By Dave Schwab
Superior Court Judge Jeffrey Barton heard arguments Thursday about whether three senior benches at La Jolla High School should be allowed to be used for free speech of any sort and not restricted to school-related-only matters. But he delayed his decision until June 24.
The hearing was the first in a lawsuit filed by the American Civil Liberties Union (ACLU) against LJHS Principal Dana Shelburne and the San Diego Unified School District on behalf of graduating La Jolla High senior Yumehiko Hoshijima.
The suit seeks a temporary restraining order and preliminary injunction against the prohibition requiring language painted on benches to be “positive,” arguing that is unconstitutionally “vague.”
The bench controversy stems back to a Feb. 15 incident in which school officials painted out messages urging support for freedom in Iran that had been put there by Iranian-American students. The messages, painted by members of the school’s Persian Club, were covered in white paint after Shelburne deemed them to be inappropriate for the benches.
A couple of days later other students painted a similar but slightly different message on the benches: “Freedom for Iran and LJHS,” which, too, was whited-out.
Late last week, the controversy flared up again when Shelburne said he planned to have the benches removed. Supt. Bill Kowba’s blocked the move shortly after it became public.
On Thursday, Judge Barton, citing his desire to “make a correct decision,” noted more time was needed to digest the school district’s submittal just before the hearing of Shelburne’s three-page declaration and a two-page memorandum. The documents respond to the ACLU contention that the school’s policies “unconstitutionally discriminate against protected student speech based on content or viewpoint.”
Shelburne has said the senior benches are reserved for school-only issues and that a bulletin board near the benches has been set aside as an open forum for non-school-related student expression.
“This is a free speech case,” argued David Blair-Loy, legal director at the San Diego ACLU. “The benches have been dedicated to student speech for decades.”
Noting the three benches in question have been reserved only for “positive messages about the school,” Blair-Loy said, “That is unjust, invalid and void. That rule is — and has always been — unlawful and unenforceable. The school can’t have benches and bulletin boards segregating speech between them.”
Lawrence Schoenke, the district’s general counsel, in defending Shelburne said, “He understands very clearly that he needs to be protective of free speech and the First Amendment. It is not his intent to suppress anyone. But his primary mission is to teach students. What he’s trying to do is run a high school — and he’s trying to do it appropriately.”