Friday, February 24, 2012

Is the ACLU actively supporting the suppression of free speech in schools?

See all posts on the San Diego ACLU.

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 spends years trying to get the 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.

Not so. The ACLU tried to silence my website discussions about Stutz law firm, which represented the school district in this case. The Court of Appeal didn't go along with the ACLU's position, ruling instead that an injunction completely silencing my discussion of Stutz Artiano Shinoff & Holtz was "exceedingly unconstitutional."

Mr. Keenan bemoaned the fact that the San Diego Zoo has more members that the ACLU does, even when counting all ACLU members in the entire country. The reason might be that the ACLU compromised its principles a bit too often, pushing out ordinary people who demand equal treatment with the good old boys and girls in the ACLU power structure. In fact, Mr. Keenan said to me, "I'm surprised you're still a member." I'm not the one who has a problem with equal treatment for everyone, Mr. Keenan. But I'm curious, how many ordinary people has the ACLU intimidated into giving up their civil rights? They tried to get me to take down my website, but I didn't think much of their exhortations.

Mr. Loy tried to get me to obey an obviously unconstitutional injunction:

to Maura Larkins
date Wed, Apr 28, 2010 at 9:18 PM
...However, the law does not allow anyone - a government official or a private person - to disobey a court order because they believe it is illegal. Under the law, the proper course is to seek appellate review of an order, and/or a stay of the order,rather than to disobey it. The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...

Mr. Loy must also have known I was not legally required to de-publish the information about Stutz law firm on my website while the injunction was under appeal. (The mandative aspects of an injunction are staying during that time.) Either Mr. Loy was shockingly ignorant of the law, or he was intentionally deceiving me about the law to protect Stutz law firm when he said, “The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...”. Why would he do this? To earn “civility” awards from the Bar Association? As a sort of trade-off of free speech rights, helping Dan Shinoff silence a teacher in exchange for Mr. Shinoff’s agreeing to settle student speech cases? To please donors to the ACLU who care less about education than they do about preserving the power of certain individuals in schools?

The Court of Appeal didn’t agree with Stutz law firm and the ACLU; on August 5, 2011 it ruled that the injunction Mr. Loy wanted me to obey was “exceedingly unconstitutional.” Of course, Mr. Loy knew perfectly well that the injunction was unconstitutional when he insisted that I must obey it.

But here’s the larger question: why did the ACLU board support Mr. Loy’s actions?


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.

The San Diego ACLU's odd relationship with local schools

ACLU's David Loy and Darren Chaker

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

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 (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 Stutz Artiano Shinoff & Holtz law firm, Daniel Shinoff and all the other Stutz attorneys from my website; he has 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.) Instead, I appealed to the California Court of Appeal without the ACLU's help. 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. 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. (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 Jack Sleeth, and walked out of the building chatting with Mr. Sleeth!

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 Daniel Shinoff, who is often 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:

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...

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)