A Superintendent's Guide to Student Free Speech in California Public Schools

Abstract

This article discusses one of the most important decisions on student speech to be issued out of the courts of California: Smith v. Novato Unified School District (2007). In this published decision - binding on all school districts and trial courts in California - the California Court of Appeal gave unprecedented protection to speech in public schools by narrowly defining incites, the key word of the U.S. Supreme Court's Brandenburg v. Ohio decision, in the context of a California public high school student speech case. In doing so, the Court of Appeal correctly set aside the United States Supreme Court's student speech jurisprudence. Quite to the contrary of the federal courts, which have explicitly said that the constitutional rights of students are not automatically coextensive with the rights of adults in other settings, California public school students possess the same free speech rights on campus as adults do standing on a street corner because, unlike federal courts, California state courts do not distinguish between free speech and school speech when presented with a student speech case. The Smith decision further reminds us that California state courts provide the broadest protection nationwide for students who wish to engage in controversial and/or politically incorrect speech in public schools. The article concludes with guidelines for public school districts and students to follow in light of Smith. The article was written by the plaintiff's lead attorney in Smith and a former Litigation Fellow at the Pacific Legal Foundation, a national, freedom-based, public interest organization headquartered in Sacramento, California. Mr. Beard was recently published in the Texas Review of Law & Politics and Mr. Luther was recently published in the Santa Clara Law Review and has an article forthcoming in the Valparaiso University Law Review.

Keywords: First Amendment, Free Speech, Student Speech, Student Newspaper, California law, California Education Code, Racist Speech, Incites, Incitement, Fighting Words, Heckler's Veto, Viewpoint Discrimination, Tinker, Hazelwood, Kuhlmeier, Bethel, Fraser, Morse, Bong Hits 4 Jesus, Brandenburg