Goldsmith is an attorney and former law partner, judge, adjunct professor, state legislator, San Diego city attorney and Poway mayor. He lives in San Diego.
The parent standing before his local school board is angry and emotional. He believes his daughter was harmed by school policy and he was ignored after complaining. He gives the school board and s a piece of his mind and calls for resignations. With his encouragement, the audience cheers and holds up signs in .
A police officer walks up to the parent and places him in handcuffs. He is arrested and booked. He is forced to spend time in court and thousands of dollars in legal fees defending a criminal charge that could bring jail time if convicted.
Thereafter, few other parents are willing to risk speaking in front of the school board. “I just can’t afford the time and money needed to fight a criminal charge if I say the wrong thing or forget some process,” said one parent.
This fictitious story is the future of representative democracy before school boards in California if Senate Bill 596 is adopted and signed by the governor into law.
A parent whose conduct at a school board meeting involves “substantial disorder”— whatever that means — could be arrested and prosecuted under a newly created crime under SB 596. The parent would face up to a $1,000 fine and/or one year in jail for a first offense and mandatory jail sentences for any additional offenses.
The term “substantial disorder” is nowhere defined in the legislation.
As the legislative analyst for the Assembly Public Safety Committee warned, lacking a definition of “substantial disorder” raises due process concerns because it allows for arbitrary enforcement. “The Fifth Amendment to the U.S. Constitution prohibits the taking of a person’s liberty under a criminal law that is so vague it fails to provide adequate notice of the conduct it proscribes or allows for arbitrary enforcement,” the analysis reads.
The analysis asks, “Would yelling loudly qualify? Would speaking out of turn? Would holding offensive posters?”
The answer is we don’t know. The language of this new crime does not tell us. As a result, it provides a weapon that can be abused by some school board politicians through arbitrary enforcement.
SB 596’s author, state Sen. Anthony Portantino, D-Burbank, expresses a benign purpose for his legislation. “No one should be threatened or harassed for providing academic instruction in accordance with California state law,” he wrote. “Senate Bill 596 will ensure that educators can safely continue to help their students thrive in ive and inclusive classroom environments, unencumbered by fear and intimidation.”
That sounds great and may explain other portions of the bill. But why did the author draft such broad legislation going far beyond protecting teachers against threats? Why does SB 596 insulate school board politicians from angry constituents?
Moreover, as the Assembly Public Safety Committee analysis explains, there are already existing laws that protect school employees from criminal threats, stalking, harassment and classroom interference.
And there are plenty of existing tools school boards can use to address disruptions during their meetings.
Clearly, SB 596 is not really about its stated purpose. Rather, it is written to shut parents down by creating a new overbroad and vague criminal law that puts fear in their minds.
It deters parents from speaking up at school board meetings. They know if they get too emotional, say the wrong thing or don’t follow the process they risk having to spend thousands of dollars in legal fees and possibly getting convicted of a crime.
Yet, if there is one thing that triggers emotion in parents it is when they believe their children are being mistreated. They want to speak up and they want their elected representatives to listen.
School board trustees should understand the emotion and focus on the substance of what their constituents are saying.
Where necessary, they can use the same tools that are used by other elected bodies to control public hearings.
They do not need a vague new criminal law that is likely unconstitutional to deter constituents from speaking out.
SB 596 is an over-reach. In addition to Fifth Amendment issues, the new “substantial disorder at school board meetings” crime would have a “chilling effect” on Californians’ First Amendment rights to free speech and to petition their elected school boards.
This legislation has already ed the California State Senate and two Assembly committees without much fanfare. It is heading to the Assembly floor for a vote. If the legislature es SB 596 without removing this new crime of “substantial disorder at school board meetings,” it should be vetoed by the governor.
