ACLU attorney takes wait-and-see tack on UCD protest policy

UC Davis’ new policy of having plainclothes police and staff wear name tags at student protests could be a workable compromise, a civil liberties attorney said Thursday.

“If it’s done in a way that doesn’t chill and is consistent with the exercise of free-speech rights, that’s acceptable, because they’re in public places and publicly declaring themselves,” said Linda Lye, a staff attorney for the American Civil Liberties Union of Northern California.

“It depends on how it’s actually implemented. So the intent is great, as long as the effect is consistent with that intent.”

Lye spoke about student rights at the annual meeting of the Yolo County chapter of the ACLU, attended by about 35 people at the Davis United Methodist Church. She also addressed issues such as search and seizure in grade schools and electronic bullying.

UCD officials admitted this spring that a campus cop lied about her identity to students during a March 2 protest. A public records request later revealed the existence of a new Student Activism Response Team, which angered students.

Lye said that if police take action that deters activities protected by the First Amendment, there may be in violation of California privacy laws.

“I think the best practice would be to identify yourself as being from the government; that would be much better,” she said. “If they’re totally undercover, it’s hard to argue they’re chilling because you don’t know they’re there. And if it’s in a public place, they have as much of a right to be there as anyone else.

“If it gets into infiltration, where they pretend to be a student and they go to a closed student planning meeting, I think that is extremely problematic. But if it’s attending public protests, I think best practices is that there should be greater transparency.”

UCD officials said the all-volunteer Response Team was formed last summer, in response to an increased number of tuition hike protests, so that staff would be on hand for such tasks as speaking to students about dealing with crowds, counter-protesters, safety concerns and police.

Officials acknowledged they tracked online postings about upcoming protests, but say they did so only for planning reasons. Neither staff nor police at protests took down names of students taking part, UCD officials have said.

“Over the summer, (Response Team members) will be considering additional steps to address the concerns raised by some students and community members,” spokeswoman Claudia Morain wrote in an email message Thursday.

Eric Lee, who recently graduated with a bachelor’s degree in political science, filed the public records request. He said name tags solve nothing.

“This is an issue of trust,” Lee said at the ACLU event. “It sends a terrible message to students. Whether it will turn them off from protesting, it could get us closer to the boiling point. It’s certainly chilling, that I can say for sure.”

Lye also explained the quandary the courts — and the ACLU — face over electronic bullying.

Established law, dating to the Vietnam War era, gives schools the authority to regulate speech that could cause a substantial disruption either to the student body or, in other instances, an individual student.

Electronic bullying often can take place off campus, however.

Lye used the example of a black girl attending sixth grade in a largely white school. A bully created a fake Facebook page on which the girl bragged of having sex with many boys in class, alienating the girls’ friends, upsetting parents and even causing the school to punish the victim.

Eventually, the girl’s parents pulled her out of the school.

So far, the courts have shown a willingness to let schools punish violent speech online, like a student depicting the killing of a teacher.

In two Pennsylvania cases this week, however, the 3rd Circuit Court of Appeals ruled in favor of students who created fake MySpace profiles parodying their principals because the justices didn’t believe they created a significant disruption.

Lye also discussed:

* A case in which the Shasta Union High School District enacted random drug testing for students in school-sponsored activities like choir or mock trial. A Superior Court judge in 2009 filed an injunction halting the testing. In September, the district lost its appeal.

* A case in which the U.S. Supreme Court ruled Thursday that police must take into account the age of a suspect in determining whether questioning is “coercive.” The decision stemmed from a case in which a seventh-grade special-needs student in North Carolina was questioned at school by police about neighborhood thefts without being read his Miranda rights or having his parents informed.

* A decision by the 9th U.S. Circuit Court of Appeals that found for the parents after an Oregon 9-year-old was questioned by police as a potential witness in a sexual abuse case without their consent. In May, the Supreme Court tossed the ruling on procedural grounds.

* The ACLU’s support of Assembly Bill 9, dubbed “Seth’s Law,” which would require schools to set up anti-harassment programs. The bill is named for Seth Walsh, a 13-year-old gay student from Tehachapi, who committed suicide last September after being bullied. It has passed the Assembly and races a Senate Education Committee hearing next week.

— Reach Cory Golden at cgolden@davisenterprise.net or (530) 747-8046.