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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.”

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