San Diego ACLU's David Loy says UCSD cut student newspaper funding to curtail speech

Koala vs. Khosla: We need more speech, not less, to address the undercurrents of hate in our schools. See the federal complaint here.

Offensive UC Newspaper Demands Funding
By JON CHOWN
Courthouse News
June 02, 2016

SAN DIEGO (CN) — The Koala, a satirical student newspaper whose motto is "The Worst in Collegiate Journalism Since 1982!" claims the University of California San Diego cut its funding to punish it for its speech.

Koala, primarily distributed on the UC San Diego campus, is one of several publications supported by the Associated Students of UCSD. It regularly satirizes issues involving ethnicity, sexual orientation, religion and even people with disabilities.

     Its content has drawn complaints for years, but it's managed to survive. But administrators' decision last year cut all funding to student publications may have killed it, unless The Koala can win what it has proclaimed "the trial of the fucking century."

     Its Monday complaint in Federal Court seeks an injunction against UCSD Chancellor Pradeep Khosla, Associated Students of UCSD President Dominick Suvonnasupa, the Associated Students of UCSD Financial Controller Tristan Britt.

     "There are two core issues: freedom of the press and freedom of speech," The Koala's attorney David Loy said. "The university violated both by discriminating against the student press and discriminating against the viewpoint of one student newspaper."

     Attorney Loy, with the ACLU Foundation of San Diego and Imperial Counties, said the ACLU took the Koala's case because of the speech and free press issues, and that the case is clearly laid out in emails and online reports.

     The college has tried to shut down The Koala before. In 2002, it tried to revoke its registration as a student organization after a member took photos of another student organization's meeting and made fun of it.

     In 2010, all student print media were suspended after The Koala broadcast an invitation for an event called "The Compton Cookout," and asked participants to wear chains, cheap clothes and be loud. Women were told to dress up like "ghetto chicks." That stirred outrage among the African-American community on campus.

     E-mail threads cited in the complaint reveal a discussion between administrators on how to quash the paper, dating back to the 2010 incident.

     The Koala's Nov. 15, 2016 story, "UCSD Unveils New Dangerous Space on Campus" uncorked a new flood of complaints and a renewed effort to stop it.

     The story mocked UCSD's new "safe spaces" where students allegedly are excused from restrictions on insensitivity.

     The predictably offensive story reported: "Located in the center of Library Walk, the new Dangerous Space is the ideal place for students to do whatever the hell they want," then quoted a fictitious "Asian nerd," F. Yu, who enjoyed necrophilia.

     In the interest of fair and balanced reporting, perhaps, the complaint cites 15 student complaints against the Koala, including: "Knowing that my school is funding such a heinous magazine is not okay and I stand by my fellow students to get it off this campus. Please cease funding for this awful publication."

     And: "I would like to see UCSD dismantle The Koala immediately."

     And: "Pull the funds, and make them turn to personal donations if they way to continue this nonsense. They have the UC stamp/icon on the paper. UCSD already has a bad racial climate and this is an obvious contributor that can be eradicated."
     And: "I would like the University to shut down the koala newspaper and the creators of the newspaper should be punished by their college deans."
     Two days after the "Dangerous Space" story was published, Chancellor Khosla and other top administrators denounced The Koala "profoundly repugnant, repulsive, attacking and cruel." The UC San Diego Associated Student Council quickly decided to cut funding to all student-run publications.
     Another UCSD student newspaper, The Guardian, reported that Associated Student Council President Dominick Suvonnasuna said the administrators' attack had no bearing on the Student Council's quick decision to cut funding, that it was a coincidence.
     The Koala doubts that.
     "However offensive or outrageous it may have been, the article remains protected free speech on topical issues of public concern," the complaint states.
     The Koala wants the university enjoined from refusing to provide funding for campus publications or "otherwise interfering" with the First Amendment, plus attorneys' fees and costs. 

Los Angeles ACLU and Public Council force an end to fake classes for poor Oakland kids

My respect for the ACLU of Southern California (the Los Angeles branch) is reaffirmed. But once again I am disappointed in the San Diego ACLU.  Who is calling the shots in the San Diego ACLU regarding school issues? Certainly not people who are interested in equal education or civil rights for ordinary students and employees. 

A lawsuit was brought against the state of California by the Public Council and the ACLU of Southern California regarding fake classes for poor kids.

  “Settlement in suit over Oakland schools’ ‘sham’ classes
Jill Tucker
SFGate
November 5, 2015

Students in Oakland and two other California school districts will no longer have to languish in bogus courses or miss weeks of class because of scheduling fiascoes, under a settlement reached in a lawsuit targeting the loss of learning time in some of the state’s lowest-performing schools.

The class-action lawsuit said that students at Castlemont and Fremont high schools in Oakland, along with four schools in Los Angeles and Compton (Los Angeles County), received much less learning time than other, more affluent children across the state. Civil rights attorneys filed the case against the state Department of Education and Board of Education, saying the state and not individual school districts are responsible for ensuring all students have the opportunity to get an education.

Other court cases have challenged unequal access to quality teachers or classroom materials, but this was the first case in the country to address the time students spend learning, plaintiffs’ attorneys said.

The suit cited cases in which youths had been assigned to “sham” courses that had them perform tasks in the school office or pick up trash.

Schools cited in the lawsuit had students retake courses they had already passed or sent them home early because there was no room in classes, attorneys said. Some schools employed rotating substitute teachers rather than fill full-time vacancies, the suit said.

The state Board of Education voted to approve the settlement Thursday. The agreement requires state education officials to track students assigned to classes without educational content and provide assistance in class scheduling if necessary. The settlement also requires the state to pay $400,000 in attorneys’ fees.

“No child’s time in school is disposable,” said Kathryn Eidmann, staff attorney with Public Counsel, a public interest law firm that filed the suit with the American Civil Liberties Union in Alameda County Superior Court. “Many students in California’s most disadvantaged schools were put in fake classes, made to run errands, sit in the back of classrooms or go home early.”

Larry Sand updates us on the ACLU lawsuit against LAUSD regarding seniority

Larry Sand updates us on the ACLU lawsuit regarding the "Last In, First Out" rules for laying off teachers in Los Angeles Unified School District.

The new solution to the problem?  More administrators.  What a mess.  Sorry, kids.

LIFO Lite?

Teacher seniority might well survive the Vergara decision.

Larry Sand

City Journal

July 25, 2014

[Vergara lawsuit:]

Last month’s decision by a Los Angeles Superior Court judge to strike down California’s teacher tenure, seniority, and dismissal statutes may be a great victory for children, though much depends on the outcome of any appeal. This week, Attorney General Kamala Harris filed a 22-page request with Judge Rolf M. Treu asking for further clarification of his decision in Vergara v. California. Harris’s filing, coming on the heels of a similar request from the California Teachers Association, could be the prelude to an appeal. But assuming such appeals fail, the question is what would replace the laws that Vergara voided. A roadmap may already be in place to preserve teacher seniority, based on another pending legal settlement in Los Angeles.

