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By: Mark Fitzgerald

A California judge has upheld the right of a school district to keep “offensive” speech out of student newspapers in a case that had used the state’s expansive educational code and constitutional guarantees in an attempt to trump the U.S. Supreme Court’s 1988 Hazelwood decision.

The lawsuit was the subject of my previous column in this space.

In a oral ruling from the bench last Wednesday, Superior Court Judge John Sutro in Marin County dismissed the lawsuit former student Andrew Smith brought against the Novato Unified School District over the way school officials handled two controversial opinion articles he wrote for his high school’s student paper, The Buzz, during his senior year of 2001-02.

One of the articles — which suggested police arrest people on suspicion of being illegal immigrants if they cannot respond to questions in English — was published, but all remaining copies of the paper were taken back by school officials when students and parents protested what they said was the anti-Hispanic tone of the piece. The school system apologized for the article in a letter to students and parents, and, according to Smith’s lawyers, criticized him in public meetings about the controversy.

Publication of the other article, entitled “Reverse Racism,” was delayed for months until Smith took legal action.

The lawsuit was seen as significant by some because it attempted to use so-called “anti-Hazelwood” regulations adopted by California, and other states, after the U.S. Supreme Court’s decision. In Hazelwood School District v. Kuhlmeier, the court ruled public high school authorities were effectively the publisher of their school paper, with the same authority over content as publishers of mainstream newspapers.

Smith’s case was taken on by the Pacific Legal Foundation, a Sacramento, Calif.-based non-profit firm that often involves itself in conservative causes. The foundation also challenged the Novato school system’s policy on student publications, which does not allow publication of “offensive” speech.

But Judge Sutro rejected Smith’s contention that he had suffered censorship or prior restraint.

“The thing about this case is we don’t even get to the suppression of free speech because everything Andrew wrote was published,” Sutro said, according to an article in the Marin (Calif.) Independent Journal by Nancy Isles Nation. “How the case got to this point … I really have a hard time understanding why all of this had to happen.”

Attorney Dennis J. Walsh, who represented the school district, called the ruling a “vindication.”

“The articles got published, and I think it’s clear that the school district didn’t have to publish them, so they more than protected his free speech,” Walsh said. “They went overboard with it, you could say. The board’s policy was upheld as constitutional under federal and state [constitutions].”

Paul Beard, one of two Pacific Legal Foundation lawyers who represented Smith, said the “misapplied the law in this case” by essentially ruling that the federal Hazelwood standard was not superseded by the sweeping free-speech rights granted students under the state constitution and the California Educational Code.

While it’s true that both articles were published, the first appeared so briefly “it was almost as if it had never been published in the first place.” And the delays in publishing second article amounted to “prior restraint,” he said.

Smith and the foundation will decide whether to appeal after they receive the written decision in the case, Beard said.

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