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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.”

News

UC Santa Barbara Shooting

No Comments 22 May 2015

By Tristan Macelli
Photojournalism Editor Elect

Following a rant posted on YouTube about rejection, Roger Elliot went on a shooting spree in Isla Vista. He killed 6 people and injured 14 others. That was a year ago. But history repeated itself with another shooting that took place in Santa Barbara this past May 11th.

This shooting, which was less harmful, involved two perpetrators, Jose Gutierrez and James Taylor, both of whom are allegedly gang members.

The motive for this shooting does not appear to have any connection to last year’s occurrence.

The victims of these two shooters were two University of California Santa Barbara [UCSB] students who had some previous relations with the two alleged gang members. Initially, the interactions between Gutierrez, Taylor, and the students were calm, but they quickly escalated into a physical altercation.

A violent scene unfolded and eventually the alleged gang members robbed the UCSB students at gunpoint and then shot them.

Neither of the students sustained life-threatening injuries but they nonetheless ended up at the hospital. Before the alleged gang members escaped, the students managed to catch Taylor. Gutierrez got away.

Gutierrez was tracked down after being admitted to Goleta Valley Cottage Hospital, where he was soon after placed into police custody with Taylor.

Although there is no connection to previous shootings, this event has reopened old wounds for residents in the area who were afflicted by the Isla Vista incident.

News

Construction Disruption

No Comments 22 May 2015

By Tristan Macelli & Andrea Albanez
Photojournalism Editor Elect & Opinions Editor Elect

On April 20th, construction of the new La Jolla High School football field began. This is the start of a major endeavor that was put into place to beautify the campus and bring LJHS’s football field up to code in terms of things like wheelchair accessibility, etc.

The major focus of the construction includes improvements to both the stadium and the men’s locker room. The current progress of this project can be seen in the lower parking lot outside the gymnasium. The workers have begun to make the temporary locker room. It is the first step in a large-scale construction project that is intended to take around eighteen months.

Although this initial step is will end up with something beautiful for LJHS, it has caused quite a disruption to everyone who parks at school. Since nearly all of the lower parking is occupied by construction, many of the teachers and students who were regularly parking in that area are now forced to park elsewhere. The lack of ample parking near and around the school makes finding a spot even harder for everyone who normally parks on the west side of the school.

When it comes to handicapped spots, the situation is even worse because of accessibility concerns. According to the Americans with Disabilities Act and Title 24, “Accessible parking spaces serving a particular building shall be located on the shortest accessible route of travel from adjacent parking to an accessible entrance” (sandiegocounty.gov).

The parking lot next to the administration office and gym had the accessible handicapped parking, the spaces that legally fit the requirement above, but construction has blocked this area off. The other handicapped parking spots are located at the pool and at the cafeteria, but, because of their distances from the main office, this will prove a burden to those who most need accessible parking and are trying to get to the main office.

This construction has also caused a rise in noise level over the entirety of the day and, especially when jackhammers were being used to break apart cement, could be heard at least halfway across the campus in the 500 Building.

During any other time of the year these construction noises would be bothersome but probably bearable, but the construction and its loud noises conflicted with the annual Advanced Placement (AP) testing schedule. Some AP test-takers were subjected to the noise of the construction, including loud jackhammers, during their  testing.

Gary Stanford, the projects’ director, said this construction disruption will only affect the AP testing schedule this year.

The demolition is slated to continue through August.

News

Police Precincts in Crisis

No Comments 22 May 2015

By Vivi Bonomie & Ryan Robson
News Editors Elect

“Where’s Brian?” queried a man placing a call to his son on a Saturday evening.

“Brian’s been shot,” came the sobering reply. “In the face.”

New York Police Department Officers Brian Moore and Erik Jansen had been patrolling a Queens neighborhood on Saturday, May 2, in an unmarked Crown Victoria when they saw a man, Demetrius Blackwell, give his waistband a suspicious tug.

