ACLU Settles Litigation over Free Speech Violations by Fallbrook High

After the threat of a court order forced Fallbrook High School to allow publication of a previously censored article and editorial in the student newspaper, the Fallbrook Union High School District voted to settle a lawsuit brought by the ACLU and Bostwick & Jassy LLP to enforce the free speech rights of student journalists and the faculty advisor of a nationally award-winning newspaper.

This case started when the Fallbrook Union High School District violated the fundamental free speech rights of students and faculty. The Fallbrook High School principal, Rod King, illegally prohibited the student newspaper, The Tomahawk, from publishing an article about the District’s former superintendent, written by Chantal Ariosta, and an editorial about abstinence-only sex education, written by Margaret Dupes and edited by Daniela Rogulj. When the faculty advisor, Dave Evans, brought the unlawful censorship to the school board’s attention, King retaliated by canceling the journalism class and removing Evans as the newspaper’s faculty advisor.

Because of their conduct, the First Amendment Coalition, a nonprofit public interest organization dedicated to advancing free speech, gave the District and King its “2009 Darkness Award” for “behavior hostile to scholastic journalism and for creating the lesson that First Amendment principles are more theory than reality.”

The District adamantly stood by its censorship and employment decisions in spite of being put on notice by counsel for the students and the advisor that the acts were contrary to federal constitutional and other law. After the District refused to resolve these issues without the need for going to court, the ACLU and Bostwick & Jassy filed suit and sought a preliminary injunction compelling the District and King to allow student editors to publish the censored article and editorial if they wished. At that point, under threat of a court order, the District finally relented and authorized The Tomahawk to publish the article and editorial.

The proposed settlement obligates the District to issue a letter to Ariosta, Dupes, and Rogulj acknowledging they are student leaders and good students who “operated within the guidelines provided by the advisor and the school.” As the letter states, “The District hopes that future student writers for The Tomahawk will be instilled with your sense of spirit towards the profession.”

“This represents a clear victory for freedom of the student press,” said David Blair-Loy, legal director of the ACLU of San Diego & Imperial Counties. “By allowing publication of the article and editorial and acknowledging the students complied with school rules, the District effectively acknowledged what should have been clear from the beginning – that it violated free speech rights and broke the law.”

The proposed settlement would require the District to oversee publication of at least four issues per year of The Tomahawk and to comply with a detailed set of regulations protecting the free speech rights of student journalists. In particular, the District must allow The Tomahawk to publish any material submitted by students unless it clearly violates Education Code section 48907 or “clearly invades privacy or confidentiality rights protected by state or federal law.” The principal must state any concerns about student submissions in writing to the student editors and faculty advisor. In case of disagreement about whether certain material should be published, the editors retain the right to publish that material, accompanied by a statement of the District’s concerns.

Under the proposed settlement, the District will reimburse Mr. Evans in the amount of $7500 and the ACLU and Bostwick and Jassy in the amount of $20,000. This is much less than the District risked losing as a result of its original illegal behavior and reluctance to settle early in the process.

“Though we would have proven at trial that King and the District violated state and federal law by spiking the article and editorial and retaliating against Dave Evans, resulting in a judgment for much greater damages and fees, we believe the best interests of the students would be served by settling the case now and moving forward,” said Jean-Paul Jassy, partner at Bostwick & Jassy LLP. “The federal court had before it a motion for fees for over $50,000.00. In our system, in some cases, persons who are forced to go to court to defend fundamental rights have a right to be reimbursed for their efforts. This was a case where that occurred.”

“It’s a shame that we had to go to court to protect rights and freedoms that should never have been questioned inside the classroom,” said Chantal Ariosta. “Though the case took longer than expected, I admire the devotion that the students and alumni carried through this case. With the support of my former teacher and advisor Dave Evans, I am proud to have stood up for the rights of future student journalists.”

“I am relieved that the District has finally accepted my authorship of the editorial,” said Margaret Dupes. “I hope the District upholds the law in the future so that other student journalists don’t have to suffer what I did.”

“Although it is unfortunate that this was not resolved immediately, I feel that our prolonged pursuit of justice was most definitely worthwhile,” said Daniela Rogulj. “I believe our efforts have set an example for students across the country to speak their minds and stand up for their rights. I thank Dave Evans and my fellow students for their encouragement and support.”

“By participating in the case and believing in its cause, we became a voice for young adults across the United States,” said Amber McCracken, a co-plaintiff and current student at Fallbrook High School. “I thank Mr. Evans and my fellow plaintiffs for standing up for the principles at hand.”

Bostwick & Jassy was alerted to the case by the attorney referral network of the Student Press Law Center.