[Sadly, California has snatched defeat from the jaws of victory regarding ACLU lawsuit: Reed v. the State of California:]

In April, the Los Angeles Unified School District and the United Teachers of Los Angeles reached an agreement on a lower-profile case that had worked its way through the courts for four years. In 2010, the American Civil Liberties Union sued L.A. Unified and the local union over mass layoffs stemming from state budget cuts. The ACLU focused in particular on three low-performing schools in South L.A., where more than half of the teachers received pink slips. The lawsuit noted that, district-wide, less than 20 percent of teachers met the same fate. Alleging that seniority-based layoffs had taken a disproportionate toll on poor and minority schools, the ACLU won a settlement protecting students in up to 45 schools from the ruinous effects of the “last in/first out” (LIFO) process.

The union appealed, claiming the settlement would undermine teachers’ rights. In 2012, a state appeals court agreed, sending the lawsuit back to the superior court.

After 20 months of wrangling, the parties agreed to another settlement. As EdSource’s John Fensterwald explained, “The deal in the Reed v. the State of California lawsuit will provide about $25 million annually for three years for additional administrators, mentor teachers and teacher training in 37 middle and high schools where there had been low student performance and high turnover of inexperienced teachers.” But the LIFO problem—the meat and potatoes of the original ACLU lawsuit—remains unaddressed. And the settlement says nothing about how administrators may keep the best teachers when (not if) layoffs become necessary again. The union-enforced LIFO system regularly denies thousands of children a decent education.

Nevertheless, all parties seem to view the Reed settlement as satisfactory. L.A. Unified schools superintendent John Deasy said that it would ensure that kids in the greatest peril benefit the most. “These are invaluable investments . . . which will make a difference in transforming these schools and bring justice to our youth,” he gushed. But Deasy wouldn’t elaborate on how children will prosper from the “investments,” when teachers-of-the-year are laid off and less talented and occasionally inept colleagues are protected—all while the district spends more money on bureaucracy.

Meantime, UTLA attorney Jesus E. Quinonez insisted that “any attempts to extinguish the rights of teachers—here, the right to a neutral and fair hearing process—will not serve the needs of kids or lead to justice in our schools.” That’s outrageous. With LIFO in place, no one gets a hearing of any kind. Administrators ignore variations of teacher effectiveness in making their decisions. LIFO discriminates not only against children, but also against good and great teachers. Yet Dale Larson, an attorney with Morrison & Foerster, which partnered with the ACLU in the lawsuit, asserted: “By providing resources to attract and retain teachers in the 37 low-performing, high-turnover middle and high schools, the settlement renders the legal question raised in Reed academic.” Hardly: the agreement never mentions the words “seniority” or “last in/first out.”

What boosters of the Reed settlement can’t explain is how adding administrators to underperforming schools would help retain good teachers...

Read more: LIFO Lite?

Sometimes David Loy gets it right: speech about crimes should not be criminalized

See all posts about San Diego ACLU chief counsel David Loy.

On the district attorney’s theory, it could prosecute a current or former gang member for writing a book, giving an interview to an author, or appearing in a documentary about gang life, as well as a substance abuse counselor who draws on his gang experiences, because they all “benefit” from knowledge of crimes committed by gang members.

San Diego Man Faces Life in Prison for … Rapping
by Source on February 4, 2015 
San Diego Free Press

San Diego prosecutors admit that Brandon Duncan was not at the scene of any one of several shootings in the city, and they have no evidence linking him to those shootings that occurred between May 2013 and February 2014. Still, the District Attorney Bonnie Dumanis charged him for those crimes because…he rapped about them.

...Only recently released on bail, Duncan, who performs under the name Tiny Doo, spent eight months in jail on so-called “gang conspiracy charges” arising from those shootings. The San Diego ACLU is filing an amicus brief in court asking the court to dismiss the charges immediately. In a blog post about the case, David Loy, legal director of the ACLU of San Diego & Imperial Counties said that the case was “not only absurd; it is a blatant violation of the First Amendment.”

The district attorney is testing a law in which an “active participant” in a “criminal street gang” who “willfully promotes, furthers, assists, or benefits from” any felony committed by fellow gang members can be charged with “conspiracy to commit that felony.” Unlike traditional conspiracy, the charge does not require any agreement to commit the crime. Instead, it requires either “promoting, furthering, or assisting” the crime, which means being a direct accomplice, or knowingly “benefiting” from the crime.

“Whether or not this law can be used to prosecute others, the prosecution is abusing it to charge Duncan,” Loy said. “To ‘promote, further, or assist’ means to aid and abet, and there is no evidence he did that.” Instead, the prosecution is unconstitutionally twisting the word “benefit” to charge Duncan. The district attorney alleges that he  “benefited” by making a CD called “No Safety,” on which he raps about shootings, and by receiving “praise” for his music. As the prosecutor admitted, he wouldn’t be charged if he sang “love songs.” That’s a classic First Amendment violation.

...“This is a textbook case of using a ‘gang’ dragnet to over-criminalize people of color,” Loy said. Beyond that, even if prosecutors could prove that Duncan is an “active participant” in the gang under California law, the prosecution’s theory violates the First Amendment by punishing him for the content of his speech. The government can punish crime, but it cannot punish speech about crime, even by proven criminals about their own crimes, much less an artist like Tiny Doo.

The U.S. Supreme Court has held that the government can’t confiscate income from speech based on its content, even speech about crime, because that would punish the speech itself. Under that principle, the government cannot prosecute Duncan for singing about crime or allegedly receiving “benefits” for doing so. Indeed, this case is even worse, because it involves criminal prosecution, not just loss of income...

The government cannot criminalize free speech, and it cannot criminalize Duncan’s music. Duncan is now free on bail, but he still faces “gang conspiracy” charges, which threaten a potential life sentence. The ACLU brief calls on the court to dismiss the charges immediately. “The court should stop this case in its tracks and send a clear message that prosecution for protected speech cannot be tolerated,” Loy wrote in his blog post.

San Diego ACLU's David Loy and Darren Chaker demanded that blogger silence herself, but Court of Appeal upheld First Amendment

[A story about husband and wife attorneys in Irvine who harassed a volunteer at their son's school (and ended up in jail) can be found here: Sound familiar? Completely false allegations made in an effort to banish woman from California school.]


Update Jan. 2015: 

Darren Chaker appointed himself in July 2011 to do negotiations for Stutz, Artiano Shinoff & Holtz law firm (see below).  More recently, Mr. Chaker started a public relations campaign on behalf of Stutz law firm.  I doubt that Stutz law firm ever wanted his help.

Darren Chaker pretends that there was a trial in which in this blogger was found to have defamed Stutz law firm.  This is false.

In fact, there was no finding of fact in Stutz v. Larkins.   

Instead, Judge Judith Hayes, who was found to have acted in an "exceedingly unconstitutional" manner in the case,  threw out my opposition to summary adjudication because of a small error in format.   She also threw out all my evidence.

Thus, her ruling of defamation did not claim to based on a weighing of the evidence.  It was a decision of "law", not of "fact."  Judge Hayes simply announced that there was "no opposition" to Stutz' motion for summary adjudication, and granted the motion.

This past week Darren Chaker has written to people on my street to report that I "was found to have made defamatory statements about an upstanding law firm who represents schools" and then he went on to name Stutz Artiano Shinoff & Holtz.

