after the editorial was published constituted infringement of Andrew’s free speech rights under § 48907. The court found no speech violation resulting from school officials’ providing students with a peaceful avenue for expressing their anger over Andrew’s editorial, giving protestors a forum, acknowledging the legitimacy of their reactions, and distancing itself from Andrew’s viewpoint. However, the court concluded that NUSD’s announcement that it should not have published the editorial violated § 48907 because the assertion that the editorial was not protected speech could have a chilling effect on future student speech. As for Andrew’s second editorial, the court found no infringement of free speech, because the editorial was run in a later issue of Buzz.
The court rejected the individual defendants’ assertion of immunity under the state’s government code since the officials were not acting in a discretionary manner but rather their actions were dictated by § 48907 and the school board policy. Lastly, it rejected the student’s claims that the school board’s speech policies were unconstitutionally overbroad and vague. The publication policy did not violate § 48907, the court found, because the policy adopted the same language as that code section. Regarding the policy that appeared to allow school officials to prohibit speech protected under U.S. Supreme Court precedent in Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), the court stated that the policy contained specific and relatively narrow speech regulations. Turning to Andrew’s contention that NUSD’s mission statement is overbroad and vague, the court determined that it could avoid all constitutional difficulties "by viewing the Mission Statement as it logically was meant to be viewed, as a general declaration of philosophical goals rather than as a set of specific and enforceable speech regulations."
Smith v. Novato Unified Sch. Dist., No. A112083 (Cal. App. May 21, 2007)
[Full opinion]