1 1 1 GARY BOSTWICK, Cal. Bar No. 000 JEAN-PAUL JASSY, Cal. Bar No. 1 KEVIN VICK, Cal. Bar No. 0 BOSTWICK & JASSY LLP 0 Wilshire Boulevard, Suite 00 Los Angeles, California 00 Telephone: --0 Facsimile: -1-01 E-mail: jpjassy@bostwickjassy.com DAVID BLAIR-LOY, Cal. Bar No. SARAH ABSHEAR, Cal. Bar No. 0 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES PO Box San Diego, CA - Telephone: -- Facsimile: --00 E-mail: dblairloy@aclusandiego.org Attorneys for Plaintiff YUMEHIKO HOSHIJIMA SUPERIOR COURT OF THE STATE OF CALIFORNIA YUMEHIKO HOSHIJIMA, an individual, v. FOR THE COUNTY OF SAN DIEGO Plaintiffs, DANA SHELBURNE, Principal of La Jolla High School, in his individual and official capacities; SAN DIEGO UNIFIED SCHOOL DISTRICT, an entity; and DOES 1 through, inclusive, Defendants. CASE NO.: FOR: (1) VIOLATION OF FOURTEENTH AMENDMENT [ U.S.C. ]; () VIOLATION OF CALIFORNIA CONSTITUTION, ART. I, (a); () VIOLATION OF FIRST AMENDMENT [ U.S.C. ]; () VIOLATION OF CALIFORNIA CONSTITUTION, ART. I, (a); () VIOLATION OF EDUCATION CODE 0; () VIOLATION OF EDUCATION CODE 0; () VIOLATION OF CIVIL CODE.1; () DECLARATORY RELIEF [C.C.P. 0].
1 1 1 Plaintiff Yumehiko Hoshijima alleges as follows: THE PARTIES 1. Plaintiff Yumehiko Hoshijima ( Hoshijima ) is in 1th Grade, his senior year, at La Jolla High School ( LJHS ), graduating in. Hoshijima is years old. He has been accepted to and plans to attend Yale University.. Defendant Dana Shelburne ( Shelburne ) is the Principal of LJHS. He is sued in both his individual and official capacities. As Principal of LJHS, he is and was at all relevant times acting under color of state law and official authority and within the course and scope of his employment by the District. As Principal of LJHS, he is and was at all relevant times authorized to speak and act for and on behalf of the District with respect to all matters discussed in this complaint.. Defendant San Diego Unified School District (the District ) is a school district established by the State of California and funded by the State and/or by San Diego County. The District operates public schools in San Diego County, including LJHS.. The true names or capacities, whether individual, corporate or otherwise, of the defendants named herein as DOES 1 through, inclusive, are unknown to Hoshijima, who therefore sues said defendants by such fictitious names. Hoshijima reserves the right to ask leave of court to amend this complaint and insert the true names and capacities of said defendants when the same have been ascertained.. Hoshijima is informed and believes, and on that basis alleges, that each of the defendants designated herein as a DOE is legally responsible in some manner for the events and happenings herein alleged, and that Hoshijima s harm and damages as alleged herein were proximately caused by such defendants. JURISDICTION AND VENUE. This Court has jurisdiction over this action pursuant to Article VI, of the California Constitution and Code of Civil Procedure.,.0. --
1 1 1. This Court has power to grant injunctive relief under Code of Civil Procedure,, Civil Code.1(b), and/or Education Code 0(b), and declaratory relief under Code of Civil Procedure 0 and/or Education Code 0(b).. Venue is proper in this Court pursuant to Code of Civil Procedure (b), and (a). GENERAL ALLEGATIONS. LJHS is a grade -1 comprehensive public school located at 0 Nautilus Street, San Diego, California. It serves approximately 0 students on a large campus that includes an aquatic complex, two athletic fields, two gymnasiums, tennis courts, two open areas known on a school map as the upper quad and the green, a library media center, an auditorium and theatre, a snack shack and cafeteria, an administration building, and numerous classrooms in several buildings.. For decades, LJHS has dedicated the senior benches a group of benches in an open area on its campus to student speech on numerous topics, including but not limited to political speech concerning on-campus and off-campus matters. By longstanding custom, practice and tradition, the LJHS administration has allowed students, usually but not exclusively seniors, to paint messages of their choice on the benches. Student messages have included birthday wishes, love notes, celebrations of football victories, Associated Student Body election slogans, support for national presidential candidates, and messages about Suicide Awareness Day, to name a few. It is commonly understood among LJHS students, faculty, staff and/or administration that messages painted on the benches reflect the views of individual students, not those of the school faculty, staff or administration.. On February,, following massive anti-government protests in Iran that began on February 1,, one or more students at LJHS painted Freedom for Iran and Down with Dictator on the senior benches. Shelburne immediately authorized and directed the complete censorship of those messages by blanketing them with white paint, depriving the speakers of their right to communicate them on the benches and depriving the student body of the right to read them there. --
