California Teachers Association v. State Board Of EducationCalifornia Teachers Association v. State Board Of Education
Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C., for the plaintiffs-appellants.
Donald P. Cole, Deputy Attorney General, San Francisco, California, for the defendants-appellees.
Eric Grant, Pacific Legal Foundation, Sacramento, California, for defendants-intervenors-appellees.
Appeal from the United States District Court for the Central District of California Edward Rafeedie, District Judge, Presiding D.C. No. CV 98-09694-ER
Before: Robert Boochever, A. Wallace Tashima, and Richard C. Tallman, Circuit Judges.
Boochever, Circuit Judge
Proposition 227, a California ballot initiative entitled “English Language in Public Schools,” codified at
BACKGROUND
On June 2, 1998, California voters approved Proposition 227. The initiative mandates that “all children in California public schools shall be taught English by being taught in English.”
Section 320 is the parental enforcement provision. It states that “all California school children have the right to be provided with an English language public education.”
Plaintiffs brought suit under
ANALYSIS
I. Vagueness Challenge
Plaintiffs contend that Proposition 227 is unconstitutionally vague in two principal respects.3 First, they contend it fails to define clearly when teachers are required to speak in English. Plaintiffs argue that section 320‘s mandate that educators provide an “English language educational option” is unfathomable, leaving them guessing under which circumstances the language restrictions of Proposition 227 apply.
Second, Plaintiffs argue that Proposition 227 fails to define clearly how much non-English will subject them to personal liability under section 320. For public school students in general, Proposition 227 requires that the language of instruction be “overwhelmingly” the English language.
A. Scope of Proposition 227
As an initial matter, we must address the scope of Proposition 227, that is, the circumstances under which the language restrictions apply. This determination affects our consideration of whether the initiative implicates First Amendment interests, whether Plaintiffs may challenge the initiative on its face, and which level of vagueness scrutiny guides the analysis. These issues are discussed in subsequent sections.
Plaintiffs argue that Proposition 227 is potentially boundless because it imposes liability based on an educator‘s failure to provide an “English language educational option.” Plaintiffs contend that this phrase is so incomprehensible that they can only guess when they must speak in English. Defendants respond that Proposition 227 applies only on the language of “instruction,” i.e., the language teachers use to present the “curriculum” to students in California public schools. We agree.
We recognize that it is solely within the province of the state courts to authoritatively construe state legislation. See United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 369 (1971). Nor are we authorized to rewrite the law so it will pass constitutional muster. Virginia v. American Booksellers Ass‘n, Inc., 484 U.S. 383, 397 (1988). A federal court‘s duty, when faced with a constitutional challenge such as this one, is to employ traditional tools of statutory construction to determine the statute‘s “allowable meaning.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972); Stoianoff v. Montana, 695 F.2d 1214, 1218 (9th Cir. 1983). In doing so, we look to the words of the statute itself as well as state court interpretations of the same or similar statutes. Grayned, 408 U.S. at 109-10. Moreover, before invalidating a state statute on its face, a federal court must determine whether the statute is “readily susceptible” to a narrowing construction by the state courts. American Booksellers, 484 U.S. at 397; Nunez v. City of San Diego, 114 F.3d 935, 942 (9th Cir. 1997).
Both terms, “instruction” and “curriculum,” are used in Article 2. For example, section 305 requires the placement of English learners in “sheltered English immersion” which is defined as “an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language.”
This conclusion is confirmed by the initiative‘s overarching mandate which declares that “all children in California public schools shall be taught English by being taught in English.”
We conclude that the plain meaning of Proposition 227 was to guarantee that LEP [limited English proficient] students would receive educational instruction in the English language, and that English immersion programs would be provided to facilitate their transition into English-only classes. Proposition 227 also vests parents of LEP students with the sole right to seek a waiver from the Chapter‘s provision requiring English-only instruction for their own children. The Chapter‘s language permits no other means by which the program requirements may be waived, and in fact, allows for civil action against school districts, educators, and administrators who fail or refuse to provide English-only instruction (§ 320).
Id. at 298 (emphasis added). The court also summarized section 320 as affording “parents a right to sue if their child or children are not provided English-only instruction.” Id. at 301 (emphasis added).
