After ACLU Intervenes, Principal Apologizes to San Diego High School Student for Free Speech Violation

April 29, 2002 12:00 am

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SAN DIEGO–In accordance with a settlement agreement negotiated by the American Civil Liberties Union of San Diego, a local high school principal has issued a formal written apology to a student he threatened to punish for distributing pamphlets which advised students of their right not to take a standardized test, the ACLU announced today.

“School administrators cannot ban the distribution of student material merely because they disagree with what those materials say,” said Dale Manicom, a volunteer attorney with the local ACLU. “Students do not lose their constitutional rights just because they have crossed the threshold of a school building.”

The dispute arose in April 2001 when Christopher Hu, then a junior at Scripps Ranch High School, developed a pamphlet entitled “A Student’s Guide to SAT 9 Testing.” The pamphlet informed students that they were not required to take this standardized achievement test, detailed reasons for not taking the test, and described the process for opting out of the testing.

“I felt it was important for students to know they had options about taking the test and I knew that I had the right to give them this information because I had researched the rules and regulations in advance,” said Hu. “I hope that by standing up for my rights, I have helped both students and administrators in the future avoid the kind of unpleasant experience I had.”

The agreement, which was finalized in March, calls on principal David Le May to acknowledge that Hu was properly exercising his rights under the First Amendment and the state Education Code. It directs Le May to apologize to Hu for infringing on those rights and provides that Hu not be disciplined over the incident, his record will be purged of any derogatory statements regarding the incident. The agreement further stipulates that students engaging in the same acts in the future will not be interfered with.

Before issuing his pamphlets, Hu researched the regulations governing the distribution of non-school-sponsored written materials on school property. When he attempted to distribute this pamphlet in accordance with those regulations — before and after school, during the lunch period, and between classes — school administrators confiscated undistributed pamphlets and threatened Hu with disciplinary action unless he retrieved all of the pamphlets he had already distributed. Administrators also called in students whom they suspected of having received the pamphlet and demanded the materials from them.

Le May stated that he objected to the pamphlet because it might persuade students not to take the SAT 9. He was concerned that if enough students opted out of the test, Scripps Ranch High School might not qualify for incentive-based funding. Le May also indicated that low test participation could cause a problem with San Diego Unified School District administrators who place great weight on test scores when assessing a school’s performance.

State law governing the free speech rights of public school students specifically permits students to distribute written materials as long as they are not “obscene, libelous, or slanderous;” do not incite other students to break school regulations or the law; and do not disrupt the orderly operation of the school.

Principals are specifically prohibited from censoring or prohibiting the distribution of materials that meet these requirements, the ACLU noted. San Diego Unified School District policies reiterate this standard and only give local schools authority to develop their own restrictions on the “time, place, and manner” of distribution as long as they are not in conflict with state and district standards.

Both the state Education Code and local school district policies reflect the landmark 1969 United States Supreme Court decision Tinker v. Des Moines, which confirmed the free speech rights of public school students.

Acting on behalf of the ACLU, Manicom contacted the San Diego Unified School District, seeking to resolve the matter without having to resort to the courts. The District referred the matter back to Le May, since he had acted on his own and not based on written policy of the school district. After pointing out the unambiguous requirements of the constitution, state law, and district policy protecting students’ free speech rights in these circumstances, Manicom successfully negotiated a complete resolution of the incident in favor of Hu.

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