THE DISTRICT HAS F*CKED UP AGAIN. Upshot: a judge has ruled that Board Policy 4000.2 is invalid because it violates the Ed Code.
Check out the Tentative Rulings site for Judge Robert J. Moss of the Superior Court of California, County of Orange.
Case #11 is Crosby v. South Orange County Community College [District].
Evidently, a student (Crosby) is suing our district with regard to an incident in which he or she was detained and questioned by a cop. Something about his headphones being too loud. The district, appealing to BP 4000.2 (see below), evidently suspended some of the student’s privileges.
Crosby has asked for a “summary judgment” and a “summary adjudication of issues.”
[UPDATE (8/4): reliable sources tell me that Crosby defended himself in court. Thus a non-attorney beat the district's attorney(s).]
Today (August 3), Judge Moss issued his "tentative." He did not grant the summary judgment. Further, he did not agree (with the student) that the policy is invalid “as applied.”
BUT he has agreed that BP 4000.2 is invalid. According to Moss, it violates the Education Code (see below).
Here's the ruling in its entirety:
Motion for summary judgment denied.HERE'S BP 4000.2:
Motion for summary adjudication of issues granted in part and denied in part.
The defendant’s [i.e., the district’s] objections to the plaintiff’s declaration are overruled for failure to comply with CRC 3.1353(b). [?]
In summary, the court finds that Board Policy 4000.2 is facially in violation of E.C. § 66301. It is overbroad. It leaves to the Board’s discretion what is “appropriate” and what is not. E.C. § 66301 states students can engage in speech, conduct or communication on campus the same as they can off campus, whether the Board deems it appropriate or not. Since the regulation is invalid by the terms of the statute, it is unnecessary to address the Constitutional analysis. [My emphasis.]
The plaintiff established standing as he sustained at least some injury when he was detained and questioned by the security officer, even though this harm may not by itself be actionable. It is sufficient to provide a basis for challenge in this context. It is more then a hypothetical challenge. In facial challenge cases, the standing limitation is relaxed because there exists “a danger of chilling free speech” in society as a whole.
Since there is no need to consider facts to make this determination, the failure to separately address the issues in the statement of facts is of no consequence.
As to plaintiff’s claim that the regulation was invalid as applied, there are triable issues of fact. While he contends certain actions of the administration were retaliatory in nature, the defendant denies that they were and offers facially reasonable reasons for the action taken. For example, chastising plaintiff for the headphones being too loud could have been because they were. Likewise, suspending certain of plaintiff’s student privileges could have been because he failed to meet with the administrator. While these reasons may be pretexts for sanctions, whether or not they are is a question of fact for the jury to decide.
Defendant to prepare notice of ruling.
ELECTRONIC COMMUNICATION
The Board of Trustees of the South Orange County Community College District recognizes that it is important for staff and students to have access to electronic-based research tools and skills through its electronic/digital information network. Such open access is a privilege and requires that individual users act responsibly. The electronic/digital information network consists of (but not limited to) District owned computers, computer networks, electronic mail and voice mail systems, internet services, audio and video conferencing, and related electronic devices such as cellular telephones, facsimile machines and copiers.HERE'S California Education Code, Section 66301:
The Board recognizes that resources available on the network represent extraordinary learning opportunities and enriching educational materials, but they also offer persons with illegal or unethical motives with avenues for abuse of these resources. It is the policy of this District to restrict access to and use of the electronic/digital information network to students and staff for appropriate academic, professional and institutional purposes. Use of the District’s electronic/digital information network for other purposes is not authorized and will constitute grounds for revocation of user privileges, removal of offending material, potential disciplinary action and, in appropriate cases, referral to law enforcement authorities.There is no right to privacy in the use of the District’s resources. The District may monitor and access information contained on its resources for investigative and/or administrative purposes, and may take administrative action in response to any violation of this policy, applicable administrative regulation, or other law. The Chancellor is hereby authorized to adopt and implement such administrative regulations to implement this policy.
(a) Neither the Regents of the University of California, the Trustees of the California State University, nor the governing board of any community college district shall make or enforce any rule subjecting any student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.
(b) Any student enrolled in an institution, as specified in subdivision (a), that has made or enforced any rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon motion, a court may award attorney's fees to a prevailing plaintiff in a civil action pursuant to this section.
(c) Nothing in this section shall be construed to authorize any prior restraint of student speech.
(d) Nothing in this section prohibits the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected.
(e) Nothing in this section prohibits an institution from adopting rules and regulations that are designed to prevent hate violence, as defined in subdivision (a) of Section 4 of Chapter 1363 of the Statutes of 1992, from being directed at students in a manner that denies them their full participation in the educational process, so long as the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article 1 of the California Constitution for citizens generally.
YEAH, BUT...
8 comments:
Let's make a video of this can of worms, post it on MySpace, Facebook, and YouTube, and call it "extraordinary learning opportunities and enriching educational materials."
Very interesting, Chunk. Thanks for posting this.
I forgot. Was that an open meeting?
Then, what about the appeal? Must ask, sorry.
.lermit
So...how do the district's punitive and retaliatory actions support the district's goal to "Promote and support enrollment growth to meet student demand through new programs, distance education, workforce development, and alternative instructional delivery modes"? I guess we can use those alternative modes only if they say so and do it only as they prescribe. What a place! What hypocrisy! And did this ruling come before or after Raghu's renewed contract?
You can ask, for more information, in your public record in your local library.