In light of the plain language and purpose of Proposition 227, and the California Court of Appeal‘s reading of the same, we must reject Plaintiffs’ contention that the scope of the initiative is potentially limitless. We conclude that, under the traditional tools of statutory construction, the language restrictions of Proposition 227 apply only to the language of instruction, i.e., the language teachers use to present the curriculum to students in California public schools. At the very least, the initiative is “readily susceptible” to this construction. See American Booksellers, 484 U.S. at 397. Whether the scope of Proposition 227 construed as such is sufficiently specific and clear to withstand Plaintiffs’ facial vagueness challenge is a different question, which we address below.
B. First Amendment Protection
Defendants argue that the speech by which teachers present the curriculum to students (hereinafter referred to as “instructional speech“) is excluded from the protection of the First Amendment.4 Plaintiffs contend that the First Amendment provides at least some protection for instructional speech, even if this protection is not of the highest order. Neither this court nor the Supreme Court has definitively resolved whether and to what extent a teacher‘s instructional speech is protected by the First Amendment. See Cohen v. San Bernardino Valley Coll., 92 F.3d 968, 971 (9th Cir. 1996); see also Karen C. Daly, Balancing Act: Teachers’ Classroom Speech and the First Amendment, 30 J. L. & Educ. 1, 6 (Jan. 2001) (“The Supreme Court has yet to squarely address what level of protection, if any, should be accorded to teachers’ in-class speech.“).
We need not resolve this controversy, however, to decide the merits of this appeal. Instead, we may assume arguendo that the instructional speech covered by Proposition 227 receives some First Amendment protection. Specifically, we will assume that regulations of such speech are subject to the test articulated in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). To survive First Amendment review under the Hazelwood test, regulations must be “reasonably related to legitimate pedagogical concerns.” Id. at 273. Although the Hazelwood test is not a difficult one to satisfy, it appears to be more speech-protective than the two alternatives.5 We assume this more protective test applies because, as explained below, even with the benefit of this assumption, Plaintiffs cannot demonstrate that the statute is unconstitutionally vague on its face.
Second, if a teacher‘s instructional speech enjoys First Amendment protection under the Hazelwood standard, then a more stringent vagueness test governs our review. When First Amendment freedoms are at stake, courts apply the vagueness analysis more strictly, requiring statutes to provide a greater degree of specificity and clarity than would be necessary under ordinary due process principles. Hoffman Estates, 455 U.S. at 499; Foti, 146 F.3d at 638-39. The reason for this rule is that “First Amendment freedoms need breathing space to survive.” N.A.A.C.P. v. Button, 371 U.S. 415, 432-33 (1963). “Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Grayned, 408 U.S. at 109 (quotation marks, ellipses omitted).
Defendants argue that, even if the Hazelwood test applies, Proposition 227 is not subject to heightened vagueness scrutiny because the instructional speech it regulates and chills is not “protected” by the First Amendment. Such speech is not “protected,” according to Defendants, because it could be banned completely under a broader, more precise law without violating the First Amendment‘s Hazelwood test. We disagree. Whether Defendants’ hypothetical, complete ban would pass the Hazelwood test does not determine whether Proposition 227 is subject to heightened vagueness scrutiny. It is determinative that the initiative must answer to the Hazelwood test in the first place. To trigger heightened vagueness scrutiny, it is sufficient that the challenged statute regulates and potentially chills speech which, in the absence of any regulation, receives some First Amendment protection. See Cohen, 92 F.3d at 972 (applying heightened vagueness scrutiny to speech receiving some First Amendment protection while declining to determine whether broader, more precise rule could validly prohibit speech); see generally Lawrence H. Tribe, American Constitutional Law § 12-31, at 1033-35 (2d ed. 1988) (discussing relationship between doctrines of vagueness and overbreadth). Here, because we have assumed that instructional speech, in the absence of any regulation, receives some First Amendment protection (i.e., restrictions on such speech must pass the Hazelwood test), we may properly conclude that heightened vagueness scrutiny applies.
C. Application of Vagueness Doctrine
Vague statutes are objectionable for three primary reasons. First, they trap the innocent by not providing fair warning. Second, they impermissibly delegate basic policy matters to lower level officials for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, when vague statutes involve sensitive areas of First Amendment freedoms, they operate to inhibit the exercise of those freedoms. Grayned, 408 U.S. at 108-09; Foti, 146 F.3d at 638. As explained in the previous section, these vagueness concerns are more acute when a law implicates First Amendment rights and, therefore, vagueness scrutiny is more stringent. See Hoffman Estates, 455 U.S. at 499.
