APPEAL No. 07-55224 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TYLER CHASE HARPER, et aL, l,f.4R2 5 L0_3"_ Plaintiffs-Appellants, ,_//'I] A P"tTTER'-'n'f V. 117.] _1,,-_- _-_,a POWAY UNIFIED SCHOOL DISTRICT, et .... al., Defendants-Appellees. ON APPEAL FROM THE UNITED FOR THE SOUTHERN STATES DISTRICT DISTRICT COURT OF CALIFORNIA CIVIL CASE NO. CV-04-1103 (HONORABLE JOHN A. HOUSTON) APPELLANTS' Benjamin W. Bull, Esq. Gary S. McCaleb, Esq. Alliance Defense Fund 15100 N. 90th Street Scottsdale, Telephone: Arizona 85260 (480) 444-0020 Facsimile: (480) 444-0028 Kevin H. Theriot, Esq. Alliance Defense Fund 15192 Rosewood Leawood, Telephone: Facsimile: KS 66224 (913) 685-8000 (913) 685-8001 Attorneys OPENING BRIEF Robert H. Tyler, Esq. Jennifer L. Monk, Esq. Advocates for Faith and Freedom 24910 Las Brisas Road Murr'teta, California 92652 Telephone: (951) 304-7583 Facsimile: (951) 600-4996 Timothy D. Chandler, Esq. Alliance Defense Fund 101 Parkshore Drive, Suite 100 Folsom, California 95630 Telephone: (916) 932-2850 Facsimile: (916) 932-2851 for Plaintiffs-Appellants or en,. ":_.*,, t,Lcnr_ Ut. _PPEAL S APPEAL No. 07-55224 IN THE UNITED STATES COURT OF APPEALS FOR TH_ NINTH CIRCUIT TYLER CHASE HARPER, et al., Plaintiffs-Appellants, V. POWAYUNIFIEDSCHOOLDISTRICT, et al., Defendants-Appellees. ON APPEAL FROM THE UNITED FOR THE SOUTHERN STATES DISTRICT DISTRICT COURT OF CALIFORNIA CIVIL CASE NO. CV-04-1103 (HONORABLE APPELLANTS' JOHN A. HOUSTON) OPENING BRIEF Benjamin W. Bull, Esq. Gary S. McCaleb, Esq. Alliance Defense Fund 15100 N. 90th Street Scottsdale, Arizona 85260 Telephone: (480) 444-0020 Facsimile: (480) 444-0028 Robert H. Tyler, Esq. Jennifer L. Monk, Esq. Advocates for Faith and Freedom 24910 Las Brisas Road Kevin H. Theriot, Esq. Alliance Defense Fund 15192 Rosewood Leawood, KS 66224 Telephone: (913) 685-8000 Facsimile: (913) 685-8001 Timothy D. Chandler, Esq. Alliance Defense Fund 101 Parkshore Drive, Suite 100 Folsom, California 95630 Telephone: (916) 932-2850 Facsimile: (916) 932-2851 Attorneys Murrieta, Telephone: Facsimile: for Plaintiffs-Appellants California 92652 (951) 304-7583 (951) 600-4996 TABLE OF CONTENTS Table of Contents ....................................................................................................... Table of Authorities .................................................................................................. Introduction ............................................................................................................... i iv 1 Statement of Jurisdiction ........................................................................................... 2 Standard of Review ................................................................................................... 3 Statement of the Issues .............................................................................................. 4 Statement of the Case ................................................................................................ 5 Statement of Facts ..................................................................................................... 8 Summary of Argument ............................................................................................ 15 Argument ................................................................................................................. 18 I. The School's Speech Policies are facially unconstitutional 18 A. Students enjoy considerable ................................ free speech rights on campus ..................... B. The School's Speech Policies are facially overbroad .............................. 1. The Speech Policies unconstitutionally target speech that is negative, derogatory, or offensive ................................................. 2. The Speech Policies unconstitutionally 19 23 25 target intimidating speech ............................................................................................ 30 3. The Speech Policies unconstitutionally ban speech based solely on listeners' reactions ......................................................................... 31 4. The Speech Policies unconstitutionally prohibit speech exalting one's own characteristics ............................................................... i 33 5. The Speech Policies unconstitutionally restrict off-campus speech ............................................................................................ 34 C. The Speech Policies are facially unconstitutional because they discriminate on the basis of content and viewpoint ................................. 36 1. The Speech Policies are facially unconstitutional under R.A.V. for imposing special prohibitions on disfavored topics ...................... 2. The Speech Policies unconstitutionally ban only "negative" viewpoints, not positive ones ........................................................ D. The Speech Policies are unconstitutionally 37 40 vague ................................... 42 E. The Speech Policies cannot be rendered constitutional by a reasonable limiting construction ................................................................................ 48 1. The Speech Policies cannot be limited to the categories of proscribable speech set forth in Tinker and its progeny ................ 48 2. The Speech Policies fail to require a showing of severity or pervasiveness before speech can be censored as harassment ........ 50 II. The School's Speech Policies violate Education III. The individual defendants Code § 48950 ........................ 53 are not entitled to qualified immunity .................... 54 Conclusion ............................................................................................................... 58 Certificate of Compliance 59 with Rule 32(a) ............................................................. Statement of Related Cases ..................................................................................... 60 Certificate of Service ............................................................................................... 61 AddendaA-D ii TABLE OF AUTHORITIES Cases Anderson v. Creighton, 483 U.S. 635 (1987) ...................................................................................... 54 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ........................................................................................ 18 Armstrong v. Ellington, 312F. Supp. 1119 (W.D. Tenn. 31 1970) .......................................................... Asheroft v. Free Speech Coal., 535 U.S. 234 (2002) ...................................................................................... ASW v. Oregon, 424 F.3d 970 (9th Cir. 2005) ........................................................................... 33 4 Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003) ............................................... 30, 39, 56 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) .......................................................................... 18, 38, 57 Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007) ....................................................................... 3, 4 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...................................................................................... 23 Cal. Teachers Ass 'n v. State Bd. of Educ., 271 F.3d 1141 (9th Cir. 2001) ....................................................................... 42 Castorina v. Madison County Seh. Bd., 246 F.3d 536 (6th Cir. 2001) ......................................................................... 39 Chambers v. Babbitt, 145 F. Supp. 2d 1068 (D. Minn. 2001) ......................................................... 34 o** 111 Chandler Church v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992) ......................................................................... 55 of the American Knights of the Ku Klux Klan v. City of Erie, 99 F. Supp. 2d 583 (W.D. Pa. 2000) ............................................................. 31 Cohen v. California, 403 U.S. 15 (1971) ........................................................................................ College Republicans at San Francisco State Univ. v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) ........................................................ Dambrot v. Central Mich. 29, 38, 40, 45, 46, 56 v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) ................................................................................ Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) ..................................... Forsyth 51, 52 30, 33, 46, 47, 56 Elder v. Holloway, 510 U.S. 510 (1994) .................................................................................. Flores 47 Univ., 55 F.3d 1177 (6th Cir. 1995) ........................................... Davis 45 4, 55 v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) ....................................................................... 55 County v. Nationalist Movement, 505 U.S. 123 (1994) ...................................................................................... 33 Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) ......................................................................... 43 Garnett v. Renton Sch. Dist. No. 403, 987 F.2d 641 (9th Cir. 1993) ......................................................................... 35 Gatto v. County of Sonoma, 98 Cal. App. 4th 744 (Cal. Ct. App. 2002) ................................................... iv 31 Grayned v. City of Rockford, 408 U.S. 104 (1972) ................................................................................ Hansen v. Ann Arbor Public Sehs., 293 F. Supp. 2d 780 (E.D. Mich. Harper Harper 16, 43 2003) ........................................................ v. Poway Unified Seh. Dist., 445 F.3d 1166 (9th Cir. 2006) ............................... 40 6, 27, 29, 34, 47, 49, 50, 53 v. Poway Unified Seh. Dist., 127 S.Ct. 1484 (2007) ..................................................................................... 6 Hazelwood Seh. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) .............................................................................. Holloman 1, 2, 21 v. Harland, 370 F.3d 1252 (1 lth Cir. 2004) ..................................................................... Killion LaVine v. Franklin Reg'l Seh. Dist., 136 F. Supp. 2d 446 (W.D. Pa. 2001) ......................................... v. Poway Unified Seh. Dist., 90 F.3d 367 (9th Cir. 1996) ............................................................... v. Frederick, 127 S.Ct. 2618 (2007) ................................................................... 54 17, 54, 57 1, 18, 50, 51, 57, 58 7, 21, 22, 27 Newsom v. Albemarle County Seh. Bd., 354 F.3d 249 (4th Cir. 2003) ......................................................................... V 2 .................................................. Monteiro v. Tempe Union High Seh. Dist., 158 F.3d 1022 (9th Cir. 1998) ........................................... Morse 29, 34, 46, 56 v. Blaine Seh. Dist., 257 F.3d 981 (9th Cir. 2001) ........................................................................... Lopez v. Tulare Joint Union High Seh. Dist., 34 Cal. App. 4th 1302 (Cal. Ct. App.1995) Lovell 38 39 Nixon Parker v. Northern Local Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965 (S.D. Ohio 2005) ......................................................... 27 v. Levy, 417 U.S. 733 (1974) ...................................................................................... Planned Parenthood v. Clark County Sch. Dist., 941 F.2d 817 (9th Cir. 1991) ......................................................................... 43 Pyle v. South Hadley 21 Sch. Comm., 861 F. Supp. 157 (D. Mass. 1994) .................................................... 37, 41, 56 R.A. V. v. City of St. Paul, 505 U.S. 377 (1992) .......................................................................... 16, 37, 39 Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000) ................................................................... Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ...................................................................................... Saucier v. Katz, 533 U.S. 194 (2001) ...................................................................................... Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) ................................................................... Smith v. Mount Pleasant Public Sehs., 285 F. Supp. 2d 987 (E.D. Mich. 2003) ........................................................ Sypniewski v. Warren Hills Reg "l Bd. of Edue., 307 F.3d 243 (3d Cir. 2002) ............................................ v. Des Moines Indep. Cmty. Seh. Dist., 393 U.S. 503 (1969) ............................................................................... vi 48 55 passim 46 29, 32, 38, 39, 52, 56 Terminiello v. Chicago, 337 U.S. 1 (1949) .......................................................................................... Tinker 50, 51 26 passim United States v. Williams, 435 F.3d 1148 (9th Cir. 2006) ....................................................................... UWM Post, Inc. v. Bd. of Regents of the Univ. of Wis. System, 774 F. Supp. 1163 (E.D. Wis. 1991) ................................................. 22 29, 30, 31 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ...................................................................................... 43 Virginia v. American Booksellers Ass "n, Inc., 484 U.S. 383 (1988) ...................................................................................... 48 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ...................................................................................... 25 Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995) ........................................................................... 18 Statutes 28 U.S.C. § 1291 ....................................................................................................... 3 28 U.S.C. § 1331 ....................................................................................................... 2 28 U.S.C. § 1343 ....................................................................................................... 2 28 U.S.C. § 1367 ....................................................................................................... 3 42 U.S.C. § 1983 ....................................................................................................... 2 42 U.S.C. § 1988 ....................................................................................................... 2 Cal. Cir. Code § 52.1 ............................................................................................ 2, 5 Cal. Educ. Code § 201 ....................................................................................... 51, 56 Cal. Educ. Code § 44807 ................................................................................... 35, 36 Cal. Educ. Code § 48900.2 .......................................................................... vii 51, 56, 57 Cal. Educ. Code § 48907 ........................................................................................... Cal. Educ. Code § 48950 ................................................................... 3 3, 36, 53, 54, 57 Cal. Code Regs. tit. 5, § 4910 ............................................................................ 51, 56 Other Authorities Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance, 59 Fed. Reg. 11449 (March 10, 1994) ............................. ooo Vlll 50 INTRODUCTION Tyler Chase Harper was punished by his school for passively expressing his political and religious viewpoint of homosexual punishment was based on the school's sweeping policies regulating student expression. The policies ban "hate behavior," which includes any speech that may be viewed as negative, offensive, or derogatory ethnicity, religion, sexual orientation, "harassment," individual's significant behavior on a t-shirt. Chase's by others of a specific gender, race, or physical disability. They also ban which includes any unwelcome speech that interferes with another life. The breadth and lack of clarity of these policies have had a chilling effect on both Chase and his sister, Kelsie. If allowed to remain in effect, they will continue to chill the constitutionally protected speech of many other students as well. "It cannot be disputed that a necessary component of any education is learning to think critically about offensive ideas - without that ability one can do little to respond to them." Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1031 (9th Cir. 1998). Thus, schools cannot, and should not, try to sanitize their campuses from every idea that students may find disagreeable Yet that is precisely what the Defendants or offensive. have written their policies to do, essentially assuming "an Orwellian guardianship of the public mind." Hazelwood Seh. Dist. v. Kuhlmeier, (quotation marks Of course, students 484 U.S. 260, 286 (1988) and citation "a balance and preservation omitted) must be met between of the educational (9th Cir. 2001) (citation struck this balance by identifying omitted). several distinct regulate to maintain The challenged policies do not reference California Nor do they respect law. Rather, or discriminatory and violate the broader expression enforcement. Amendments pp. 165-69.) categories of student learning these categories rights of Seh. Dist., Court has speech that environment. or fit within their rights students enjoy under subjective standards that sweep in a adequate standards to prevent As such, the policies are facially arbitrary unconstitutional state law. The Harpers Policies"), And the Supreme free speech without STATEMENT Defendants' La Vine v. Blaine an effective they utilize broadly broad array of protected the First Amendment process." may properly boundaries. J., dissenting) ("Hazelwood"). 257 F.3d 981,988 schools (Brennan, policies OF JURISDICTION sued under 42 U.S.C. regulating both facially and as applied, to the United The district student §§ 1983 and 1988 challenging speech States Constitution. also raised the "School's Speech under the First and Fourteenth court had federal 1331 and 1343. The Harpers (collectively, the (Excerpts question of Record jurisdiction claims under California 2 ("ER") Tab 7, under 28 U.S.C. §§ Civil Code § 52.1 and California Education Code §§ 48907 and 48950. (ER 7, pp. 169-71.) The district court had supplemental jurisdiction of these claims under 28 U.S.C. § 1367. On November 4, 2004, the district court granted a Fed.R.Civ.P. motion to dismiss the Fourteenth Amendment 12(b)(6) due process cause of action with prejudice, and held that the individual defendants are entitled to qualified immunity for each cause of action. (ER 2.) On January 24, 2007, following crossmotions for summary judgment, the district court (1) reaffirmed its prior decision dismissing the due process cause of action and granting qualified immunity to the individual defendants; (2) dismissed Chase as a plaintiff; and (3) granted summary judgment in the School's favor on all of the remaining claims. (ER 1.) The Harpers timely filed a Notice of Appeal on February 7, 2007. They are appealing the denial of their facial challenges to the School's Speech Policies under the First and Fourteenth Amendments, and Kelsie's challenge to the Speech Policies under Education Code § 48950. This Court has jurisdiction of this appeal under 28 U.S.C. § 1291. STANDARD OF REVIEW Each of the issues presented in this appeal are reviewed de novo. First, a district court's grant of summary judgment City of Orange, 485 F.3d 463,470 is reviewed de novo. Blankenhorn (9th Cir. 2007) (citation omitted). the evidence, all facts and reasonable v. In evaluating inferences should be construed in favor of 3 the non-moving party. Id. (citation omitted). The district court's ruling must be overturned if there are any genuine issues of material fact or if the lower court incorrectly applied substantive law. Id. (citation omitted). Similarly, a district court's decision granting a Fed.R.Civ.P. to dismiss is reviewed de novo. ASWv. (citation omitted). All well-pleaded Oregon, 424 F.3d 970, 974 (9th Cir. 2005) facts should be accepted as true and construed in the light most favorable to the nonmoving Finally, a defendant's 12(b)(6) motion party. Id. (citation omitted). claim of qualified immunity presents a legal question, and is therefore also reviewed de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994) (citations omitted). STATEMENT 1. OF THE ISSUES Whether the School's Speech Policies are facially overbroad for censoring a substantial amount of constitutionally-protected 2. speech. Whether the School's Speech Policies unconstitutionally discriminate based on viewpoint. 3. Whether the School's Speech Policies are void-for-vagueness on their face because they fail to provide students with adequate notice of what speech is prohibited and invite arbitrary and discriminatory 4 enforcement. 4. Whether the School's Speech Policies violate California Education Code § 48950 by subjecting students to disciplinary sanctions for speech that is constitutionally protected when engaged in outside of the campus. 