Law & Courts

Justices Decline District’s Appeal in Speech Case

By Mark Walsh — February 21, 2008 4 min read

The U.S. Supreme Court declined to hear the appeal of a California school district in a controversy over a high school student’s newspaper commentary on immigration.

The court’s Feb. 19 action came on a busy day after a four-week recess, in which the justices granted review of a case dealing with representation fees for public-employee unions.

The essay by Andrew D. Smith, who was a senior at Novato High School in 2001-02, was in the school newspaper, The Buzz. The essay, which appeared Nov. 13, 2001, was titled “Immigration” and included several assertions about Hispanics and immigrants, including the idea that if Mr. Smith strolled through an immigrant neighborhood, “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.”

Mr. Smith also suggested that undocumented immigrants often must resort to “drug dealing, robbery, or even welfare. Others prefer to work with manual labor while being paid under the table tax-free.”

Parental Complaints

Some Latino parents in the community complained to school administrators, according to court papers. The principal of Novato High and the superintendent of the 7,800-student Novato Unified School District sent a letter to parents, stating that the essay represented the beliefs of one student, expressing “our deepest regrets for the hurt and anger” it caused, and stating that the essay should not have been printed in The Buzz because it violated school board policies on maintaining a respectful learning environment.

Mr. Smith was not disciplined over the essay. But the student and his father sued school officials and the district in state courts, alleging that the district’s student-expression policies infringed the student’s free-speech rights under the federal and state constitutions. The suit sought an injunction against the district’s policies and $1 in nominal damages.

A state trial court ruled that the commentary was not protected speech because it contained “insulting, derogatory, and disrespectful speech directed at various ethnic groups.”

But a three-judge panel of the California Court of Appeal reversed the decision and ruled unanimously that the district’s response to the essay had violated Mr. Smith’s free-speech rights and a California state law that provides high school students greater rights to freedom of speech and the press than they have under the First Amendment of the U.S. Constitution.

“Although ‘Immigration’ communicates Smith’s viewpoint in a disrespectful and unsophisticated manner, it contains no direct provocation or racial epithets,” the state appellate court said in its opinion last year. “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. ‘Immigration’ is protected speech.”

The California Supreme Court declined to review the case, leading to the Novato district’s appeal to the U.S. Supreme Court. The district said that courts must strike a balance between students’ free-expression rights and the 14th Amendment property rights of other students “to a safe, productive, and positive school environment.”

Without comment, the justices declined to hear the appeal in Novato Unified School District v. Smith (Case No. 07-783).

Unions’ Legal Costs

The case the justices accepted on so-called agency fees, which are service charges to nonunion members who benefit from collective bargaining, could have implications for teachers’ unions.

The court will use a case involving the Service Employees International Union and its affiliate for state employees in Maine to decide whether a union local may charge nonmembers, as part of their agency fees, for certain litigation expenses incurred by the local’s state or national parents.

The School Law Blog

For news and analysis on legal developments affecting schools, educators, and parents, read The School Law Blog, written by Education Week‘s Mark Walsh.

The U.S. Court of Appeals for the 1st Circuit, in Boston, ruled last year that as long as such litigation expenses are paid out of pooled union resources and are related to collective bargaining, nonmembers may be charged for them without violating their First Amendment free-speech rights.

The appeal to the high court in Locke v. Karass (No. 07-610) was by a group of nonunion members backed by the National Right to Work Legal Defense Foundation, a Springfield, Va.-based group that is often at odds with teachers’ unions.

The foundation represented a group of nonunion teachers who scored a victory in the Supreme Court last year when the justices upheld a Washington state law that required public-employee unions to get the consent of such nonmembers to be able to spend their agency fees on political activities.

The court’s ruling in Davenport v. Washington Education Association was unanimous, although the impact on the unions was said to be minimal, and Washington state had already amended its law to make it easier for unions to spend nonmembers’ money on political activities. (“High Court Upholds Wash. State Law on Union Fees,” June 20, 2007.)

The new case won’t be argued until the court’s 2008-09 term.

A version of this article appeared in the February 27, 2008 edition of Education Week as Justices Decline District’s Appeal in Speech Case

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