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Free Speech: ACLU v. Podhorsky?

No Comments 22 May 2015

By Ryan Robson
News Editor Elect

Photo of ACLU Free Speech Board at La Jolla High School

The Hi-Tide has learned that two letters have been delivered to the administration of La Jolla High School (LJHS) and to the General Counsel of the San Diego Unified School District (SDUSD) concerning LJHS’s Free Speech Bulletin Board (FSBB).

The letters were jointly written by lawyers David Loy and Jean-Paul Jassy and detail how they believe that California and federal laws regarding free speech and are being violated at LJHS.

The letters, dated March 25 and April 27, address a number of issues related to the FSBB and free speech at LJHS, including:

(a) an apparent attempt on the part of the administration of LJHS to illegally rewrite a 2012 legal agreement between the American Civil Liberties Union (ACLU) and the SDUSD concerning postings on the FSBB and on the senior benches;

(b) a string of California and federal laws that the ACLU believes that the administration of LJHS has violated, specifically in the manner in which it has addressed issues related to the FSBB;

(c) a request by the ACLU for video footage of cameras directed at the FSBB to determine if LJHS officials improperly removed postings from the FSBB; in this particular request, specifically in the days before the WASC visit on April 22; and

(d) a warning that litigation  may ensue “to enforce the right [of LJHS students] to engage in speech that is protected by California and federal law”.

Mr. Loy, the legal director of the ACLU of San Diego and Imperial Counties, and Mr. Jassy, a LJHS graduate and lawyer in private practice who was named “First Amendment Lawyer of the Year for 2015”, successfully litigated a prior free speech lawsuit against the administration of LJHS and the SDUSD in 2012.

Wide use of the FSBB began in December 2014 when posters titled “I Can’t Breathe” were posted on the FSBB and on other bulletin boards around LJHS in response to the death of Eric Garner, an African-American man from New York.

The policy that Messrs. Loy and Jassy hammered out with lawyers from the SDUSD states that posters posted on the FSBB must stay up for two weeks past the posting date. The rapid removal of the Eric Garner posters violated this policy. After being made aware of their removal, the administration ran bulletin notices on December 12 and 17 that read in part:

(Dec 12): “Students may display messages on the bulletin board… consistent with AP 6210.  All postings… must display the date of posting and may be removed after two weeks from that date,” and

(Dec 17): “The bulletin board on the east facing wall of the Admin. Building adjacent to the senior benches is considered a free speech bulletin board.  Please do not remove items place [sic] on this board.”

The Eric Garner posters and the bulletin notices made students more familiar with their long-held free speech rights and sparked a wide range of new content from December to the present time. Many of the higher profile postings during this time frame have either been critical of and/or satirized the administration and some teachers. Many of these critical/satirical posters were removed well before the two-week time period mandated by the ACLU/SDUSD agreement, some of them within 1 to 2 days and others still within hours of being posted.

On January 12, the administration posted a number of laminated blue posters on the FSBB that made modifications to the Free Speech Policy found in the student handbook and on the LJHS web-site. In the days before the posting of these modifications, however, screen shots of the LJHS web-site, retained by the Hi-Tide, show that the student handbook with the legally agreed upon Free Speech Policy had been removed from the school’s web-site without explanation.

LJHS Handbook Removed from Website Screenshots

Teacher Quote to LJHS Governance/SSCThese modifications to the Free Speech Policy were made without consulting the ACLU, which is in part what prompted the March 25th letter from Messrs. Loy and Jassy. The administration had been previously warned of the potential of the ACLU’s involvement with the FSBB at the February 2 Governance/SSC meeting. Those in attendance, including a LJHS vice principal, teachers, and parents, were told that imposing limitations on the FSBB had the potential to expand into ACLU contact, especially given that the ACLU had dealt with the issue of free speech at LJHS once before.

Although Dr. Podhorsky was not present at this meeting, he told faculty through an e-mail update shortly afterwards that “[I] continue to work with our district legal team to stay within the legal parameters of this board.”

Dr. Podhorsky Quote in Faculty Email

The March 25th ACLU letter was addressed to Dr. Podhorsky and outlined in detail why the ACLU believed that California and federal laws had been violated by the administration in its handling of the FSBB. Each believed violation was explained in detail and included citations of case law to support the ACLU’s claims.

Modifications to ACLU Settlement by LJHS Administrators

The edited Free Speech Policy posted on the FSBB on January 12 stated that examples of content prohibited on the FSBB included “violent images”, “racial, misogynistic, anti-sematic [sic], inciting hate” messages, and “language that is bullying”, among other things. The latter echoes sentiments articulated at the March 6 PTA meeting, at which Dr. Podhorsky in his Principal’s Report said that students were being actively encouraged to remove posters from the FSBB that they felt were “bullying”.