5. Whether the individual defendants are entitled to qualified immunity from the Harpers' claim for nominal damages. STATEMENT Chase filed a Verified Complaint OF TIlE CASE on June 2, 2004, alleging six causes of action. The first five arose under the U.S. Constitution: equal protection, due process, and the Establishment free speech, free exercise, Clause. The sixth cause of action arose under California Civil Code § 52.1. The Complaint sought preliminary and permanent injunctions prohibiting students' constitutional policies unconstitutional the Defendants rights, and a declaratory judgment motion for preliminary Honorable declaring various school both on their face and as applied. Chase also sought damages, including nominal damages, and attorneys' Soon thereafter, from further violating the Defendants fees. filed a motion to dismiss and Chase filed a injunction. Both motions were heard together before the John A. Houston of the Southern District of California. In a November 4, 2004 Order, Judge Houston denied the motion for preliminary that the individual defendants injunction, found were entitled to qualified immunity, and denied the motion to dismiss as to the freedom of speech, free exercise, and Establishment 5 Clause causes of action. (ER 2.) He also granted the motion to dismiss without prejudice as to the equal protection cause of action, and with prejudice as to the Fourteenth Amendment due process cause of action. Id Chase timely filed a Notice of Appeal from the denial of a preliminary injunction. On appeal, Judge Reinhardt authored a split opinion of this Court affirming the denial of a preliminary injunction on April 20, 2006 (amended on May 31, 2007). Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006). NowChief Judge Kozinski dissented. Chase then filed a petition for rehearing en banc and a request for vacatur due to graduation-induced mootness. Both were denied on July 31, 2006. The appeal then proceeded to the U.S. Supreme Court. Chase filed a petition for writ of certiorari, and Kelsie moved to intervene or, in the alternative, for vacatur. On March 5, 2007, the Court granted Chase's petition, vacated this Court's opinion, and remanded the case to this Court with instructions to dismiss the appeal as moot. Harper v. Poway UnifiedSch. While the preliminary Dist., 127 S.Ct. 1484 (2007). injunction appeal was ongoing, the case also moved forward at the District Court. On November 17, 2004, Chase filed a First Amended Verified Complaint attempting to add Kelsie as a plaintiff. It re-alleged each cause of action in total, out of an abundance of caution so as not to waive any issues on appeal. It also amended the equal protection cause of action. The Defendants filed a motion to dismiss the First Amended Verified Complaint. On February 22, 2005, the district court granted the motion as to all of Kelsie's claims, as well as Chase's due process and damages claims. All other claims, including Chase's equal protection claim, were permitted to proceed. Chase then moved the district court for permission to file a Second Amended Verified Complaint alleging all previous claims, adding Kelsie as a plaintiff, and adding two state law claims. (ER 7.) The district court granted the motion on November 4, 2005. The parties then filed cross-motions for summary judgment. On January 24, 2007, while Chase's petition for writ of certiorari was still pending before the Supreme Court, the District Court dismissed Chase as a plaintiff and granted summary judgment in the Defendants' favor on all of Kelsie's claims. (ER 1.) Final judgment was entered on February 6, 2007, and the Harpers filed a timely notice of appeal the following day. (ER 3.) Prior to the opening brief filing deadline, the Supreme Court vacated this Court's previous opinion in this case. The Harpers moved this Court for a limited remand to allow the District Court to reconsider its summary judgment order in light of the Supreme Court's actions, which was granted on May 29, 2007. While on remand, the Supreme Court issued its opinion in another student speech case, Morse v. Frederick, 127 S.Ct. 2618 (2007). The parties filed supplemental briefing with the district court on the impact of Morse. On February 12, 2008, the district 7 court denied the Harpers' motion for reconsideration, lifting the remand and returning jurisdiction of the case to this Court. The Harpers now appeal the denial of their facial constitutional challenges and Kelsie's Education Code § 48950 challenge to the School's Speech Policies. B.M., who is currently a freshman at Poway High School, is filing a motion to intervene as an appellant in this appeal. Like the Harpers, B.M. desires to share his religious and moral beliefs on campus, but is chilled from doing so as a result of the School's Speech Policies. STATEMENT OF FACTS The School's Speech Policies The School's Speech Policies are contained in several documents] Board Policy 5.28, entitled "Hate Behavior," promoting an environment makes each school "responsible for that fosters positive attitudes and practices among students, staff, and administration." "foster[] an environment District (ER 7, p. 183.) This Policy requires schools to that mitigates against anxiety-producing or demeaning incidents against any child within the confines of the school." Id. The Superintendent is charged with developing Administrative that dictate methods and procedures Procedures for carrying out Board Policies. The 1Each document comprising the School's Speech Policies are reproduced in their entirety in an addendum at the end of this brief, as required by Circuit Rule 28-2.7. Superintendent issued Administrative Procedure 5.28.1 to direct schools how to carry out Board Policy 5.28. Administrative Procedure 5.28.1 provides the following operational definition for "hate behavior": A hate behavior is any act or attempted act to cause physical injury, emotional suffering, or property damage through intimidation, harassment, racial/ethnic slurs and bigoted epithets, vandalism, force or the threat of force, motivated all or in part by hostility to the victim's real or perceived gender, race, ethnicity, religion, sexual orientation, or mental or physical challenges. (ER 13, p. 210.) The same document also contains a "list provid[ing] examples of hate behavior to assist identifying where and when it may exist." Among the examples of hate behavior are the following: . Name calling, racial slurs, or bigoted epithets. 2. The presence of symbols or words considered offensive to persons of a specific gender, race, ethnicity, religion, sexual orientation, or the mentally or physically challenged, such as graffiti, slurs, or painted swastikas. . Activities historically associated with threats to persons of a specific gender, race, ethnicity, religion, sexual orientation, or the mentally or physically challenged (e.g. burning crosses, wearing swastikas or white sheets, flying confederate effigies, defacing pink triangles). . The posting or circulating of demeaning jokes or caricatures based on negative stereotypes of a specific gender, race, ethnicity, religion, sexual orientation, So flags, hanging or mentally or physically challenges. °.° 9 . Victim belief that the incident was motivated by bias against him/her as a member of specific gender, race, ethnicity, religion, sexual orientation, , or mentally or physically challenged group. Perpetrator explanation/defense of incident involves exalting own gender, race, ethnicity, religion, sexual orientation, or mental or physical status and/or includes statements demeaning victim group. (ER 13, p. 211.) The School also publishes a document entitled "Policies & Procedures for Parents Concerning Harassment of Students." This pamphlet is written for parents, and is designed to establish "a common core of understanding constitutes harassment and about the attitudes, behaviors, about what and responsibilities that must be established to ensure that all students thrive and succeed." (ER 6, p. 150.) It provides a list of "specific harassment behaviors that are not tolerated in the Poway Unified School District," including "[n]egative behaviors based on race, ethnicity, sexual orientation, comments, slurs, or religion, or gender," and "vulgar letters, notes, posters,, or other writings offensive to a specific race, ethnicity, sexual orientation, religion, or gender." (ER 6, p. 151.) Finally, the Poway High School Student Handbook provides multiple restrictions Handbook on speech. Under the heading "Socially Responsible provides the following: 10 Behavior," the Language: Appropriate language the level of comfort necessary best. The following misuse communication enhances for students of written, in any language mutual respect and raises and staff to perform spoken at their or gestured is unacceptable: 1. Obscene or profane 2. Derogatory or intended to be racial ethnic, religious, gender, or sexual slurs intended to be hurtful or harassing in nature. (ER 4, p. 124.) The Student Handbook Dress: School clothing school activities also provides the following dress code: should be neat, clean, and appropriate and should follow The dress code will be enforced Clothing that violates violation will be disciplined the standards of common at all school-sponsored this standard is unacceptable, decency. activities. and the student in appropriately. Examples of unacceptable backpacks) that promote or portray: derogatory connotations directed toward sexual identity." Id. dress include "[c]lothing ... [v]iolence and accessories or hate behavior Under the heading "Rules of Student Discipline," list of prohibited acts, including "Sexual harassment" behavior/violence." for (including including the Handbook provides a and "Hate The list is both preceded and followed with the following admonition: A student will be subject to disciplinary action for the designated acts that are related to school activity and attendance and which occur at any time, including but not limited to any of the following: • • The student is on school grounds The student is going to or coming from school 11 The student is on breaks or lunch periods whether on or off campus The student is going to, coming from or attending a schoolsponsored or District-sponsored activity. (ER 4, pp. 125-26.) The Handbook then provides definitions related to its prohibited acts, including: Discrimination: Discrimination is negative or unfair treatment toward an individual based on race, etlmicity, sexual orientation, religion or gender. It is against the rules for students to make nasty remarks that embarrass others or make them feel uncomfortable with actions or remarks that are sexual or racial in nature. (ER 4, p. 127.) Harassment: Harassment is unwanted and unwelcome behavior from other students or staff members that interferes with another individual's life. When it is sexual in nature, it is "sexual harassment." When it is racial in nature, it is a "hate-motivated behavior" or sometimes a "hate crime." (ER 4, p. 129.) Hate Behavior: Negative behaviors that target members of a particular gender, race, ethnicity, religion, sexual orientation, or the mentally or physically challenged will not be tolerated. Id. Included with the Handbook's definition of "Hate Behavior" examples of prohibited "hate behaviors" is the same list of provided in Administrative Procedure 5.28.1. Id. The School Enforces its Speech Policies Against Chase Harper The School authorizes students and staff at Poway High School to annually observe a "Day of Silence" to promote legal protection 12 and tolerance of homosexual behavior. (ER 7, p. 157; ER 8, pp. 188-89.) School-approved student speech observing the Day of Silence includes: displaying posters with the words "Stop the Hate," "fags," "queers," "that's so gay," and "loser," and wearing t-shirts with a purple square and yellow "equal" sign on them. (ER 8, p. 189.) The School also permitted a male student to wear t-shirts stating "I Kiss Boys." Id. The 2004 Day of Silence homemade expressive took place on April 21. That day, Chase t-shirt in response to the Day of Silence. (ER 7, p. 158.) The front of the shirt read "I will not accept what God has condemned." "Homosexuality is shameful. Romans day, he wore the same shirt, but altered school has embraced violated 1:27." (ER 7, pp. 157-58.) class period, The back read The following the front so that it read "Be ashamed. what God has condemned." During his second Chase's teacher the dress code and that he must either remove Antrim. Ms. Antrim it was "inflammatory." instead "could told him that his shirt it or report to the school he displayed told Chase that his shirt violated light onto this issue without the shirt and if he the condemnation on his shirt." (ER 11, p. 201.) After Chase respectfully remove the shirt, Ms. Antrim Fisher. (ER 7, p. 159.) instructed Principal the dress code because Id. She asked Chase if he would remove bring a positive that declined him to wait to meet with Principal 13 Our (ER 7, p. 158.) office. Id. Chase chose to go to the office, where he met with Assistant Lynell wore a to Scott Mr. Fisher told Chase that his shirt was too "aggressive" and would not be tolerated at Poway High School. Id. His view is that "any shirt which is worn on campus which individuals speaks in a derogatory is not healthy for young manner people 12, p. 205.) Mr. Fisher then informed mitigated required because he was courteous questioned in the office, his motives an armed and whether and respectful, deputy others, since Christianity Principal but Chase would sheriff photographed and opinions be still be Chase and to wear the shirt again in the to Chase that he not to be offensive to is based on love, not hate. Id. Chase was then questioned Ed Giles. Mr. Giles told Chase that he too was a Christian, but that he leaves his faith "in the car." Id. Mr. Giles explained also "leave would (ER of the school day. (ER 7, p. 159.) he intended (ER 7, p. 160.) He also suggested or group of of school policy." Chase that his punishment future. by Assistant an individual and in violation to stay in the office for the remainder While toward his faith in the car" if it is offensive, should be guarded p. 197.) He repeatedly advised and "how we express as not to cause an offense Chase to express that Chase to others." should our beliefs (Id.; ER 10, his beliefs in a more "positive way." (ER 10, p. 197.) Mr. Giles telephoned that "only positive had been suspended Ron Harper, community because messages Chase's father, were allowed" later that day to explain at school, and that Chase of his shirt. (ER 7, p. 161; ER 9 p. 192.) The school, 14 Mr. Giles said, "did not want messages that carried with them a negative tone." (ER 10, p. 196.) Mr. Harper was also told that other students wearing "straight pride" shirts had also been punished by the School. (ER 9, p. 192.) Chase graduated from Poway High School in 2006. His sister, Kelsie, is currently a senior and is scheduled to graduate in June 2008. Both believe the Bible is the inspired Word of God, and that homosexual behavior is contrary to the Bible's teachings. (ER 7, p. 157.) They also believe that they have a moral and religious obligation to share these beliefs with others. Id. The School's Speech Policies have had a chilling effect on the Harpers willingness to share their religious beliefs while at school. (ER 7, p. 164.) SUMMARY OF ARGUMENT The Supreme Court has carved out several narrow categories of speech that schools may properly regulate in order to preserve the educational environment. Rather than adhere to these categories, the School's Speech Policies utilize broadly subjective standards that directly contradict limits the Supreme Court has imposed on the ability of schools to restrict private student speech. The Speech Policies run afoul of the Constitution in three distinct ways. First, they are overbroad, reaching well beyond the established Supreme Court standards and prohibiting a substantial amount of constitutionally-protected speech. They prohibit speech solely because it is negative, offensive, derogatory, 15 or intimidating, regardless of whether it is disruptive or invades other students' rights. (ER 4, pp. 124-29; ER 6, p. 150; ER 13, pp. 210-11.) The Speech Policies also define prohibited "hate behavior" based on what the victim believes the speaker's motivation to be, regardless of the speaker's actual motivation or impact. (ER 4, p. 129.) The Policies also prohibit speech exalting one's own characteristics. (ER 4, p. 129; ER 13, p. 211.) And the overbreadth is compounded by the policies' reach: they not only apply on campus, but restrict speech while students are traveling to and from school and school-sponsored events, and while students are away from campus for lunch. (ER 4, pp. 125-26.) Second, the Speech Policies unconstitutionally discriminate based on viewpoint by targeting negative and offensive speech about certain enumerated characteristics. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Third, the Speech Policies are void-for-vagueness because they fail to provide students with adequate notice of what speech is prohibited and invite arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). As such, they have a significant chilling effect on students' protected speech. The Speech Policies also violate California Education Code § 48950, which extends students' free speech right while on campus to the same extent those rights 16 may be exercised outside of campus. Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 371 (9th Cir. 1996). The individual defendants are not entitled to qualified immunity claims because the Supreme Court has articulated well-established from these standards for when schools may properly restrict student speech, and the defendants made no attempt to replicate these standards into their policies. Instead, they created restrictions using criteria that the Supreme Court has explicitly stated are inappropriate, such as the ban on "words considered offensive to persons" certain characteristics. of (ER 4, p. 129; ER 13, p.211); Saxe v. State College Area Sch. Dist., 240 F.3d 200, 215 (3d Cir. 2001) ("The Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it") (listing cases). Accordingly, granted summary judgment the District Court erroneously in the School's favor, and its decision should be reversed. // // // // // 17 ARGUMENT I. The School's Speech Policies are facially unconstitutional. "The classroom is peculiarly the marketplace 2 of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection." Monteiro, 158 F.3d at 1027 n.5 (quotation marks and citations omitted). To this end, the Supreme Court has declared that students do not "shed their constitutional schoolhouse fights to freedom of speech or expression at the gate," Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969), and has vigorously protected the "undoubted unpopular and controversial freedom to advocate views in schools and classrooms." Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986). The School's Speech Policies run afoul of these basic principles. They ban "hate behavior," which includes any speech that may be viewed as negative or offensive by others of a specific gender, race, ethnicity, religion, sexual orientation, or physical disability. (ER 13, p. 211.) "Hate behavior" also includes 2Although Chase graduated, his facial challenges to the School's Speech Policies are still viable because he properly alleged, and is entitled to, nominal damages for those claims. An en bane panel of this Court has held that nominal damages are "singularly appropriate" for such challenges. Yniguez v. Arizonans for Official English, 69 F.3d 920, 949 n. 34 (9th Cir. 1995) (en bane), vacated on other grounds sub nora. Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). 18 speech that constitutes "intimidation" or that exalts one's own gender, race, ethnicity, religion, sexual orientation, or mental or physical status. (ER i3, pp. 210-11.) The policies also ban "harassment," which includes any unwelcome speech that interferes with another individual's life. (ER 4, p. 129.) And these policies are not limited to school campuses, but can be enforced against students when they travel off campus during lunch and while they are traveling to and from school and school-related activities. (ER 4, pp. 125-26.) As discussed in more detail below, students enjoy broad First Amendment freedoms on campus, subject to a few narrow restrictions set forth by the Supreme Court. And the School's Speech Policies are facially unconstitutional intrusions on these freedoms for three separate reasons: (1) they are overbroad, censoring a substantial amount of constitutionally-protected speech; (2) they discriminate on the basis of viewpoint by targeting negative speech about certain enumerated characteristics; and (3) they are vague, failing to provide students with adequate notice of what speech is prohibited and inviting arbitrary and discriminatory enforcement. A. Students enjoy considerable free speech rights on campus. The Supreme Court first demarcated the scope of students' free speech rights on campus in Tinker, where a group of students were suspended for wearing black armbands in protest of the Vietnam War. 393 U.S. at 504. Starting from the 19 premise that "First Amendment of the school environment, Court held that a school materially rights, are available interfere with the rights of other students. political campaigns, manner approved," speech by the school's did not censor or collide ban on students the Court affirmed 478 U.S. at 677-78. elaborate, graphic, and explicit in punishing function Reminding the school that of those sentiments that targeting permissible. assembly. had wom buttons to the expression that are a particular viewpoint even without government sexual metaphor." school 20 who delivered candidate endorsed the student, categories the threat of substantial with a student The speech of public in this Id. at 511. Court has carved out three narrow on behalf of a student highly appropriate targeted those students. the Court was confronted school was justified of the school it would of Nazism. that a school may restrict explicit unless speech and some had even worn the Iron Cross, a symbol is not constitutionally First, in Fraser, student to national Since Tinker, the Supreme speech id. at 506, the relating "may not be confined officially and students," with the operation War. Other students Id. at 510. Yet the school students to teachers characteristics Id. at 513. The Tinker Court was troubled to the Vietnam in light of the special could not censor protected and substantially opposed applied disruption. a sexually at a school-wide the candidate in terms of"an Id. at 678. Holding the Court emphasized education of to prohibit that the that "it is a the use of vulgar and offensive terms in public discourse." Id. at 683. The Court distinguished the case from Tinker because the restriction resulted from the manner of speech, not the viewpoint of the speaker. Id. at 685. Second, in Hazelwood, the Court upheld a principal's school newspaper from publishing decision to stop the articles dealing with teen pregnancy. 