1 1 1 1. Shelburne then asserted an official position of LJHS and/or the District that the benches are reserved for displays of school spirit, celebration of La Jolla High School activities and, on rare occasions, to commemorate the death of a student Students who want to post political statements must now submit them to the administration for review and pre-approval, and, if deemed acceptable by the administration, they may be posted on a designated bulletin board in a nearby location. 1. On February,, Plaintiff Yumehiko Hoshijima painted Freedom for LJHS & Iran and Ed. Code 0 on the senior benches, in support of both demonstrations in Iran and freedom of speech at LJHS. Once again, the LJHS administration immediately whitewashed the messages and prevented the student body from seeing them on the benches. 1. Before February, LJHS had no articulated standard or policy controlling the content or viewpoint of messages painted by students on the senior benches. On February, and February,, Shelburne published, adopted and enforced several different purported official standards or policies restricting the content and/or viewpoint of messages painted by students on the benches, including the following: (a) On February,, a notice was given during Period of the school day stating the following: Please remember Senior Benches are reserved for positive messages about La Jolla High School and its students. Any other messages need only be cleared for legality by an administrator, and then may be posted on the bulletin board outside the finance office. (b) Also on February,, Shelburne stated that the senior benches were for positive, school-related messages. (c) Shelburne also stated the following policy directive on February, with reference to the senior benches: if we can t figure it out, we paint it out. (d) Shelburne further stated on February,, that when evaluating whether to permit a message on the benches, he asks Does it have to do with the day-today lives of the students at La Jolla High School? --
(e) On or about February,, Shelburne declared the following policy 1 1 1 with respect to the senior benches: Those benches are to carry positive, school-related messages birthdays, athletic events, dances, the sad occasion when we lose a student pertaining to campus. If it s negative, we paint it out. If it doesn t pertain to school or school functions, we paint it out.. On or about February,, Shelburne announced as a matter of official school policy and practice that if inappropriate signs continue to appear on the benches, disciplinary action will be taken. Since that time, students, including Hoshijima, have refrained from painting messages on the benches that might be deemed to violate any of the varying versions of the published official standards or policies discussed in this complaint, for fear of being subject to disciplinary action.. On February,, the ACLU Foundation of San Diego & Imperial Counties sent a letter to Shelburne and the San Diego Unified School District Superintendent and Board of Education about the free speech violations at LJHS, seeking to resolve the matter without litigation. After receiving no response on the merits for almost two months, the ACLU sent a second letter on April 1,. An Assistant General Counsel for the District finally responded with a letter received by the ACLU on April, that refused to acknowledge any free speech violation, stating that [the benches] are reserved for use by students for positive school and student related messages.. On April,, the LJHS administration, apparently at the official direction and/or authorization of Shelburne, posted a Free Speech Policy on the LJHS website as part of the LJHS Student Information Packet. A true and correct copy of the Free Speech Policy is attached hereto as Exhibit 1. With respect to posting or painting of messages by students, the Free Speech Policy contains the following restrictions: Students wishing to post messages shall do so on the bulletin boards immediately adjacent to the senior benches [east side of the administration building]. All postings must 1) identify the student or student group responsible for the posting, and ) display the date of posting and be removed no later than two weeks from that date. --
