A Poisoned Process: Constitutional Scholar Says School Renaming Effort Lost Credibility

Constitutional law scholar Laurence Tribe weighs in on the San Francisco school board’s endeavor to change the names of 44 public schools, a process objectors have decried as unlawfully bereft of community input.

The San Francisco Board of Education voted to rename 44 public schools during a virtual meeting on Jan. 26, 2021. (Screenshot)

SAN FRANCISCO (CN) — The San Francisco school board is on the ropes after a judge ordered it to vacate a resolution scrubbing 44 public schools of their historical namesakes, or explain why it should not be compelled to do so.

It’s uncommon for a judge to rule so quickly, as public school alumni groups and the San Francisco Taxpayers Association just filed their petition seeking the decision’s repeal on the grounds that it was done without due process.

In an interview Friday, attorney and constitutional law scholar Laurence Tribe said the order from Judge Ethan Schulman bolstered his conviction that the petitioners he represents have a strong case that the school board’s renaming process was unlawful.

“It vindicated my sense that this is an extremely strong and unambiguously correct case,” he said. “That’s why I wanted to become involved, because I thought the issues were so important.”

The board voted in late January to approve the renaming of 44 public schools, a process that started in 2018 with the creation of a “blue ribbon panel” to review the appropriateness of naming schools after historical and political figures with controversial biographies. 

The School Names Advisory Committee drafted guidelines on which names should be considered for removal. They included anyone involved in the colonization of people, slave owners, perpetrators of slavery or genocide, those who exploited workers, those who oppressed or abused women, children, queer or transgender people, those connected with human rights or environmental abuses, and those who are “known racists and/or white supremacists” or who espoused such beliefs.

The resulting list of 44 schools included former presidents Abraham Lincoln, George Washington, and Thomas Jefferson, as well as Paul Revere, Francis Scott Key, and sitting U.S. Senator Dianne Feinstein. 

The board’s 6-1 vote raised an outcry from parents and alumni who said the process was conducted by fiat through a committee that excluded dissenting voices and did not allow for a properly-noticed public hearing on the individual schools. The petitioners believe this to be a violation of the Brown Act, California’s open meetings law. 

Flaws in the committee’s research surfaced days after the vote, causing some schools to end up on the renaming list based on factual errors.

“The whole process was poisoned from the beginning,” Tribe said. 

A Harvard Law School professor emeritus who has argued innumerable cases before the U.S. Supreme Court, Tribe said this case piqued his interest for several reasons. 

“One of them is I’m very interested in the issue of how to achieve racial justice in a world where all sorts of things have been named after racists and Confederate soldiers, and much of that renaming happened not at the time of the Civil War, but as part of the opposition to racial progress in the 1960s,” he said. “So I’m not one of those people who say you should never take down a Robert E. Lee statue.”

The issue is also personal for Tribe, a San Francisco native who graduated from Abraham Lincoln High School.

“As a member of the Lincoln High School alumni association, I naturally heard about how it was going to lose its name— and not through some well-reasoned, legally structured process, but through an impulsive, irrational, arbitrary decision that Lincoln doesn’t deserve to be seen as a Great Emancipator but some kind of racist,” he said. “I took it personally. I thought a lot of other people, graduates of a lot of other schools would take personally the idea of being told the name of the school they identified themselves with was being labeled racist, or exploitative of workers. Names carry a lot of weight.”

Tribe added that he also follows local government closely because “with national government being so dysfunctional, state and local government is where all the important action needs to happen in the next quarter century.”

“When the reputation of the Great Emancipator is under attack without due process of law, who better to lend a hand in his defense than the foremost constitutional scholar of our day?” said Paul Scott, a local attorney who is also representing the petitioners.

The lawsuit has raised the question of whether petitioners have standing to challenge the board’s decision on constitutional grounds. Tribe said the petitioners do have standing to bring the case.

“One of the fields I’m most expert in is standing and there’s no question that under California law, anybody who has a beneficial interest, who isn’t a mere stranger to the action but is affected in some particular way, through personal identification or otherwise, can seek an alternative writ of mandate to require a government agency to perform its ministerial duty,” Tribe said. “I’ve no question whatsoever that the petitioners have standing, and anyone who thinks otherwise is ignorant of California law.”

The burden is now on the school board and the San Francisco Unified School District to either comply with Schulman’s order, or present a case for why it hasn’t done so at a hearing set for May 6.

The San Francisco School Board paused the renaming effort last month to focus on re-opening schools, but said it would revive the process once students return to the classroom.

Tribe said the country’s racial reckoning is too important to address in a slipshod manner, and believes the sloppy handling of the renaming issue cost the school board and district dearly. While there are certainly schools that should be renamed, he said, the loss of credibility will make effort even harder.

“If the rule of law is something we can toss aside, people will not have confidence in the fairness of the process,” Tribe said. “Now the attempt to rename particular schools is going to be way uphill because the process has been poisoned.”

School board leaders did not respond to an email seeking comment Friday.

District spokesperson Laura Dudnick said the school district has informed the court that there are no plans to reconvene the School Names Advisory Committee before May 6. 

She also emphasized that Schulman did not rule on the merits of the petition. 

“It is important to note that yesterday Judge Schulman did not make a determination on the merits of the petitioners’ claim,” Dudnick said in an email. “As stated in the court’s order, Judge Schulman issued an alternative writ mandate that directs the district by May 6 to either vacate the board’s resolution and dissolve the school names committee, or to show cause as to why the process should remain intact. Again, the judge’s order does not reflect a judgment on the merits of the petitioners’ claims.”

Tribe said Schulman’s ruling doesn’t mean the case is over, “but the judge indicated that he understands and is persuaded by the points we made. I’d treat that as handwriting on the wall if I were the respondents.”

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