484 U.S. at 276. The newspaper was not intended to be a forum for private student speech, the Court explained, but was part of the educational curriculum. Id. at 268. As such, it bore the imprimatur of the school, and the school was not required to give up its editorial control. Id. at 270-71. The Court held that restrictions bearing the school's imprimatur do not offend the First Amendment are "reasonably related to legitimate pedagogical viewpoint neutral. Planned Parenthood concerns," on speech as long as they id. at 273, and are v. Clark County Seh. Dist., 941 F.2d 817, 829 (9th Cir. 1991). Finally, in Morse, a principal confiscated a large banner bearing the phrase "BONG HiTS 4 JESUS" that a student unfurled at a school event. 127 S.Ct. at 2622. Recognizing schoolchildren, that schools have a compelling interest in deterring drug use by the Court upheld the decision. Id. To carefully balance the school's interest with students' First Amendment rights, the Court limited its holding to speech that (1) is reasonably as advocating illegal drug use, and (2) interpreted 21 cannot plausibly be interpreted as commenting on any social or political issue. Id. at 2636 (Alito, J., concurring). 3 In sum, Hazelwood gives schools significant deference in regulating speech that is school-sponsored--that is, speech that would reasonably student be viewed as bearing the school's imprimatur. Any such regulation need only be viewpoint neutral and have a legitimate pedagogical school-sponsored, concern. Even if the speech is not Fraser allows schools to restrict the speech if it is expressed in a manner that is lewd, vulgar, or plainly offensive. And Morse allows schools to restrict non-political speech that is reasonably viewed as promoting drug use. If the student speech does not fall into any of these categories, it is governed by Tinker, and must be permitted unless the school can demonstrate and substantially that it would materially interfere with the operation of the school or infringe on the rights of other students. 3Justice Kennedy joined with Justice Alito's concurrence. Because their opinion was the most narrow and their votes were necessary to form the five-justice majority, their understanding of Morse is controlling. See United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006) (to determine the precedential holding of a case, courts should identify "a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree") (quotation marks and citation omitted). 22 B. The School's Speech Policies are facially overbroad. "It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadriek v. Oklahoma, 413 U.S. 601, 611-12 (1973) (citations omitted). To protect these vital freedoms, litigants may challenge an overly broad statute on its face because "the statute's very existence may cause others not before the court to refrain from constitutionally regulating protected speech .... "Id. at 612. A law speech is overbroad on its face if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate. Id. at 615. In its Order rejecting the Harpers' overbreadth challenge, the District Court's entire analysis consisted of comparing the Speech Policies to a very similar policy that the Third Circuit struck down in Saxe. (ER I, pp. 12-14.) The policy in Saxe banned negative speech "based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, characteristics," disability, or other personal including values, and which has "the purpose or effect of substantially interfering with a student's educational performance intimidating, hostile, or offensive environment." 23 or creating an 240 F.3d at 202. The policy said harassment "can include offends, denigrates remarks, jokes, or belittles Saxe." (ER 1, p. 13) (quoting proscribe negative therefore presenting compelling with the handbooks overbroad about another portions on 'values' about 'values.'")). Speech and other informational derogatory Policies burden the District on summary published the at issue in is "attempting the Board Policy, material are "not solely because as did the policy The Harpers, to demonstrate which at 202-03. Saxe, 240 F.3d at 210 (the policy evidence the Saxe policy was overbroad person's "values," "religious or "derogatory" tradition," Court never addressed analyze in part because the Third Circuit policy that are identical on "negative" independently Policies "unsolicited struck down in Saxe" did not meet their "initial of the speech prohibition District "Id. conduct to Court judgment of read together by the District, is on its face." (ER 1, p. 13-14.) Although customs," discourse comments continued, .... that the School's than, the policy they do not "seek to proscribe or physical including comments Court concluded to, nor broader verbal, written an individual," [and] demeaning The District analogous unwelcome and "sexual these identical the constitutionality 24 here, such as its about such issues as "racial orientation." provisions of any aspects apart from Saxe. speech also struck down significant to the policy speech it targeted 240 F.3d at 217. The in the policies. of the School's Nor did it Speech Specifically, five separate aspects oft.he School's them unconstitutionally negative, derogatory, intimidating; Speech Policies render overbroad: (1) they censor speech merely because it is or offensive; (2) they censor speech merely because it is (3) they defme unprotected speech based on what the hearer believes the speaker's motivation is; (4) they prohibit speech exalting one's own characteristics; and (5) they regulate students' off-campus 1. The Speech Policies unconstitutionally negative, derogatory, or offensive. No court has ever carved out from First Amendment expression. target speech that is protection speech that is negative or offends others. Avoiding such offence is not a cognizable right that could justify viewpoint discrimination. In West Virginia State Board of Education v. Barnette, the Supreme Court held that a student's right to refuse to salute the American flag and recite the Pledge of Allegiance is protected by the First Amendment: The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual .... IT]he refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. 319 U.S. 624, 630 (1943) (emphasis added). "Rights of others" refers to other students' First Amendment rights to salute the flag and recite the Pledge. It certainly does not refer to the rights of other students not to be offended--which 25 some undoubtedly were--by any perceived lack of the non-participating students' patriotism. Reading Tinker in light of Barnette can only lead to the conclusion "infringing on the rights of others" does not mean simply offending them with negative or derogatory by another's that speech. Otherwise, students feeling offended or demeaned speech can have it censored--the classic heckler's veto--regardless of how benign the speech is. Tinker expressly rejected this proposition: Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom--this kind of openness--that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, disputatious, society. often Tinker, 393 U.S. at 508-09. No doubt many students with relatives fighting in Vietnam felt offended or denigrated by Mary Beth Tinker's speech condemning the war. But this is exactly the type of speech that needs protecting---especially in the high school context. The Third Circuit used this reasoning to strike down the policy at issue in Saxe. Judge (now Justice) Alito, writing for the court, found the policy to be facially overbroad because it targeted unwelcome or offensive speech, not just that which caused a disruption or invades other students' 26 rights. Saxe, 240 F.3d at 215. "No one would suggest that a school could constitutionally ban 'any unwelcome verbal.., conduct which offends.., an individual because of' some enumerated personal characteristics." Id. (quoting policy). The court noted that the "Supreme Court has held time and time again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it."Id. (citations omitted). This Court affirmed Saxe's point in its earlier opinion in this case: "We agree.., with Saxe's conclusion that it is certainly not enough that the speech is merely offensive to some listener." Harper, 445 F.3d at 1179 n.21 (quotation marks and citation omitted). And the Supreme Court recently rejected a similar argument about the scope of Fraser: Petitioners urge us to adopt the broader rule that [the student's] speech is proscribable because it is plainly "offensive" as the term is used in Fraser. We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of "offensive." After all, much political and religious speech might be perceived as offensive to some. Morse, 127 S.Ct. at 2629 (citation omitted); aecord Nixon v. Northern Local Seh. Dist. Bd. of Educ., 383 F. Supp. 2d 965, 971(S.D. Ohio 2005) (student shirt bearing phrase "homosexuality is a sin, Islam is a lie, abortion is murder" could not be banned as "plainly offensive" under Fraser). 27 The School's Speech Policies run afoul of these clear precepts. They ban all negative, derogatory, or offensive speech addressing particular characteristics. (ER 4, pp. 124-129; ER 6, p. 150; ER 13, pp. 210-11.) The speech need not disrupt the educational environment or infringe on other students' rights. It does not even have to be directed at another individual. Any speech, in any context, that a school official believes could be negative or offensive can be banned. Students may, for example, discuss Osama bin Laden's religious beliefs, but must refrain from saying anything negative about them--even Americans. his religious advocacy of murdering Yet, there is no question that this speech--and speech--would not disrupt the educational environment a broad range of similar or infringe on other students' rights. School officials have repeatedly affirmed the breadth of these restrictions. Assistant Principal Giles told Ron Harper, the Plaintiffs' father, that "the school did not want messages that carried with them a negative tone," and he told Chase "how we express our beliefs and opinions should be guarded as not to cause an offense to others." (ER 10, pp. 196-97.) Principal Fisher concurred: "It is my stance that any shirt which is worn on campus which speaks in a derogatory manner toward an individual or group of individuals is not healthy for young people and in violation of school policy." (ER 12, p. 205.) "If, by this, the principal 28 meant that all such shirts may be banned under Tinker, [this Court] do[es] not agree." Harper, 445 F.3d at 1182. Neither does any other court. The District has never cited a single case where a similar speech code has been upheld. Nor did the District Court identify one in its Order. By contrast, numerous being unconstitutionally ofEduc., courts have struck down similar policies as overbroad. See, e.g., Sypniewski v. Warren Hills Reg'l Bd. 307 F.3d 243,262 (3d Cir. 2002) (striking down policy prohibiting speech that creates "ill will" because it was likely that there will be a "good deal of speech" falling within this category that "does not substantially interfere with the rights of other students or with the operation of the school"); Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1183-84 (6th Cir. 1995) (striking down policy prohibiting "demeaning" speech or "negative connotations" about a person's racial or ethnic affiliation); Killion v. Franklin Reg'l Sch. Dist., 136 F. Supp. 2d 446, 459 (W.D. Pa. 2001) (striking down policy that prohibits "verbally or otherwise abus[ing] a staff member" because "it is not limited to speech that causes substantial disruption or interference Tinker"); UWMPost, with the work of the school, as required by Inc. v. Bd. of Regents of the Univ. of Wis. System, 774 F. Supp. 1163, 1178 (E.D. Wis. 1991) (striking down as overbroad a policy prohibiting person's discriminatory speech, directed at an individual, which demeans that race, sex, religion, color, creed, disability, sexual orientation, 29 national origin, ancestry, or age, and creates an intimidating, hostile, or demeaning educational environment); Doe v. Univ. of Mich., 721 F. Supp. 852, 866 (E.D. Mich. 1989) (striking down as overbroad a policy prohibiting "any behavior, verbal or physical, that stigmatizes or victimizes an individual" on the basis of specified characteristics). 2. The Speech Policies unconstitutionally speech. target intimidating The School's Speech Policies are also overbroad because they prohibit speech constituting "intimidation" without ever defining the term. (ER 6, p. 151; ER 13, p. 210.) In Bait v. Shippensburg students to communicate University, the school's policy directed in a manner that "does not.., intimidate, or harm another." 280 F. Supp. 2d 357, 369 (M.D. Pa. 2003). The court held that "intimidate" focuses upon listeners' reactions to speech and that government may not prohibit speech based on listeners' reactions. Id. at 371. The court found the policy overbroad and enjoined its enforcement. Significantly, the court found that this speech code would be unlawful under Tinker if enacted at a high school. Id. at 369. Many other courts have ruled similarly. In UWMPost, prohibited environment comments that "create an intimidating, for education." the university hostile or demeaning 774 F. Supp. at 1172. The court found the policy 30 overbroad because "intimidate" was not a fighting word and encompassed protected speech.Id. at 1172-73. Similarly, in Armstrong 1119, 1125 (W.D. Tenn. 1970), a Tennessee of intimidating.., v. Ellington, 312 F. Supp. law prohibiting travel "for the purpose any citizen" was overbroad because "intimidating" was not clearly defined in the statute and when left alone punished otherwise protected speech. In Church of the American Knights of the Ku Klux Klan v. City of Erie, 99 F. Supp. 2d 583, 586 (W.D. Pa. 2000), a city ordinance prohibited the wearing of a mask in public with the "intent to intimidate, threaten, abuse or harass any other person." Because the ordinance did not define "intimidate," the court concluded that its inclusion in the law rendered it overbroad because it reached constitutionally protected speech. Id. at 591-92; see also Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 776 (Cal. Ct. App. 2002) (finding dress code that prohibited "intimidating" clothing to be overbroad). For the same reasons, the Speech Policies here are overbroad. 3. The Speech on listeners' Policies unconstitutionally reactions. The Speech Policies are also unconstitutionally no objective standards for determining behavior." ban speech based solely overbroad because they have what constitutes punishable "hate They focus entirely on what the victim believes the speaker's motivation to be. "When policies focus broadly on listeners' reactions, without 31 providing a basis for limiting application to disruptive expression, they are likely to cover a substantial amount of protected speech." Sypniewski, Significantly, the District Court acknowledged agree" with this interpretation 307 F.3d at 268-69. that the School "appear[s] to of the policies. (ER 1, p. 13.) But it concluded that both parties were reading them incorrectly, relying solely on an irrelevant portion of the Administrative Procedure: Section 5.28.1 defines hate behavior as acts that are "motivated all or in part by hostility to the victim's real or perceived.., sexual orientation..." This provision does not, in this Court [sic] view, require a determination of what the victim beliefs was the actor's motivation but, instead, requires a determination of what the actor believes (or perceives) about the sexual orientation of the victim. Id. But the District Court ignored the most relevant aspect of Section 5.28.1, which provides a "list provid[ing] examples of hate behavior" that includes: "Victim belief that the incident was motivated by bias against him/her as a member of specific gender, race, ethnicity, religion, sexual orientation, or mentally or physically challenged group." (ER 13, p. 211.) Read in conjunction with the provision cited by the District Court, the Speech Policies say that if the victim believes that the actor commits a "hate behavior" against him because of the victim's sexual orientation, orientation, or the actor's perception of the victim's sexual then the actor can be punished regardless of actual intent or impact. 32 Nothing in the Speech Policies require school officials to consider the actor's real motivation or if the speech was objectively disruptive or harassing. The government may not prohibit speech based solely on the emotive impact it may have on a listener. Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1994); Doe v. Univ. of Mich., 721 F. Supp. at 863 (striking down university speech code because it proscribed offensive speech based on listeners' reactions). Further, any school official has the power to define such prohibitions on a case by case basis, causing a significant chilling effect from the prospect of multiple interpretations Government and unequal enforcement. from banning unprotected "The overbreadth doctrine prohibits the speech if a substantial amount of protected speech is prohibited or chilled in the process." Ashcrofl v. Free Speech Coal., 535 U.S. 234, 255 (2002). As such, the Speech Policies are unconstitutional. 4. The Speech Policies unconstitutionally one's own characteristics. prohibit speech exalting The Speech Policies also prohibit speech "exalting own gender, race, ethnicity, religion, sexual orientation, or mental or physical status." (ER 4, p. 129; ER 13, p. 211.) Although raised below, the District Court did not address this aspect of the policies in its Order. But, as Chief Judge Kozinski noted, this is "particularly chilling to free expression" that censors a wide array of protected speech: 33 All manner of other speech, from the innocuous to the laudable, could also be banned or punished under the school's hate speech policy. May a student wear a Black Pride t-shirt, or does this denigrate white and Asian students? May a student wear a t-shirt saying "I love Jesus," or will this make Jews, Muslims and Druids feel it's an attack on their religions? May a student wear a t-shirt saying "Proud to be a Turk," or will this cause bad vibrations for the Greeks and Armenians in the school? Harper, 445 F.3d at 1206-07 (Kozinski, J., dissenting). hypothetical These are not merely concerns; the School has enforced the Speech Policies in exactly this manner. For example, one school administrator admits to requiring multiple students to remove t-shirts bearing the phrase "Straight Pride." (ER 8, p. 188; ER 9, p. 192.) This is precisely the type of passive, non-disruptive Amendment protects, but is impermissibly speech that the First prohibited by the Speech Policies. See, e.g., Chambers v. Babbitt, 145 F. Supp. 2d 1068 (D. Minn. 2001) (granting preliminary injunction against school that prohibited student from wearing a "Straight Pride" sweatshirt). 5. The Speech Policies unconstitutionally speech. School officials' authority over off-campus restrict off-campus expression is much more limited than it is over expression on school grounds. See, e.g., Killion, 136 F. Supp. 2d at 458-59 (striking down school speech code as facially overbroad because it was not limited to "school grounds and school-related 34 activities"). But the Speech Policies reach well beyond school grounds. They apply while students are going to or coming from school, while students are going to or coming from a schoolsponsored event, and while students are offcampus for lunch. (ER 4, pp. 125-26.) The District Court agreed that the Speech Policies reach off-campus speech, but concluded that this "is not impermissibly overbroad because California's statutes require such regulation, the validity of which are not challenged in this case." (ER 1, p. 13.) Education Code § 44807, which the District Court relied on, mandates that "[e]very teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playground, or during recess." The District Court is wrong for two reasons. First, it runs afoul of the Supremacy Clause. The School is bound first and foremost by the U.S. Constitution. It must interpret state statutes to be in accordance with the U.S. Constitution, not the other way around. "[I]f federal law conflicts with state law, federal law prevails .... " Garnett v. Renton Sch. Dist. No. 403, 987 F.2d 641,644 (9th Cir. 1993). As such, a state statute is never a legitimate basis for intruding on constitutional rights. Second, § 44807 merely requires that schools hold pupils to a strict account for their conduct. It does not say that students' free speech rights are diminished merely because they are traveling to or leaving from school. Indeed, when read in 35 conjunction with Education Code § 48950, it appears that the Legislature did not intend § 44807 to regulate student speech at all. Section 48950 prohibits schools from making or enforcing any rule that punishes a student "solely on the basis of conduct that is speech or other communication campus, is protected from governmental that, when engaged in outside of the restriction by the First Amendment .... " The Legislature has given students the same free speech rights on campus as they enjoy away from campus. Those rights do not change or diminish when a student is under a school's supervision. students' Thus, while schools might be able to regulate conduct while coming to or leaving from school, the Education does not allow them to impose any additional restrictions Accordingly, on students' Code speech. the District Court erred as a matter of law in holding that the Speech Policies are not unconstitutionally overbroad merely because they purportedly comply with a state statute. C. The Speech Policies are facially unconstitutional because they discriminate on the basis of content and viewpoint. The Speech Policies also run afoul of the First Amendment discriminating speakers' based on content and between viewpoints. by The School only censors views on disfavored topics: race, ettmicity, sexual orientation, or gender. Moreover, the Speech Policies allow viewpoints "negative" views are prohibited. 