San Dieguito rejects charges of religious discrimination

By Marsha Sutton

Senior Education Reporter

Objections to activities at four schools in the San Dieguito Union High School District have been raised in separate communications to the district by Dean Broyles, president of the Western Center for Law & Policy in Escondido.

“I’ve been contacted by a number of parents,” Broyles said. “We have four or five issues in the same district which is very extraordinary.”

Torrey Pines High School, Carmel Valley Middle School, Earl Warren Middle School and Diegueno Middle School in Encinitas have all been named by Broyles, who complained that discrimination in various forms against Christian students was occurring at the middle schools and that the high school improperly permitted the publication of sexually explicit material in its student newspaper.

In a four-page letter to Broyles dated May 20, SDUHSD superintendent Ken Noah responded to the charges, denying any wrong-doing by the district.

In the Oct. 22, 2010 issue of the TPHS student newspaper “The Falconer,” a feature section titled “(SEX)posure” included suggestive photos and contained stories about birth control vs. abstinence and sexually transmitted diseases. It also included an informal, anonymous survey of 263 TPHS students, asking them if they knew anyone with an STD and if they or any student they knew used birth control.

Broyles wrote in his letter to TPHS principal Brett Killeen that such sexually explicit material in the school’s newspaper “serves to undermine parental confidence in the school’s administration, who is supposed to serve in the role of parents (in locus parenti) while their children are in your care and trust.”

Broyles cited the 1988 Supreme Court Hazelwood case to support his position that the school has the legal authority and responsibility to intervene when necessary to protect students from inappropriate material in school-sponsored publications.

“The TPHS administration … had the complete authority to edit in part or completely deny the salacious ‘(SEX)posure’ article and photographs,” Broyles wrote.

Noah, in his letter, said the ability to exercise prior restraint to censor student publications is limited, “unless the articles are obscene, libelous, or slanderous, or if the articles incite pupils to create a clear and present danger by breaking the law, violating school rules, or disrupting the orderly operation of the school.”

“We do not believe the article in question rises to the standard under which the administration could have legally prevented its publication,” he concluded.

Broyles also objected to the survey, saying it violated section 51513 of the California Education Code, which states in part: “No test, questionnaire, survey, or examination containing any questions about the pupil’s personal beliefs or practices in sex, family life, morality, and religion … shall be administered to any pupil … unless the parent or guardian of the pupil is notified in writing … and the parent or guardian of the pupil gives written permission …”

“There can be no dispute that a survey was issued to 263 TPHS students containing questions about their personal beliefs and practices in sex, family life, morality, and religion,” Broyles wrote. “The article itself admits as much on its face.”

Broyles said surveys can be conducted informally but certain subjects cannot be broached without prior parental permission, and parents who contacted him said they were never notified or asked if their children could participate in such a survey.

“There are certain topics that kids are not supposed to be surveyed on without the parents’ knowledge in advance,” he said. “We’re not saying no surveys at all. We’re saying no surveys about private, sexual and religious matters.”

Noah said the district and its legal counsel interpret 51513 differently, saying the code prohibits school staff from administering sensitive surveys to students without prior parental notification and approval. But it does not apply to surveys conducted by students, who he said have free speech rights that staff cannot by law restrict, no matter how delicate or personal the subject.

“Since this survey was not conducted by district staff or for any official purpose, any student who was informally approached by a fellow pupil was not under any obligation to provide answers,” Noah said.

“They seem to say that if the students do the improper survey, it’s not improper under the code,” Broyles said.

He said the school’s staff and newspaper adviser should have known about the survey before it was conducted and understood that it was illegal. “I find it very hard to believe that the faculty adviser didn’t know that a survey was done by the students,” he said.

Broyles asked for an apology in the next issue of “The Falconer,” training of staff and future discretion.

“It does not appear that any sort of retraction is warranted,” responded Noah.

Equal access in middle schools

In a letter to Earl Warren Middle School principal Anna Pedroza dated Jan. 25, Broyles said the Fellowship of Christian Athletes club, now known as The Pulse, should be given “equal access to be able to invite and host off-campus speakers and guests.” He said youth pastors have been “improperly banned,” and the club has not been permitted to advertise like other groups, read from the Bible, or offer free food.

