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.”

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.