36 religion, deemed "positive," but 1. The Speech Policies are facially unconstitutional under R.A.V. for imposing special prohibitions on disfavored topics. In R.A.V., the Supreme Court struck down--without dissent--a hate-speech ordinance prohibiting fighting words that arouse "anger, alarm, or resentment on the basis of race, color, creed, religion, or gender." 505 U.S. at 380. Although fighting words are less protected by the First Amendment, the Court still found the ordinance facially unconstitutional: "The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects." Id. at 391. The School's Speech Policies impose the same special prohibitions. They prohibit speakers from expressing negative or offensive views on disfavored subjects: race, ethnicity, sexual orientation, religion or gender. (ER 6, p. 151; ER 13, p. 21 i.) But they do not prohibit negative views on countless other subjects, such as political affiliation, socio-economic impermissible viewpoint discrimination status, appearance, etc. This is under R.A.V. Other federal courts have relied on R.A.V. to strike down public school speech regulations. For example, in Pyle v. South Hadley School Committee, the court followed R.A.V. to strike down a school policy prohibiting clothing that "harasses, intimidates, or demeans an individual or group of individuals sex, color, race, religion, handicap, national or sexual orientation." because of 861 F. Supp. 157, 171-172 (D. Mass. 1994). By targeting only that speech addressing certain 37 characteristics, potential the dress code "is aimed directly for disruption or vulgarity." in Holloman v. Harland, was not justified in punishing a student the Eleventh for silently raising his fist during the of Allegiance. relying on R.A.V., that even if the student's speech Tinker, the school could still not selectively target the speech (discussing Dambrot, or negative of its viewpoint. R.A.V. 1252, 1276 (1 lth Cir. 2004). The court explained, Id. at 1280-81; at length in evaluating 55 F.3d at 1184-85 not at its Circuit held that a school Pledge disapproved of speech, Id. at 171. Similarly, 370 F.3d at the content university R.A.V. under because the school see also Saxe, 240 F.3d at 206-10 constitutionality (declaring speech unconstitutional could be proscribed because of school policy speech prohibiting it only targeted code); demeaning speech dealing with race). Of course, students' free speech extensive with their rights off campus. therefore be viewed through arise when such targeted the Third Circuit harassment racially-provocative unconstitutional Fraser, the lens of Tinker bans are appropriate, considered policy. rights on campus a facial challenge 307 F.3d at 258. A student t-shirt challenged under R.A.V. 478 U.S. at 682. R.A.V. and its progeny. as Sypniewski to a school 38 claiming only race-related may demonstrates. district's co- must Situations who was punished the policy, for targeting are not automatically There, racial for wearing that it was speech. Id. at 267. a Acknowledging that R.A. K prohibits a school from "distinguish[ing] subclasses of disruptive speech on any basis it chooses," was nonetheless permitted to make that distinction between id. at 268 n.27, the school in this case because of its "well- founded fear of conflict." Id. at 268. The school had a history of significant racial tension among its students, and the tension "spilled over into the classroom, displacing class lessons with discussions circumstances, about racial relations." Id. at 247. In such a policy targeting racial expression is justifiable, not distinguish between subclasses of disruptive Id. at 268; see also Castorina v. Madison as long as it does speech and is viewpoint neutral. County Sch. Bd., 246 F.3d 536, 544 (6th Cir. 2001) ("even if there has been racial violence that necessitates a ban on racially divisive symbols, the school does not have the authority to enforce a viewpoint-specific ban on racially sensitive symbols and not others."). The School has not even alleged--much less proven--that it has a history of conflict or tension on campus that would justify a targeted ban on such a wide array of speech. Absent this type of history, targeted bans such as the School's are unconstitutional. See, e.g., Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 259-60 (4th Cir. 2003) (striking down a speech code prohibiting clothing bearing messages related to weapons, because school had not shown a history of campus disruption related to weapons); Bait, 280 F. Supp.2d at 372 ("Defendant no attempt to demonstrate that [the university] 39 has made suffers from a history of conflict that an expectation of disruption may be characterized as 'well-founded.'") (quoting Saxe, 240 F.3d at 212). 2. The Speech Policies unconstitutionally viewpoints, not positive ones. ban only "negative" The School flatly admits that its Speech Policies are viewpoint discriminatory, specifically targeting "negative" viewpoints on campus: "the School District policy [is] carefully tailored to permit expression of positive viewpoints of religious expression, but to prohibit derogatory would tend to be offensive or disruptive." statements that (ER 5, p. 144; emphasis added.) In Dambrot, the court struck down a policy banning "negative" racial connotations as viewpoint discriminatory: Negative racial connotations are prohibited, but positive (or at least non-negative) connotations, based on those same racial or ethnic affiliations, are allowed. A campus speaker may thus go on at length recounting what he supposes to be the ethnic attributes of, for example, the Irish. So long as he speaks in a way which appears, from the viewpoint of the university's enforcers, to be either positive or neutral, the speaker is on safe ground so far as university policy is concerned. That speaker's tally of ethnic attributes, though, would be the only viewpoint allowed to be heard on the CMU campus, because all speakers with a differing view on the issue are prohibited by the policy from responding .... 839 F. Supp. at 483 (footnote omitted); accordHansen v. Ann Arbor Public Schs., 293 F. Supp. 2d 780, 803 (E.D. Mich. 2003) (school's ban of a "negative" 40 perspective on a panel discussion of homosexuality unconstitutional and religion was viewpoint discrimination). The same is true here. The Speech Policies expressly ban only "derogatory" and "negative comments." (ER 4, p. 124; ER 6, p. 151.) A school administrator testified that the school does '"not want messages that carried with them a negative tone," and that he instructed Chase that "how we express our beliefs and opinions should be guarded as not to cause an offense to others." (ER 10, pp. 196-97.) Similarly, in Pyle, the court struck down a policy banning clothing that "harasses, intimidates, or demeans" an individual or group of individuals because of sex, color, race, religion, handicap, national origin, or sexual orientation. Supp. at 170-71. The court pinpointed the viewpoint discrimination by explaining: [The plaintiff] wore, without incident, a T-shirt displaying two men in naval uniforms kissing. A T-shirt carrying a depiction objecting to homosexuality, on the other hand, would be flatly forbidden by the code because it "demeaned" a person based on his or her sexual orientation. Id. at 172. Under the First Amendment, the court explained, the school could not pick and choose which viewpoints to allow. "The constitutional line is crossed when, instead of merely teaching, the educators demand that students express agreement with the educator's values." Id. at 173 (quotation marks and citation omitted). Thus, just as in Dambrot and Pyle, the School's Speech Policies allow 41 861 F. students to express positive and negative only speech "positive" viewpoints, are purely that the School D. The Speech but not "negative" subjective terms, the Policies agrees with. This is blatant Policies are unconstitutionally ones. And since effectively viewpoint allow discrimination. vague. In rejecting the Harpers' facial vagueness challenge, the District Court erred as a matter of law because it only considered whether the policies are vague as to Chase's t-shirt, not as they apply to speech in general: The policies here clearly prohibit T-shirts bearing messages that are "derogatory connotations directed toward sexual identity." The phrase "Homosexuality is shameful" is clearly derogatory toward sexual identity. Based soMy on the policies detailed in the instant complaint, this Court finds that a reasonable student would know that the message on plaintiff's T-shirt was prohibited. Thus, this Court finds the School's policies are not vague or "lack sufficient objective standards to curtail the discretion of school officials." (ER 2, p. 50.) Regulations vagueness that clearly challenges. 1149 (9th Cir. 2001). Cal. Teachers conduct." free speech if it reaches challenge, a substantial Id. at 1149 n.7 (quotation the mere fact that the policies rights are subject to facial Ass 'n v. State Bd. of Edue., "In a facial vagueness vague in all applications protected implicate the ordinance amount marks need not be of constitutionally and citations were not vague as applied 42 271 F.3d 1141, to Chase's omitted). Thus, t-shirt does not preclude him from challenging the policies as facially vague, despite the District Court's holding to the contrary. 4 A regulation is void for vagueness if its prohibition enough specificity that a person of ordinary intelligence is not defined with can easily identify its meaning and how it will be applied. Grayned, 408 U.S. at 108. Vague regulations are void to prevent punishing someone for conduct that they could not have known was prohibited, and to prevent the regulation from being enforced in an arbitrary or discriminatory manner. Id. These concerns are magnified when regulations implicate First Amendment freedoms. Uncertainty the boundaries leads people to "steer far wider of the unlawful zone than if of the forbidden areas were clearly marked." Id. at 109 (quotation marks and citation omitted). To avoid this chilling effect, courts require an "even greater degree of specificity and clarity of laws" when First Amendment freedoms are at stake. Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) (citation omitted). 4By contrast, when a regulation does not reach a substantial amount of protected speech, it must be vague in all of its applications to run afoul of the Constitution. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7. (1982). The natural consequence is that "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756 (1974). This was likely the standard that the District Court had in mind when it dismissed the void-for-vagueness challenge, but it was erroneously applied here because the School's Speech Policies indisputably reach a substantial amount of protected speech. 43 The School's Speech Policies suffer from all three vagueness problems: they do not provide fair notice to students of prohibited conduct; they invite arbitrary and discriminatory protected enforcement; and they have a substantial chilling effect on speech. For example, the School declares that it "must provide a school climate that is free from harassment and discrimination in any form." (ER 6, p. 150.) It defines these terms in such broad, amorphous terms that it impossible to rationally distinguish between permissible as "unwanted and unwelcome with another individual's and impermissible speech. Harassment behavior from other students or staff that interferes life." (ER 4, p. 129.) With no definition of "interferes," the School's Speech Policies apparently apply to any unwelcome regardless is defined of how innocuous. It is impossible to communicate student speech, with another person without it interfering with their life in some way. Whether engaging them in conversation, invoking some emotional response, or merely distracting them from something else, speech interferes in others' lives. There are no objective standards guiding school officials in enforcing this restriction. As such, it creates a substantial risk of arbitrary and discriminatory The School defines discrimination enforcement. as "negative or unfair treatment toward an individual based on race, ethnicity, sexual orientation, religion or gender." (ER 4, p. 127.) Similar language is found elsewhere in the Student Handbook. 44 For example, students may be punished for "negative comments" toward, or "offensive" to, a person of a specific gender, race, ethnicity, religion, sexual orientation, or the mentally or physically challenged. (ER 4, p. 129; ER 6, p. 151.) Students may not wear clothing that makes "derogatory connotations toward sexual identity." (ER 4, p. 124.) Nor may they make "demeaning jokes or caricatures based on negative stereotypes." (ER 4, p. 129.) Terms such as offensive, negative, and derogatory are inherently subjective, with vastly divergent meanings depending on the listener. As Justice Harlan noted, "one man's vulgarity is another's lyric." Cohen v. California, (1971). Different impossible people to enforce the School's 55 F.3d at 1184 (holding "negative" speech find different speech. the word "nigger" about an individual's exemplify There, the school's in a closed-door He used the term "in a positive who is "fearless, Speech mentally or offensive, uniformly. a policy banning it See, e.g., Dambrot, "offensive" the inherent basketball subjectivity coach, and manner" - to connote comment. Sometime 45 someone commonly in this way, and they were not offended player used with his team. Id. at 1180. Id. The players later, a former to ban all an African-American, locker room meeting and tough." in Wing to each other as "niggers" Id. at 1180-81. making racial or ethnic affiliation). and reinforcing strong, negative Policies void for vagueness The facts in Dambrot offensive things 403 U.S. 15, 25 referred by the coach's complained to the school's affirmative comment. action officer, who was "extremely Id. at 1181, 1184. The coach was ultimately offended" by the suspended for the comment. Id. at 1181. The widely explained, speech proved will violate "offensive" divergent responses that the school's the policy." policy doctrine delegated protects Other courts have found similar including policy in the high school allowed administrator. students context. 136 F.Supp.2d entirely subjective, policy. Id. Similarly, giving school in Smith v. Mount students is unconstitutionally vague because Mich. - precisely for example, directed unrestricted a school toward Pleasant Public Schools, another's in all circumstances." prohibiting speech that "stigmatizes enumerated characteristics because discretion those terms "invite 2003). And in Doe v. University of Michigan, or victimizes" "it was simply 46 what Id. for "abuse" from threatening to be uniform officials" codes to be unconstitutionally In Killion, officials of what what constitutes vague, district a teacher at 459. The court found the term "abuse" a policy prohibiting that is unlikely against. the Sixth Circuit fair notice determining to university speech to be punished comment, "d[id] not provide Id. at 1184. Rather, speech was "wholly the void for vagueness to the coach's or to be in enforcing the the court held that "well-being" a subjective or "dignity" interpretation 285 F. Supp. 2d 987, 996 (E.D. the court struck down a policy others on the basis of certain impossible to discern any limitation on [the policy's] and unprotected scope or any conceptual distinction between protected conduct." 721 F. Supp. at 867. The School's Speech Policies are both broad and malleable, and their reach is unpredictably variable in the eyes of different speakers. As Chief Judge Kozinski noted, the School could rely on the same policies that it used to censor Mr. Harper and "easily ban the Day of Silence activities as demeaning the sexual orientation straight students, or the religious beliefs of Christians like Harper." Harper, 445 F.3d at 1206 (Kozinski, J., dissenting). It all depends on the School's subjective perspective. Lacking any objective standards, the School's Speech Policies "intensif[y] the risk that students will be deterred from engaging in controversial protected activity out of fear of being disciplined Republicans but fully for so doing." College at San Francisco State Univ. v. Reed, 523 F. Supp. 2d 1005, 1018 (N.D. Cal. 2007) (striking down policy requiring students "to be civil to one another" as unconstitutionally vague). The policies also give school officials virtually unfettered discretion in determining what speech may be prohibited. As such, they foster the very harms which the void-for-vagueness to prevent, and should be struck down as unconstitutionally 47 doctrine is designed vague. of E. The Speech Policies cannot be rendered constitutional reasonable limiting construction. Before declaring a regulation unconstitutional consider any reasonable limiting construction. by a on its face, courts should Reno v. American Civil Liberties Union, 521 U.S. 844, 884 (1997). Courts should not rewrite regulations to conform them to constitutional is only appropriate requirements. Id. at 884-85. Rather, a limiting construction where the regulation is "readily susceptible" to such a construction. Id. at 884 (quoting Virginia v. American Booksellers U.S. 383,397 Ass 'n, Inc., 484 (1988)). A regulation generally needs to identify a clear line for courts to draw, either in its text or other source of legislative intent. Reno, 521 U.S. at 884 (listing examples). The Speech Policies are sweeping in scope and make virtually no references to the standards ofproscribable speech articulated by the Supreme Court. As such, they are not readily susceptible to a limiting construction. 1. The Speech Policies cannot be limited to the categories of proscribable speech set forth in Tinker and its progeny. When read as a whole, the Speech Policies prohibit any student speech addressing race, ethnicity, sexual orientation, religion, sex or disability, if it is offensive or negative, or believed to be offensive or negative. This includes namecalling, jokes or caricatures "based on negative stereotypes," 48 wearing clothing that "portrays derogatory connotations directed toward sexual identity," anything that someone who is a member of one of the protected classes believes was negatively directed toward him on account of his status, any speech that exalts the speaker's own status in comparison to others, and any other speech that "interferes with another individual's life." See Harper, And these prohibitions connection with any school These policies Hazelwood-Morse not confined speech apply whether categories interferes Rather, they prohibit with someone targeted school has a history issue. See, supra, speech. in Obviously they are by Morse or school-sponsored confined that a hearer considers to vulgar or lewd speech student offensive, speech and or somehow else's life. disruption read to apply only to speech or invade above, courts have allowed ban on speech on campus, to the Tinker-Fraser- a wide array of private also cannot be reasonably As discussed student prohibited elsewhere J., dissenting). to or from school. confined Nor are the policies likely to cause a substantial Tinker. speech target any speech The policies or traveling ofproscribable to drug-advocacy under Fraser. in the classroom, cannot be reasonably under Hazelwood. specifically activity, 445 F.3d at 1204 (Kozinski, dealing of tension Section other students' schools with race or other similar and conflict on campus rights under to impose a broad characteristics surrounding if the that particular II.C.1. The School has made no such showing 49 that is in this case. Id. Additionally, its Speech Policies are not written to apply only to speech that infringes on other students' rights, but also covers anything that another student might find negative or offensive. This prohibition constitutionally protected speech: "Engaging unquestionably in controversial reaches political speech, even when it is offensive to others, is an important right of all Americans and learning the value of such freedoms is an essential part of a public school education." Harper, 445 F.3d at 1182-83. In sum, the Speech Policies cover substantially prohibited under controlling more speech than may be Supreme Court precedent, and provide no clear lines for this Court to draw to bring its scope within constitutional parameters. As such, they should be struck down as facially unconstitutional. 2. The Speech Policies fail to require a showing of severity or pervasiveness before speech can be censored as harassment. The Speech Policies cannot be reasonably federal and state law prohibiting harassment. read as simply replicating existing To constitute actionable harassment, the conduct must be "severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by the recipient." Racial Incidents and Harassment Investigative Monteiro, 158 F.3d at 1033 (quoting Against Students at Educational Institutions; Guidance, 59 Fed. Reg. 11449 (March 10, 1994)); see also Reese v. 50 Jefferson Seh. Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000). This is an objective standard. educational program characteristic] Monroe harassment. severe if it "would person Monteiro, Bd. ofEdue., California interfere 158 F.3d at 1033; see also Davis 526 U.S. 629, 652 (1999) (behavior recognizing based upon protected a hostile must be "severe, the right of students to be free from an individual's educational harassment status that is severe or pervasive, educational in sexual harassment, which or work environment or work environment." see also Cal. Educ. Code § 48900.2 who engage v. offensive"). law is similar, disrupts with the of the same age and race [or other See, e.g., Cal. Educ. Code § 201. State law defines unreasonably 4910(i); of a reasonable and objectively "conduct is sufficiently as the victim." County pervasive, creates Conduct as [1] or [2] that Cal. Code Regs. tit. 5, § (allowing schools but only if the conduct to punish students is "sufficiently severe or pervasive"). The Speech Policies They define punishable other students lack the necessary harassment or staff members 4, p. 129.) Lacking the whether the speech perspective. Such subjectivity as "unwanted that interferes any objective "severe standards, is "unwanted and unwelcome with another makes these policies requirement. behavior individual's the Speech Policies and unwelcome" 51 or pervasive" life." (ER focus entirely from the alleged particularly from chilling. victim's See on Sypniewski, reactions, 307 F.3d at 268-69 without expression, providing individual's the speech standard provided must interfere with another's The Supreme Court's demonstrates stop students from sexually often engage conduct expression and name-calling in gender." is deliberately and objectively offensive to the students indifferent of Education sued a school for failing to 526 U.S at 632. In setting the shoving, pushing, subjected to it"--in children,.., toward program. Board and genderother words, for simple even where damages conduct that But this is not enough are not available Id. at 652. Rather, than the that the speech the Court acknowledged banter, teasing, school with another much more speech County her daughter. "Damages among that "interferes in an educational lives. Id. at 651-52. harassment. to disruptive and state law, namely, harassment, on listeners' of speech."). reaches There, a parent harassing that is upsetting urdawful amount in Davis v. Monroe in insults, constitute the school application ability to participate actionable with those students' target differences in federal this distinction. interferes teasing code targets decision bar for what constituted specific focus broadly a basis for limiting life." (ER 4, p. 129.) This standard harassment "students policies they are likely to cover a substantial Additionally, clearly ("When to acts of these comments are only available that "is so severe, when pervasive, that it denies the victim the equal access to education." Id. 52 it In sum, by prohibiting any speech that interferes with another student's life, the School's Speech Policies target the "simple acts of teasing and name-calling" and other innocuous speech that the Supreme Court said is not actionable. Particularly in the high school context, when adolescents tend to "view themselves as the center of the universe," interfere with a student's J., dissenting). even the most innocent gossip or teasing can life in some manner. Harper, 445 F.3d at 1205 (Kozinski, But such speech does not lose its constitutional School's broad and malleable standard cannot be reasonably protection. Thus, the limited. II. The School's Speech Policies violate Education Code § 48950. California Education Code § 48950(a) prohibits school districts from subjecting high school students to disciplinary sanctions for speech that "when engaged in outside of the campus, is protected from government restriction First Amendment .... School on Kelsie's disciplined," "The District Court granted summary judgment by the for the § 48950 claim because "there is no evidence that [Kelsie] was and students must be disciplined to state a claim under this provision. (ER 1, p. 19.) The District Court's holding contradicts the plain language of the statute. Subsection (b) states: "Any pupil enrolled in a school that has made or enforced any rule in violation of subdivision (a) may commence appropriate a civil action to obtain injunctive and declaratory relief as determined 53 by the court." Cal. Educ. Code § 48950 (emphasis added). Kelsie is still enrolled at Poway High School, so the statute allows her to challenge the School's Speech Policies even if they have not been enforced against her. This Court has recognized that § 48950 broadens students' free speech rights on campus: The Supreme Court has held that the First Amendment guarantees only limited protection for student speech in the school context. In contrast, the California Education Code extends students' free speech rights while on campus to the same extent those rights may be exercised outside of campus. Consequently, different outcomes may result when evaluating violations of students' free speech rights under federal and state law. Lovell, 90 F.3d at 371 (citations Joint UnionHigh violate speech omitted); accordLopez v. Tulare Sch. Dist., 34 Cal. App. 4th 1302, 1316 (Cal. Ct. App.1995). As discussed protected and footnote above, the School's than Tinker allows. the more speech-protective Speech Policies reach substantially Thus, there is no question more that the Policies § 48950. IH. The individual defendants are not entitled to qualified immunity. Qualified immunity protects government officials performing discretionary functions from liability for civil damages "as long as their actions could reasonably have been thought consistent with the rights that they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635,638 (1987) (citations omitted). This requires 54 a two-step analysis. First, the court must decide, "in the light most favorable to the party asserting the injury," if a constitutional right was violated. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, "the next, sequential step is to ask whether the right was clearly established." Id. To determine if a right is clearly established, knowledge a court should use its "full of its own and other relevant precedents." Elder, 510 U.S. at 516 (quotation marks and citation omitted). It is not necessary to "find a prior case with identical, or even materially similar, facts." Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003) (quotation marks and citation omitted). It is enough that the preexisting law provided the School officials with "fair warning" that the Speech Policies were unconstitutional. The initial inquiry--whether the School officials' enforcing the Speech Policies violated a constitutional Id. (citation omitted). conduct in enacting and right--has been discussed at length above. Turning to the second step, there is a substantial body of case law and statutory law that put the School on notice that its policies were unconstitutional. The Supreme Court and this Court have provided clear, well-established case law that governs the panoply of student speech cases that a school administrator McMinnville may encounter, including Tinker, Fraser, Hazelwood, Chandler v. School District, 978 F.2d 524 (gth Cir. 1992), and others. The 55 standards set forth in these cases are not perfectly precise, and reasonable minds may sometimes differ as to their application to a particular set of facts. But it is beyond dispute that these standards define the contours of students' free speech rights on campus. As such, schools are clearly on notice that their policies regulating student speech should mirror these standards as much as possible. Yet those standards are nowhere to be found in the School's Speech Policies. As discussed above, multiple courts have struck down school speech policies precisely because they failed to follow the standards set forth by the Supreme Court--and some of those policies are remarkably e.g., Saxe, 240 F.3d at 215; Sypniewski, similar to the School's. See, 307 F.3d at 262; Dambrot, 55 F.3d at 1184; Bait, 280 F. Supp. 2d at 370-71; Killion, 136 F. Supp. 2d at 459; Pyle, 861 F. Supp. at 171-72; UWMPost, Inc., 774 F. Supp. at 1178; Doe v. Univ. of Mich., 721 F. Supp. at 866. By contrast, the School has never identified a single case upholding a similar speech policy. The School also ignored clear federal and state law standards establishing the permissible scope of anti-harassment students' right to be free from harassment and it explicitly defines harassment environment. at school, see Cal. Educ. Code § 201, as conduct that is sufficiently pervasive that it disrupts the educational educational policies. California law recognizes environment severe or or creates a hostile See Cal. Code Regs. tit. 5, § 4910(i); Cal. Educ. Code § 56 48900.2. Federal law is very similar. See Monteiro, ignored this standard and implemented defining harassment as "unwanted 158 F.3d at 1033. The School a much more speech-restrictive and unwelcome one, behavior from other students or staff members that interferes with another individual's life." (ER 4, p. 129.) It also ignored Education Code § 48950, which provides even greater protection for student speech than the First Amendment. This is particularly significant here because the School has already litigated this issue. Poway Unified School District was the defendant in Lovell, where this Court explained that § 48950 "extends students' free speech rights while on campus to the same extent those rights may be exercised outside the school context." 90 F.3d at 371.5 This array of precedent makes the contours of students' clear: private, non-vulgar student speech is constitutionally free speech rights protected unless it is likely to cause substantial disruption or intrude on the rights of other students, including their right to be free from statutorily-defined clear that students enjoy the "undoubted controversial harassment. It is equally freedom to advocate unpopular views in schools and classrooms." and Fraser, 478 U.S. at 681. Yet the School is targeting precisely this type of speech in its policies, making no mention of the standards established in binding case law and statutory law. Having turned a 5The School was also represented by the same law firm in Lovell that is representing them in this case. 57 blind eye to this clearly established precedent, the individual defendants are not entitled to qualified immunity. CONCLUSION Our education system is the incubator of democracy. And our democratic system depends on the ability of its members to engage in vigorous debate. Thus, schools have a duty "to guide students through the difficult process of becoming educated, to help them learn how to discriminate between good concepts and bad, to benefit from the errors society has made in the past, to improve their minds and character." Monteiro, 158 F.3d at 1032. But schools may not eliminate all diversity of thought. To do so would allow schools to become precisely what Tinker said the First Amendment could never tolerate: "enclaves of totalitarianism" where students are "confined to the expression of those sentiments that are officially approved." 393 U.S. at 511. The School has made no attempt to respect the balance struck by the Supreme Court between preserving an effective educational environment safeguarding students' free speech rights. Accordingly, and the Harpers respectfully request that this Court reverse the lower court decisions and remand the case with instructions to enter summary judgment challenges to the School's in the Harpers' favor on their facial Speech Policies, and in Kelsie's favor on her challenge to the Speech Policies under Education Code § 48950. 58 CERTIFICATE 1. OF COMPLIANCE WITH RULE 32(a) This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,473 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally in fourteen-point of Fed. R. App. P. spaced typeface using Microsoft Word Times New Roman. Dated: !_w_ 2q Z_D_ imot-gy_. Claandler Attorney for Appellants 59 STATEMENT Appellants Dated:/t,(_ OF RELATED CASES are not aware of any related cases pending in this Court. 2_ J _e_ Timothy-I_. Chandler Attorney for Appellants 60 CERTIFICATE The undersigned OF SERVICE certifies that two copies of the foregoing Appellants' and one copy of Appellants' Brief Excerpts of Record was served upon: Daniel R. Shinoff, Esq. Jack M. Sleeth Jr., Esq. Paul V. Carelli, Esq. Smtz, Artiano, Shinoff & Holtz A Professional Corporation 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106 Telephone: (619) 232-3122 Facsimile: (619) 232-3264 Attorneys for Defendants-Appellees via UPS Next Day Air Saver on this the 9L/g4ftday of March, 2008. The undersigned foregoing appellants' also certifies that an original and fifteen copies of the brief and an original and five copies of appellants' excerpts of record were this day mailed to: Clerk of Court United States Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, California 94103 via LIPS Next Day Air on this the _ !]fit day of March, 2008. Michele L. Schmidt Paralegal 61 ADDENDUM A Q @ Au_,10. 2005 ]0:2_A_ O @ POWAY UNIP_EI_ _CHO(}L DI_TR_(_T BOARD POLICY ARTICLE: 5,0 STUDENT PI_RSONlYEL Si_CTZON 5,Z8 HATE BEHAVIOR. _0,]_37 Originator, ISsue NO: Asst, Superintendent, i Oate_ Page: 9/20/93 1 of=1 P, 47 LSS Reference= Art:l¢le 1, 5_cUon 28((:) Cellfomla Constitution It Is the Intent o(' Poway Unified School District to promote harmonious human relationships _ha_ enable'students to gain a true understandlngof th_ r_gh_ and duties _f people In our heterogeneous society, Furthermoret it Is our intent to promote the rights of equality and human dignity basic to American heritage. ' Each school Is responsible for promoting an" environment that fosters poslUve attitudes and pracUces among students, sta.fi=, and adrlllnlstraUon. In &ddi_lon, the school Is responsible for promoting learning and, because It Is well-established that anxiety and lowered self-esteem Impede {eamlng,the schoolIs responsl.bl_ forfostering an envlronment that mitigatesagainstanxietyproducing or demeaning Incidents against any chll_l within the conBnes of the s_hool, These Indden_ include,but are not:limitedto,those targetlng'membersof.a particular gender, _ce, ethnlclb/, religion, sexual orientation, or the mentally and physically challenged. Students realizetheir full fidNidueipotentialthFough k_owledge, understandlng,and an appreciation-of socleb/'s diversity, In suppoit or this objective, the DistriCt hereby _xpr_sses Its •commitment to human rights. • .' 3O ADDENDUM .56'3 Ju ,i2. 200 3:30P P. 34 e e POWAY UN_FI"ED SCHOOL DXSTI_CT ADMINISTRATIVE PROCEDURE Origfnator: Assistant Superintendent Zssue No; 2 Date: 7/28/97 ARTICLE: 5.0 Page: 1 of 2 Reference-' Article 1, Section 28(C) CaliforniaConstitution S,28 STUDENT PERSONNEL HATE BEHAVIOR SECTION =;.28,1 Hate Behavior In order to foster a supportive environment for a diverse student body, the Poway UnifiedSchool District providesguidelinesto assist schools In the reduction and/or preventlon of hate behavior, For the purposes of these guidelinesthe operational definition of hate behavior is as follows: A hate behavior Is any act or attempted act to cause physical injury, emotional Suffering, or property' damage through intimidation, harassment, raciaVethnio slurs and bigoted epithets, vandalism, force or the threat of force, motivated all or in part: by hosSli_to the vlct{m's tea( or perceived gender, race, ethnicity, re(igion, sexual orientation,or mental or physical challenges, Hate Behavior Deterrence Guidelines 1. Create and support programs designed to promote understandingand to prevent and resolve conflicts among members of a diverse student body, staff, and administration. 2. Reflect appreciation for diversity and pluralism in educational materials. 3. Adopt a curriculum or supplement the current curriculum with course content that has multicuitura! components, 4, Clearly define and discuss with studenE%staff, and parentsthe meaning of hate behavior, 5, Encourage the reporting of hate behavior by posting permanent notices in conspicuous areas. Hate Behavior Response Guidelines 1. Providestaff training in identifying, reporting, and responding co hate behavior. 2. Establish a simple, well-publiclzedprocessfor reporting hate behavior. 3. Require appropriate and I:lmely staff response to _11reports of hate behavior. 4. Reassurethe victim and the vlct{m'sfamily that the Incidentwill be treated seriously. 5. Provide victim assistance if needed, including referral to victim supportagencies. 6. Investigate the incident; questionWitnessesand involve law enforcement as appropriate. 7. Follow-upincident as appropriate: respond to media, etc. 8. Determine and take disdpllnary action in concurrencewith the Education Code Including suspension and recommendation for expulsion. 9. Report inddent to the District Office. meet with staff, provide student awareness activities, Issue 1:9/20/93 JUL !2 2004 15:34 PAGE.34 3,5613 Ju_.12. 2OO_ 3:30P'_ O @ ARTICLE: 5.0 STUDENT PERSONNEL SELl'ION 5.2.8.1 Hate Behavior P, 35 @ Page2 of 2 @ Examples of Hate Behavior The folJowing list provWes.examples of hate behavior to assist identifying where and when it may exist. i. Name cafllng, racial s(urs, orbigoted epithets. 2. The presence of symbols or words consideredoffensiveto persons .of a specif(cgender, race, ethnicitys religion, sexual orientation,or the mentally or physicallychallenged,such as graffiti, slurs, or painted swastikas. 3, Activities historically associated with threats to personsofa specific gender, race, ethnicity, religion, sexual orientation, or the mentally or physically challerlged (e.g., burning crosses, wearing swastikasor wl_itesheets, flying confederate flags, hanging effigies, defacing pink triangles). 4. The posting or circulationof demeaning jokes or caricatures based on negative stereotypes of a spedfic gender, race, ethnidty, nationality, religion, sexual orientation, or mental or physical challenged. 5, The defacing, removal, or destruction of posted materials, meeting places, memorials,etc., associated with specific gender, racial, re[igious, sexual orientat{on,or mental or physical challenges. Victim belief that the }nddent was motivated by bias against him/her as a member of a specific gender, race, ethnlcity, religion, sexual orientatmn, or mentally or physically challenged group. 7. Perpetrator explanation/defense of incident involves exalt(rig own gender,race,ethnlctty, religion, sexual orientation, or mental or physical status and/or Includes statements demeaningvictim group. The presence of organized hate group literature and/or posters to reference to an organized hate group. JUL 12 2884 15:34 PAGE.35 ADDENDUM POWAY SCHOOL Po?c'xes Procedures SUPERMENDENT for Done?d A. Ph??l?tps, 2004 - 2005 ExhiSbit 1 HARASSMENT AND INTIMIDATION ARE ILLEGAL GENERAL HARASSMENT In the school environment, harassment may include threats, intimidation, slurs. epithets, verbal or physical abuse, and derogatory or degrading comments. Bullying is a serious form of harassment and may include physical, verbal, or exclusionary practices by a student or group of students. Board Policy 5.8.1 and Education Code Section 48900 and 48900.4 speci?cally prohibit harassment of this nature. SEXUAL HARASSMENT Sexual harassment includes a pattern of unwelcome sexual advances, requests for sexual favors. and other unwanted verbal. visual or physical conduct of a sexual nature. A single incident may also be considered sexual harassment depending upon the circumstances. A pamphlet has been provided for students, which describes sexual harassment and identi?es differences between flirting and this form of harassment. Board Policy 5.24 and Education Code Section 212.5 speci?cally prohibit harassment of this nature. HATE-MOTIVATED BEHAVIOR 0R HARASSMENT Hate-motivated behavior is any act or attempted act against a student or staff member that is motivated all or in part by hostility to the victim's race, ethnicity, sexual orientation. religion or gender. Board Policy 5.28, Education Code Section 48900.3 and 48900.4, and Title Vii of the Civil Rights Act of 1964, and the Educational Amendments of 1972 speci?cally prohibit harassment of this nature. SPECIFIC HARASSMENT BEHAVIORS THAT ARE NOT TOLERATED IN THE POWAY UNIFIED SCHOOL DISTRICT INCLUDE: - Force or threat of violence through outright actions. intimidation, or bullying. - Vandalism to District property. personal or - Comments, gestures, or touches of a sexual nature that are deliberate and unwelcome. . Negative comments, slurs, or behaviors based on race, ethnicity, sexual orientation, religion, or gender. - Vulgar letters, notes, posters, or other writings offensive to a speci?c race, ethnicity, sexual orientation, religion or genden 0) WHAT TO DO lF IT HAPPENS TO YOUR SON OR DAUGHTER Any student who believes he or she has been harassed or discriminated against should immediately inform a parent, teacher, or administrator. The reporting of a complaint will include an oral interview with a site administrator and may include the submittal of a signed, written statement. All complaints must include dates, issues, description of offending action, and names of individuals and witnesses involved. All complaints are con?dential and will be reviewed and investigated. Teachers, site administrators, or District staff will conduct interviews for the purpose of gathering factual information about the circumstances, the context, and the nature of the incident so that appropriate measures can be taken. in the event that a formal complaint is submitted by the parent or guardian, the District's Title lX Coordinator will be noti?ed. Further investigation, as needed, will commence and will result in a written recommendation to resolve the complaint. If either complainant or respondent feels that the issue has not been resolved satisfactorily, he or she may forward the complaint to the Superintendent of Poway Uni?ed School District. if it is not resolved there, he or she may pursue resolution through the Board of Trustees. Appeal rights also extend to the California Department of Education or civil court. All complaints will be ?led and maintained by the District for statistical information. All complainants will be provided with copies of the District's administrative procedures related to harassment or hate-motivated behaviors. (Policies 5.24, 5.28, 3.34) - ADDENDUM • • Poway 15500 High School Espo a Rd, Powayr CA 92064-2299 (858) 748-0245 Administration Principal............................................................................. :...............Scott Fisher AssistantPrincipal......LynAntrim Assistant Principal..............Ed Giles Assistant Principal ............................................................................ Kelly Burke . & AthleticD=rector .................................................................................. Dan Crane ActivitiesDirector,.......................................................................... Matt Hannah AttendanceSupervisor......................................................... Demian Gonzales Counselors Vickie DeJesus DebbiEaster Tom Janet Depew Julie Roseneau I.elghty RachelDeYoung TABLE OF CONTENTS Attendance...................................................................................................... 2-4 AssociatedStudent Body.................................................................................. .4 Student Information .................................................................................... 4-t3 BehavioralExpectations........................................................................... 13-15 Discipline...................................................................................................... 15-2B Ethics/AcademicHonesty& ESteRs...................................................... 28-30 Master Calendar............................................................................................. 31 Bell Schedule...................................................................................................... 32 CALENDAR OF IMPORTANT DATES 2004-.0.5 JANUARY 3: ReLurn to School 17: Hartln Luther King, Jr. Day 28: Semester Break AUGUST 26: School Starts SEP'rEHBER 6: Labor Day 14: BaekTo School Night 28: morP Fashion Show 29: Professional Growth Day FEBRUARY 12: Winter Bali Dance 21-25: District Recess MARCH 18: AIrbaod Assembly 18: AIrband Competition 23; Professional Growth Day OCTOBER 2: morP dance 26 =Titan Times NOVEMBER 5: Homecoming Parade 5: Homecoming Game vs, Torrey PEnes 6: Homeeamlng Dance 22-26: Thanksgiving Break 29= Professional Growth Day APRIL 9: Flashbeck Dance 18-22: Spring Break 28: A -Team Awards MAY 30: Memorial Day DECEMBER 17: Band Holiday Concert/Assembly 20: Winter Break Starts JUNE 4: Senior Projects 11: Prom 22: Gradua_on + School Is Out 2_d Edition: Final Revision 3.6.0 Exhibit -3- 1 04cv1103 • • POWAY HIGH SCHOOL BELL SCHEDULE 2004-2005 Monday Period Period 0 ,i 1 2 Break 3 4 Lunch 5 6 6-1/2 Period '0 IMinutes 5O 93 40 40 11 40. 42 32 40 40 60 I, 0 Prof. Time 1 2 Break 3 4 Lunch 5 6 6-I/2 Time 6:33-7:23 7:30-9:03 9:10-9:50 9:57-10:37 10:37-10:48 10:55-11:35 11:42-12:24 12:24-12:$6 1:03-1:43 1:50-2:30 2:37-3:37 Tuesdayr Friday Time _Minutes 6:33-7:23 7:30-8:Z5 8:32-9:27 9:27-9:42 9:49-10:44 10:51-11:51 11:$1-12:26 12:33-1:28 1:35-2:30. 2:37-3:37 50 55 55 15 55 60 35 55 5S 60 Wednesday_ Thursday" .] Time" Minutes 6:33-7:23 S0 / 2 Break 7:30-9:12 9:12-9:29 102 17 3 / 4 Lunch 5 / 6 6-!/2 Tutorial 9:36-11:22 11:22-11:56 12:03-1:45 1:52-2:52 I:52-2:52 106 34 102 60 60 2"d Edition: Final Revision 3.6.0 Exhibit -4- 1 04cv1103 • • • ATTENDANCE Compulsory attendance laws require that parents send their children toschool. The law farther s_tes that a student must attend every scheduledsession of every class, even If failure is imminent. The law applies to all students until they reach I8 years old. Once a student becomes 18 years old, they become a guest at PHS and can be withdrawn from school if their academic progress, attendance, or behavior is not acceptable. 24 HOUR, ATI'ENDANCE HOTLINE (858) 748-7016 A-G x5117 H-O x5115 P-Z xS:L:L4 Please call before 7:00 a.m. of the requested day for the pass C!earin q Absences A parent/guardian needs to (::ALLthe 24-Hour AttendanceOffice hotline (7487016) before !1:00 a,m., EACH DAY that their student is absent. The following schoolday, the student shouldcheck the AttendanceO_ce board for a list of students who need a readmit BEFORE going to their first period class. Readmits must be picked up at the Attendance Office by 8:50 on Honday and by 7:20, Tuesday through Friday. All reedmits should be shown to each teacher whose classwas missed by the student. A student who has ten excused absences is consideredexcessivelyabsent (this includeslardles in excess of 30 minutes). When possible, if a student is out for medical reasons and was absent due to a Doctor's visit, a note from the doctor's office should be presented. The note will clear the absence or lardy. Arflvinq Late to School Students who arrive between dasses, during break, or lunch must check in with the Attendance Office before going to the next dass. Within the first 30 minutes Students arriving less than 30 minutes late should go directly to class unless they have a note to clear the tardiness. These notes must be brought to the Attendance Office windows before attending their first period class, After the first 30 minutes Students arriving after the _rst 30 minutes are to report to the Attendance Officefor a readmit. Each semester a student is allowed three late arrivals for personal reasons. These lardies must be cleared by a parent/guardian within 24 hours of the tardy. Students who are not cleared within this Lime frame will be subject to disciplinaryaction. Off-Campus Pps_e_ Students must have an off-campus pass to leave campusduring schoolhours. The parent/guardian will need to call the school at 748-024S ex_. 51t3 to request this pass. This call needsto be placed the pre;,/ious day or by 7:00 am of the requested day for the pass. Students need to pick up their off- 2"_ £ditio_: Final Revision 3.6.0 Exhibit 1 -5- 04cv1103 • • • campus passat the Attendance Office windowsbefore school, at break, or at lunch. Passes will not be delivered to classrooms. Zf a student leaves campus without a passt it is considered a truancy and cannot be excused by a parent/guardian. Lunch Passe_ To obtain a lunch pass to leave campus during lunch a student must: • Have his/her paren_guardian complete an application, in person, in t_e DisciplineOffice • Bring student I.D. card to the Dlsc{pline Office to receive a lunch pass sticker Any abuse of the lunch pass privilege or violation of the contract can result in disciplinaryaction end loss of the lunch pass. Abuses of the lunch passwould include: • Taking another student who does not have a lunch passoff campus • Allowinganother student to use his/her lunch pass (Students that allow another student to use their lunch passwill be warned. Secondoffensewill result in removal of lunch pass.) • Students who frequently arrive late backto campusafar lunch • Failureto attend his/her afternoon classesa_er leaving schoolon the lunch pass • Loiteringon the streets and/or housesnear the school • Alteredor falsified lunchpasses Students must have their lunch pass in their possessionto leave campus. No temporary lunch posses will be i.¢sued. _"_der_ Hall Pass To be out of classa student must have one of the following passes: • Teacher hall pass • An officecall slip, with time and signature of their teacher • Special permanently issued badges used by office aides or special school programs (i.e.: ASB Officers) SARB (Student;.Atterldance Review, Board] California EducationCode obligates parents or guardians to comply with the attendance of students at school. Parents or guardians who fail to meet this obligation may be guilb/of an in,action and subject to legat action pursuant to Article 6 of Chapter I[ of Part 27 of The Education Code. Students who are absent from school three full days or t_rdy for more than any thirty-minute pedod without a valid excuse on three occasionswill have their first truancy letter sent home. If the truancy continues a second and third letter will go home to the parents and the Student Attendance and Welfare Coordinator. After three letters of truancy have been sent a SARB court hearing will be scheduledfor parents and student to attend. .S._A.tP (Student Attendance ImprevemeBt Prouram} Poway High School Intervention Program allows the student, parents, District: Office personnel and Attendance Supervisor to work out truancies, excessive tardles, and disciplinaryproblemsissuing the appropriate disciplinarymeasure. ASSOCIATED STUDENT BODY (ASB) The PHS ASB Is composedof elected officers (Executive Council,ClassOfficers) and their appointed officers (Commissioners). The missionof PHS ASB Is to serve the students of PHS by offering quality co-curricular activities and events 4 2"_ Edition: Final Revision 3.6.0 •' EXhibit 1 -6- 04cv1103 • @ • which help to prvmote school spirit and Tit_ Pride, _ Is alsoresponsible for all expenditures ofstudentfundsand helpsto supportseveral largeprograms on campus, ASB e(eCtions are held twice per year and all students ere encouragedtoparticipate. To see thecurrent student_involved withA_B go to theASB Unk on thePHS Web-Site: htlp:/lwww,powayu_.eom{ou_dph.d_ind_,ssp STUDENT INFORMATION A__'_;viti_es fs_onsm'ed by A_;6_: morP DanCe; Ho_ec0mifig-Wee_HaIFcime $how/peFade[OanCe; lltan Tim_s; Fla;hbeck Dance; Fall/Spring Bleed Dive; Canned Food Drive; Winter Bail; Airha_ds; Elections; Titan Tles; Prom; Senior Breakfast/Picnic; Class Competitions;A-Team Recognition Night; and many more... There is a large vadet_ of athletic t_ams (varsity, Junior varslb/, freshmen) avaffablefor PHSstu_lents wl_o maintain at least a 2.0 GPA and are passing at least fou_ classes. (For move Information on athletics, refer to the Athletic Handbook) Informatk)n{s available _y contad:Ingthe Athletic See.rotary or Ath(atic Oirector. Btli/effn: The bulletin isprinted daily For relaying lnformat_onto theStudents. Pertinent information regarding c)esses, campus news, holidays, activities, dubs, and athletIc schedules are u_dated daisy _._ a primary means of r.ommunicati_n for slut}ants, Time is al otted at the beginning of the fourth periodon no,-labd_y__nd on 3_/4_ perlodon labdaysforthebulletin to be read to _tudenr_._;tudent_ should relyon t_Isbulletin as a first lineof information. StudeBts are re_p_n._ibie U} read or listen to t_hebulletin ear_ day. It is posbed in each classroom and in the front office recepUon area, Forms for subm)ss)on of bulletin re_ues_ are available in the off_ce, _f.__: Open dailybefore_duringbreak,and afterschool. There are six service areas: main cafeteria, snack bar (near the gym), and four campus cart_ located nearthequad.Nutritious snack itemsareavailable atall service areas. We also offer T_ban04eelDeal (full lunch)at several bcationson campus, oonsisting of sixdifferent entrees,frult or salad,and a choice ofmilkdaily. Lunch linesere dividedalphabetically--you must entertheappropriate line. Appli_ttons for free and reduced lunchesare accepted throughout the school year. Snack carts do not _,=li food at_ the second bell rings, Clubs: PHS isproudto have a greatnumber ofclubson our campus, allof w--_h'are a great way to get involved, support your school, and have fun, A current list of all the dubs _n campus, as well as applications to start a new c)ub_can be pickeOup }:rein tile ASB Ro_m door, 3-1. Cla.e__¢han_e b_adlil}e: The last; day to drop/add a class is on the 20th (_ay of the semester. T_Is date will be announced well In a_lvance in the dai(y bulletin. Studentsmust turnin a signednotefrom a parentto have r¢_ change requestsconsidered. Ca--Cu_icuiar_art_ciDatton: To be eligible for partidpation in extracordcular and co-curricular activIt_asall students i_ performing groups, including but not flmit_d to band, chorus,pop ensemble,drama, athleOi_s, cheer(adding, studentgovernment,end speech and debate,must meet the follow(rig _¢ademio requ{rements: 1. During each gradlng period, students must attain a 2.0 G.P.A. in all enrolled coupes on a 4.0 scale 2. Accounting of elig bility will be on the day of schoohwidedistribution of grades, At the high school level the g_des that wi_ be counted for 5 2t'_Edition:Final Revision 3.6,0 " Exhibit -7- 1 04Gw1103 o • • elfgibitity are six-week, 12-week, and semester grades. At the middle schoollevel the gradesthat will be counted are semester grades. 3. If students do not bring their grades up to a 2.0 grade point average at the end of the probationary period, they will be ineligible to participate for the following grading period. Summer grades may be Included to improve springsemester grades. 4. All CIF eligibility ruJesstill apply. 5. For the purpose of determining grade point average, all Incompletes shall be computed as F's until the incomplete is changed to a letter grade, At that point, G.P.A. will be recalculatedusing the grade(s) eemed. 6. Students who are absent from schoolall day will not be allowed to practice after school. 7. Students must attend at least four hours of class to be able to pa_cipate in practiceor a contest on that day. 8. Particlpation is contingent upon satisfactory discipline and attendance records. Extracurricular activities are those programs that have all of the following characteristics: 1, The programis supervisedor financed by the District. 2. Students participating in the program represent the District, 3. Students exercise some degree of freedom in the sele_on, planningor control of the program. 4. The program includesboth preparationsfor performanceand performance before an audienceor spectators. Extracurricularactivities are not part of the regular schoolcurriculum, are not graded, do not offer credit and do not take place during classroom time. CocurricularactMties are programs that may be associatedwith the curriculum in a regular classroom. Conflic t Mediation: When tempers flare or tension mounts, sometimes It is helpful to refer a student to other students rather than to the discipline office. SbJden_s are usually referred to Conflicl; Mediators thropqh th e _i_cipliq_ office. A mediation can be attempted if both of the conflicting parties are wi[ling to meet. Students who have been trained in mediation skills meet with the involved parties and try to resolve the conflicts. If the conflict: mediators feel they did not reach a resolution, an administrator or counselor will step in. .Cq..pvri=ht Law,_: Students should be aware of copyright laws. Commercially printed materials that have been copyrighted cannot be reproduced in total. Copyright laws also pertain to the reproduction of certain audio, video and electronic programs, CountieS: Counselorsare available to work with academic, instructional, social or personal issues. Students may make appointments to see their counseloron a request basis. Students who get behind in credits becausethey have failed classes are called in by their counselorto discuss other credit options. Counselors hold group meetings with all students twice a year to discussgraduationrequirements and courseregistration. Dance Requlptions: Several dances are scheduledthroughout the year. A current I.D. card must be presentedfor admissionto dances. Guest passeswill be availabte only for Homecoming, Winter Ball and Prom from the Activities Director. Guests are required to have I.D. 3unior High students and adults 21 and over may not aLtend PHS Dances. All school rules apply at the dances. 6 2_ Edition: Final Revision 3,6.0 .... Exhibit 1 -8- ° 04cv1103 . e • Q Once a student leaves the dance, s/he wili not be allowed to return, and will be expected to leave campus. GuestPass Poli_F: All non Poway High School students attending a PHS dance must have an approved guest pass. Guest passes are available at the receptionist's desk. Guest passes must be completed and returned to the Switshboard/Receptionlst five school days prior to the event in order for the guest to attend. Studentswill be notified if the guest pass is not approved. Ereaklno (Dirty D#ndno): There is to be absolutely no freaking or dirty dancing at any school-sponsored activities.This includes,but is not limited to, all school dances and lunch activities.If caught you may be removed from the function. Equal Access: The Board of Education, acknowledgingthe value of stUdent involvement in extracurricular activities, including curriculum related organizations,adoptsthe policysupporting these activities on secondary school campuses.The policyimplements the Equal AccessAct as enacted by Congress in 1984. The Intent of the policy"is to allow secondary schoolsbsdents to meet on their campuses for a limited open forum for religious, political or philosophicalbelief discussed in these limited open forums. Nothingherein shall be construed to tlmlt the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the well being of students and faculty and to assure that attendance of students at meetings is voluntary. All organizations are required to follow the policies and procedures in our school'sConstitution.Guidelinesfor club policy and proceduresare found in the club handbook. ..Finance Transactions: Located on the north side of the administration building,the finance window is available for the purchase of tickets to athletic and ASB events, yearbookS, and transcripts. Hours are before and at_er school, break and lunch. I.D. cards are required for all finance transactions. Checks should be made out to Poway High School for the exact amount of purchase. Credit cards are not accepted. Financial obligations are the responsibility, of the student, Students with any unpaid/overdue financial obligations cannot go to a school dance, .F.oodin the,,(3!assro,o.m:Foodand drink will only be allowed in the classroom at the dlscretlon ofthe teacher. _.1). Cards: Student I.D. cards are a means of identifying a student as a member of PHS. Students muSt carry £D cards with them on campus at all times and at school related activities, Any adult may ask of the ID at any Ume. Students must present a current ID card to check out library materials and finance transactions at the finance window. Replacement Cards are available for a fee can be ordered from the library. Failure to have an ID will result:in disciplinaryaction. ._ncompletes: A student will be required to make up an incompletewithin five weeks at_er the receipt of the incomplete grade. Of this incomplete grade is net removed within the time limit, the student will receive a grade as Indicated by the teacher. level chanqes: In sequential courses, such as mathematJcs and foreign language, it is sometimes necessary for a student to be transferred to the next 2"a Edition: Final Revision 3,6.0 Exhibit 1 -9- 04cv1103 . higher courseor to the precedingcourse. These }evel changesshould be made during the first 20 schooldays of the semester. I I-ibrary/Texthoolc_: The library is open from 7:00 am to 3:15 p.m. Students must have a current ID card to check out all library, materials and textbooks. Fines are charged on overdue library items at the rate of 10€/school day. Books may be renewed as long as there are no reserves for other patrons on those Lilies.All lost and found booksare turned in at the library. If books are damaged or lost payment is also handled in the library. There Is a $5•00 processingfee for each refund. Students leaving PHS must turn in all booksin order to clear their record. The "Freshman Oflentation" program for all incoming _" grade student to PHS. The program "links" Junforsand seniors with a group of 9_ grade studentsto serve as a resource and mentor. Lod(ers: Locker space Is limited. Students will not be guaranteed a ]ockei', They are for the convenienceof students, and are _ssuedfrom the Attendance Office. Locks for lockers are the responsibility of the students, and can be purchasedat the Student Store for a cost of $5. ONLY PHS-issued lockscan be used on lockers•Any other lock (other than PHS-issued) will be cut off. Powav High is not liable for personal property destroyed or stolen on campus, PHS and the PUS[:)do not have any Iiabilib/for articles placed within lockers. Articles, includingtextbooks, placed within lockers are the sole liability of the individual who has chosen to use the locker. Students should not bring backpacksor other personalbelongingsto the physicaleducation area• PHSwill not be responsiblefor maintaining the combinations for the locks. Locks that appear on other than the assigned locker will be cut off. Students ere not to share Iockersl Students are held responsible for articles found in their personal belongings,vehicle or lockers. Report locker problems to the Attendance Office. Lost and Found: Check wlth the Health Office for all lost items except textbooks. Textbooksare returned to the library. Nedicatians: Designatedschool personnelmay assist any pupil who needs to take medicationduring the school day if the schoolreceives: 1. A written statement from the doctor detailing the method, amount and time the medicationis to taken (Form H26), which is available from the school• 2. A written, signed statement from the parent/guardian askingthe schoolto assistthe student (Form H26)• After the required forms are brought to school, a responsible person should bring the prescribed medication in a tabeled prescriptioncontainer to school Students are not allowed to bring or carry any medication including over the counter drug (Advil, Tylenol, etc.) with them. Violation of the policy will result in disciplinaryaction. Notl-Punitive_ Self-Referral: Poway High School strongly' encourages any student who is using alcohol or drugs to discuss the matter with his/her parent/guardian or any school =-'taftmember. Students who disclose past use of alcohol or other drugs when seeking help from an intervention or recovery program shall not be punished or disciplinedfor such past use. (This does not include a student who is in possessionor under the influence of alcohol or other drugsat the time of reportingthis information•) 8 2_a Edition: Final Revision 3.6•0 •' Exhibit -10- 1 04cv1103 Off Camp.us Independent Study: Each school site wlll have the right to enroll students Jn independent study for a limited period of Lime if the students must be absent under