Smith v. Novato Unified School District (150 Cal. App. 4th 1439, 2007)

Opinion

GEMELLO, J.

The principal issue presented in this appeal is whether defendant Novato Unified School District (District) violated Education Code section 48907, which guarantees student free speech rights in public high schools.

The trial court granted judgment for defendants, concluding that a student opinion editorial entitled Immigration, was not protected speech under section 48907 because it constituted “fighting words,” and that there was no infringement of the student’s free speech rights because the opinion editorial was published.

We reverse, holding that Immigration was not speech likely to incite disruption within the meaning of section 48907 and that the District infringed plaintiff’s rights by stating that the publication of Immigration violated the District speech policies. In the unpublished part of the decision we conclude that the District did not infringe plaintiff’s rights vis-á-vis his opinion editorial' Reverse Racism, the individual defendants are not immune from liability, the District speech policies are consistent with section 48907, and the District Mission Statement is a general declaration of philosophical goals rather than an enforceable speech regulation.

Factual And Procedural Background

Plaintiff Andrew D. Smith (Smith) was enrolled at Novato High School, a public school in defendant District from 1998 to 2002. Plaintiff Dale R. Smith, Andrew’s father, is a taxpayer in the City of Novato and resides within the District’s boundaries.

During the 2001-2002 school year, Smith was a senior at Novato High School, enrolled in a journalism class taught by Jennifer Leib. As part of the class, the students published a newspaper called The Buzz. The class elected Smith “Opinions Editor” for the first issue of The Buzz. Smith wrote an opinion editorial on illegal immigration entitled Immigration. It included the following statements, which were the focus of the District and the trial court:

—“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 and don’t know what the heck I’m talking about.”

—“Seems to me that the only reason why they can’t speak English is because they are illegal.”

—“40% of all immigrants in America live in California . . .. because Mexico is right across the border, comprende?”

—“[I]f they can’t legally work, they have to make money illegal way [sic]. This might include drug dealing, robbery, or even welfare. Others prefer to work with manual labor while being paid under the table tax free.”

—“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.”

—“Others seem to think that there should be a huge wall along the Mexican/U.S. border.”

—“Criminals usually flee here in order to escape their punishment.”

Before publication, defendant Lisa Schwartz, acting principal of Novato High School (Principal), reviewed The Buzz for spelling and grammar, and for violations of the District’s speech policies, Board Policy 5145.2 and Administrative Regulation 5145.2. In relevant part, Board Policy 5145.2 prohibits “any expression or materials . . . that create a clear and present danger that students will be incited to commit unlawful acts on school premises, to violate school rules, or to substantially disrupt the orderly operation of the school (EC 48907).”

, Immigration was published in The Buzz and distributed at the high school during the morning of November 13, 2001. The Principal did not receive any complaints about the opinion editorial that day. However, the next day the Principal was approached by four or five Latino parents, who were upset and wanted to talk to her about Immigration. The Principal met with the parents for about an hour. Two vice-principals and a counselor then told her that some students were upset by the opinion editorial and were “out of class.” When the school counselor opined that the students needed to talk about their feelings, the Principal decided to meet with all of the students who had left class. The parents on campus also joined the assembly.

Before the meeting, the Principal called defendant John Bernard, the District superintendent (Superintendent), to tell him what was happening on campus. Without reading Immigration, the Superintendent immediately instructed her to retract any remaining copies of The Buzz. The Principal directed the journalism teacher to collect the remaining copies, of the newspaper.

The Principal then met with the parents and students. Counselors brought in large sheets of paper so students could express their thoughts in writing. Students expressed their anger over the content of Immigration. Some students were crying. The Principal apologized to the students and parents for “misinterpretation and misapplication of’ board policy in the publication of Immigration. She warned that the school was not going to tolerate any violence or threats of violence against the author. The Superintendent and eight to 10 teachers joined the meeting. At its highpoint during the lunch hour, about 100 to 150 students were in the lecture hall.

That same day the Principal and Superintendent prepared a letter to parents to be sent home with all students. The letter stated: “Yesterday the November issue of our school’s student newspaper, The NHS Buzz, was distributed. This issue included an opinion article representing the beliefs of one student that negatively presented immigrants in general and Hispanics in particular. We are writing to express our deepest regrets for the hurt and anger this article has generated for both students and their parents, [f] This article should not have been printed in our student newspaper, as it violates our District’s Board Policy regarding student publications, which states, in part, ‘Students’ rights of expression 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.’ H] In addition, our district has a Human Relations and Respect Mission Statement that states: In order to .'create and sustain a safe, just and respectful learning environment in the Novato Unified School District, all individuals including students; staff, parents and community members shall be treated with dignity, respect and fairness. [][] Earlier today we met informally with approximately 150 stodents and parents to discuss this issue and answer their questions. To provide a forum for the families who were not on campus today, we have scheduled a meeting tomorrow ... in the Lecture Hall. [][] In addition, we are' meeting this afternoon with the faculty to review Board Policy and the Human Relations and Respect Mission Statement, which will be reviewed with students in class tomorrow.”

Subsequently, the District instructed the teachers to review the speech policy and Mission Statement in class. The District also conducted a sécond meeting about Immigration the evening of November 15. Approximately 200 people attended. Students, parents, and staff expressed their dismay regarding Immigration.

On November 14, a Latino student threatened to “kick [Andrew’s] ass” for writing Immigration. At the end of the month, Smith suffered a chipped tooth in an altercation with another Latino student. That same student subsequently threatened to kill Smith. The Principal was concerned about Smith’s safety and asked him to report any threats or violence.