I became acquainted with Stutz law firm several years ago after I was harassed at my workplace in Chula Vista Elementary School District.  I refused to go back to work until there was an investigation.  The district refused to investigate, and wrote me many letters demanding that I return to work.  The district has concealed the results of its "investigation" to this day.  The district fired me a year later, immediately after I filed suit against the district, claiming that I had been "insubordinate" by refusing to return to work.

Update 2013: David Loy's pal Darren Chaker Sentenced to Federal Prison for Bankruptcy Fraud

See new posts re David Loy and earlier posts under his former name of David Blair-Loy.


ORIGINAL POST:

The following story was first posted Feb. 13, 2012 :

The ACLU claims that it does not give legal advice regarding cases it refuses, but it turns out that this is false. The ACLU refused my free speech case, but at the same time, I was given very specific legal advice by San Diego ACLU attorney David Loy (formerly Blair-Loy) regarding the defamation case against me by Stutz law firm.

In 2010 Mr. Loy wrote to me in an email that I must remove every mention of the names of a group of San Diego attorneys from my website; he has never modified his position, even when I won in the Court of Appeal on August 5, 2011.

Why was Mr. Loy so determined to make sure that I obeyed the obviously unconstitutional order of Judge Judith Hayes? I'm a third-grade teacher, and I knew the injunction was unconstitutional. Clearly, Mr. Loy knew perfectly well that he was insisting that I obey an unconstitutional order. I did not follow Mr. Loy's legal advice; I would rather go to jail than obey that order. (And, in fact, the law firm asked Judge Hayes to put me in jail, but she declined.)

 Instead, I appealed to the California Court of Appeal without the ACLU's help.

The law firm attorney argued before the Court of Appeal that my appeal should be dismissed because I disobeyed the trial court's order. Attorney Shawn Martin argued on my behalf that no Appeals Court had ever dismissed a case because an appellant disobeyed the very order that was being appealed.

The Court of Appeal asked the Plaintiff if he knew of any case law to back up his argument that since the injunction was a sanction, it therefore was not constrained by the Constitution. He said he had not been able to find any such case law, but he added, "I tried, believe me, I tried!"

On August 5, 2011 the California Court of Appeal in San Diego ruled that Judge Hayes' (and Mr. Loy's) demand was "exceedingly unconstitutional."

As I walked out of the Court of Appeal after oral arguments, I was approached by Darren Chaker, who has a website sporting a photo of himself posing with a smiling David Blair-Loy. Mr. Chaker advised me to take down my website in exchange for the law firm's agreement to not to make me pay attorney's fees. (Note to Mr. Chaker: the law does not allow attorney's fees in defamation cases.) I told Mr. Chaker that I would rather go to jail. He said, "I'm just advising you to do this because they are so nasty." Then Mr. Chaker went over to two members of the Plaintiff's law firm, and walked out of the courtroom chatting with them!

So the question remains, why on earth would David Blair-Loy try to silence someone who criticized public school attorneys? Was he serving his own agenda, or the agenda of the board of the San Diego ACLU? Perhaps both. Loy's goal seems to be to maintain a reputation as "highly civil" with his fellow attorneys in San Diego, particularly those who are tasked by local schools with the job of limiting free speech.

But the ACLU board supported Mr. Loy's actions.

Why?

Were they trying to please big donors?

I talked to board president David Higgins about this, but he claimed that he understood nothing about the law. I explained it to him carefully, but he continued to insist that he understood none of it. Why is such an individual in the position of board president of the San Diego ACLU? My guess is that he was chosen because he's willing to rubber-stamp every decision that David Loy makes, no matter how hostile it may be to civil rights. I conclude that Mr. Higgins does not really care about the constitution. I suspect he has a personal agenda that is limited to his own interests.

Here is the email sent to me by Mr. Loy:

from dblairloy@aclusandiego.org
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...
David

In fact, Mr. Loy gave bad legal advice. 

The truth is that once I filed my appeal, the mandatory aspects of the injunction were automatically stayed, and I was not required to take down my web pages about Stutz. I think Mr. Loy knew this. What was your motive for giving me legal advice, Mr. Loy?

Following is the 2010-2011 ACLU board in San Diego, each member of which tacitly or actively supported Mr. Loy's actions:

William J. Aceves
Candace M. Carroll--Sullivan Hill Lewin Rez & Engel
Paula Doss, J.D.--Director of Human Resources for Equal Opportunity at UCSD
Ruben Garcia
David R. Higgins, Ph.D.
Gregory G. "Greg" Rose
Hon. James Stiven--California Western University
Stephen Whitburn
Mary Cruz
Mark Adams
Pat Boyce
Linda Cory Allen
Michele Fahley
Deborah Fritsch
Kevin "KJ" Greene
Dwight K. Lomayesva
Mark Niblack
Susan Pollock
Yvonne Sanchez

Here is the 2011-2012 ACLU board in San Diego, some of whom are new and were not involved in Mr. Loy's actions:

Mark Adams
Nasser Barghouti (NEW)
Elizabeth Camarena (new)
Candace Carroll
Jeff Chinn (new)
Paula Doss
Michele Fahley
Ruben Garcia
Kevin "KJ" Greene
David Higgins, Board President
Jonathan Lin (new)
Dwight Lomayesva
Jim McElroy (new)
Mark Niblack
Susan Pollock
Greg Rose
Hon. James Stiven
Joanna Tan (AIG!!!) (new)
Stephen Whitburn
Paul Wong SDSU(new)
Andy Zlotnik (new)

David Loy of ACLU says San Marcos school raising funds illegally

San Diego ACLU legal director David Loy objects to a religious organization involved in raising money in public schools in San Marcos Unified School District. (See story below.)

I share Mr. Loy's concern about the charity for two reasons.

First, I don't like a charity that has the goal of merely passing out meals in Africa, without addressing underlying economic problems.  I would urge citizens of San Marcos to give to Oxfam rather than this charity.

Oxfam teaches people how to fish rather than giving them a fish to eat.  They create better economic conditions, giving jobs to parents rather than meals to children.  They let the parents feed their own kids with the money they make.

The San Marcos charity simply serves meals to kids.

Well, actually, I suspect that's not all they do.  Which brings me to my second criticism: the violation of the First Amendment.

Second, I suspect that the charity is serving meals for a limited time because it wants to give religious training to kids.  After they're converted, the charity's goals have been achieved, and the feeding of the kids is no longer a priority.

I can understand that Mr. Loy would be worried about the slippery slopes that surround enterprises like this one, but if he's going to worry about the dangers of everyday activities that threaten the First Amendment, he should worry first about his own actions quashing free speech.  Why should he hold San Marcos Middle School to such an exacting standard when he is so lax about the First Amendment in other situations?

ACLU says San Marcos school raising funds illegally

By Pat Maio 

SDUT

Dec. 8, 2014

San Marcos Middle School may be breaking state law by raising money with a religious group to feed children in East Africa, according to the San Diego and Imperial counties chapter of the American Civil Liberties Union.

The school is partnering with a local nonprofit called Friends and Family Community Connection, with the support of Illinois-based Kids Around the World, to raise $3,500 to provide 14,000 meals for children in Tanzania..