According to The Wall Street Journal (WSJ), Officer Moore asked, “Do you have something in your waistband?”, to which the 35-year-old male replied, “Yeah, I got something,” and fired a handgun three times at the officers.

Moore’s father, a retired NYPD sergeant, called his son’s phone that night and received the shocking news that he was dead.

A police officer with NYPD’s anticrime unit, Moore died at Jamaica Hospital Medical Center two days later, just a few weeks before his father’s wedding.

Moore’s May 8th funeral drew a crowd of 27,000 mourners, many of them law enforcement officers from across America, whom the NYPD  affectionately referred to as a “#SeaOfBlue.” JetBlue waived the ticket price for officers who wished to attend the event in New York.

New York City Mayor Bill de Blasio’s support for the NYPD was praised by Patrolmen’s Benevolent Association President Patrick Lynch. According to the WSJ, Lynch said, “The mayor’s recent words are measured and careful … There’s support and that’s important.” The two men recently locked horns over comments Mayor de Blasio made regarding a grand jury’s decision not to indict the officer who put Eric Garner in a fatal chokehold despite his now-famous cry, “I can’t breathe.”

Violent interactions between police and citizens in America appear to have reached critical mass this year, with shootings sprawling across the nation and accusations flying.

Over a month ago, in Baltimore, Maryland, twenty-five-year-old Freddie Gray was pronounced dead from injuries sustained while in police custody. Gray and a friend were walking down the street with a knife when they saw several police officers on a corner. The Baltimore Sun reported that Gray and his companion fled, unprovoked, and were pursued by police until they were arrested a few blocks away.

After Gray was arrested, the officers requested a van to transport him. The van ride, which included several stops on the way to the station nearby, lasted approximately 40 minutes. Police stated that no force had been used to detain Gray; although he was slightly dragged into the van (as shown in a citizen video), he was able to use his legs and speak.

Baltimore Deputy Police Commissioner Jerry Rodriguez said,  “When Mr. Gray was placed inside the van, he was able to talk… and when Mr. Gray was taken out of that van, he could not talk and he could not breathe.”

Gray’s death sparked large-scale protests in Baltimore as well as violent rioting which was primarily fueled by cries of police brutality and inequality.

Some involved in the riots were upset about the negative coverage they have been receiving from media outlets.  Fox News reporter Geraldo Rivera was confronted in Baltimore by a young protester who said, “I want you and Fox News to get out of Baltimore city because you’re not here reporting on the boarded up homes and the homeless people on the MLK. You’re not reporting about the poverty levels up and down North Avenue. You’re not here for the death of Freddie Gray. You’re here for a different story.” Other protesters have questioned why mass media coverage came only when the riots had started, and not when Freddie Gray initially died.

In a polarizing piece titled “Why Everyone in Baltimore Hates the Media,” Gawker reporter Andy Cush attempted to justify the riots and explain the rioters’ outburst, writing, “A few days of chaos in the streets is a pittance compared to a few generations of poverty and violence at the hands of the state.”

As of now, the six police officers have been charged with the death of Gray, which has been called a homicide.

Questions have been raised over the speed at which the prosecutors pressed charges, and whether the switchblade Gray was carrying was in compliance with state law. Attorney William Murphy told CNN that Gray had a “pocket knife of legal size.”

According a CNN.com story from April 29, “There were more than 20 criminal court cases in Maryland against Gray, and five of those cases were still active at the time of his death. The cases involve mostly drug-related charges, but there are charges from March for second-degree assault and destruction of property.”

Questions about use of reasonable force by police have been raised near San Diego as well.

On April 9 in San Bernardino, eleven police officers pursued and beat a man riding a stolen horse. The suspect, Francis Jared Pusok of Apple Valley, allegedly fled by car when police arrived at his house with a search warrant for an identity theft investigation.

When police next located Pusok, he was riding a horse he was suspected of having stolen. When he was thrown by the animal, officers deployed a Taser, which they claimed was ineffective because of Pusok’s loose clothing.