In its March 25th letter, the ACLU argued that “standing alone, the term ‘bullying’ is vague and unenforceable. Though of course the school need not tolerate true threats or harassment that is severe or pervasive, ‘it is certainly not enough’ to justify censorship ‘that the speech is merely offensive to some listener.’” (Saxe v. State Coll. Area Sch. Dist.). The ACLU continued with: “The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected.” (Sypniewski v. Warren Hills Reg’l Bd. Of Educ.).

As for messages involving race, etc., the ACLU argued that “the term ‘[r]acial, misogynistic, anti-sematic [sic], inciting hate’ is an unlawful restriction on speech by itself. Under  § 48907, ‘a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption.’ (Smith v. Novate Unified Sch. Dist.).

“The Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.” (Saxe)

The March 25th letter concludes that “[t]o the extent LJHS has concerns about the mere content of speech on the bulletin board, it may respond with its own speech or advocacy rather than the blunt instrument of unlawful censorship… We appreciate your prompt attention to the matters raised in this letter, in the hope of avoiding litigation that would otherwise be necessary to enforce the right to engage in speech protected by California and federal law.”

Gallery of Various Student Posters on LJHS ACLU Free Speech Board

When no response was apparently given by either Dr. Podhorsky or the SDUSD, the ACLU sent the April 27th letter, which was addressed to the SDUSD’s General Counsel and specifically made two requests. “First, we would appreciate an investigation by your office and/or other appropriate District staff into whether LJHS officials are improperly removing postings from the student bulletin board. Given the history of free speech problems at LJHS, we believe such an investigation is appropriate.”

The ACLU also made a California Public Records Act request for video camera footage from 12:00 AM on Monday, April 20 to 11:59 PM on Friday, April 24, which covers a week-long time frame when many student posters were removed from the FSSB during the instructional day before LJHS’ WASC Accreditation visit on April 22. Hi-Tide records show these posters were dated 4/16 and 4/17, and should not have been removed until 4/30 and 5/1, respectively.

"Positive Messages Only" for LJHS Senior Benches Image

The ACLU’s involvement in free speech at LJHS stems from a 2011 lawsuit. In February 2010, the LJHS Persian Club utilized the school’s senior benches, which are typically spray-painted with birthday messages and prom proposals, by painting the words “Freedom for Iran.”

After LJHS administrators, in the words of the ACLU, “whitewashed” the benches, students Yumehiko Hoshijima and Wilson Mokiao painted another message on the benches, “Freedom for Iran and LJHS.”

When that message was also painted over by administrators, Hoshijima filed suit in San Diego Superior Court for violation of the First Amendment. Hoshijima was represented by David Loy of the ACLU and Jean-Paul Jassy of the Bostwick & Jassy law firm.

At the time, former principal Dana Shelburne told the La Jolla Light, “Those benches are to carry positive, school-related messages — birthdays, athletic events, dances … If it’s negative: We paint it out. If it doesn’t pertain to school or school functions: We paint it out.”

The suit was settled over a year later in February 2012, leading to the creation of the current Free Speech Policy in LJHS student planners. “This is a major victory for not only La Jolla High School students, but for all students throughout the district,” Loy said at the time. “This updated free speech policy will allow students across San Diego to exercise their free speech rights, unfettered by administrative censorship.”

Now, both Messrs. Loy and Jassy have returned to the site of the Hoshijima v. Shelburne case, with Dr. Podhorsky now holding the reins.

Jassy, a class of 1992 LJHS graduate, said in 2012, “It riled me to see my alma mater turn its back on the First Amendment … While students (at LJHS) understood the meaning of free speech, sadly, the administration needed to be educated in what our First Amendment actually means.”

Note: The lawyers involved said they do not consider the two letters confidential.

Update(s):

  • o5/25/2015 20:49 PST – This article has been updated to reflect that the blue rule sheet(s) placed on the FSSB by administrators were standard laminated 8.5″ x 11″ pages. A previous version identified the rule sheet(s) as “over-sized.”

Sports

Field Update from Mr. Hawthorne

No Comments 22 May 2015

By Creekstar Allan
Sports Editor Elect

Many students at La Jolla High school have been aware of the field reconstruction since it was proposed, and now that the construction is well underway Mr. Hawthorne has agreed to update the student body on the progress of the project.

There are still many decisions to be made about the outcome of the field. Mr. Hawthorne announced that while the field is under construction, the teams that normally practice on the field would find alternative sites to practice and compete, provided through the efforts of our athletic director, coach Conway.

There is a possibility that some field hockey games will still be played home at Muirlands as normal, but sports like soccer and football may not be so fortunate to play that close to home.