David Loy's interesting history regarding free speech and open government

 ACLU legal director David Loy didn't want the First Amendment to be enforced in an anti-free speech lawsuit against this website, perhaps because of loyalty to someone he worked with.  But I doubt that Mr. Loy was involved in an effort to deface a California Court of Appeal opinion on the website Leagle.com.  The Aug. 5, 2014 opinion, which stated that I am allowed by the Constitution to mention the names of attorneys who work for schools, was seriously defaced.  I sent the following message to Leagle.com on December 8, 2014:

Who defaced this decision?  This page was perfectly legible for several years after the 2011 decision.   On December 8, 2014, I find that a large amount of the decision has been overwritten, making it indecipherable.  Was this page hacked, or does Leagle.com want it to be largely unreadable?

10 minutes later Leagle.com had fixed the defaced Stutz v. Larkins page.

Here is part of the hacked Leagle.com page:

On December 8, 2014 I was reading David Loy's biography on the San Diego ACLU website, and I was struck by the irony of his claims to fame.  Freedom of speech?  Open government and public disclosure? 

David Loy was indeed chosen as a Top Attorney in 2009 and 2010, but I suspect the reason was NOT that he defended free speech, but that he crafted a couple of agreements with schools regarding student speech.

Those agreements generated some nice media attention for Mr. Loy.  But what was he doing behind the scenes?

He was pressuring me to remove the names of public entity attorneys from my website.  He wrote to me telling me that I must remove every mention of certain public attorneys he had worked with!

The Court of Appeal disagreed with Mr. Loy that I must remove those names.  See story in Voice of San Diego.

The Stutz v. Larkins decision on the Leagle website was largely unreadable for some time in 2014. It was fixed on Dec. 8, 2014.

Here's the decision that somebody didn't want you to see.  Clearly, David Loy didn't want this case to be heard by the Court of Appeal, so I assume he wasn't happy with the decision.

So how does David Loy get off claiming to be an expert in free speech and a champion of sunshine in government?  He most certainly is NOT a supporter of transparency in public entities, as shown by his efforts to silence public discussion of public attorneys.

Legal Director, David Loy
After graduating law school, Loy clerked for Judge Dolores K. Sloviter of the Third Circuit Court of Appeals. He worked as a staff attorney with Office of the Appellate Defender in New York City and public defender and civil rights attorney in Spokane, Washington before joining the ACLU in 2006. He previously served on the Southern District Lawyer Representative Committee and the board of California Appellate Defense Counsel. Loy was named one of San Diego’s Top Attorneys 2009 and 2010 by San Diego Daily Transcript. He supervises all legal advocacy at the ACLU of San Diego & Imperial Counties, and has particular expertise in freedom of speech and religion, open government and public disclosure, police misconduct, and constitutional criminal procedure. Loy has a law degree from Northwestern and a B.A. from Brown, and is licensed to practice in California and New York (with inactive licenses in Illinois and Washington).
--from ACLU website 

UC Berkeley, other elite schools on federal sex assault probe list; thanks goodness the US Dept of Ed hired Catherine Llamon rather than David Loy

Attorney Catherine Llamon, seen with Los Angeles Mayor Antonio Villaraigoza in 2011, is now investigating sexual assaults on colleges

Here's a bit of backstory on the US Dept. of Education's Catherine Llamon:

I'm glad the US Department of Education hired a Los Angeles liberal (Llamon) instead one from my hometown, San Diego.

Southern California lawyer Catherine Llamon worked on the ACLU suit against Los Angeles Unified School District regarding the devastating and unequal impact on the poorest schools of teacher layoffs based only on seniority.

Liberals in San Diego won't challenge the California Teachers Association no matter how badly students are harmed by the status quo in teacher layoff procedures. (May 3, 2014 update: a story that came out today supports my point.)

While Catherine Llamon was fighting for kids in Los Angeles, San Diego ACLU attorney David Loy was regularly rolling over and playing dead as schools and their lawyers abused the rights of students and employees. Did Mr. Loy have a good excuse for his deference to San Diego school districts? His defense for inaction was that layoff policies had not yet actually destroyed schools in San Diego.

Emily Alpert noticed the disparity between LA and San Diego. The intrepid reporter (whose school investigations were halted by Voice of San Diego and who was later fired by Voice of San Diego), wrote an article on March 20, 2011 called, "Why Isn’t That Happening Here?"

Alpert wrote, "Lhamon argues that history or no history, school districts can point to the predictable results of last-in-first-out layoffs...the [San Diego] chapter of the ACLU isn’t raring for a lawsuit and wants to let the school district find other solutions short of litigation."

And now back to the main story of this post.

UC Berkeley, other elite schools on federal sex assault probe list
By Kimberly Hefling
Associated Press
05/01/2014

WASHINGTON -- The Education Department on Thursday took the unprecedented step of releasing the names of the 55 colleges and universities facing a Title IX investigation for their handling of sexual abuse complaints, including UC Berkeley and the University of Southern California.

The release came two days after a White House task force promised greater government transparency on sexual assault in higher education. Going forward, the department said, it will keep an updated list of schools facing such an investigation and make it available upon request.

The schools range from large public universities like UC Berkeley, USC, Ohio State University and the University of Michigan in Ann Arbor to private schools like Occidental College and Swarthmore College in Pennsylvania. Ivy League schools like Harvard, Princeton and Dartmouth are also on the list.

The agency previously would confirm such an investigation when asked -- this newspaper reported on the UC Berkeley investigation last month, and the probes into many of the schools have appeared in news accounts -- but students and others were often unaware of them.

"We hope this increased transparency will spur community dialogue about this important issue," Catherine Lhamon, the department's assistant secretary for civil rights, said in a statement.

Lhamon said a school's appearance on the list does not mean that it has violated the law but that an investigation is ongoing.

Title IX prohibits gender discrimination at schools that receive federal funds. It is the same law that guarantees girls equal access to sports, but it also regulates institutions' handling of sexual violence and increasingly is being used by victims who say their schools failed to protect them.

In February, dozens of UC Berkeley students and alumna filed a complaint with the Office for Civil Rights, saying the university mishandled their cases. They said Cal put them and others at risk by inadequately disciplining their alleged assailants. Some said the campus treated them insensitively or kept them in the dark about the outcome of the campus disciplinary process.

Some victims turn to their campuses -- in addition to or instead of -- to the police for protection and justice.

The White House has said that 1 in 5 female students is assaulted. President Barack Obama appointed a task force comprised of his Cabinet members to review the issue after hearing complaints about the poor treatment of campus rape victims and the hidden nature of such crimes.

The task force announced the creation of a website, notalone.gov, offering resources for victims and information about past enforcement actions on campuses. The task force also made other recommendations to schools, such as identifying confidential victims' advocates and doing surveys to better gauge the frequency of sexual assault on their campuses.

The department publicized guidance on Title IX's sexual assault provisions in 2011 and complaints by students have since increased. The department can withhold federal funding from a school that doesn't comply with the law, but it has not used that power and instead has negotiated voluntary resolutions for violators.

Sens. Kirsten Gillibrand, D-N.Y., and Claire McCaskill, D-Mo., have said noncompliance under the law is "far too common." They say a lack of federal resources is partly to blame, and they've sought more money to ensure timely and proper investigations.

Staff writer Katy Murphy contributed to this story.