1 1 1 No such messages shall be posted/painted on the Senior Benches ; those are reserved for positive messages about LJHS students and school activities. The Free Speech Policy also provides that the oral and/or written expression of ideas by students shall be limited to periods before school, after dismissal, and during established lunch periods as deemed feasible by the principal. The Student Information Packet warns of disciplinary consequences for any student who violates school policy, including students over the age of years, such as Hoshijima.. On April,, Hoshijima submitted a notice of claim with respect to the events described herein to the District pursuant to Government Code 00, et seq. That claim was rejected by the District on May,. FIRST CAUSE OF ACTION (Violation of U.S. Constitution, 1th Amendment, pursuant to U.S.C. ) (Against Shelburne and Does 1-). Hoshijima realleges and incorporates by reference each and every allegation in paragraphs 1 through, inclusive.. Shelburne and/or Does 1-, acting under color of state law and official authority, violated Hoshijima s due process rights guaranteed by the Fourteenth Amendment to the United States Constitution, by adopting, promulgating and enforcing official school rules, regulations, standards and/or policies restricting speech that are void for vagueness.. The official rules, regulations, standards and/or policies restricting student speech discussed herein are void for vagueness on their face and/or as applied. Hoshijima has no adequate remedy at law to redress the wrongs herein alleged. Unless enjoined by this Court, Shelburne and/or Does 1- will continue to violate his constitutional rights, which will continue to cause him irreparable harm.. As a result of the unconstitutional acts of Shelburne and/or Does 1-, Hoshijima has suffered damages in an amount to be determined at trial. For this cause of action, damages are sought against Shelburne and/or Does 1- in their individual capacities. --
1 1 1 SECOND CAUSE OF ACTION (Violation of California Constitution, Article I, (a)) (Against All Defendants). Hoshijima realleges and incorporates by reference each and every allegation in paragraphs 1 through, inclusive.. Shelburne and/or Does 1-, acting under color of state law and official authority, violated Hoshijima s due process rights guaranteed by Article I, (a) of the California Constitution, by adopting, promulgating and enforcing official school rules, regulations, standards and/or policies restricting speech that are void for vagueness on their face and/or as applied.. In committing the acts herein alleged, Shelburne acted for and on behalf of the District. These violations were the result of decisions by school personnel, including Shelburne, which the District has refused to reverse and thereby endorses and ratifies, and thus constitute official policy of the District. The District is also vicariously liable for the acts of Shelburne as its agent, officer, and/or employee.. Hoshijima has no adequate remedy at law to redress the wrongs herein alleged. Unless enjoined by this Court, Defendants will continue to violate his constitutional rights, which will continue to cause him irreparable harm. THIRD CAUSE OF ACTION (Violation of U.S. Constitution, First Amendment, pursuant to U.S.C. ) (Against Shelburne and Does 1-). Hoshijima realleges and incorporates by reference each and every allegation in paragraphs 1 through, inclusive.. Shelburne and/or Does 1-, acting under color of state law and official authority, violated Hoshijima s free speech and/or free press rights guaranteed by the First Amendment to the United States Constitution, as applied via the Fourteenth Amendment to the United States Constitution, in one or more of the following ways: (a) censoring and/or discriminating against his political speech based on its content and/or viewpoint; --
(b) (c) excluding students political speech from the senior benches; establishing unconstitutional rules, regulations, standards, and/or policies restricting student speech ; (d) threatening to discipline any student, including Hoshijima, who articulates political or other protected speech in violation of one or more of the official school rules, regulations, standards and/or policies discussed herein; (e) excluding political speech from the senior benches for reasons not reasonably related to a legitimate pedagogical reason or valid educational purpose, or without any such reason or purpose at all; and/or (f) establishing restrictions on student speech that are unconstitutionally vague 1 1 1 and/or overbroad.. The official rules, regulations, standards and/or policies for student speech discussed herein are unconstitutional on their