One thing that is being constructed is a tennis pavilion that is going to be put next to the current tennis courts with storage and office space as well as outdoor seating covered by an awning. Other alterations to the field include replacing the press box, remaking both the turf and field, repainting the home bleachers, installing permanent away bleachers, a new weight room, and rebuilding coaches’ offices. Also, a new entrance by the archway near the 500 building will be turned into a functioning funneling point into the stadium.

Overall, it’s going to be a challenge. However, we can use it as motivation and give us the opportunity to rally together, believing that we can win no matter where we play. The whole process is estimated to be completed in a total of 18 months beginning to end.

Sports

Born to Win

No Comments 22 May 2015

By Jordan Beary
Staff Writer

Many people have the dream of becoming an Olympic medalist. The journey to get there is different in every country and there have been many controversies about whether or not children should be trained at a young age to compete in the Olympics. China is well known for their ruthless training of young children to compete for the gold medal. Many have wondered how Chinese competitors are so much stronger, faster and fitter, than their rivals.

The sport that this crucial technique is most commonly found is gymnastics. Children as young as the age of four train in the gym for up to eight hours a day, six days a week. While training techniques appear to be extreme to other eyes, it provides insight and explanation to why China is winning so many of these events. Parents of these promising athletes, some of whom are poor, are often given a home in their hometowns by the local sports department. Others just want a decent education for their children. Gymnastics is the main event where this occurs, but it isn’t the only sport. Figure Skating, Diving and also swimming are some of the sports that China excel in due to early training.

Chinese also excel in the following sports; canoeing, swimming, speed skating, American football, Badminton, Bandy, also known as Hockey, Baseball, Basketball, Boxing, Chess, Cricket, Curling, Figure skating, Football, Golf, Motor racing, Rugby Union, Snooker, also known as pool, Speed skating, Table tennis, also known as ping pong, Tennis, Volleyball and Weightlifting. Not all of those sports require training at such a young age but are all taken very seriously.

There has been an escalating amount of anger and disagreement these past years over the conditions of these children, who are forced to live and breathe their sport, many of whom are boarded at the training center away from their families. Although China is the most involved with training these kids early in their life, other countries such as Russia and European countries are in on the technique as well. Just like China, they take the kids at a young age and competitively train them at a sport. You have to be sixteen years of age to compete in the Olympics so clearly you need to start early, but is being forced at the age of four too early?

Sports

Deflategate Update

No Comments 22 May 2015

By Stephanie Buchbinder
Sports Editor

New England Patriots quarterback Tom Brady has been punished with a four-game suspension without pay in relation to his probable involvement in the “Deflategate” scandal, which saw the Patriots using under-inflated footballs to gain an advantage in the playoffs against the Indianapolis Colts in January. The teams were competing for a spot in Super Bowl XLIX, which the Patriots went on to win.

In addition to Brady’s suspension, the NFL announced on May 11 that the Patriots were also being fined $1 million and would forfeit their first-round draft pick in 2016 and their fourth-round draft pick in 2017.

Attorney Ted Wells was hired by the NFL to investigate the scandal, and his findings confirmed that the team did, in fact, use deflated footballs to gain an unfair advantage against the Colts. Although it was not found that Brady had direct involvement with the deflation of the footballs, the report stated that “it is more probable than not” that Brady was “at least generally aware of the inappropriate activities” of equipment assistant John Jastremski and locker room attendant Jim McNally. Jastremski has been with the team for 14 years and, according to CNN, has been in charge of preparation of game day footballs “for the past three years.” The league said that Jastremski and McNally have been indefinitely suspended without pay since May 6 and cannot be reinstated without NFL approval.

Due to his suspension, Brady will not play in the first four regular season games of 2015 but will still be allowed to participate in training camp and other preseason activities.

Controversy has arisen out of the decisions, as some believe that Brady is not being punished in a harsh enough manner, while others believe he should not be punished at all. Brady’s agent Tom Yee defended Brady, saying that, “the discipline is ridiculous and has no legitimate basis.”

The NFL Players Association has appealed the decision, claiming, in part, that there is “insufficient evidence” to punish Brady.

Sports

Aim to Please

No Comments 22 May 2015

By Joseph Carroll
Staff Writer

The La Jolla High School Archery Team has done very well this season.  The team took first place in the regional tournament and will be going to the state tournament at the Olympic Training Center in Chula Vista.  One high school the  team is looking forward to facing is arch-rival Glendale High School  in Los Angeles.

According to team member Gillian Franks, “If our team did have a rivalry, it would be Glendale because they are a pretty skilled team, but we are better.”  After the previous coach passed away mid-season, the team was saved when ex-Archery coach Mr. Teachworth volunteered to take over the position.  The team currently practices in the cafeteria after school.