The full encounter was captured on video by the helicopter of a local NBC affiliate, whose analysis determined that two officers immediately delivered a punch to the head and a knee to the groin. Sheriff’s deputies continued to rush the scene, with the officers surrounding Pusok swelling to eleven men.

KNBC’s reporting concluded that the officers had “kicked him 17 times, punched him 37 times, and struck him with batons four times,” with thirteen of those blows appearing to be taken “to the head.”

Although several deputies received medical attention, Pusok did not. After the attack concluded, Pusok remained unmoving for 45 minutes.

Pusok had previously been convicted for resisting arrest, animal cruelty, disturbing the peace, attempted robbery, and failure to provide evidence of financial responsibility.

Many argued that the Taser should have been enough to subdue Pusok for arrest. His mother, Anne Clemenson, stated, “He didn’t deserve something like that. To tase him, the beatings that I see them doing to him – it’s uncalled for. You see him lying down, and they continue to kick him, hitting him and punching him. Why?”

The officers involved were immediately suspended. San Bernardino County Sheriff-Coroner John McMahon said, “The video surrounding this arrest is disturbing and I have ordered an internal investigation be conducted immediately.”

On April 21, Pusok reached a $650,000 settlement with San Bernardino County lawyers. “With this situation behind us, we can move forward with protecting our residents and ensuring that local [law] enforcement is responsive, effective and restrained,” County Supervisor Curt Hagman said.

With at least 65% of Americans owning smartphones, citizens have become more empowered to record police activity or become catalysts for change. Many of the Baltimore riots involving high school students were organized via Snapchat with references to the blockbuster “Purge” films.

If citizen-police violence continues to increase, Americans will be watching to see if a major restructuring of police operations is necessary.

News

ISIS Hitlist Released

No Comments 17 April 2015

By Andrea Albanez
Staff Writer

Earlier this month, the Islamic State Hacking Division, a group associated with the Syrian terrorists group ISIS, posted a hit list of 100 faces, names, and addresses of service members in the United States. Four of those names were of men who served on the San Diego-based aircraft carrier U.S.S. Carl Vinson. The list has caused many to worry as to how the group got the names and if there will be any repercussions.

The list was posted online on March 23rd, with ISIS saying they “hacked U.S. military servers, databases and emails to get the service members’ information” and posted that information online (San Diego Union Tribune). Defense Department officials have said that the group’s claim was most likely “untrue,” and probably just found the information online through social media (San Diego Union Tribune).

With the list having been posted, many have been fearing what will happen to the 100 people on the list if ISIS moves forward with its threats. The Naval Criminal Investigative Service and the FBI have contacted the people on the list, working with them to ensure their safety.

In an interview with NBC 7’s Bridget Naso, a spouse of one of the men on the hit list who wished to remain anonymous, said that “it was frightening, very frightening.” After hearing the news, Naso reported that, “she and her active-duty husband changed their social media accounts and eliminated any pictures or references to the military.”

Though this has aroused concern, many believe that this threat is only a threat and no action will be taken by ISIS to undertake any of the threats they said. The hit list has caused a small frenzy on the war on terror against ISIS, but it will surely be resolved soon to bring back the sense of security that our country has always had.

News

SDPD & NYPD Alter Wikipedia Pages

No Comments 17 April 2015

By Vivi Bonomie
Staff Writer

During the last several months, tensions have risen between the nation’s police forces and average civilians. Ever since the deaths of Mike Brown and Eric Garner, people have begun to notice that the police force may not be all about serving to protect citizens of the United States. As people continue to lose trust in those supposedly there to help, it seems that events that show the police in a bad light are becoming more apparent.

It was recently discovered that members of the New York Police Department (NYPD) have been editing entries on Wikipedia that have mentions of alleged police brutality. The IP addresses for these edits have been traced to the NYPD’s network of computers. As of now, 85 IP addresses have been linked to the NYPD that have edited or attempted to delete these entries. The edits were made on written entries that have tainted the NYPD’s reputation.

