Officials at a California high school “succumbed to the fear of disruption” and violated the free-speech rights of a student who wrote a provocative editorial about immigration for the student newspaper, an appeals court ruled.

Andrew Smith's editorial entitled “Immigration” was published in “Buzz,” the newspaper of Novato High School in Marin County. He sued the school district after officials responded to protests from students and parents by declaring in a letter to parents that the editorial should not have been printed.

“The clear message of the letter was that ... future speech similar to 'Immigration' would not be tolerated,” the 1st District Court of Appeal said, and “That suppression of Smith’s viewpoint is sufficient to establish infringement [of his free-speech rights] in this case.”

In his editorial, Smith said, among other things, that if immigrants “can't legally work, they have to make money illegal way [sic]” and “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.”

Officials apologized in their letter for “the hurt and anger this article has generated” and said it violated the district's student publication policy. “[T]he District succumbed to the fear of disruption and discontent,” Justice Linda M. Gemello wrote for the court. “While understandable, this was not permissible.”

The opinion represents a resounding victory for Smith after five years of litigation. In March 2005, Superior Court Judge John A. Sutro had entered judgment for the district and ordered Smith and his father to pay $21,000 in defense litigation costs.

“California school districts are now on notice that they can’t enforce a code of political correctness on their students,” Smith's attorney said.

A California statute -- Section 48907 of the Education Code –- provides broad protection to student speech, but allows the prohibition of material which “incites” disruption of the orderly operation of a school.

In reversing the trial court, the 1st District said that while Smith may have communicated his views in “a disrespectful and unsophisticated manner, [the editorial] contains no direct provocation or racial epithets.”

“We conclude that “Immigration” was was not inciting speech that the District was authorized to prohibit under section 48907,” it continued. “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.”

The court separately reversed the award of costs. Smith is now a corporal in the Marine Corps Reserves.

By Matthew Heller
5/22/07