Why is the San Diego ACLU trying to silence free speech for teachers at the same time that it is protecting free speech for students? I understand why school attorneys want to keep the public unaware of what goes on behind closed doors in our schools, but why is ACLU attorney David Loy so interested in helping them?
I have long wondered if the ACLU was doing California Teachers Association little favors by refusing to take free speech cases for teachers. The recently-retired CTA head counsel Beverly Tucker had previously worked for the ACLU.
I got my answer on April 28, 2010 (see email below from David Loy). Yes, I learned, the ACLU definitely tries to silence teachers who don't speak through the union.
I attended the Annual Membership meeting of the San Diego ACLU today, and listened to ACLU attorney David Loy boast about how the ACLU had protected student free speech.
I asked him, "What about free speech for teachers?"
Mr. Loy responded with only one case, Johnson v. Poway, a case in which the ACLU supported a teacher who draped huge banners with religious admonitions across his classroom. The ACLU's victory in the district court was overturned by the U.S. Ninth Circuit Court of Appeal:
"We thus reverse and remand with instructions that the district court vacate its grant of injunctive and declaratory relief, as well as its award of damages, and enter summary judgment in favor of Poway and its officials on all claims. Johnson shall bear all costs. Fed. R. App. P. 39(a)(3)."
Daniel R. Shinoff, Jack M. Sleeth, Jr. (argued), Paul V. Carelli, IV, Stutz Artiano Shinoff & Holtz, APC, San Diego, California, for defendants-appellants Poway Unified School District, et al
David Blair-Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, California, for Amicus Curiae American Civil Liberties Union of San Diego and Imperial Counties in Support of plaintiff (Johnson)
Apparently California Teachers Association didn't take part in this case.
Neither David Loy nor Kevin Keenan could think of another case in which the ACLU had defended freedom of speech for teachers, but they noted that the ACLU frequently defends the free speech rights of law enforcement officers. Is this perhaps because the police unions don't donate to the ACLU like the teacher unions do?
Even Lori Shellenberger, the San Diego ACLU's "civic engagement" attorney, is vehemently uninterested in free speech for teachers. She spoke at the Annual Membership meeting about the voting rights workshops she held for parents throughout the school district, and giving parents the chance to speak about what they wanted from schools. I told Ms. Shellenberger, "What good are voting rights when parents don't know what is going on in schools? Democracy requires an informed electorate. You want to expand parent participation, but you keep parents ignorant by silencing teachers who know what's going on in schools." Ms. Shellenberger said she wasn't interested in free speech. Her associate Vince Hall specifically told me he wasn't interested in my letter to the ACLU board.
It would seem to me that Shellenberger and Hall are unlikely to improve schools unless they're willing to work toward transparency in schools, to reveal the secret life of schools. They are basically asking parents to stand up and address the powers behind the curtain of secrecy in schools in the manner in which Dorothy, the Tin Man and friends addressed the Wizard of Oz. The ACLU wants to make sure the curtain is not pulled back revealing a charlatan pulling strings.
Interestingly, Mr. Keenan is convinced that the U.S. Supreme Court will overrule the Ninth Circuit. "We always win," said Kevin Keenan. If the ACLU wins in the U.S. Supreme Court, it will not be with the aid of the civil libertarians on the court, I believe. It will be with the aid of those who want the U.S. to be a Christian nation. Mr. Keenan's goal is apparently to win, not to stick to the ACLU's principles. He spent years trying to get a huge concrete cross taken down from Mount Soledad in San Diego, only to turn around and try to get it erected (figuratively speaking) in a classroom in Poway. The San Diego ACLU mistakenly reasoned that since other teachers expose students to information about religions around the world, then it's okay for Mr. Johnson to insist to his students that his own personal religious beliefs are law in his classroom.
Not so. The ACLU tried to silence my website discussions about Stutz law firm, which represented the school district in this case. The Court of Appeal didn't go along with the ACLU's position, ruling instead that an injunction completely silencing my discussion of Stutz Artiano Shinoff & Holtz was "exceedingly unconstitutional."
Mr. Keenan bemoaned the fact that the San Diego Zoo has more members that the ACLU does, even when counting all ACLU members in the entire country. The reason might be that the ACLU compromised its principles a bit too often, pushing out ordinary people who demand equal treatment with the good old boys and girls in the ACLU power structure. In fact, Mr. Keenan said to me, "I'm surprised you're still a member." I'm not the one who has a problem with equal treatment for everyone, Mr. Keenan. But I'm curious, how many ordinary people has the ACLU intimidated into giving up their civil rights? They tried to get me to take down my website, but I didn't think much of their exhortations.
Mr. Loy tried to get me to obey an obviously unconstitutional injunction:
to Maura Larkins
date Wed, Apr 28, 2010 at 9:18 PM
...However, the law does not allow anyone - a government official or a private person - to disobey a court order because they believe it is illegal. Under the law, the proper course is to seek appellate review of an order, and/or a stay of the order,rather than to disobey it. The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...
Mr. Loy must also have known I was not legally required to de-publish the information about Stutz law firm on my website while the injunction was under appeal. (The mandative aspects of an injunction are staying during that time.) Either Mr. Loy was shockingly ignorant of the law, or he was intentionally deceiving me about the law to protect Stutz law firm when he said, “The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...”. Why would he do this? To earn “civility” awards from the Bar Association? As a sort of trade-off of free speech rights, helping Dan Shinoff silence a teacher in exchange for Mr. Shinoff’s agreeing to settle student speech cases? To please donors to the ACLU who care less about education than they do about preserving the power of certain individuals in schools?