Defamation case dropped by football player who tweeted photo of unconsious girl who was raped; he didn't like the criticism that followed

"That there was much local coverage at all seems like a small miracle, based on what one source familiar with the Steubenville media told us. The source knew of one instance in which a higher-up ordered a local reporter not to touch the story, apparently out of deference to Steubenville's beloved football program."

How An Alleged Rape Involving Ohio High School Football Players Unfolded On Twitter, Instagram, And YouTube
Tom Ley
deadspin.com
Dec 17, 2012

Yesterday's New York Times has a thorough and thoroughly unsettling story about two members of Ohio's Steubenville High School football team who stand accused of raping a drunk and unresponsive 16-year-old girl during a night of partying in August. Maybe most unsettling of all: The girl may never have learned of the night's events had they not been so diligently tweeted, YouTubed, and Instagrammed.

The boys—Trent Mays and Ma'lik Richmond, both 16 years old—were arrested Aug. 22, 11 days after the alleged incidents. They are currently awaiting trial, which is scheduled for Feb. 13. The girl is not a Steubenville High School student; according to the Times, she attended "a smaller, religion-based school."

...That there was much local coverage at all seems like a small miracle, based on what one source familiar with the Steubenville media told us. The source knew of one instance in which a higher-up ordered a local reporter not to touch the story, apparently out of deference to Steubenville's beloved football program.

Mays, a quarterback, and Richmond, a wide receiver, weren't allowed to play this year. But the school's head football coach, Reno Saccoccia—who testified as a character witness on behalf of Mays and Richmond—decided not to discipline any of the other players who testified to witnessing the assault until there were only two games left in the season. When pressed on this by the Times, the coach became combative:

Saccoccia, pronounced SOCK-otch, told the principal and school superintendent that the players who posted online photographs and comments about the girl the night of the parties said they did not think they had done anything wrong. Because of that, he said, he had no basis for benching those players.

[...]

Approached in November to be interviewed about the case, Saccoccia said he did not "do the Internet," so he had not seen the comments and photographs posted online from that night. When asked again about the players involved and why he chose not to discipline them, he became agitated.

"You made me mad now," he said, throwing in several expletives as he walked from the high school to his car.

Nearly nose to nose with a reporter, he growled: "You're going to get yours. And if you don't get yours, somebody close to you will."

Saltsman v. Goddard
January 17th, 2013
DMLP Staff

In August 2012, two football players from Steubenville High School were arrested and charged with the rape of a 16-year-old girl. Classmates circulated Twitter posts, videos, and photographs indicating that the players may have carried the girl, unconscious, from party to party and sexually assaulted her while others watched. A police investigation uncovered pictures of the girl, naked and apparently unconscious, from partygoers' phones.

Cody Saltsman, a football player who was not indicted, tweeted a picture of the girl looking unresponsive as two boys carry her by her wrists and ankles. He also tweeted comments about the girl, including the phrases "whore status," "sloppy," and "I have no sympathy for whores."

Alexandria Goddard, a blogger who writes under the pseudonym "Prinnie" at prinniefied.com, wrote a series of blog posts on the case. She posted screen shots of related Twitter posts and photos. She also suggested that a number of unindicted individuals had participated in the rape, including Cody Saltsman. In response to a comment on her blog reading "students by day ... gang rape participants by night," Goddard wrote, "Cody Saltsman [is] playing tonight. Reno, SHAME ON YOU." She also wrote that his fellow football players should "roll on their pal Cody Manson" and "[p]erhaps when scumbag is finally arrested I will post a picture of him for his mother that says ‘How do you like your scumbag son now?' ... Tell Cody not to feel too bad, he is not the lone asshole in all this."

A number of commenters on the blog also posted about Saltsman, including statements that he was there when the rape was occurring, that he was the "mastermind" behind the crime, that he had previously stated he would "ruin that bitch," and that he had sent the victim's father the picture of her being carried by her wrists and ankles with text reading "look at your whore daughter now." Other commenters made comments including: "[g]et CS and his posy [sic] off the field and problem solved"; "Cody needs to suffr some consequences too!"; and, in response to the question "[w]hat is [the Saltsman's] business because I never want to spend money there," the statement "CS father owns Fort Steuben Plumbing/Maintenance."

On October 25, 2012, Saltsman and his parents, James and Johna Saltsman, filed a complaint against Goddard, fifteen anonymous commenters identified by screen names and Internet Protocol (IP) addresses (including those who made the above statements), and ten additional John Doe defendants. Saltsman sued for defamation and intentional infliction of emotional distress, and sought injunctive relief, compensatory damages in excess of $25,000, and punitive damages. The complaint was amended on November 19, 2012 to add claims for false light and spoliation of evidence.

Saltsman's attorneys obtained the IP addresses for each anonymous commenter from HostGator, the Internet Service Provider (ISP) for the "prinnified" blog, which apparently turned over the IP addresses without providing notice to the commenters or to Goddard. On November 16, the plaintiffs moved for authorization to conduct discovery from each anonymous commenter's ISP in order to obtain the commenters' identities.

Goddard's counsel objected to Plaintiffs' motion for authorization to conduct discovery to obtain the identities of the anonymous defendants, asserting that the First Amendment right to speak anonymously barred such discovery.

In a supplemental memo supporting the motion for authority to conduct discovery, Saltsman disputed that the First Amendment protected the identities of the authors, urged the court to act quickly in order to prevent the ISPs from deleting relevant information, and argued that Goddard had no standing to object on behalf of the Does.

Acknowledging that there were no published Ohio decisions on point, Saltsman directed the court to the often-followed test laid out in Dendrite Int'l Inc. v. Doe No. 3. 775 A.2d 756 (N.J. Super. A.D. 2001). Under Dendrite, courts allow plaintiffs to conduct discovery on anonymous online posters' identities when plaintiffs (1) attempt to notify defendants that their identities are being sought and explain how to present a defense; (2) quote verbatim the allegedly actionable online speech; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation; and (5) show that, on balance and in context, the plaintiff's right to identify the speaker in order to redress alleged wrongs outweighs the First Amendment right to anonymous speech. Saltsman asserted that he met all of these elements, particularly focusing on the fifth element, the balancing of rights. Because the First Amendment does not protect false assertions of fact, he argued, the defendants had no right to anonymous speech in this context.

Goddard filed a Memorandum in Opposition to the motion on November 21, and a supplemental Memorandum in Opposition on November 26. Plaintiffs' responded with a second supplemental memorandum in support of their motion on November 28.

The Court filed an order on November 29, granting the plaintiffs' motion. The court authorized the relevant ISPs to release personally identifiable information associated with the IP addresses identified in the complaint. The court required that notice of the discovery be given to the anonymous commenters and that the commenters be given fourteen days after the notice to file motions to quash.

On December 14, the American Civil Liberties Union of Ohio stated in a press release that they had offered to represent a number of the "John Doe" defendants. ACLU Volunteer Attorney Scott Greenwood stated, "[w]e believe the real goal of this lawsuit is to discover the identity of anonymous online commenters so that they, and future commenters will be intimidated and discouraged from voicing their opinions. This is just an updated form of a classic Strategic Lawsuit Against Public Participation (SLAPP) which is typically used to silence speech that is protected under the First Amendment."

