Censored h.s. columnist loses court fight


Student's column on immigration, racism sparked protest; column pulled from paper





CALIFORNIA ' A Marin County Superior Court in March ruled that a school district was justified in censoring a student's columns on immigration and Hispanics, although the written decision has yet to be released.

Former Novato High School student Andrew Smith's editorials on immigration and reverse discrimination were not protected speech, the trial court judge ruled on March 14.

In Fall 2001, Smith, then a senior at the school, wrote an article, 'Immigration,' for the opinion section of the student newspaper, The Buzz. In the article Smith listed reasons why he thought immigration laws are ineffective.

'Apparently the requirements that our government decided on are too difficult for some to follow,' Smith wrote. 'I'll even bet that if I took a stroll through the Canal District in San Rafael that I would find a lot of people that would answer a question of mine with 'que?,' meaning that they don't speak English ... because they're illegal.'

The article provoked a 150-person protest by Hispanic students and parents. In response, Principal Lisa Schwartz ordered all newspaper issues containing the article be confiscated and removed from the school, and she and Superintendent John Bernard issued a letter of apology to parents.

In the letter, Schwartz wrote that the article should not have been published because it violated the Novato Union School District's policy on student publications: that content 'shall be limited only 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.'

Schwartz also instituted a policy of prior review and censorship, requiring her prior review of articles before they were published, and the school district agreed to try to block Smith from publishing future editorials.

Soon after, Smith's follow-up editorial, 'Reverse Racism,' was delayed from being published in The Buzz. The article included Smith's opinion that minorities were discriminating against white people.

The piece was eventually published in the student newspaper in May 2002, but only after Smith filed a lawsuit against the school district, claiming that his First Amendment rights were violated by the administration's actions regarding the articles. Smith said his articles were political speech.

Smith's lawyer, Arthur Mark of the Pacific Legal Foundation, said the superior court judge based his decision on federal law, rather than California law.

'Students of the public schools shall have the right to exercise freedom of speech and of the press including the right of expression in official publications, whether or not such publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous,' Section 48907 of the California Education Code states. 'Also prohibited shall be material which 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.

Section 48950 also protects student free speech in student publications, saying, 'School districts ... shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution.'

Federal law as it relates to student media was intepreted by the Supreme Court in the 1988 Hazelwood v. Kuhlmeier ruling and Bethel v. Fraser in 1986. Both rulings allowed school administrators greater authority over student speech. Hazelwood gave administrators the right to limit student speech in some school-sponsored student media, while Fraser upheld the ability of school administrators to punish a student for a speech at a school assembly that was deemed vulgar and offensive.

'It appears that the judge focused on the offensive aspects of [the articles], rather than looking at the speech as a whole,' Mark said. 'We believe [they were] protected speech and we believe the court got it wrong when they applied a federal standard rather than the more protective California standard.'

Mark said that it was 'a little unclear' from the judge's remarks whether he thought speech such as Smith's was not protected or whether it may have been protected in some circumstances. The specifics of the ruling should be more clear in the written decision, Mark said.

Smith, who is now serving as a United States Marine, will then decide whether to appeal the ruling to the California Court of Appeals, Mark said.


Fall 2005, reports