Smith v. Novato Unified School Dist., A112083.

CourtCalifornia Court of Appeals
Citation150 Cal.App.4th 1439,59 Cal.Rptr.3d 508
Decision Date21 May 2007
Docket NumberNo. A112083.,A112083.
PartiesAndrew D. SMITH et al., Plaintiffs and Appellants, v. NOVATO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
59 Cal.Rptr.3d 508
150 Cal.App.4th 1439
Andrew D. SMITH et al., Plaintiffs and Appellants,
NOVATO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
No. A112083.
Court of Appeal, First District, Division 5.
May 21, 2007.
Certified for Partial Publication.*

[59 Cal.Rptr.3d 511]

Pacific Legal Foundation, Sharon L. Browne, Paul J. Beard II, Arthur B. Mark III, Sacramento, Damien M. Schiff, Bellevue, WA, and Scott A. Sommerdorf for Plaintiffs and Appellants.

Caldwell, Leslie, Newcombe & Pettit, Linda M. Burrow and Stephanie S. Christensen; ACLU Foundation of Southern California and the Student Press Law Center, Christine P. Sun and Peter Eliasberg, Los Angeles, as Amici Curiae on behalf of Plaintiffs and Appellants.

Law Offices of Dennis J. Walsh, Dennis J. Walsh and Stephan Birgel, Encino, for Defendants and Respondents.


The principal issue presented in this appeal is whether defendant Novate Unified School District (District) violated Education Code section 48907,1 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 plaintiffs 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 In the unpublished part of the decision we conclude that the District did not infringe plaintiffs rights vis-a-vis his opinion editorial "Reverse Racism," the individual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.2

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

59 Cal.Rptr.3d 512

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.3

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."4 She

59 Cal.Rptr.3d 513

warned that the school was not going to tolerate any violence or threats of violence against the author. The Superintendent and eight to ten 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. [¶] 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.' [¶] 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 students 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 second 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

59 Cal.Rptr.3d 514

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 "minorit[ies]" 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...

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