A Post-Hazelwood Lawsuit Over High School Censorship

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By: Mark Fitzgerald

After the U.S. Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier, most high school student journalists have had no alternative but to go along with whatever the administration wants to do with the school paper. If the principal says an article about teenage pregnancy or gang crimes is out, it’s out — and there’s nothing left to discuss.

Hazelwood essentially recognized public school administrators as the publishers of their school papers, with the same authority to spike stories and opinions as the local daily’s publisher has.

And spike they do. Just scroll the headlines of the news stories that the Student Press Law Center has compiled on its Web site. “Fla. h.s. principal spikes student newspaper column about virginity.” “High school editor fired for not asking permission to interview gay students.” “Adviser removes illustration from h.s. newspaper after school institutes prior review policy.”

But in Marin County, California, one high school journalist didn’t simply accept the principal’s dictate when an editorial column he wrote stirred a firestorm of protest. Instead, he sued.

Thursday morning, in California Superior Court for Marin County, a trial at last gets underway in Andrew Smith’s lawsuit against the Novato Unified School District.

The case could be an important test of so-called “anti-Hazelwood” legislation designed to safeguard the rights of high school journalists.

California is one of six states that adopted anti-Hazelwood laws, and similar proposals are now pending in Vermont and Michigan. California’s Education Code states that “school districts … shall not make or enforce any rule subjecting high school pupils to disciplinary actions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus” and is protected by the First Amendment and California’s state constitutional guarantees of free speech.

Ironically, Novato’s policy was even more explicit about student press rights. “Students have the right to exercise freedom of speech and of the press and have the right to expression in official publications.” The school district policy declares that there shall be no prior restraint of student writing, unless it is obscene, libelous, slanderous, or constitutes sexual harassment or a “clear and present danger that students will be incited to commit unlawful acts on school premises.”

Andrew Smith’s article, written when he was a senior in November 2001, was none of those things, and, according to his lawsuit, the principal agreed to its publication in the next issue of The Buzz.

While Smith’s article wasn’t obscene, etc., it was a poorly reasoned rant about illegal immigration, the kind of typical high school journalism that usually leaves its authors deeply embarrassed later in life. Immigration authorities, he wrote, should treat the undocumented as police treat drug dealers. Better immigration enforcement was easy, he added: “It can’t be hard to find and detain the people who can’t speak English. If a person looks suspicious than just stop them and ask a few questions, and if they answer ‘que?,’ detain them and see if they are legal.”

The article upset some parents, and the principal, Lisa Schwartz, suddenly abandoned all that policy about students having the right to free expression, Smith’s lawsuit alleges. She ordered all undistributed copies of The Buzz confiscated. A letter of apology was sent out to parents. A public meeting was held, the lawsuit charges, where Smith was reprimanded, and the article denounced.

“The school district caved to mob rule, basically,” Smith’s lawyer, Sharon Browne, said in a telephone interview Wednesday. “Instead of protecting Mr. Smith’s right to publish this editorial, the school responded to the mob, to the heckler’s veto, and basically said, we’re going to cave to the mob and hang him out to dry, basically.”

Browne is with the Pacific Legal Foundation, a non-profit group that takes up conservative causes, such as preservation of property rights.

The group became involved when the principal refused to run another op-ed by Smith, entitled “Reverse Racism.” The piece opens by recounting how he was assaulted by several black youths, who he said were not sufficiently punished for the crime. Smith at one point takes issue with the term African American. “I bet minorities must love confusing the hell out of us white people by giving themselves politically correct names,” he wrote.

Pacific Legal Foundation lawyers went to court to force the school to publish the piece, which it eventually did in May 2002.

Browne said the group wasn’t involved because of Smith’s views, though she said that “being politically correct seems to be a standard that is being employed not only at the university level but throughout our society.” What the foundation wants to do, she said, is safeguard the right to express unpopular or minority opinions, the sort of thing the California Educational Code thought it was doing with its strong anti-Hazelwood language.

“Even under Hazelwood [standards], we believe the school district has gone too far,” Browne said.

The school district’s attorney, Dennis J. Walsh, was taking a deposition Wednesday and was not immediately available for comment, his office said.

With the start of trial Thursday, Smith, who is now in the U.S. Marines Reserve, will soon know whether California’s anti-Hazelwood laws and policies were sufficient to protect budding journalists still in high school.

But the fate of his old school paper, The Buzz, is known: The Novato Unified School District folded the publication in October 2002.

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