face and/or as applied. Hoshijima has no adequate remedy at law to redress the wrongs herein alleged. Unless enjoined by this Court, Shelburne and/or Does 1- will continue to violate his constitutional rights, which will continue to cause him irreparable harm. 0. As a result of the unconstitutional acts of Shelburne and/or Does 1-, Hoshijima has suffered damages in an amount to be determined at trial. For this cause of action, damages are sought against Shelburne and/or Does 1- in their individual capacities. FOURTH CAUSE OF ACTION (Violation of California Constitution, Article I, (a)) (Against All Defendants) 1. Hoshijima realleges and incorporates by reference each and every allegation in paragraphs 1 through 0, inclusive.. Defendants, acting under color of state law and official authority, violated Hoshijima s free expression rights under California Constitution, Article I, (a) in one or more of the following ways: --
(a) censoring and/or discriminating against his political speech based on its content and/or viewpoint; (b) (c) excluding students political speech from the senior benches; establishing unconstitutional rules, regulations, standards and/or policies restricting student speech; (d) threatening to discipline any student, including Hoshijima, who articulates political or other protected speech in violation of one or more of the official school rules, regulations, standards and/or policies discussed herein; and/or (e) establishing restrictions on student speech at LJHS that are 1 1 1 unconstitutionally vague and/or overbroad.. In committing the acts herein alleged, Shelburne acted for and on behalf of the District. These violations were the result of decisions by school personnel, including Shelburne, which the District has refused to reverse and thereby endorses and ratifies, and thus constitute official policy of the District. The District is also vicariously liable for the acts of Shelburne as its agent, officer, and/or employee.. The official rules, regulations, standards and/or policies for student speech discussed herein are unconstitutional on their face and/or as applied. Hoshijima has no adequate remedy at law to redress the wrongs herein alleged. Unless enjoined by this Court, Defendants will continue to violate his constitutional rights, which will continue to cause him irreparable harm. FIFTH CAUSE OF ACTION (Violation of Education Code 0) (Against All Defendants). Hoshijima realleges and incorporates by reference each and every allegation in paragraphs 1 through, inclusive.. In violation of Education Code 0, Defendants, acting under color of state law, censored and/or prohibited the publication of Hoshijima s political message on the senior benches based on its content and/or viewpoint. Hoshijima s message was not obscene, libelous, or --
1 1 1 slanderous; nor did it either incite students so as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.. Defendants official rules, regulations, standards and/or policies restricting Hoshijima s speech as herein alleged are not reasonable time, place or manner regulations.. The threat of discipline against Hoshijima for engaging in political speech on the senior benches constitutes an ongoing unlawful prior restraint and/or chilling effect on protected expression in violation of Education Code 0.. In committing the acts herein alleged, Shelburne acted for and on behalf of the District. These violations of Hoshijima s rights are the result of decisions by school personnel, including Shelburne, which the District has refused to reverse and thereby endorses and ratifies, and thus constitute official policy of the District. The District is also vicariously liable for the acts of Shelburne as its agent, officer, and/or employee. 0. Hoshijima has no adequate remedy at law to redress the wrongs herein alleged. Unless enjoined by this Court, Defendants will continue to violate his free speech rights, which will continue to cause him irreparable harm. 1. As a result of Defendants unlawful acts, Hoshijima has suffered damages in an amount to be determined at trial. SIXTH CAUSE OF ACTION (Violation of Education Code 0) (Against All Defendants). Hoshijima realleges and incorporates by reference each and every allegation in paragraphs 1 through 1, inclusive.. In violation of Education Code 0, Defendants, acting under color of state law, made a rule or rules subjecting LJHS high school pupils, including Hoshijima, to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside campus, is protected from governmental restriction by the First Amendment to the United States Constitution and/or Section of Article I of the California Constitution. --