A statute‘s vagueness exceeds constitutional limits if its “deterrent effect on legitimate expression is . .. both real and substantial, and if the statute is [not] readily subject to a narrowing construction by the state courts[.]” Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976) (quotation marks omitted); see also Tribe, § 12-31, at 1035 (“The expression deterred by a vague statute must be both real and substantial. And a precise and narrow judicial reconstruction must be unavailable.“). Whether a statute‘s chilling effect on legitimate speech is substantial should be judged in relation to what the statute clearly proscribes. Cf. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) (substantial overbreadth “judged in relation to the statute‘s plainly legitimate sweep“). Stated alternatively, uncertainty at a statute‘s margins will not warrant facial invalidation if it is clear what the statute proscribes “in the vast majority of its intended applications.” Hill v. Colorado, 530 U.S. 703, 733 (2000) (quotation marks omitted).
Plaintiffs argue that they are uncertain when they are required to speak in English because Proposition 227 uses varied, undefined, and conflicting terms to delineate its scope. As indicated above, we have concluded that the restrictions of Proposition 227 apply to the language of instruction, i.e., the language teachers use to present the curriculum to students in California public schools. Nevertheless, Plaintiffs contend that this construction still fails to give Plaintiffs sufficient notice of when the language restrictions apply. Specifically, they argue that it is unclear whether teachers must speak English when disciplining students, supervising students on the playground, informing students about safety concerns, taking students on field trips, tutoring students individually, discussing informal matters with students in class, or discussing informal matters with students outside of class. One plaintiff teacher also expressed confusion whether Proposition 227 precluded her from recommending that parents exercise their option under the initiative to place their children in bilingual classes.
In the context of this facial challenge, we decline to identify all the specific instances in which a teacher may or may not be providing “instruction” or presenting the “curriculum.” It is sufficient to note that “instruction” and “curriculum” are words of common understanding, see Grayned, 408 U.S. at 112, to which no teacher is a stranger. These terms unquestionably include activities such as teaching students mathematics, science, social studies, history, English, or any other subject matter taught in public schools.7 We must presume that such activities comprise a large portion of the interaction educators have with their students. We agree with Defendants that activities such as supervising children on the playground, disciplining students for inappropriate behavior, informing students of safety concerns or informally conversing with students outside the classroom, do not fall within the allowable meaning of “instruction” and “curriculum.” See id. at 110 (federal courts must construe allowable meaning of state statute). Also, there is no doubt that “instruction” and “curriculum” do not sweep within their reach a teacher‘s conversation with a student‘s parents concerning the option of bilingual education.
Undoubtedly, there will be situations at the margins where it is not clear whether a teacher is providing instruction and presenting the curriculum. In these situations, where legitimate uncertainty exists, teachers may feel compelled to speak in English and may forgo some amount of legitimate, non-English speech. The touchstone of a facial vagueness challenge in the First Amendment context, however, is not whether some amount of legitimate speech will be chilled; it is whether a substantial amount of legitimate speech will be chilled. See Young, 427 U.S. at 60. Judged in relation to the situations where Proposition 227 clearly does and does not apply, we do not believe that the situations where Proposition 227‘s application is uncertain will cause a substantial chilling effect on legitimate speech. In other words, in the vast majority of circumstances, it should be clear when a teacher is providing instruction and presenting the curriculum to students. See Hill, 530 U.S. at 733; Young, 427 U.S. at 61 (no substantial chilling effect, in part, because scope of statute “will be readily answerable” in most situations).
The terms “overwhelmingly” and “nearly all,” like “curriculum” and “instruction,” are terms of common understanding. Although they are not readily translated into a mathematical percentage, the First Amendment does not require them to be. See Grayned, 408 U.S. at 110 (“[W]e can never expect mathematical certainty from our language.“). To satisfy heightened vagueness scrutiny, it is sufficient that the vagueness of these terms does not result in the chilling of a substantial amount of legitimate expression. See Young, 427 U.S. at 60.
Here, it is unlikely that the ambiguity in the terms “overwhelmingly” and “nearly all” will chill any more than a negligible amount of non-English speech. Plaintiffs admit that, “[r]ealistically, educators do not have the option to speak to students exclusively in English” because they have an affirmative obligation to effectively impart knowledge to students and because some school districts require educators to use some non-English. This means that, despite any vagueness inherent in the terms “overwhelmingly” and “nearly all,” it is highly unlikely that educators will restrict themselves to speaking English only. Instead, by Plaintiffs’ own account, educators will continue to use some amount of non-English. In light of these circumstances, we have no reason to believe that any chilling effect caused by the above terms will be more than negligible. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-81 (1977) (commercial speech unlikely to be chilled because commercial entities have strong economic interest in engaging in such speech).
