Ed Code gives public school students stronger free speech protection than First Amendment, California appeals court affirms
By Anthony Sanchez
(CFAC) Public school students enjoy greater free speech protections from California’s Education code than under the First Amendment, a recent California court ruling confirms.
The ruling by the 1st District Court of Appeal in San Francisco focused on an anti-immigrant editorial published in the Novato High School’s newspaper in 2002 by then senior Andrew Smith. The editorial, which refers pejoratively to Mexican immigrants as drug dealers and robbers, offended many students and parents, prompting school officials to try to retrieve remaining copies of the newspaper.
The school claimed the editorial was not protected speech due to its disruption of “an orderly school environment.” However, the court found that Smith’s editorial was protected speech and that the school district chilled Smith’s speech rights by stating that his editorial “should not have been printed” and trying to recall the newspapers.
The case was decided under Education Code Section 48907, which provides public school students with greater protection for free speech than that provided by the federal First Amendment alone. First Amendment protections in a public school setting are prescribed by Tinker v. Des Moines School District, in which the Supreme Court held that students have the right to free expression unless that expression “materially disrupts classwork or involves substantial disorder or invasion of the rights of others . . .” . Ed Code Section 48907 provides similar rights, but uses a narrower exception than the Tinker decision. The California statute protects student expression unless it “so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.”
It is the word “incite” in Ed Code Section 48907 that goes beyond the First Amendment and Tinker, according to the court ruling. The court held that “a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption.”
The court continued: “Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance.”
As a result of Ed Code 48907, public schools in California may not prohibit controversial but noninflammatory speech merely because those who disagree with it are likely, even highly likely, to respond in a way that is disruptive of the school. In general, school officials may intervene only if the speaker desires, and calls for, such an outcome.
Anthony Sanchez, a senior at Stanford University, is a CFAC intern.