Unlike some sports that require physical endurance, quick reaction skills, and physical contact, Archery requires mental discipline and relaxing the body to stay as concentrated as possible.  Xiao Bao, a junior on the La Jolla High School Archery team, says, “The archery team is great because it’s fun when you’re being watched by everyone when you’re about to shoot, and it relaxes you but also makes you tense because you don’t want to miss the target.”

LJHS is very privileged to have an archery team as many schools do not offer a program like this.  Junior Aaron Garcia said, “I like getting to know everyone on the team and also getting to be a part of a sport that other schools don’t have.”

Sports

Mayweather vs. Pacquiao

No Comments 22 May 2015

Andrea Albanez Opinions Editor Elect

This past month we have had a lot of great sporting events. The NFL Draft and the 141st Kentucky Derby brought the usual excitement that occurs this time of year, but many were amped and focused on “the fight of the century” between Emmanuel “Manny” Pacquiao and Floyd Mayweather. The hype accompanying the event brought much speculation as to how it would play out, but many were disappointed with the outcome.

The build up to the fight was what caused the fight to get so much attention. Many people were buzzing on social media, choosing if they were on Team Pacman (Pacquiao supporters) or The Money Team (Mayweather supporters).

The overall money spent on the fight and bidding on a winner was enormous. According to CNN, $180,000 is the estimated cost of the ringside seats on the night of the fight; $100 was the fee pay-per-view subscribers had to pay in order to watch the fight; and $1.5 million was the net worth of Pacquiao’s shorts alone after the fight. And, according to The Guardian, a $500,000 bet on Pacquiao to win was the biggest wager that the MGM Grand ever had for a fight. The event that took place on April 23rd became a $300 million dollar fight that many were excited to watch.

The fight itself had unexpected outcomes. Mayweather threw 435 total punches in the match, with Pacquiao close behind with a total of 429 punches. This was below Pacquiao’s usual average of thrown punches. Though they both had a similar amount of punches, Pacquiao only landed 81 of those punches, while Mayweather landed 134 punches.

Based on the statistics, the three judges scored the fight as 116-112, 116-112, and 118-110 in Mayweather’s favor, resulting in Mayweather winning the fight by a unanimous decision.

At the end of the fight, many were upset by the fact that Mayweather won, but many more were more upset about the controversy that arose after the fight. According to The National, just an hour after the fight, Pacquiao was complaining about an injury in his right shoulder during the fight; since he did not come forward with the injury before the fight, he is “likely to face disciplinary action for failing to disclose a previous shoulder injury.”

Viewers watching the fight at the arena or pay-per-view who felt that the end result was “cheated” from them have considered suing.

The fight that was supposed to be a mega-hit turned out to be an average fight between two great boxers that many felt were beyond their prime. We will just have to wait again until we have the next big boxing match to see if it is all that we hope it to be.

A & E

No Longer Hiding

No Comments 22 May 2015

By Vivi Bonomie
News Editor Elect

The media has recently been hit with a frenzy of rumors surrounding the story of Bruce Jenner. People appear to be surprised that after winning a decathlon, becoming the face of Wheaties, having three wives and six children,  Jenner has decided to undergo the transition to become a woman. Speculation had been surrounding the gold-medalist after his recent divorce with renowned “Momager” Kris Kardashian, which was finalized March 23, 2015. The couple had been separated for two years.

   On April 24, 2015, Jenner agreed to do an interview with Diane Sawyer where all questions would be answered. Up until this point, a preferred pronoun had not yet been openly expressed, but that night, Jenner told Diane, “For all intents and purposes, I am a woman.” He explained that his whole life was a constant struggle between accepting who he was and who he wanted to be.

As a child, Jenner admitted to dressing in women’s clothing but, as he got older, it was something that he continued to do. Many people ask, how did he keep cross-dressing a secret from his wives? Jenner says that it was treated as more of a habit than a way of life.

The difficulty for many people who grew up with Jenner as an image of the ideal “manly man” is the difference between sex and gender. While Jenner may have the anatomy of a male, he identifies his gender as female, which means in the ever-evolving world of gender politics, he is a woman.

In the interview, Jenner said, “I look at it this way: Bruce was always telling a lie. He’s lived a lie his whole life about who he is. And I can’t do that any longer. My brain is much more female than it is male. It’s hard for people to understand that, but that’s what my soul is.”

Jenner’s life has been on display since long before “Keeping up with the Kardashians” became a hit, and while it is difficult for some people to understand how a 65-year-old man is becoming a woman, others would say that what is more important is that Jenner receives the support and respect he deserves during this transition. This latter group would say that it’s hard enough that he’s lived a whole lifetime hiding who he truly is and does not now the whole world judging him for it.

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