Be True to Your School—or See Me in My Office

Posted by Terry Francke, General Counsel | Feb 22, 2012 | Awareness Area: Education, Legal Issue: Freedom of Speech, News | 0 |

Seniors at La Jolla High School will no longer have to keep their comments about the school positive when they paint them on a campus bench dedicated to their expression. The principal’s ignoring of their speech rights cost the district $22K and change. Emily Summars reports for the Student Press Law Center.

The San Diego Unified School District has a new student free speech policy after settling a lawsuit involving senior benches at La Jolla High School.

The new policy states, “students may display messages on the bulletin board immediately southwest of the Senior Benches and/or the ‘Senior Benches’… Students are not required to ask the administration to review messages they intend to post on the bulletin board and/or paint on the Senior Benches.”

In 2011, La Jolla High School senior Yumehiko Hoshijima filed a lawsuit against principal Dana Shelburne and SDUSD for allegedly violating his First Amendment rights. Hoshijima painted “Freedom for Iran and LJHS” and “Ed. Code 48907” on the school’s senior benches, but Shelbourne ordered the benches painted over because the speech was not positive about LJHS.

Claiming the reason was too vague, the San Diego American Civil Liberties Union and the law firm Bostwick & Jassy LLP challenged the decision on Hoshijima’s behalf. After the lawsuit was filed, Shelbourne decided to remove the benches. In May 2011, the parties agreed to a preliminary injunction keeping the benches in place during the lawsuit.

Under the agreement announced this month, the school district is also required to pay Hoshijima’s attorneys fees – totaling $22,500.

San Diego ACLU Legal Director David Loy said once the lawsuit was filed, the school district was quick to come to the table and both sides reached a beneficial settlement.

A district spokeswoman said she was not familiar enough with the issue to comment. As part of the settlement agreement, the district admits no wrongdoing.

“I think this is a signal to anybody in a similar situation,” Loy said. “District administrators, principals, teachers, must respect the forum for speech that is created by California Education Code 48907. It empowers students to speak and guarantees schools provide some forum for student speech with school sponsored facilities.”

Based on tradition and “longstanding custom,” the senior benches served as an open forum for student free speech, according to Hoshijima’s lawsuit.

Under the new policy, messages on the benches are student controlled with no specific time limits on how long speech may be posted before being painted over or removed. The benches are protected for five years. According to the agreement, “SDUSD and its officers, agents, employees and any person or persons acting on its behalf shall refrain and hereby agree and promise to refrain from demolishing, removing, or altering the Senior Benches or closing them to student speech…”

Loy said he is very happy in how the situation was resolved and thinks this case will serve as an example to other districts that try to control student speech.

“It wasn’t the message but the control of the forum,” Loy said. “They didn’t want political messages on the forum.”

About The Editor

Terry Francke, General Counsel

Terry Francke has a 39-year history of helping journalists, citizens and public officials understand and use their First Amendment and open government rights. With CalAware, Francke has authored comprehensive and authoritative guidebooks to California law on access to government meetings and public records and the news gathering and publication rights of journalists. Focusing on these issues in public forum law, he supervises CalAware's legislative and litigation initiatives; conducts workshops on legal compliance; helps design public records audits; supports local sunshine ordinance drafting efforts; writes CalAware Today, a blog on current developments and proposals in the law and best practices; and answers countless queries by phone and e-mail from citizens, journalists, public officials and employees, and lawyers. Francke previously served 14 years as executive director and general counsel to the California First Amendment Coalition, after a 10-year post as legal counsel for the California Newspaper Publishers Association. He has served as an advisory panel member to the National Center on Courts and the Media; taught journalism law at the Department of Communication at Stanford University; and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act and the 2004 ballot proposition making open government a basic right of citizens under the California Constitution. Francke is a 1967 graduate of the University of Notre Dame and a 1979 graduate of McGeorge School of Law, University of the Pacific. Prior to his legal career, Francke worked as a weekly newspaper editor and in military and local government public affairs positions.

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