In his memo to Pedroza, Broyles wrote, “Except for legitimate safety concerns, the administration may not dictate to the club what can and cannot be said in their meetings, such as placing restrictions on whether the Bible is discussed or whether prayer occurs at the meeting.”

Noah rejected these points, saying, “Anything that we allow for clubs, we allow for all clubs. Anything we don’t allow, we don’t allow for all clubs as well. We don’t treat these any differently than others.”

Noah acknowledged that written district policy surrounding clubs currently specifies only high schools, but he emphasized that middle schools have always followed the high school policy. “The de facto practice at the middle schools has been what we do at the high schools,” he said.

Nevertheless, Noah agreed that the policy needs to be expanded to include middle schools in writing as well.

“That case looks like it’s resolving itself,” Broyles said. “They don’t have a written equal access policy for middle schools, but they committed to create one.”

Noah said this is a minor technicality and not a concession. “We did not change policy or direction,” he said.

Regarding free snacks like pizza and allowing preachers or pastors to talk to students during school hours, these are “going beyond what would be the normal bounds of trying to entice students [into clubs],” Noah said. “We did not agree to do those kinds of things.”

At Carmel Valley Middle School, Broyles defended a student who was prohibited by a teacher from posting a message about Christmas on the school bulletin board.

In an April 5 letter to the district, he said it was “government censorship of a student’s religious speech” which he called a “flagrant violation of students’ constitutional rights.” In attempting to be fair, the teacher “trample[d] on the rights of religious students,” showed “ignorance of the law,” and censored free speech.

Noah said that although the school’s bulletin board is entitled “to some First Amendment protection,” it is not unlimited.

“It is our position that the bulletin board, which has the purpose of showcasing student events and achievements, may be practically limited to preserve the board’s secular nature,” he wrote in his letter. “I feel this is reasonable, particularly in light of the school’s captive audience of students who are required to be on campus.”

Broyles said Noah’s comments about the bulletin board “were by far the most disappointing to us, legally and factually,” and he recommended in his letter that all staff be given “constitutional sensitivity training.”


In reaction to the news that an assembly to supplement history lessons about Islam was held at Diegueno Middle School last fall featuring a Muslim speaker, Broyles sent a letter to the district March 15 requesting a Christian history assembly for seventh-graders, “highlighting the contributions Christianity has made to society and world history.”

He said this would dispel “any misconception that parents or students may have that the school may be favoring Islam over other religions being studied throughout the course of the year.”

“After due consideration, I am denying this request,” wrote Noah, who said seventh-grade history standards cover the years 500 to 1789 of the Common Era, which is the period when Islam emerged. It is the sixth-grade curriculum that focuses on the origins of Christianity, he said.

“We thought it was a reasonable request to have an assembly on a topic that’s covered in the curriculum, and they denied that request,” Broyles said. “That’s not something we can necessarily coerce them to do.”

More troubling to Noah was the following statement in an email from Broyles, dated May 12, that read, “Employing your discretion to permit the assembly would be a wonderful way to dispel any notions that the [district] is anti-Christian.”

“The implication of this statement is profoundly disturbing to me on a personal and professional level,” Noah wrote in his letter to Broyles. “As the leader of this school district, it is my moral, ethical and legal responsibility to ensure that students of all faiths enjoy the rights and privileges to which they are entitled by law.”

But Broyles said it was Noah who first said in a private meeting that the tone of Broyles’ letters indicated that some parents may believe the district to be anti-Christian.

“I said that if you’re concerned about dispelling that perception, this [assembly] would be a good way to do so,” Broyles said. “I wasn’t implying in any way that he or the district was anti-Christian.”

The Western Center for Law & Policy is a non-profit legal defense organization which, according to its Web site, is “dedicated to the protection and promotion of religious freedom, parental rights and other civil liberties.”

The San Dieguito Union High School District serves about 12,000 students in grades 7-12 at nine middle and high schools in the north coastal area of San Diego County.



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