Plaintiffs reached a settlement with Goddard and the anonymous commenters and voluntarily dismissed the case with prejudice on December 27, 2012. With one exception (defendant Waguespack), the identities of the commenters were not disclosed. No money was exchanged, and Goddard did not retract any statements or agree to stop covering the case. Goddard did write on her blog that she "never had any evidence of [Cody Saltsman's] direct involvement" in the events of the night and agreed to give him space on her blog to present his side of the story.

The "prinnified" blog also ran the following statement from Cody Saltsman: "I deeply regret my actions on the night of August 11, 2012. While I wasn't at the home where the alleged assault took place, there is no doubt that I was wrong to post that picture from an earlier party and tweet those awful comments. ... At no time did my family mean to stop anyone from expressing themselves online - we only wanted to correct what we believed were misstatements that appeared on Ms. Goddard's blog. "

A bouquet for the Los Angeles ACLU for caring about education in San Diego; a brick for the San Diego ACLU

The Los Angeles ACLU has been working hard for years for education reform. The San Diego ACLU has actively tried to suppress information about what's wrong with schools.

The San Diego ACLU seems to have some conservative donors who demand that educational issues NOT BE PURSUED in San Diego. I am disgusted with the board of the San Diego ACLU, as well as lawyers David Loy and Kevin Keenan. It seems that their principles are for sale. They all seem to serve as rubber stamps for unknown, powerful paymasters.

Here's some recent evidence of the vigilance of the Los Angeles ACLU.

State Error Led ACLU to Jump on Grossmont Union HS District
“False” report on English learners “reflects a data reporting problem,” says the school district.
By Ken Stone
La Mesa Patch
January 24, 2013

The state Department of Education fed the ACLU bad data, suggests the Grossmont Union High School District in a response to accusations by that and another activist group.

According to a statement released Thursday [attached as PDF], an error in state data led the American Civil Liberties Union of Southern California and the Asian Pacific American Legal Center to accuse the district of not giving English-language learners the help they need.

The groups this week sent a letter to state Superintendent of Public Instruction Tom Torlakson and the state Board of Education, threatening to sue unless English-language classes were provided to non-native speakers in the Grossmont and other districts in compliance with state and federal law.

“Each additional day an EL child goes without language instructional services is another day that child is effectively foreclosed from a meaningful education,” said Jessica Price, a staff attorney with the ACLU of Southern California.

“The children who are neglected today, in schools with no EL services, become the long-term English learners of tomorrow, sometimes struggling their entire school careers without anyone stepping in to make sure they have the tools to learn,” she said.

But the Grossmont district rebutted that idea, saying district data made it look as if 1,300 English-learning students were not getting the help they needed.

“This is false and reflects a data reporting problem,” according to a district statement. “GUHSD will work with the California Department of Education to better align our data to CDE’s classifications.

“The Grossmont Union High School District serves more than 3,300 English Learner students. The 1,300 English Learner students in question are in fact proficient enough to be enrolled in mainstream English classes and receive extra support.”

The four-paragraph statement concluded: “The Grossmont Union High School District has been committed to enhancing and expanding services to our ever-growing English Learner population.”

The ACLU is being contacted for its response.

—City News Service contributed to this report.

Obama administration says San Diego cross should stay

The San Diego ACLU has taken contradictory positions on expressions of religion in public places. It wants the Soledad cross removed, but it has fought for religious banners to remain in Bradley Johnson's Poway classroom. Perhaps in San Diego the ACLU can't get enough donations from people who believe in civil liberties, so it simply follows the desires of whoever happens to donate the most money.

Obama administration says San Diego cross should stay
The solicitor general, in an appeal to the Supreme Court, says the government should not be required to remove a war memorial atop Mt. Soledad because it is not an endorsement of religion.
By David G. Savage
Los Angeles Times
March 17, 2012

The Obama administration is asking the Supreme Court to allow a 43-foot-tall cross that serves as a war memorial to remain atop Mt. Soledad in San Diego, arguing that the cross has been there since 1954 and is not an endorsement of religion.

The government should not be required "to tear down a cross that has stood without incident for 58 years as a highly venerated memorial to the nation's fallen service members," Solicitor Gen. Donald B. Verrilli Jr. said in a new appeal to the high court.

He urged the justices to reverse a decision last year by the U.S. 9th Circuit Court of Appeals that said the cross was primarily a Christian symbol and therefore unconstitutional. Its prominent display on public land in La Jolla amounted to an official "endorsement of religion" in violation of the 1st Amendment, the panel of judges said in a 3-0 ruling.

If the Supreme Court takes up the case this year — which is likely — the justices could be forced to finally resolve whether religious symbols, such as crosses or depictions of the Ten Commandments, can be prominently displayed on public land.

Two years ago, the high court rejected a challenge to the display of a small cross in the Mojave National Preserve, but the five justices in the majority disagreed on the reasons. The 9th Circuit's latest opinion mostly ignored that ruling.

Since 1989, lawsuits from several veterans have challenged the Mt. Soledad cross, arguing that a single religious symbol did not speak for all veterans. But the San Diego city government and, more recently, Congress have intervened to preserve the cross.

Critics say the cross is unquestionably a religious symbol, not a universal symbol that honors all fallen soldiers. The 9th Circuit judges said the cross "has never been used to honor all American soldiers in any military cemetery." For example, Jewish soldiers often have a Star of David on their headstones in military cemeteries.

The 9th Circuit judges also noted that until the 1980s, the Mt. Soledad cross was a gathering place for Christians and a scene for Easter services. Its role as a war memorial came only after the litigation began, the judges said.

Defenders of the cross say it serves as a symbol of sacrifice and a memorial to honor the nation's fallen soldiers dating back to World War I. In 2006, Congress moved to take possession of Mt. Soledad and its cross to preserve the memorial.

If the Supreme Court were to deny the appeal, Verrilli said the cross would have to be taken down. Such an act "unnecessarily fosters the very divisiveness" over religion that the Constitution was designed to avoid, he said.

The justices are likely to decide this spring whether to hear the case, known as U.S. vs. Trunk.

San Diego ACLU works to make sure that only the teachers union speaks for teachers

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:

from dblairloy@aclusandiego.org
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...
David

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.

ACLU and CTA lose in effort to allow teachers mail boxes to be used for political literature

The decision of the Supreme Court of California in the case below is perfectly logical, but it would be nice if both school districts and teacher unions could communicate easily with teachers without paying huge amounts of money for envelopes and postage stamps. Perhaps the teachers union could pay a small rental fee for use of the teachers' mail boxes, and part of the deal would be that school boards could also use the mail boxes for political literature.

Of course, this decision may help people to have more face to face contact, since apparently they now must walk up to each teacher and hand them political information if they want to avoid the expense of mailing the literature. But who has all that time?

SAN LEANDRO TEACHERS ASSOCIATION v. GOVERNING BOARD OF SAN LEANDRO UNIFIED SCHOOL DISTRICT

SAN LEANDRO TEACHERS ASSOCIATION et al.,
Plaintiffs and Respondents,

v.

GOVERNING BOARD OF the SAN LEANDRO UNIFIED SCHOOL DISTRICT et al.,
Defendants and Appellants.