Moreover, even if some teachers, out of fear of liability, would limit their instructional speech to English only, it is unlikely that the amount of unspoken non-English would be substantial. The amount of speech chilled, i.e., the difference between “nearly all” English and “all” English, is necessarily small. The same is true with respect to the difference between speaking “overwhelmingly” in English and speaking only in English. For the above reasons, we do not believe that any vagueness contained in the terms “curriculum,” “instruction,” “nearly all” and “overwhelmingly,” whether considered separately or together, will chill a substantial amount of legitimate speech.
In addition, these terms seem no more vague than other statutory terms which have survived facial vagueness challenges under the First Amendment. For example, in Young, the plaintiffs challenged a zoning ordinance restricting the location of adult theaters. By its terms, the ordinance only applied to theaters presenting material “characterized by an emphasis” on specified sexual activities. 427 U.S. at 53. The plaintiffs in Young argued it was impossible to determine how much of the specified sexual activity could be included in a film before city officials would find it “characterized by an emphasis” on such activity. Id. at 59. A majority of the Supreme Court upheld the ordinance against the facial vagueness attack, in part, because it believed that, in most situations, it would be readily apparent whether a film fell within the scope of the ordinance. Id. at 61. In the context of Proposition 227, the terms “overwhelmingly,” “nearly all,” “curriculum” and “instruction,” seem more concrete, specific and objective than the amorphous phrase, “characterized by an emphasis,” which the Court found sufficiently clear in Young.
Similarly, in Grayned, the Supreme Court rejected a facial vagueness challenge to a city ordinance prohibiting any “diversion which disturbs or tends to disturb the peace or good order of such school session or class.” 408 U.S. at 108. While acknowledging that the ordinance did not specify the prohibited quantum of disturbance, the Court found it sufficient that the statute was restricted to the school context and that the question of whether a diversion disturbed a school session easily could be determined by the impact on normal school activities. The Court concluded that “the ordinance gives fair notice to those to whom it is directed.” Id. at 112 (quotation marks, alterations omitted). Proposition 227‘s requirement that public school teachers present the “curriculum” “overwhelmingly” in English gives at least as much notice as the ordinance in Grayned prohibiting any diversion which “disturbs or tends to disturb the peace or good order” of a school.
Furthermore, in analyzing whether a statute‘s vagueness impermissibly chills First Amendment expression, it is necessary to consider the context in which the statute operates. See Hoffman Estates, 455 U.S. at 498 (“The degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment.“); Schwartzmiller v. Gardner, 752 F.2d 1341, 1347 (9th Cir. 1984) (“[J]udgment is necessary to determine the degree of vagueness that the Constitution tolerates in a particular situation.“) (alterations, quotation marks omitted); see also Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 686 (1986) (more vagueness tolerated in public school setting regarding student disciplinary rules); Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303, 1308-09 (8th Cir. 1997) (same).
Here, in the context of curriculum presentation, it is the state‘s pedagogical interests that take clear precedence over the teachers’ First Amendment interests. This is true, even given our assumption that teachers’ instructional speech receives First Amendment protection under the Hazelwood standard. To pass constitutional scrutiny under Hazelwood, a restriction on a teacher‘s instructional speech need only be “reasonably related to legitimate pedagogical concerns.” 484 U.S. at 273. A teacher‘s First Amendment interests, therefore, must ordinarily give way to the state‘s pedagogical interests. Because any speech potentially chilled by Proposition 227 enjoys only minimal First Amendment protection, assuming it enjoys any protection at all, and because it is the state‘s pedagogical interests that are paramount in this context, any vagueness contained in Proposition 227 is even less likely to jeopardize First Amendment values.
Finally, any vagueness regarding Proposition 227 is mitigated by the section 320‘s scienter requirement. “[T]he Court has recognized that a scienter requirement may mitigate a law‘s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Hoffman Estates, 455 U.S. at 499; see also Hill, 530 U.S. at 732 (potential vagueness ameliorated in part by scienter requirement). For liability to attach, an educator must not only “refuse to implement” the terms of Proposition 227, the educator must also refuse to do so “willfully and repeatedly.”
The judgment of the district court is AFFIRMED.