1 1 1. Defendants official rules, regulations, standards and/or policies restricting Hoshijima s speech as herein alleged and as described in the Free Speech Policy are not reasonable time, place or manner regulations.. In committing the acts herein alleged, Shelburne acted for and on behalf of the District. These violations of Hoshijima s rights are the result of decisions by school personnel, including Shelburne, which the District has refused to reverse and thereby endorses and ratifies, and thus constitute official policy of the District. The District is also vicariously liable for the acts of Shelburne as its agent, officer, and/or employee.. Hoshijima has no adequate remedy at law to redress the wrongs herein alleged. Unless enjoined by this Court, Defendants will continue to violate his legal rights, which will continue to cause him irreparable harm. SEVENTH CAUSE OF ACTION (Violation of Civil Code.1) (Against All Defendants). Hoshijima realleges and incorporates by reference each and every allegation in paragraphs 1 through, inclusive.. In violation of Civil Code.1(b), Defendants, through their official acts, including but not necessarily limited to the threat of discipline against students for engaging in protected speech, have interfered and continue to interfere by threats, intimidation, or coercion, or have attempted and continue to attempt to interfere by threats, intimidation, or coercion, with Hoshijima s exercise or enjoyment rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state.. In committing the acts herein alleged, Shelburne acted for and on behalf of the District. These violations of Hoshijima s rights are the result of decisions by school personnel, including Shelburne, which the District has refused to reverse and thereby endorses and ratifies, and thus constitute official policy of the District. The District is also vicariously liable for the acts of Shelburne as its agent, officer, and/or employee. --
1 0. Hoshijima has no adequate remedy at law to redress the wrongs herein alleged. Unless enjoined by this Court, Defendants will continue to violate his legal rights, which will continue to cause him irreparable harm. 1. As a result of Defendants unlawful acts, Hoshijima has suffered damages as authorized under Civil Code.1(b) in an amount to be determined at trial. EIGHTH CAUSE OF ACTION (Declaratory Relief) (Against All Defendants). Hoshijima realleges and incorporates by reference each and every allegation in paragraphs 1 through 1, inclusive.. An actual controversy has existed and now exists between Hoshijima and Defendants concerning their respective rights and duties on the following matters: 1 (a) Hoshijima contends that Defendants rules, regulations, standards, and/or 1 policies restricting student speech as alleged herein are void for vagueness, but Defendants dispute that; (b) Hoshijima contends that Defendants violated his rights under the First Amendment to the United States Constitution and/or California Constitution, Article I, (a), but Defendants dispute that; (c) Hoshijima contends that Defendants violated his rights under Education Code 0 and/or 0 and/or Civil Code.1, but Defendants dispute that; (d) Hoshijima contends that Defendants restrictions on speech on the senior benches at LJHS are unconstitutionally vague and/or overbroad in violation of the First Amendment to the United States Constitution and/or California Constitution, Article I, (a), but Defendants dispute that.. Plaintiffs seek a judicial declaration of the parties rights and duties as set forth above. A declaration is necessary and appropriate at this time so that the parties respective rights and duties may be determined. -1-
1 1 1 PRAYER WHEREFORE, Hoshijima prays for judgment against Defendants, as follows: 1. For a declaratory judgment that Defendants violated the rights of Hoshijima under the First and Fourteenth Amendments to the United States Constitution and/or California Constitution, Article I, (a), (a) and/or Education Code 0 and/or 0 and/or Civil Code.1;. A temporary, preliminary and/or permanent injunction prohibiting Defendants from censoring, prohibiting, and/or restricting political or other protected student speech at LJHS as discussed herein;. General, special, compensatory, actual, presumed and/or nominal damages according to proof;. Punitive damages against Shelburne and/or Does 1-;. Attorneys fees as authorized under U.S.C., Education Code 0(b), Civil Code.1(h), Code of Civil Procedure. and/or any other applicable law;. Costs of suit; and. Other and further relief as the court may deem proper. Dated: May, BOSTWICK & JASSY LLP ACLU Foundation of San Diego & Imperial Counties By: Jean-Paul Jassy By: David Blair-Loy -1-