No. S156961.
June 18, 2009

California Teachers Association, Priscilla S. Winslow, Joseph R. Colton, Beverly Tucker, Ballinger G. Kemp and Ramon E. Romero, Burlingame, for Plaintiffs and Respondents.

Rothner, Segall & Greenstone, Glenn Rothner, Lisa C. Demidovich...and Jonathan Cohen as Amici Curiae on behalf of Plaintiffs and Respondents.

...David Blair-Loy... American Civil Liberties Union of San Diego and Imperial Counties...

Shortly before an election, an employee organization that represents school teachers, and which regularly communicates with its members through school mailboxes, sought to distribute literature through these mailboxes that included endorsements of certain school board candidates.   The school district administration refused to permit such political communication and the employee organization sought a writ of mandate to have that policy overturned.

...Education Code section 7054, subdivision (a)...prohibits the use of “school district ․ funds, services, supplies or equipment” for urging the support or defeat of political candidates or ballot propositions...

“Proponents argue that in general, public funds or resources may not be used for political purposes.   Members of the Legislature, for instance, are prohibited from using legislative funds, resources or personnel time for political purposes, including partisan political activity and advocacy of, or opposition to, ballot measures.   Local government officials are bound by similar prohibitions.   Members of school and community college district governing boards, however, have been exempted from this general rule since 1977.  Education Code section 35174, enacted in 1976, authorizes the use of public resources and employee time for the purpose of urging the support or defeat of school board candidates, school bond measures and any other school ballot measure. This constitutes an inappropriate use of public funds.   Taxpayers' money should not be used for political purposes, whether in state, county, city, special district or school district elections.  

...The bill does, however, repeal the authorization for school board members to use for political purposes district telephones, copying machines, equipment, employees, and materials produced with taxpayer monies.”   (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 82 (Reg.Sess.1995-1996) as amended Aug. 31, 1995, pp. 5-6.)

Two aspects of the above legislative history are noteworthy.  

First, it refers to “materials produced with taxpayer monies,” which school mailboxes clearly are.  

Second, and more significantly, as the legislative history of section 7054 makes clear, it was designed to avoid the use of public resources to perpetuate an incumbent candidate or his or her chosen successor, or to promote self-serving ballot initiatives, thereby compromising the integrity of the electoral process.  

The District contends that permitting employee organizations to use the mailboxes to endorse school board candidates will unfairly advantage those organizations and the candidates they endorse, because it allows them, but not other candidates and organizations, to use the mailboxes to communicate with teachers about these endorsements.   We agree that this special access to an internal channel of communication to influence elections is a potential abuse that section 7054, and the Stanson decision, were designed to guard against.  (See also Vargas v. City of Salinas (2009) 46 Cal.4th 1, 92 Cal.Rptr.3d 286, 205 P.3d 207 [reaffirming Stanson's basic principles].)  

Therefore we conclude, consistent with the purpose of section 7054, that the broad term “equipment” was intended to encompass mailboxes specially constructed at taxpayer expense to serve as a school's internal communication channel, which one group may not use to its exclusive political advantage.   We agree with the Court of Appeal that, unlike school furniture, for example, which may be incidentally used for a host of different purposes, the term “equipment” is plausibly applied to fixtures dedicated to a specific use...

Attorney David Loy of the ACLU tells a blogger she must remove all mention of Stutz law firm from her website

The email below was sent to me by Mr. David Loy, head counsel of the San Diego ACLU, in April 2010.  Shockingly, Loy was trying to silence my criticism of public school attorneys.  At the time of this email, I had already filed an appeal that I would later win regarding an injunction by San Diego Superior Court Judge Judith Hayes.

Judge Hayes ordered me never in my life to mention the name of Stutz Artiano Shinoff & Holtz law firm--not even to whisper it to my husband, or to seek counsel from a lawyer, or to report a problem to the police.  The Court of Appeal found this injunction to be unconstitutional and "exceedingly broad." 

But the San Diego ACLU chief counsel insisted that I should remove all mention of Stutz law firm from my website! In fact, since I had filed an appeal, the mandatory aspects of the injunction were stayed and I was not required to take down my web pages about Stutz. I think Mr. Loy knew this. It appears that Mr. Loy himself was intentionally trying to undermine the rule of law, even though he tried to appear to be championing it:

from dblairloy@aclusandiego.org
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...
David

Why did Mr. Loy go out of his way to try to get me to remove all mention of Stutz law firm from my blog?? I believe  that the answer lies in Mr. Loy's relationships with school attorneys.

The ACLU claims that it does not give legal advice regarding cases it refuses, but it turns out that this is false. The ACLU refused my case, but I was given very specific legal advice by San Diego ACLU attorney David Loy regarding the defamation case against me by Stutz law firm. 

Mr. Loy never modified his position, even when I won in the Court of Appeal.

Why was Mr. Loy so determined to make sure that I obeyed the obviously unconstitutional order of Judge Judith Hayes? I'm a third-grade teacher, and I knew the injunction was unconstitutional.

Clearly, Mr. Loy knew perfectly well that he was insisting that I obey an unconstitutional order. I did not follow Mr. Loy's legal advice; I would rather go to jail than obey that order. (And, in fact, Stutz law firm asked Judge Hayes to put me in jail, but she declined.)

Stutz law firm attorney Jack Sleeth argued before the Court of Appeal that my appeal should be dismissed because I disobeyed the trial court's order. Attorney Shawn Martin argued on my behalf that no Appeals Court had ever dismissed a case because an appellant disobeyed the very order that was being appealed.

The Court of Appeal asked Mr. Sleeth if he knew of any case law to back up his argument that since the injunction was a sanction, it therefore was not constrained by the Constitution. He said he had not been able to find any such case law, but he added, "I tried, believe me, I tried!" On August 5, 2011 the California Court of Appeal in San Diego ruled that Judge Hayes' (and Mr. Loy's) demand was "exceedingly unconstitutional."

As I walked out of the Court of Appeal after oral arguments, I was approached by Darren Chaker, who has a website sporting a photo of himself posing with a smiling David Blair-Loy, apparently taken at some ACLU event.

Mr. Chaker advised me to take down my website in exchange for Stutz law firm's agreement to not to make me pay attorney's fees. I told Mr. Chaker that I would rather go to jail. He said, "I'm just advising you to do this because they are so nasty." Then Mr. Chaker went over to Jack Sleeth, and walked out of the courtroom chatting with Mr. Sleeth! Mr. Chaker later told me that he believed Stutz law firm might represent him pro bono. 

So the question remains, why on earth would David Blair-Loy try to silence someone who criticized public school attorneys? Was he serving his own agenda, or the agenda of the board of the San Diego ACLU? Perhaps both. Loy's goal seems to be to maintain a reputation as "highly civil" with his fellow attorneys in San Diego, particularly those who are tasked by local schools with the job of limiting free speech.

Loy refused to litigate abuses by school officials at Southwestern College and other schools, claiming that litigation is the worst option.  More than one of the beneficiaries of David Loy's gentle approach, including Southwestern's Raj Chopra, was later indicted.

Loy refuses to confront schools regarding issues that seriously damage thousands of students, but seeks media attention for his little settlements free speech for a few individual student reports and student newspapers.

But no, Loy doesn't just refuse to deal with the serious issues.  He actively works to undermine those who are trying to talk about the big issues.