conditions which do not meet the state requirements for excusedabsences. Students requesting independentstudy for five (5) or more days should notify school attendance deparLTnentfive (5) days prior to departure, For extended absences, schoot attendance departments should be notified five (5) to ten (10) days priorto departure. The Attendance Office will provide the _udent with a contract and assignment sheets for each of the student's teachers, The contract must be signed and dated by all parties prior to the absence.When the student gives the teacher(s) the work assigned in the agreement, attendance may be claimed for the student for the days of absence provided that the work is completed by the date specified in the agreement and the work is equivalent to a full minimum day of attendanceclaimed, Note that the OCIS contract containsthree dates; the beginning date of the contract, the ending date of the contract, and the date on which the work is due ("due date"), A modification or extension of the contract can be made in cases of rellglous holidays. Poway Hiqh School parkinq 'Rules,2004-2005 Parking remains a privilege at Poway High School. ParkingRegistration takes place during student registration and during the first two weeks of school. Seniors may begin parking on campus as soon as they receive their permit. Allstudents must present: • A valid vehicle registration * Valid Callfomia driver's license . Valid schoolidentification card * A completed parking registration card ' A valid registration In the student's name or parent/guardian's name is required for each vehicle listed on the school parking registration form. The vehicle must be registered on the school registration form PRIOR to parking on campus. NEW: PLEASE NOTE. = DUE TO CONSTRUCTION DURXNG THE 2004-2005 SCHOOL YEAR POWAY HXGH SCHOOL WILL NOT BE ABLE TO PROVZDE WI"TH PARK.tNG PERMI'rs, The following academicstandards are required to be consideredfor a parking permit for Semester t. • Seniorsmust have a minimum of 170 credits at the end of the summer schoolsessionprecedingthe senior year and an accumulaUve G,P.A, of 2.0. • Students carrying unresolveddiscipline and/or aL1;endance violations into the next schoolyear will not be allowedto applyfor a permit. • Every _ senior is Initially guaranteed a parking permit. Parking permit registretion and issuance will be conductedon Mondays before schoolbeginning the first Monday of the school year. 2nd Edition: Final Revision 3.6.0 Exhibit -11- 1 04cvi103 • • The following academicstandardsare required to be consideredfor a parking permit for Semester 2. • Seniorsmust have a minimum of 200 credits andan accumulative G.P,A. of 2,0. Each student who is Issueda parking permit is responsiblefor Its care. If a student loses or has had the permlt stolenthey must report it to the parking administrator Immediately. The student's parent will be required to appear at the Student Disciplineoffice and sign a statement of understandingthat will inform them that there will be one replacement permit issued per student for the entire year. Zf the replacement permit is lest_ the student will no longer have the privilege of parking in the student lots. if, it is foundthat thelost/stolen permit is In use by ano_er student, disciplinaryaction couldbe taken against both the student In possessionof the permit and the student who was odginally issuedthe permit, dependingon the circumstances. Studentsmust properly displaytheir parking permit with the permit number clearly visiblefrom the front windshieldwhile parked at Poway HighSchool. It is the responsibilityof the student to ensuretheir permit is displayed at all times. Parking privileges may be revoked for reasonsIncluding, but not limtted to the following: • Attendanceissues • Misuseof permit • Recklessdriving * Disciplineissues The speed limit on campusis 5 mph. Vehiclesare NOT to be used as a locker; studentsmay NOT go to their vehicleduring any part of instructionaltime during the school day. Perkingrules are establishedand will be given to student when they are issuedthe parking permit. Violation of any of the rules listed above or stated in the parking rules can result in revocationof parking privileges,parking citations, having the vehicletowed and impounded at the vehicle owneCsexpense and/or further disciplinary a_on. Fines will be in compliance with the City of Poway Bali Schedule for parking violations. Pass/Fail Class Desiqnatlon: Students may designate a maximum of one selected non-college prep class each semester as pass/fail, The deadline for designating classespass/fall is the first _ school days of eachsemester, You may not change to or from pass/fail a_er that time. The student must get and return the paperworkrequesting pass/fail to and from the school registrar. Period 6,S Classes: 6.5 Period classesare optional for all PHS students. The following information will help you in deciding whether to add this additional class tOyour schedule, • Each classmeets for a minimum of two hours a week. • Students may earn 2.5 credits for a passingclassgrade. • Classes are pass/fail, with the exception of Speech and Debate, AVID, and others as announced, • Students earning a letter grade in a 6.5 period class will have thatgrade calculated in the grade pointaverage. • Usts of available classes end fdmes may be found in each rJassmom on campus. • Students enrolt in a 6.5 periodclass by attending classand signing up wlth the teacher during the first 20 days. Students attending e class session and returning an enrollment form to the teacher are officlellyenrolled in theclass, lO 2"d Edition: Final Revision 3.6,0 Exhibit 1 -]204cvli03 • • Ifa sWdent decides to drop _heclass, the individual s_dents HUST inform the teacher or counselor, with a wd_.en parent note, on or before the 20 day deadline. This deadline is published in the daily bulletin and will be held frm. Students listed on the roster after the 20 day drop deadline will receive a grade for the class, Peer Counselincl: Approximately 80 _h-!2m graders are chosen each year to serve as peer counselors, based on teacher recommendations, an application and interview process. Each of these peer counselorsattends two retreats per year. Peer counselorsprovide assistance in the Titan Center, Wellness ofce, serve as mentors and provide tutoring. In addition, the peer counselorsattend a weekly mee_ng where they get training in counseling and communication skills. Students can refer themselves or be referred to peer counselorswhen they need a peer to talk to and/or tutoring. All referrals are confiden_JaL Referral forms are available in the wellnessoffice. Peer counselors receive 6.5 period credit, P.E, Uniforms: Uniforms are required for all students taking P.E. classes. Uniform consistsof dark green shorts and light: grey T-shirt. Athletic shoes and socksare required at all_Jmes.Cost of the Uniform is $10 for the shirt and $10 for the shorts, A green PHS lock is also required for P.E. lockers at a cost of $5. PJ=oares_Re_o_ Cards: Givento studentsto hand carry home after 6 and 12 weeks of classes each semester. The semester report card (with the final coursegrades) is mailed home. Psvcholoalat= A school psychologist is available on e limited basis for academic and personal issues, Generally a student is referred to the psychologistby counselors.Parental permissionis needed for any testing. The psychologistalso works with Speclal Edand the SIEC (Site Informal Evaluation Committee) process. Radios. Walkmans, Stereos: Portablestereos are NOT permitted on campus and in all cases will be 00nfiscatedand disciplinaryaction will be taken. While "walkman" type radios and tape decks are permitted on campus,they HAY NOT be used during class time in or outside of the classroom,and are PROHIBFrED in the classroom, S_..nior Recommeqda_ops; Student requests for college recommendations need to be turned in to counselorsa minimum of 10 schooldays prior to the due date. Skateboards, Roller Blades_and Bic_zde_: Students are NOT permitted to ride skateboards, roller blades or bicycles on the campus. Bicyclesmust be secured in the bike rack. Skateboards should be left in the Discipline Office before schooland may be pickedup after school. Student Store: Located next to the iibraw entrance, the student store is open before and after school, as well as during break and lunch. Nu_tious snack Items, school supplies, locks and PHS clothing Items are regulady kept in supply. S_DDoft GROUPS:Support groups meet once a week, alternating periods so that a student wl]l only miss each class once each r_week grading period. It 2_ Edition: Find Revision 3.6.0 " " Exhibit l -13- 04cv1103 e D • • Suppor_ groups are for students who need a con_dential place to talk about problems. Groups are co-facilitated by two trained Poway High School staff members, Whenever possible,students are grouped according to issues (family changes,sobdeW, tobacco cessation, bereavement, etc.). A student can be referred by a teacher, peer, counselor,parent or self-reforral b_talkino to a counselor or SAT coordinator. Parental apprevai is required for all students attending support groups. ,Techngloqv and Telecommunications AcceptableUse Agreement Resources: Refer to Student Telephones: Publictelephones ere available next.to the gym and outside the finance office. School phones are for emergency use only. Please use the pay phones before and After school, or during break or lunch. They are not to be used during classtime. Titan Center: The Titan Center is open Monday through Friday from 7:00 A.M. to 3:00 P.M. and staffed by a Counselor.Students can do career _nd col/ege searchesthrough Eureka (a large computer database), get specificinformation about careers and colleges,and find out about financial aid and scholarships. Peer counselorsare available to provide assistance before school, dudng lunch and after schooJ, as well as during most class periods, Freshmenvisit the Titan Center through their health classeswhere they get an introduction, fill out a Quest (career survey) and start a career folder. Sophomores take a more detailed career inventory called the COPS (Career Occupational Preference Survey). These results are given to students through their English class. Parentsare Invited to attend small group COPS interpretation sessionswhere they are introduced to the _tan Center and exposed to the various career resources available. Students are given the opportunityto take the Major-Minor Finder In their junior year to help determine a major (and related Job) at a 2 or 4 year college.The career folder is kept until the student's senior year and is then given to the student upon graduation. Transcrjp1_: Students must allow a minimum of 10 schooldays when ordering transcripts for colJege,scholarships, etc. You must pay $1.00 to the Finance Office and bdng the receipt to the registrar to order your transcripts. Visito[_ to PHS Campus In order to ensure campus security and protection to students, strict enforcement of the campus policy regarding the presence of non-studentson campus is enforced. 1. Studentsare not allowedto bring visitorsto school. 2. Non-studentswho wish to tour the campus must be escorted on a tour by a schoolofficial. Pleasecall the DisciplineOfficeto arrange for a tour. 3. The presence of any non-student on campusduring regular schoolhours is subject to arrest under PenalCode §626.8. 4. Only students registered and attending Poway High School may be on campus during school hours. Students who have been assigned to home suspensionmay not attend any schoolsponsoredevent during the time of suspensionand #-.heirpresence on campus makes them su_j_=_:to Perta! Code §626.8, 5. Parentsand guardians wishingto see a student during regular hours must check into the office of the Assisl_nt Principal, Discipline, Interruption of classesis not permitted, 12 2_a Edition: Final Revision 3.6.0 Exhibit -14- 1 04ev1103 e • 6. 7. • Parents entering to see and/or sign a student out of class must be prepared to present properidentification. Students may not be released to any person other than the parent/guardian without the parent/guardian's written consent on a DP-ZS form. I ..Weekly Preqress Reports: PHSparticipates in the district-wide LearnlngPoint program. Teachers are expected to post assignments and current grades on their LeamingPointsites on a bl-weekfy basis. Go to wwv.leamin_int.or_ or www._owavu._d.com for more information on how to log-onand use the system. withdrawal From Class: Withdrawal from a coursemade during the first 2g schooldays of a semester will nat appear on the four-year card or report card. Any withdrawal from a courSe initiated after the first 20 school days of a semester wilt be designatedWithdrawal Fall (W/F). Exception to this procedure may occur only after review by the principal. The principal's waiver shall only be exero[sed ]n cases where extreme circumstances appear to have been beyond the control of the student. A WiF will be computsd into the students GPA. Withdrawal from 6.5 Period classes must be made by the same 20 school day date, n_after 20 clessmeetZngs, Work Experience: Seniors who have a job can get school credit through Work Experience(provide¢_thevreouest the classodor to the semesterJ. The student attends a class at PH5. The teacher in charge visits with the employer. Additionally, as newjobs become available, they are postedon a bulletinboard outside the administration office. When jobs relate to specificcourses,teachers who teach those courses are given copies of the announcement to have available for their students. STANDARDS FOR STUDENT BEHAVIOR Most students are very seriousabout wan_;ingto take fuil advantage of the time they spend in school.Students who come to schoolto learn and participate in socialactivitiesseldom have problems with schoolrules. However, the behavior of a few students creates problems for everyone by interfering with teaching and learning. It is the intsnt of Poway High School and the Governing Board that District discipline policies and regulations be enforced consistently and fairly without regard to race, creed, co_oror sex. Disciplinebased on faith in the worth and dignity of each individualis a positiveform of guidance.This section describes the major areas of problem behavior the, Poway Unified School District will not tolerate. Students who involve themselves in these problem areas will receive correspondingdisciplinaryaction, also listed. In all casesof dlsciplinary action, students are protected by due process. Students and parents should be aware that this only describes the major problem areas. At any timer teacherS or administratorS may counsel students regarding their behavior, if this occurS,students wilt be informed as to what they must do to make their behavior acceptable. Fossible consequences, If needed, will also be explained. The basic code of conduct is designed to support, not stifle students. We hope it will helpprovide students wlth a scboot they are proud to attend in an atmosphere where they have freedom to learn. Beha.vio.ral Expectations: Striving for excellence is a Poway tradition. This excellencecomes as a resul_ of hard work and sacrificeby many studentsin a variety of roles. It is essential that students who represent Poway High School exhibit behaviors both on and off campust which would not detract from, 13 2ad Edition: Final Revision 3,6.0 • "'Exhibit -15- 1 04cv 1103 * • • tarnish or mar the reputation ef a team, program or school. They should, through their own high degree of citizenship, provide the role models necessary to maintain the high level of excellence and provide leadership for other student followers. Our student leaders should act as meaningful, productive members of society_ _nowlng good citizenshlptowards all. Failure to live Up to these standards may result in students being removed from the pos{tionthey hold. This includes all co-curricularactivities,i.e., teams, clubs and offices. SOCIALLY RESPONSIBLE BEHAVIOR The Poway High School community believesthat Socially ResponsibleBehavior ($RB) is crucialto improving and maintaining a climate of respect The Poway High Schoolexperience will enhanceeducat{onalopportunities,prepare students for the workplace and allow all individualsto feel comfortableand secure. Staff, parents and students have developedguidelines for SociallyResponsibleBehavior dudng the school day and at all school sponsored events. SociallyResponsible Behaviorinc/udes,but is not limited to the following: Ai Public Display of Affection: Phys}calintimacyis to be valued but should be shareddiscreetlyand not showcased.In an effort to promote behavior which establishes.a friendly atmospherewithout causingothers to feel embarrassmentor discomfort,unacceptableare: 1. Prolongedor heavy kissing 2. Fondling/Inappropriatesexual contact 3. Excessivebodycontact R= Language: Appropriatelanguage enhances mutual respect and raises the level of comfort necessaryfor studentsand staff to performat their best The following misuse of written, spoken or gestured communication in any language isunacceptable: 1. Obsceneer profane 2. Derogatoryer intended to be racial, ethnic, religious, gender or sexual slurs intended to be hurtful or harassing in nature. Cl Dress: School clothing should be neat, clean, and appropriate for school activities and should follow the standards of common decency. The dress cede will be enforced at all school-sponsored actJvlties. Clothing that violates this standard is unacceptable, and the student in violation will be disdpllned appropriately. E_amples of urlaccep.t_bJ.ed_ss a.re as follows: 1, Clothing that reveals or exposes undergarments. This includes any muscleshirts (underwear style). 2. Clothingthat does not adequatelycoverthe midriff,breasts, backs, or the buttock areas (No cleavage may be shown. Tube tops are unacceptable). 3, Clothingand accessories(includingbackpacks)that promote er portray: a. Drugs,atcoheland/or tobacco(420, 8-ball, mushrooms, etc.) b.Sex c. Gangs(numberedhats that denote an area) d. Weapons e.Violence or hate behavior including derogatory connotations directedtoward sexual identity 4, Altered hats (acceptable hats are those that are massproducedand are worn as intendedby the manu_cturer). 14 2 na Edition: Final Revision 3.6.0 " Exlfibit 1 -16- 04cv1103 • • • ! 5, BandannasCwornor carried). 6, Wallet chains(worn or carded), 7. Belts or wrist-bandsthat have metal spikes. i Hntst bea_iest hoods, etc..m.av not be.worn inside iany school buildinq or dassroom. They must beremoved Immediately ,upon ent_rina any such buildlnq. D. Environment= A clean, healthy and attractive campus is a shard responsibiliW. In order to provide a safe and attractive environment, the following are unacceptable: 1, Litter--careless or intentional 2, 3, Vandalism--defacing of or damage including: a. Tagging b. Graffiti c. Tree or shrub damage Spitting TRASH YOUR to school IS A_S.IGN. IFICANT.PROBLEM H_LP..,.rS,NEEDED TO KEEp or pdvate property, ON CAMPUS. OUrR CAMPUS CLEAN_ RULES OF STUDENT DISCIPLINE Students of the Foway Unified School Oistd_ will be disciplinedin accordance wtth Statutes of the State of California. A student will be subject to disdplinary action for the designatedacts that are related to schoolactivity and attendance and which occurat any time, Includingbut not limited to any of the following: • The student is on schoolgrounds • The student is going to or comingfrom school • The student is on breaksor lunchperiods whether on or off campus • The student is going to, coming from or attending a school-sponsoredor District-sponsoredactiviLy The prohibited acts are; !. Causing, attempting to cause, or threatening to cause injury to another person; 2. Possessing,selling, or otherwise furnishing to others any firearm, knife, explosive, or other dangerous objects such as, but not limited to, brass knucklesor slingshots; 3. Possessing,using having consumed, or being under the influence of alcohol, narcotics, dangerous drugs, or other conh'olled substances or intoxicantsof any kind; 4. Transferring, selling, distributing, offering, arranging, or negotiating to sell, or possessingquantities sufficient to suggest the intent to provide, give or sell to other students, substanceswhich are_ or are purported to be, alceholanarcotics,dangerous drugs, other controlledsubstances (i.e., marijuana, crystal methamphetamine, or anabolicsteroids) or intoxlcant_ of any kind; 5. Committing or attempting to commit robbery or extortion 6. Causing or attempting to commit to cause damage of school or private property. 7. Commi_ng or attempting to commit thef'c of school or private properly 15 2ndEdition: Final Revision 3.6.0 " Exhibit -17- ...... I ..... 1 04cv1103 • • 8. Possessing or using tobacco or any products containing tobacco or nicotineon schoolpremises; 9, Commission of obscene act:, or engaging in habitual profanity or vulgarity. 10. Unlawfullypossessing,offering, arranging, or negotiating to sellany drug paraphernaliaas defined in §11014.5 of the Health and Safety Code. l:t. Disruptionof schoolactivitiesor willful defianceor'schoolauthor(ty; 12. Knowingly receivingstolen school or private property. !3. Possessingan imitation firearm. 14, Committing or attemp_dngto commit sexual assault or sexual battery. 15. Threatening or intimidating a witness or a complaining witness in a school dlsciplinaryproceeding. 16. Sexual harassment 17. Hate behavior/Violence !8. Possessingor usingelectronic signaling devices, includingbut not limited to pagers and signalingequipment. !9. Causing or attempting to cause an assault or battery on any school employee. 20. Violationsof individual schoolrules. 