.lermit
I think this is the same "Crosby." He's a 58 year old student that never seems to graduate. Oh well, such is life in the junior college system.
Friday, October 21, 2005
San Clemente seeks C-notes from pier clarinetist
He vows to fight a citation accusing him of soliciting tips that could cost him $400-$600.
By RACHEL OLSEN
The Orange County Register
SAD SONG: Patrick Crosby was told he is required to have a permit to accept donations while he is playing on the San Clemente Pier. “I’ll just continue to play,” Crosby said.
SAN CLEMENTE – Patrick Crosby is singing the blues over his clarinet playing on the pier.
For two years, the San Clemente man has been playing tunes for people as they stroll past - an unmarked tip jar strategically placed in front of him.
It's that tip jar that's landed him in a tiff. Orange County sheriff's deputies issued Crosby a ticket Oct. 7 for failure to have a permit allowing certain businesses. Playing on the pier is fine, the city says, but taking money requires a permit.
The ticket can cost Crosby $400 to $600.
"I'm definitely not going to be shaken down. I think (a donation) is an expression of gratitude for making the evening a little nicer. The music is a form of communication," Crosby said.
Debbie Ochoa, city business relations officer, said city law requires a business permit once it is determined a person is soliciting funds for a business venture.
"We talked with the city attorney and determined he is playing music for the purpose of creating revenue," she said.
Crosby said he understood that accepting donations for his musical performance was a protected right.
The ACLU of Southern California looked into the city code and expressed concern over its constitutionality, spokeswoman Elizabeth Brennan said.
If Crosby wants to continue to play his clarinet and receive money, Ochoa said he has to get a permit.
"I'll just continue to play," Crosby said. "Maybe I'll just sit out there with a sign 'Cannot accept tips because of illegal suppression by San Clemente.'" He didn't put up the sign but he is still playing, without the tip jar.
Crosby said other musicians on the pier, even on the night he got his ticket, were accepting money and weren't issued citations.
His jar was unmarked and contained a few dollar bills, which on the night of his citation came from his own pocket, he said.
Commonly, Crosby said, a boy plays the sax with a sign asking for donations to help pay his way to college.
Ochoa said it is the city's job to enforce the letter of the law. She said musicians would be cited for practicing business without a permit if it were determined they were receiving monetary gain.
"If I get a criminal rap, it's a misdemeanor just for playing 'Moon River,'" Crosby said.
Crosby said the incident stems from a dispute he had with Fisherman's Restaurant on the pier. A Fisherman's employee asked him to leave, saying he was disturbing patrons, and Crosby came back the next night with a small sign calling for a boycott of the restaurant, he said.
Ochoa said police were called to the scene after the business complained that Crosby was soliciting money.
Crosby has a Nov. 18 court date. He said he will contest the ticket and plans to fight to play his music and accept donations. If that doesn't work, he said he'd pursue a protective order in federal court.
"I would like to play because I think this is a free-speech violation," he said.
The CRC cite is a rule of court that mandates when an objection to evidence in an MSJ must be made. They probably did it at the hearing and not in writing prior to the hearing.
That is all.
Hello, I am the infamous Crosby. You good folks have a good and important part of the story, but far from the entire story.
The main incident that precipated all of this was June 14, 2006, when I was detained by a campus cop, the now dearly departed Officer Cynthia, in the Saddleback Library for...(drum roll)... looking at myspace profiles! What's wrong with that? Well, I was told (by Cynhia and later that day, Dean Chuman) that using the SOCCCD Board's "conservative values" as the "Community standard," myspace is a (ready for this?) *pornographic* web site and a "no no!." Want to know something more? Since it is also a "kid's" website (everyone knows that, right?) myspace, according to BP 4000.2, is a kiddie porn site!
I was mad as hell after all of this lunacy, and threatened to sue. So the Little Pirana (VP Lise Telson) and Chief Librarian Cobos decided they needed to cook something really good on me. Know what it was? Calling campus cops on me for having headphones too loud while listening to classical music and the library's own library listening station with library headphones. For this, that again called campus police on me.
Soon after that, the Little Pirana sent me this extremely nasty letter demanding I come into see her at once. Why? to give my side of the story? HELL NO! To chew me out and tell me what kind of pervert I was! Due process? What the hell is that?
I went to her office *twice* to meet with her, and listen this little skank insult me with her bullcrap, but that wasn't enough. She wanted at me a third time. I balked at that for a number of reasons (for one, I was afraid to be alone in an officer with her, fearing she'd tear her own blouse and say I did it, or something like that). So, the little Hershey Squirt *suspended* me (they call it Code 8 hold, but same exact thing) for a month, preventing me from registering for most fall '06 classes. I then sued.
As to me "never graduating," I graduated decades ago. Ever read Zen and the Art of Motorcycle Maintence, by Robert Pirsig? The "Chairman" character in that book (actually Richard P. McKeon, who himself had studied under John Dewey at Columbia) was my great teacher. While at the U of Chicago, I also studied under Paul Ricoeur--- my other great teacher. (He won a Kluge award a couple years ago, shortly before his death).
So please don't put me down for taking classes at Saddleback. Have any of you ever written a string quartet? I have. I learned to do it at Saddleback. Of course, now with all the bullcrap Telson has spread about me (falsely accusing me of "several" student code of conduct violations) Dr. Weston wants nothing to do with me anymore. Because she's a V.P. everyone believes her. But in truth, she just a lying sack of crap.
My own website on this Saddleback business, which you might find entertaining, is http://corruptioncollege.com
patrick@corruptioncollege.com
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