Why did the ACLU board support Mr. Loy's actions? Were they trying to please big donors? I talked to board president David Higgins about this, but he claimed that he understood nothing about the law. I explained it to him carefully, but he continued to insist that he understood none of it. Why is such an individual in the position of board president of the San Diego ACLU? My guess is that he was chosen because he's willing to rubber-stamp every decision that David Loy makes, no matter how hostile it may be to civil rights. I conclude that Mr. Higgins does not really care about the constitution. I suspect he has a personal agenda that is limited to his own interests.




Update Dec. 2013: David Loy's pal Darren Chaker Sentenced to Federal Prison for Bankruptcy Fraud

See new posts re David Loy and earlier posts under his former name of David Blair-Loy.


Following is the 2010-2011 ACLU board in San Diego, each member of which tacitly or actively supported Mr. Loy's actions:

William J. Aceves
Candace M. Carroll--Sullivan Hill Lewin Rez & Engel
Paula Doss, J.D.--Director of Human Resources for Equal Opportunity at UCSD
Ruben Garcia
David R. Higgins, Ph.D.
Gregory G. "Greg" Rose
Hon. James Stiven--California Western University
Stephen Whitburn
Mary Cruz
Mark Adams
Pat Boyce
Linda Cory Allen
Michele Fahley
Deborah Fritsch
Kevin "KJ" Greene
Dwight K. Lomayesva
Mark Niblack
Susan Pollock
Yvonne Sanchez

Here is the 2011-2012 ACLU board in San Diego, some of whom are new and were not involved in Mr. Loy's actions:

Mark Adams
Nasser Barghouti (NEW)
Elizabeth Camarena (new)
Candace Carroll
Jeff Chinn (new)
Paula Doss
Michele Fahley
Ruben Garcia
Kevin "KJ" Greene
David Higgins, Board President
Jonathan Lin (new)
Dwight Lomayesva
Jim McElroy (new)
Mark Niblack
Susan Pollock
Greg Rose
Hon. James Stiven
Joanna Tan (AIG!!!) (new)
Stephen Whitburn
Paul Wong SDSU(new)
Andy Zlotnik (new)

431 438 041315

9th Circuit overturns decision about religious banners in Johnson v. Poway Unified School District

I don't understand why the ACLU would be trying to take down the Soledad cross and at the same time trying to preserve religious banners in a public classroom. The only thing that I can take away from this is that the San Diego ACLU has a very piecemeal, unprincipled approach to legal issues.

I can't say I'm shocked, though, that the San Diego ACLU would be on the wrong side in a First Amendment case. I have come to understand that the San Diego ACLU is different from the typical ACLU organization. The San Diego ACLU board and its head counsel, David Blair-Loy, seem to pander to political interests rather than adhering to principles of justice.

I would never expect to be allowed to present one-sided religious points of view to my students. The California curriculum framework tells teachers that we should present a minimum of three different religions anytime we teach about religion.

Click HERE for opinion.


Johnson v. Poway Unified School Dist. (9th Cir. - Sept. 13, 2011)
by Shaun Martin
California Appellate Report
September 13, 2011

This may well be the best opinion I've ever read from Judge Tallman.

It's really, really good. Regardless of whether you agree with it -- and it involves a controversial issue -- it's incredibly coherent, comprehensive and tight. It's written extremely, extremely well. It's an extremely good primer on the issue. Well done. Very.

I'll not tell you how the case comes out. You should read the opinion for yourself. But here's the issue:

A public school teacher down here in Poway (a suburb of San Diego), Bradley Johnson, teaches mathematics (at Westview High School). He hangs two large banners -- each about seven feet wide and two feet tall -- on the wall of his classroom. One has red, white, and blue stripes and states in large block type: “IN GOD WE TRUST”; “ONE NATION UNDER GOD”; “GOD BLESS AMERICA”; and, “GOD SHED HIS GRACE ON THEE.” The other states: “All men are created equal, they are endowed by their CREATOR.” You can look at pictures of the banners in the appendix to the opinion if you'd like. He's the faculty sponsor of the Christian Club, but says that his banners are purely patriotic, with no religious purpose.

The school district tells him to take down the banners but is free to put up these things in context if he'd like (e.g., to put the entire Declaration of Independence on his wall). Johnson refuses, saying that he has a protected First Amendment right to say what he wants on these issues, whereas the school district contends that he's a government employee so his speech rights are limited. Johnson ultimately complies with the order and takes down the banners, but promptly sues. He also visits other classrooms shortly after filing suit and photographs other teachers' walls that he believes display sectarian viewpoints, including Tibetan prayer flags; a John Lennon poster with “Imagine” lyrics; a Mahatma Gandhi poster; a poster of Gandhi’s “7 Social Sins”; a Dalai Lama poster; a poster that says, “The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality”; and a poster of Malcolm X.

Who should win?

It's far from a no-brainer. The district judge, Judge Benitez, granted summary judgment to one side. The Ninth Circuit reverses -- unanimously -- and orders the granting of summary judgment to the other side. So clearly reasonable minds both can and do differ.

Plus, check out the lineup of the amici. You can easily (and accurately) guess which side the Thomas More Law Center is going to be on, which side the National School Boards Association supports, and where Americans United for Separation of Church and state stands. But what about the ACLU? Which side do you think they're going to come down on?

All good questions. Which make the opinion only even more worth reading.

A chance to listen to Catherine Lhamon, one of the attorneys who won case about massive teacher layoffs at low-income schools (also Camille Zombro)

I attended this event, but we didn't find out why SDEA has added a vice-president. (See comment below.)

Talking Teacher Layoffs
by Emily Alpert
Voice of San Diego
Aug 22, 2011

When teachers get laid off, disadvantaged schools often get hit hardest because they tend to have the newest teachers, and the newest teachers usually get laid off first.

Civil rights groups launched a suit to try to curb that phenomenon in Los Angeles, arguing that if teachers were laid off strictly by seniority, the neediest kids would lose the most.

Los Angeles worked out a controversial settlement that spared some schools from layoffs but worsened them elsewhere. But what will happen here? Though teacher layoffs have been lessened, hundreds of San Diego teachers are still getting the ax, resulting in big disruptions at schools.

Come listen to Camille Zombro, vice president of the local teachers union; Catherine Lhamon, one of the attorneys who lodged the Los Angeles case; and your humble education reporter (me) talk about teacher layoffs, their many impacts, and the debate over whether schools could find a better way at the Thomas Jefferson School of Law this Wednesday night.

There will be a reception from 5:30 p.m. to 6 p.m. and the panel will run from 6 p.m. to 7:30 p.m. The event is sponsored by the American Civil Liberties Union of San Diego and Imperial Counties and the San Diego Lawyer chapter of the American Constitution Society for Law and Policy...

COMMENT

Emily, maybe you can tell us readers about the position of Vice President at San Diego Education Association. Is this a new position paid for by union dues? Is it a full-time job? Is the person annually elected to the position as the President is? When was this position established?

I had always understood that after an SDEA President completes two terms in office, he or she returns the the rank-and-file and the classroom. But here is Camille Zombro, SDEA Vice President after already having been President for two years, filling in for SDEA President Bill Freeman at your roundtable. What's with that?