On December 4, 2001, the District Board of Trustees. held a public meeting. The Principal reported on the events surrounding Immigration. She stated that she had misinterpreted Board policy in allowing Immigration 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.” She further stated that she had “retracted the remaining copies of the paper” including Immigration. Many students and parents spoke at the meeting, including Smith and his father.

In January 2002, issue two of The Buzz was published; Smith did not write anything for that issue. In late January or early February 2002, Smith submitted a second opinion editorial, entitled Reverse Racism. The piece contained many provocative statements about race relations. For example, Smith reflected on the limited police and media reaction following an incident where a group of “minorities]” beat him up, stating “Think of it, a group of 20 drunken males beating up one black kid. I would bet my life that the police or even the media would have handled it differently.” He also asserted that O.J. Simpson would have been convicted if he had been White; expressed confusion about the “politically correct” names used to refer to “minorities;” and complained about “special privileges,” “reverse discrimination,” and “affirmative action.”

The student editor-in-chief and the journalism teacher approved the piece for publication and included it in a draft layout for review by the Principal. The Principal sent a copy of Reverse Racism to the ACLU (American Civil Liberties Union), which opined that it was protected speech. Again, the Principal had concerns about the piece, but she approved it for publication. In light of the dismption that followed publication of Immigration, the Principal thought it would be a good idea to publish a counterviewpoint along with Reverse Racism', the Superintendent agreed. The Principal met with the journalism students to encourage them “to create a product that was balanced and fair and top quality.” One of the strategies discussed was publishing a counterviewpoint to Smith’s opinion editorial. She did hot require them to publish a counterviewpoint. Because there was insufficient time for someone to write a coimterviewpoint before publication of the February 2002 issue of The Buzz, the students voted to move Reverse Racism to the next issue of the paper.

In the interim, Reverse Racism was published in the Novato Advance, a local newspaper not affiliated with the District. The newspaper reported that the opinion piece had been “removed” from The Buzz.

Reverse Racism was published in the May 2002 edition of The Buzz. There was also a counterviewpoint entitled It’s About Time and another opinion editorial by Smith entitled Embrace Diversity?

On May 2, 2002, plaintiffs filed the present action. In September, plaintiffs filed an amended complaint. The complaint alleged violations of Smith’s right to free speech under the United States and California Constitutions and the California Education Code and challenged the District’s speech policies as facially invalid. Plaintiffs sought an injunction prohibiting further illegal infringement of speech and nominal damages of $1.00. Following a bench trial, the court found in favor of the District and the individual defendants on all causes of action. The judgment included an award of costs to the District.

We granted the request of the ACLU Foundation of Southern California and the Student Press Law Center to file an amicus curiae brief in support of plaintiffs.

Discussion

I. Summary of Relevant State and Federal Law

The First Amendment of the United States Constitution provides in part: “Congress shall make no law . . . abridging the freedom of speech . .. .” Article I, section 2, subdivision (a) of the California Constitution guarantees that “[ejvery person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” The purpose of both provisions is “to abolish governmental censorship and to constitutionalize society’s substantial interest in protecting the right to comment on issues of public concern.” (Lopez v. Tulare Joint Union High School Dist. (1995) 34 Cal.App.4th 1302, 1309-1310 [40 Cal.Rptr.2d 762] (Lopez).)

Although the constitutional provisions do not expressly exclude students, students’ free speech rights lacked judicial recognition until the landmark United States Supreme Court ruling Tinker v. Des Moines School Dist. (1969) 393 U.S. 503 [21 L.Ed.2d 731, 89 S.Ct. 733] (Tinker). Previously, “it was generally accepted that school officials stood in the stead of parents, i.e., in loco parentis, and had parent-like authority to control student conduct and expression.” (Lopez, supra, 34 Cal.App.4th at p. 1310.) Tinker recognized the authority of public school officials to control student conduct but concluded that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (Tinker, at p. 506.) Tinker held that a student may exercise the right to freedom of expression unless the “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others ....” (Id. at p. 513.) Any regulation prohibiting student expression “would violate the constitutional rights of students, at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.” (Ibid.) Although students’ First Amendment rights had to be “applied in light of the special characteristics of the school environment,” students could not be “confined to the expression of those sentiments that are officially approved.” (Tinker, at pp. 506, 511; see also Bright v. Los Angeles Unified Sch. Dist. (1976) 18 Cal.3d 450, 455-460 [134 Cal.Rptr. 639, 556 P.2d 1090] (Bright) [discussing Tinker].)

Applying Tinker, supra, 393 U.S. 503, a California federal district court found unconstitutional sections 9012 and 9013 of California’s Education Code, which banned “partisan” and “propaganda” publications on high school campuses. (Bright, supra, 18 Cal.3d at pp. 457-458.) The California Legislature responded in 1971 by repealing sections 9012 and 9013 and enacting section 10611, “the nation’s first statutory scheme for protecting students’ free expression on school campuses.” (Lopez, supra, 34 Cal.App.4th at p. 1311; see also Bright, at p. 458.) In 1978, the Legislature replaced section 10611 with section 48907, which specifically protects student expression in official school publications. (Lopez, at p. 1312.)

Section 48907 provides: “Students of the public schools shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and 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. 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, [f] Each governing board of a school district and each county board of education shall adopt rules and regulations in the form of a written publications code, which shall include reasonable provisions for the time, place, and manner of conducting such activities within its respective jurisdiction. [