2Z. Violationsof busriding rules. Methods of disciplinemay include advice and counsel, warnings, work details, detention, in-school suspension(ISS), Saturday school, suspension from bus ddtng, home suspension,rehabilitationcontract, transfer to another schooland expulsion from the Poway UnifiedSchool Dist:dct:. Alcohol and Controlled Substances Use: Board Policy defines spedflc disciplinary action for the use of alcohol and controlledsubstances, A student will be subject to disciplinaryaction for the designatedacts that are related to school activity and attendance and which occur at any time, includingbut: not limited to any of the following: • The student is on schoolgrounds at a time when schoolis in session or a school-sponsored activity is in progress • The student is goingto or coming from school , The student:is on break or lunchperiodswhether on or off campus • The student is going to, coming from or attending a school-sponsored activity. t_ tWoldb_t_d ,_:t=#3, 4, e; _LPosing, u_'ng,h_vlng=t_umed, or bd_l underthe intlue_l¢eof alcohoIf 4. Offering,iln-4r_lng or r_ 0tiattt_ to _n any (Sr_ pamPhl_lal_ as (leflnedin _lon t 1014._ of_e H_a_ and Safety O_d;_ k_on on Z_ Off=r=a Transit to _nother h_ghS_hool,theo_lt_uat_n _/g_ _001_ or _he O_ Campus_n_e_r_1_ Study program tot a _ of_me of 90 school days or for U_erema_er oft_e semper =rid the _=t_owl_ se_e;ter, In_at_ an In_efvent_ P_€o_ _r expu_o_ Transfe_t=ano_er highs_hool,the O_t_t_on highSChOolOrthaOffC_mp=_ Zndepe_e_t S_y p_ogram f=-a p_tod of t_meof 9_)schooldays or f_r t_e remainder of _e _ and_e _tng _, _t_ an t:_zven_ arranging, or I_go_atir_gt_ seJ/,or possessingquantitiessuttl_nt to s_gglr_ _ e ln=_ b pur_w, _l_e r_rsellt= oth_ saKlentssub_rx:_ whirl1 am, or purpOrt_l _ t_e_to_hOl_n_rco_cs,dlr_o_s d_lgs, o_r _nv_l sub_s or _a ntsof atiykJnd. 16 I I 2_d Edition: Final Revision 3.6,0 Exhibit -18- 1 04cvi103 • • N.otJflcatior_ Of Law Enforcement AuthoritJeg; The failure to make any report required by this section is an infraction punishable by a fine to be paid by the principalor principal'sdesigneewho is responsiblefor the failure, Ai_l_ealProcess =Studentswishingto appealdisdptinaryderisionsshouldcontoct the Principal for informationon specific procedures. A_saUlt; An "assault" is the unconsentedto, unprivileged attemptscoupledwith an apparent presentintent and ability, to inflictimmediateinjury on the personof another, providedthe intendedvictim is placedin fear of personalharm. "Assault is commonlyreferred to as an attempt to commit a "battery" In general, battery isthe unlawful touching or striking of another by the aggressor himselfor by any substanceput in motion by him, done with intent to bring abouta harmful or offensive contact whichis not legally consentedto by the other and not otherwise privileged. ]t is e_ten stated that: a battery Is a consummatedassault. Note that "battery" Includesand impliesassault, for there can be no battery withoutan assault--butan assaultdoesnot necessarilyfadude a battery. .Chal#en_e_ofAuthority; All schoolst_ff members are in pes[tion of authorityon campus and at any school related activity. Direct challengesor verbal abuse toward a staff member will result in disciplinaryaction. If the challengeor verbal abuse is Considereda threat to a staff member, disciplinary action couldresult in arrest and possibleexpulsionfrom the PowayUnified School District. Note" By law, students are required to do what is reasonably asked of L-hemas Iong as the request does not cause physical or mental danger to them. If a student feels be/she is not being treated fairly, the student should refrain from arguingwith the teacher and take the appealto the AssistantPdndpal, Discipline. Cotnnut_r Hackina/t/Trusem Computer hacking end/or the introduction of a computer virus violates school rules and will result in disciplinary action. Disciplinaryactionincludesrestitution,suspension, being dropped from computer classeswith a W/F (Withdrawal/Fail) and the filing of a report with the police• Computer "hacking" is illegally enteringa computersystem. A computer "virus" is a programthat once entered into a computerwill destroy softwareand computer memory, internal is for educational usesonly. Studentsare to avoid siteswhich are inappropdate suchas violence,hale, and sexual in nature. Discrimination. Discriminationts negative or unfair treatment tuward an individualbased on race, ethniciLy, sexualorientation, religion orgender. It is against the rulesfor students to make nasty remarks that embarrassothers or make them feel uncomfortablewith actionsor remarks that are sexual or racial in nature. Harassmenton the basis of race, ethnicity, sexual orientation,religion or gender Is a violationof both federal and state employment lawsas well as District Policyand AdministrativeProcedures:(Ti_e VZI of the 1964 Civil RightsAct', the Educationalamendmentsof !972, Education Code §2:/.2.5 and Board Policy).The DistriCtis Committed to providing studentswith an academic environment that L_ free from harassment anddiscrimination. Disorderly Conduct. Inciting or instiga_nga fight or any other disturbanceon campus will resultin disciplinaryaction• 17 2"d Edition: Final Revision 3.6.0 ..... °Exliibit 1 -19- 04cv1103 • • • Dr'uq_/Al(:_ho!/S_erold_;: PosSessing, using, having consumed or being under the influence of alcohol, namotics, dangerous drugs, steroids or other controlled substances or Intoxicants of any kind will result in transfer to another high school and/or will result in expulsion from the school district if=this ls a second offense. Possession of marijuana on the grounds of a public school during the hours in which school is open and offering Instruction or programs for pupils 1(-12 is a misdemeanor. Minors may be punished on the first offense by a fine of up to $250. Second offenses end adult misdemeanors may be punished by a fine of up to $500 and/or ten days impdsonment. Electronic Pa.qi.n.q Devices / Cellular Telephones: The governingBoardrecognizesthat instructionaltime is preciousand must be protected from unneCessary disruption. However,the Boardalso acknowledges the importanceof electroniccommunicationbetweenstudentsand parents, pa_culady when students are involvedwith activities that keep them after school hours. Therefore, students may be permitted to have in their possession a cellular phone/pager in school,on schoolproperty,at after-school acttviUes, and at schooF related fon_ons providedthat use of the cellular phone/pager does not disrupt the instruc_Jonal processexceptas required by EducationCode for medical reasons. In permt_ng use of suchdevices,the Districtassumes no liabilityfor the lossor damage of the deviceor itsmisuseby anotherperson. Cellular phones/pagersare notto beused for unlawfulpurposes. Individual sitesshalldeterminespecific procedures for their students regarding the use of cellularphones/pagersduring non-inst_uddonal times (i.e., breaks and lunch). These procedures must be developed in collaborationwith the school community,whichmay includesite councils,safety committees, parents, department chairs,school staff, andstudents. PowayHigh Schooladopted its policy In 2002. It was determined that cellphones are never to be used during the instzuctfonal day; specificallyfrom the hours of 7:30am tu 2:30 pm. Studentsin violation of this rute shallbe subject to disciplinary action. Parentsor guardians may be responsible for picking up the cell phone from the discApllneofficefor students who violate this rule. .Explosives,Weapon s and Related.Devi.'.oe_t 1. Any student provento be in possessionof firecrackersor any other explosive devicewill be subject to suspensionwith consideraUonof expulsion. 2. Any student found guilty of setting off an explosive device will result in a suspensionpending recommendationof expulsion. 3. Any weaponsor simulated weaponsbroughton campuswill be confiscated. The result could be possible arrest, prosecution end expulsion. Some examplesare paint guns,pellet guns, B-B guns, nunchakus,etc. A weapons dangerous inSlTument, or replica weapon is any object w'nich a reasonable person could perceive to be a weapon. Exemplesinclude,but are not limited to: gun, rifle, pistol, revolver, "zip gun", "stun gun", tesar, dlrk, dagger, ice plck, knife, razor, plpa bomb, Ume bomb, cap gun, conteiners flammable fluids, B-B gun, pa([et gun, spot marker gun, b{lly club, black"jack, slingshot, nunchaku,sandclub, sandbag, metal knuckles, or any metal plate with radia_ng points w_h one or more sharp edges, model gun, model dfie, medel pistol, model semFautomatfc weapon, toy gun, toy rifle, toy semi-automatic weaponand squirt gun. 18 2"a Edition: Final Revision 3.6.0 Exhibit -20- 1 04cvl 103 O • • A student discovering inadvertent possession of a dengerous object should immediately self-report such possessionto a staff member in order for oplimal consequencesto be considered. Actual or attempted injury to another person, that occursdudng a hostileencounter.Mutual combatis when both partiesare participantS. For school purposes,"self-defense"Is not fighting back. Self defense is the preventionof harm by blocking,holdingor at best the moving away from a fighter. An "eye-foran-eye" Is considered fighting,not self-defense. Falsely and fraudulently making or altering a document. Playinga game for property, wager or money or to stake something on contingency. Narassrrmnt; Harassment is unwanted and unwelcome behavior from ether studentSor staff members that interferes with anotherindividual'slife. When It is sexual in nature, tt is "sexual harassment". When it is racial in nature, it is a "hatemotivated behavior" or sometimes a "hate crime". .H. ate .Behavior: Negative behaviors that target members of a particular gender, race, ethnicity, religion,sexualorientation,or the mentally or physicallychallenged will not betolerated. Suchbehaviorsmay Include,but:are not limitedto." 1. Name calling,racial slursor bigotedepithets, 2. The presence of symbols or words consideredoffensive to persons of a specificgender, race, ethnlcity, religion, sexual orientationor the mentally or physicallychallenged,suchas graffiti, slursor paintedswastikas. 3. Activitieshistoricallyassociatedwith threats to personsof a specificgender, race, ethnicity, religion, sexual orientation or the mentally or physically challenged(e.g., burningcresses, wearing swastikasor white sheets, flying confederate flags, hangingeffigies, defacingpinkl-dangles]. 4. The posting or drculation of demeaning jokes or cadcatures based on negativestereotypes of a specific gender, race, ethnicity, nationality,religion, sexualorientation or mental or physical challenges. S. The defacing, removal, or destruction of posted materials, meeting places, memorials, etc. associatedwith specificgender, race, ethnic, religious,sexual orientationor mental or physical challenges. 6. Victim belief that the inddent was mo1_vatadby bias against him/her as a member of a specificgender, raclat, ethnic, religious, sexual orientationor mentally or physically challengedgroup. 7. Perpetrator explanation/defenseof incident involves exalting own gender, race, ethnicity, religion,sexualorientationor mental or physicalstatusand/or includesstatements demeaningv[ct{mgroup. 8, The presenceof organizedhate group literature and/or postersor reference to an organizedhate group. Hazing in any form, including initiation, which Is degrading is strictly forbidden by C.alifornieState Law. No student shall conspire to engage in hazing, participatein hazing or commit any act that causes or is likely to cause bodily danger, physicalharm, or personaldegradationor disgraceresulting In physicalor mental harm to any fellow student or other person. Personsviolatingthis policy shall be subject to District discipline, misdemeanor penalties and forfeiture of entitlements. 19 I I 2nd Edition: Final Revision 3.6.0 "Exhibit 1 -21- 04cvll03 • • • Off Limit, A_a 3 During break and lunch, students have access to the main campus area, The areas considered "Off Limits" are: 1, Outer Perimeter (outside yellow boundary lines; spedal access by permission only) 2, Parking Jots 3. Athletic fleJds 4. Tennis _ racquetball courts S. Any construction zone • Public phones are off limits dudng" class time, even with a pass from the teacher. In case of emergency, check with the Receptionist In the main office. • • Soft drink machines are not to be used during passing time or during class. They may be used before and a_er school and during break and lunch. Students are forbidden to climb fences as a form of access to or from the campus. Search p_/d Seizures: Schoolof_cia]s have a duly to protect other studentsfrom the possibledamagesof contsaband, suchas weaponsor drugs. Althoughs_udent dghts are of primary importance,when situations warrant, searches of vehicles, lockers, backpacks, purses, pockets and other personal belongings will be performed. "The legalityof a warrantiesssearch depends on the reasonableness underall circumstancesof the search, Including the following factors: whether the searchwas justified at Its Inception and whether, as conducted,it was reasonably related in scope to the circumstances that justified it in the first place." (New Jersey v. TLO, 1985} Our goal is to maintain a safe and orderly environmentfree of weapons,drugs or paraphernaliawhichcan negatively influencethe climate of our school. The Districtmay also use speciallytrained non-aggressive dogs to sniff out and alert staff to the presence of substancesprohibited by law or District Policy.The dogsmay sniffthe air around lockers,desks, bags, items or vehldes on Districtproperty or at District-sponsored events as long as they are not allowed to sniff any person. Items shallnot be sniffed {f a person {s closeby. Inspections shall be unannounced and may be made at the discretion of the Superintendent or designee. Studentsand parents!guardiansshalt be informed of this policy at the beginning of each schoolyear. In all cases, students will be afforded due process. Sexua! HaraSsment The Poway Unified School District recognizes that harassment on the basis Of sex or gender ts a violation of Federal and SLate discriminationlaws as well as District Policy and Administrative Procedures. The District is committed to providingstudents with an academicenvironment free from sexual harassment, and will not tolerate such conducton the part of any Districtemployee, student, or other personat schoolor at a schoolsponsoredactivity. Any person with a complaint of sexual harassment suffered by a student should implement the complaint process contained in the administrative procedures. Retaliation or reprisals for reporting any incidents of sexual harassment, making any complaints_ or being involved in the investigation process, are not permitted and will not be tolerated. The District will promptly and thoroughly investigate any complaints of sexual harassment, and will take immediate action to resolve suchcomplaints. The Poway Unified School District strictly prohibits harassment based upon gender or sex, against any student in the educational environment. Prohibited sexual harassment:includes unwelcomeconduct based upon sex or gender by someone who is of the oppositeor same gender, a fellow student, a teacher or 20 2_d Edition: Final Revision 3.6.0 " Exliibit -22- 1 04cvl 103 • • other employee of the District, a District administrator, or any other person, within the school, school environment or schoolsponsored activity. The law defines _sexual harassment" to mean unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the educationalsetting, under any of the following conditions: Z. Submission to the conduct Is explicitly or implicitly made a term or condition of an individual's academ{cstatus or progress; or 2. Submission,or rejectionof, the conduct by the individualis used as a basis of academic decisionsaffectingthe individual; or 3. The conduct has the purpose or effect of having a negative impact uponthe individual's academic per[ormanceor of creating an intimidating, hostileor offensive educational environment; or 4. Submissionto, or rejection of, the conduct by the individual[s used as a basisfor any decision affecting the individual regarding benefits and services, honors, programs or activities avai#able at or through the educational institution. Examples of unwelcome conduct which may be sexual harassment include, but are not limited to, the following: Z, Deliberate written or o_l-comments, gestures, or phystcal contacts of a sexual nature or demeaning to one's gender which are unwelcome or interfere withschool productivity; 2, Implicit or explicit sexual behavior by a fellow student, District employee, or other person within the school environment which has the effect of controlling, influencing, or otherwise affecting the school environment; 3. Unwelcome suggestive, vutgar, or obscene letters, notes, posters, calendars, or other visual products, or derogatory comments, slurs, and/or jokes of a sexual nature. Retaliation, The Poway Unified School District strictly prohibitsany retaliation and attempts or threats to retaliate against anyone for flting, reporting, pursuing, or participating In a complaint of sexual harassment, or for being a witnessor helpingin any other way relating to a complaint, potential complaint, or Investigation of alleged sexua} harassment. Any person who retaliates or attempts to retaliate in violation of this prohibition may be subject to discipline whether or not sexual harassment actually occurred and independently of this AdministrativeProcedure, Anyonewith a concern that retaliation is or may be occurring is encouraged to contact the person investigating the charge of sexual harassment or the principal, assistant principal,or the District's _tie IX Coordinator. False Claims; No one shell file any claim of sexual harassment knowing it to be false, and no one shall provide any knowingly false information in a sexual harassment complaint or investigation. Anyone violating this prohibition may be subject to disciplinaryaction independentlyof this AdministrativeProcedure. Procedures- These proceduresare intended to provide timely and effective steps reasonably calculated to address concerns and allegations of sexual harassment, remedy any sexual harassment that occurred by ending it and preventing it from occurring again. AIt aspects of these proceduresshould be implemented with considerationof the gender, age, and maturity level of the student who is the complalnant and respondentof alleged sexual harassment. 21 2 "aEdition: Final Revision 3.6.0 Exhibit -23- 1 04cv1103 e • • All formal complaintsof sexual haressment must be presented within six (6) months from the date the alleged conduct occurred. However, nothing within this procedure prohibitsDistrict representatives from pursuingan investigation and implemenUng remedies regardless of that deadline, with or without the Implementation of this procedure. The confidentialib/ of information received and the privacy of the persons involvedwilt be protected, except for disclosuresrequired by law or as to those individuals who need to know within the context of an investigation, ana(ysis, appeal of sexual harassment allegaUons, or prevention or correction of misconduct. Therefore, a guarantee of complete confidentialityis not provided. Any individual who has designated a representative should inform that representative of the need to maintain confidentiality as appropriate to this process, and shall confirm in a signed written communication to the appropriate District representative that informa_on may be supplied to or received from that named representative. K a person informs an administrator about alleged sexual harassment but asks that the matter be kept confidentialand that no action be taken, the District must still discharge Its duties to prevent and correct sexual harassment. Under those circumstances, the administrator will contact the District's "[1tie IX Coordinator, who may take further investigative or corrective actions,with or without implementing this procedure. Also, some allegations may be so egregiousas to require District action or investigation, regardless of a person's desire .to remain anonymous or not process a complaint. For example, some allegationsmay require a report to the Child ProtectiveServices. The Informal and the formal complaint proceduresinclude the disclosureto the respondentof the Identity of the complainant and alleged victim, and the formal complaint procedure cannot be implemented without a written, signed complaint. A person who files a complaint and the alleged victim of' sexual harassment shall not be penalized for the good-faith filing or processingof an informal or formal complaint, including not being removed from the educational environment or his or her classroomwithout appropriate consent. Complaint Process These procedures may be implemented by a student with or without approval of a parent or guardian, by a student's parent or legal guardian or other legal advocate, or by anyone who ;s aware of sexual harassment having been committed against a student of Poway Unified SchoolDistrict. If a personother than the student's parent, legal guardian, or legal advocate submits a complaint, the person receiving the complaint should take appropriate steps to ensure the processingof the complaint does not violate any federal or state rights to privacy possessed by the alleged subject of the alleged sexual harassment. Any Cudent, at any stage of the complaint process, may be assisted by a parent, legal guardian, legal advocate, or other adult of the student'schoosing. If a District employee becomes aware of allegations of sexual harassment against a District student, that person shall notify an appropriate Distzt_ administrator and that administrator shall inform the District's Title IX Coordinator or designee and, if applfceble, Child Protective Services. The District's Title IX Coordinator or his/her designee, shall assoon as possible, If appropriate contact that student and/or that s_dent's parent or legalguardian, refer the potantial complainantto this Administrative Procedure and ensurethe potentialcomplainant possessesa copy of this Administrative Procedure. A potential complainant may begin the complaint processthrough the informal or formal processescontained in this Admlnisb'ativeProcedure. Nothing in this 22 I 2nd Edition: Final RcvJslon 3.6.0 • EXhibit -24- 1 04cv1103 A_mlnist_tlve P_Ce_L_rep_'eve_b_ Or re