The Court of Appeal didn’t agree with Stutz law firm and the ACLU; on August 5, 2011 it ruled that the injunction Mr. Loy wanted me to obey was “exceedingly unconstitutional.” Of course, Mr. Loy knew perfectly well that the injunction was unconstitutional when he insisted that I must obey it.
But here’s the larger question: why did the ACLU board support Mr. Loy’s actions?
JUDGE JAMES STIVEN
I asked this question of ACLU board member Hon. James Stiven. He said, "I'm not getting involved because I'm a part of this organization." Wait a minute. Isn't that exactly why he has an obligation to get involved? He's on the board! He's in charge!
I said, "So if ACLU lawyers do something hostile to civil rights, you wouldn't intervene?"
He said, "I don't know that they have done anything wrong."
I said, "Yes you do. You're a judge."
Here's what they've done wrong:
1) To start with, David Loy aided and abetted a violation of my constitutional rights. I believe he intentionally gave me false legal advice in an effort to silence me.
2) The San Diego ACLU seeks and gets money by false advertising. I have heard ACLU speakers around town repeating what Kevin Keenan said at the 2012 Annual Membership meeting, "We guarantee rights for all people, not just the people we like. We stand up for equal protection of all people."
3) The above tactics have been approved at the highest levels of the San Diego ACLU. The San Diego ACLU Board knows about and tacitly approves the above actions.
ACLU in Rhode Island takes a completely different stand from ACLU in San Diego on religious banners in schools
Prayer banner: Atheist teen speaks out, lands $44,000 scholarship
By Rene Lynch
Los Angeles Times
February 22, 2012
A Rhode Island teen is learning that it pays to deny the existence of God: Prominent atheists plan to present Jessica Ahlquist with a scholarship of at least $44,000 -- and possibly more.
It seems they were impressed with the way Ahlquist, 16, handled herself amid a roiling controversy that began in July 2010, when she complained about a prayer banner hanging in the auditorium at Cranston High School West that referred to "Our Heavenly Father."
School authorities brushed off her complaint, saying the banner was artistic and historic, as it had been hanging there for decades. Ahlquist later joined the American Civil Liberties Union in a suit alleging that the banner made her feel "ostracized and out of place."
After much legal wrangling, a court ruled that the banner needed to be removed -- and an uproar ensued.
The controversy helped Ahlquist, an atheist, collect thousands of friends and followers on Facebook and Twitter.
But it also sparked outrage on behalf of many others who embraced the banner and wanted the school district to stand firm. A state legislator called Ahlquist an "evil little thing." There were death threats. The financially strapped school district spent tens of thousands on legal fees. And recall threats were lodged against the school board. Those school board jobs are still in jeopardy; the district voted last week to end the appeals process to save money...
WHERE WOULD THE SAN DIEGO ACLU COME DOWN ON THIS CASE?
Penn Judge Tosses Case in Which Muslim Was Accused of Attacking Atheist
By Mark Whittington
Yahoo! Contributor Network
Feb 24, 2012
Jonathon Turley, a law professor at George Washington University, wrote on a disturbing case in which a state judge in Pennsylvania threw out an assault case involving a Muslim attacking an atheist for insulting the Prophet Muhammad.
Judge Mark Martin, an Iraq war veteran, threw the case out after ruling that there was insufficient evidence. But then he berated the plaintiff in what appears to be an invocation of Sharia law.
The incident occurred at the Mechanicsburg, Pa., Halloween parade where Ernie Perce, an atheist activist, marched as a zombie Muhammad. Talaag Elbayomy, a Muslim, was accused of attacking Perce. He was arrested by police.
Judge Martin threw the case out on the grounds that there was insufficient evidence, refusing to allow a grainy video of the incident to be entered in. But then he suggested to Perce that Elbayomy was obligated to attack Perce because of his culture and religion. Judge Martin stated that the First Amendment of the Constitution does not permit people to provoke other people. He also called Perce, the plaintiff in the case, a "doofus." In effect, Perce was the perpetrator of the alleged assault, in Judge Martin's view, and Elbayomy the innocent. The Sharia law that the Muslim attacker followed trumped the First Amendment.
Words almost fail.
The Washington Post recently reported on an appeals court decision to maintain an injunction to stop the implementation of an amendment to the Oklahoma state constitution that bans the use of Sharia law in state courts. The excuse the court gave was that there was no documented case of Sharia law being invoked in an American court. Judge Martin would seem to have provided that example, which should provide fodder for the argument as the case goes through the federal courts.
The text of the First Amendment could not be clearer. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof-" It does not say "unless somebody, especially a Muslim, is angered." Indeed Judge Martin specifically decided to respect the establishment of a religion, in this case Islam.
That Judge Martin should be removed from the bench and severely sanctioned goes almost without saying. He clearly had no business hearing the case in the first place, since he seems to carry an emotional bias. He also needs to retake a constitutional law course. Otherwise, a real can of worms has been opened up, permitting violence against people exercising free speech.
It should be noted that another atheist, dressed as a Zombie Pope, was marching beside the Zombie Muhammad. No outraged Catholics attacked him.