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Thursday, Sept. 25, 2008 | A new San Diego Unified rule bans school board members from publicly criticizing the superintendent or his staff.

The controversial restriction is part of a new set of governance policies passed earlier this month by the San Diego Unified school board to define its powers and responsibilities. Board members hammered out the policies this summer with the help of paid consultants, hoping to stop their squabbling and the criticized practice of meddling in everyday school decisions. They also set specific goals and timelines for achieving them.

School board members “will not publicly express individual negative judgments about superintendent and staff performance,” the rule reads. “Any such judgments of superintendent or staff performance will be expressed in executive session.” They must also “respect decisions of the board and … not undermine those decisions” when speaking publicly.

Willfully violating that or any other rule can lead to penalties from a private scolding to public censure and removal from leadership positions or committees, the policies state.

Discord among employees and the board has been a persistent issue in San Diego Unified School District. Its last superintendent, Carl Cohn, said it had “a culture of conflict.” For example, Gompers Middle School Principal Vince Riveroll faced public criticism and was abruptly pulled from his position in 2005 when the school was seeking to become a charter school operated independently from the school district; Riveroll was later reinstated without explanation.

“You don’t cross the line of a personal attack where you are evaluating a person,” said school board member Mitz Lee, adding that she and other board members will still ask questions of their staff and share their opinions on policies. “… I don’t understand why people are going to be worrying about it.”

Attorneys from the American Civil Liberties Union and the open government group Californians Aware derided the rule, saying it flouts the First Amendment and cannot be enforced.

“I’m flabbergasted,” said David Blair-Loy, legal director of the regional ACLU chapter. “This is so outrageous. … It’s a complete violation of speech. It undermines democracy.”

Consultant Randy Quinn said similar rules limiting public criticism “are generally in place in almost all the districts we’ve worked with.” San Diego Unified signed a $69,000 contract in April with Quinn’s company, Aspen Group International, LLC, to train the board on its role and operations. Aspen lists dozens of school boards on its website as clients, including the Guilford County school district where San Diego Unified Superintendent Terry Grier last worked.

“The policy says there is no good in the board going out in public and criticizing our own employees,” Quinn said. “If we have those concerns, we’ll do it privately … as the law allows us to do.”

“The First Amendment is not being trumped here,” Quinn added.

Legal experts from the American Civil Liberties Union and CalAware disagreed. Blair-Loy of the ACLU said the rules are “clear violations of the First Amendment” that undercut citizens’ ability to hear the views of their elected officials. His views were echoed by CalAware attorney Terry Francke.

“What they’re trying to do here is eliminate the dissent,” Francke said. “… A corporation can tell its board members and employees to keep their mouths shut on anything really and keep it stick. That simply can’t be done in public life.”

Attorneys for the school district could not be reached for comment before publication.

Quinn said that the rules were valid because the school board voluntarily agreed to them. But two candidates for school board and one existing board member, Shelia Jackson, say they disagree with the rule and won’t follow it. Jackson, the sole board member to vote against the policies, called the rule “an official gag order” at a candidate forum held by the Association of Raza Educators on Wednesday night.

“I am not going to allow the superintendent to tell me what to do,” Jackson said, growing visibly agitated as she spoke.

Candidate John Lee Evans, who is competing for Lee’s seat, told the Association of Raza Educators that though “there certainly was a need for more civility on the board … respect and dissent are not mutually exclusive.”

Richard Barrera, who is virtually guaranteed to replace Luis Acle in the fall, called it part of a “trend toward more secret decision-making” in the school district under Grier, such as the unexplained decision to move Principal Edward Caballero from a Sherman Heights school to Scripps Ranch, which was reversed after public outcry from both communities.

“The idea that elected board members can’t speak publicly about the appointed superintendent is upside down,” Barrera said.

California School Boards Association spokeswoman Susan Swigart said its sample board policies, which it has provided as a template to more than 800 school districts statewide, do not include provisions with the same wording nor a similar spirit to the disputed rule.

Its professional governance standards mention that board members should “keep confidential matters confidential,” but do not include any other limits on public speech. Another school district that hired Aspen, Palm Springs Unified School District, said it had no rules to restrict what board members said publicly.

“I don’t think our board members would do that as a general rule,” said Joan Boiko, communications manager for the Palm Springs district.

Whether the rule is enforceable is unclear. Francke said penalizing school board members for their comments would violate the First Amendment; San Diego Unified school board member John de Beck supported the policy but was skeptical of its force.

“Where’s the discipline other than self-discipline?” he said. “… The argument I have is you shouldn’t pass things that you can’t actually implement.”

Questions about the disputed rule posed by a reporter were “missing the substance of this and writing the same old story,” school board president Katherine Nakamura wrote in an e-mail to voiceofsandiego.org. “The Board wants to work together more effectively and focus on academic issues, while increasing its ability to review and improve the business operations of the district.”

Correction: The original version of this article misidentified Terry Francke as the current attorney for the California First Amendment Coalition. He is the former attorney and left to form the open government group Californians Aware. We regret the error.

Please contact Emily Alpert directly at emily.alpert@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.

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