On the Eric Garner case entry, in which Garner was placed in a chokehold by the police and was inadvertently killed, the word “chokehold” was replaced twice, once by “chokehold or headlock” and another time to “respiratory distress.” Also, the phrase “use of chokehold has been prohibited” was replaced by “use of the chokehold is legal, but has been prohibited.” The sentence “Garner, who was considerably larger than any of the officers, continued to struggle with them” was added to the description of the event.

According to Capital New York, the NYPD IP addresses are now being monitored and have been found to have made hundreds of edits on Wikipedia entries in the last decade, some that are completely unrelated to the NYPD but most have been to entries that challenge their conduct.

Since the NYPD has had numerous scandals, especially in the last year, it’s not as shocking to find that these edits are being made. What is shocking is that the San Diego Police Department (SDPD) is doing this as well. Since January 2014, the SDPD’s “Misconduct” page on Wikipedia has been altered five times. The edits to the page were made when the department was facing issues of officer misconduct.

Daniel Weiss, an officer in San Diego, admitted to making some corrections. He told the San Diego Union-Tribune that “Wikipedia is a historical reference page, not a means for an agency to be slammed eternally by calling out the sometimes untrue or misrepresented actions of the few.” While this may be true, according to Wikipedia policy this could be considered a conflict of interest, especially after Weiss deleted the entire misconduct section under the pretense that things described represented only individual officers, not the entire SDPD. Weiss also added that he never made any corrections anonymously nor at work, and that he believes all content edits comply with the terms of service listed on the website.

Along with edits made by Weiss, the SDPD’s misconduct section has also been altered anonymously. On October 18, 2014, two paragraphs were removed, one which described the story of SDPD Officer Carlos Garcia, who shot and killed a man named Tommie Dubose. The second paragraph was a summary of the LA Times story on the suicide of Officer David C. Hall, who was a suspect in a hit-and-run accident when he died. On January 10, a paragraph was deleted which described the DUI case of Detective Jeffrey Blackford, who crashed his car but was assisted by two off-duty friends who never reported the accident. The user also removed a story about Sargent Daniel McLaughlin who in 2009 allegedly used excessive force against an elderly man. These edits were made anonymously. Some edits did not have any notes explaining the reasons for the changes.

News

Safe Teen Driving Promoted at GM

No Comments 17 April 2015

By Sophia Dorfsman
Staff Writer

As students in high school, we are all around that age of taking on new responsibilities and receiving new freedoms. One of those is driving. Getting a driver’s license is the next step towards independence and adult maturity, which many of us have already reached. However, achieving this level of self-sufficiency may soon no longer feel as accomplishing on account of General Motors (GM) designing a 2016 Chevy Malibu equipped with a Teen Driver System.

This system will involve new features in which parents can regulate and keep track of how their children drive. This includes muting the radio or any connected devices playing audio until the passengers seated in the front of the vehicle have their seat belts on. Parents can also limit the volume of the sound system. If the car operator exceeds the max speed limit put in place for them, the GM Authority says that “an audible message appears on the driver information system and a chime will ring until the speed is brought back under the set limit.”

The car will also produce a “report card” on the competence of the teenager behind the wheel. Items on the report are records of how fast the minor is driving, especially if they are going above the speed restriction their parent can set on the car, the distance traveled, how many speed warnings the car had to give to the driver, and how many forward collision alerts were issued. Parents will also be made aware of the fact if the car’s safety features, like anti-lock breaks or stability control, had to be utilized. All the pre-sets the parents put on the vehicle can only be accessed with a PIN number.

This Detroit based company is the first car company to design a system as such. The car made its global launch on April 1st and expects to go on sale later this year. MaryAnn Beebe, a GM safety engineer said, “We developed this system so parents could use it as a teaching tool with their kids – they can discuss and reinforce safe driving habits. I know anything that has the potential of keeping one’s family safer is of great value to parents.” The company states, “the system is built to help kids learn safe habits and give parents some calmness when inexpert teen drivers strike the road.” This is just the beginning of the unseen technology we, as the new generation, get to look forward to.

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