TASHIMA, Circuit Judge, dissenting:
The parental enforcement provision of Proposition 227 allows parents to sue California‘s public school teachers for money damages for their use of non-English1-1 without providing the teachers with sufficient clarity as to how much English is required and in what circumstances and settings. As a result, educators fearing personal liability must either teach at their own risk or, as is more likely, acquiesce in the complete elimination of non-English in the performance of their duties. Because the provision here raises all three concerns underlying the First Amendment vagueness doctrine -a lack of fair notice, a threat of ad hoc and subjective enforcement, and a chilling effect on protected expression -I must respectfully dissent from the majority‘s holding that the parental enforcement provision is not void for vagueness.
“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969). In light of the special characteristics of the school environment, however, the government can more readily regulate teacher speech in school-sponsored expressive activities because of the state‘s interest in educating students. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 and 272-73 (1988) (holding that the test for limiting student speech is whether the restrictions are “reasonably related to pedagogical concerns” but also approving of “reasonable restrictions on the speech of students, teachers, and other members of the school community“); Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1010 (9th Cir. 2000) (suggesting the “same principles” of Hazelwood would govern regulation of teacher speech). Thus, the First Amendment applies in the schoolhouse and the school yard. Presumably the majority agrees, concluding that “Proposition 227 clearly implicates free speech rights.” See Maj. op. at 891. We have repeatedly recognized in no uncertain terms that “[w]here the guarantees of the First Amendment are at stake the [Supreme] Court applies its vagueness analysis strictly.” Cohen v. San Bernardino Valley Coll., 92 F.3d 968, 972 (9th Cir. 1996) (quoting Bullfrog Films v. Wick, 847 F.2d 502, 512 (9th Cir. 1988)). Unfortunately, the majority fails to do so here.
The question whether the First Amendment requires a school to tolerate particular student speech -the question we addressed in Tinker -is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators’ ability to silence a student‘s personal expression that happens to occur on the school premises. The latter question concerns educators’ authority over schoolsponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.
Hazelwood, 484 U.S. at 270-71 (emphasis added).
Thus, while the term “curriculum” has been construed broadly for purposes of defining the authority of the state to regulate school-sponsored expression that could reasonably bear the imprimatur of the school, when it comes to saving this ambiguously worded restriction on the use of non-English by teachers the majority asserts that the provision is readily susceptible to a narrowing construction that is contrary to the Supreme Court‘s own understanding. Nor, as the majority concedes, can this court authoritatively construe the enforcement provision and give it a narrowing construction, which is a matter of state law.2-1 It is no wonder, then, that plaintiff teachers are concerned about the use of non-English in such circumstances as student tutoring, field trips, supervision, and discipline.3-1
The majority then contends that because teachers have an affirmative obligation to impart knowledge to their students and because they may even be required to use non-English in certain situations by their employing school districts, “it is highly unlikely that educators will restrict themselves to speaking English only.” Maj. op. at 893. The majority is apparently oblivious to the dilemma in which this places teachers of either fulfilling their legal and professional duties and exposing themselves to liability, or ignoring their teaching obligations in order to steer clear of a vague restriction on the amount of non-English that is permitted. Cf. Baggett v. Bullitt, 377 U.S. 360, 374 (1964) (“The State may not require one to choose between subscribing to an unduly vague and broad oath, thereby incurring the likelihood of prosecution, and conscientiously refusing to take the oath with the consequent loss of employment, and perhaps profession, particularly where the free dissemination of ideas may be the loser.” (Internal quotation marks and citation omitted)). Under such circumstances, the use of non-English would only reflect a state-imposed professional duty that compels teachers to put themselves in jeopardy of liability to parents.
Moreover, contrary to the assertion of the majority, the amount of non-English foregone by teachers fearing liability is not negligible. Assuming the terms “nearly all” and “overwhelmingly” could be interpreted, as the facts show they have been, to require anywhere between 60 and 90 percent English, then the amount of chilled non-English could very well represent between 10 and 40 percent of expression by teachers. Surely, by any measure, this amount of deterred expression constitutes a sufficiently real and substantial chilling effect of a substantial amount of legitimate speech for the purpose of strict vagueness scrutiny.
The majority suggests that any vagueness is ameliorated by the inclusion of a scienter requirement. However, “[a] scienter requirement cannot eliminate vagueness . . . if it is satisfied by an ‘intent’ to do something that is in itself ambiguous.” Nova Records, Inc. v. Sendak, 706 F.2d 782, 789 (7th Cir. 1983). What does it mean “wilfully and repeatedly” to refuse to implement the terms of Proposition 227 by not providing “an English language educational option,” when the amount of permissible non-English is not authoritatively defined and is in fact so imprecise that individual school districts have such widely varying interpretations? The majority believes “[i]t is sufficient to note that we seriously doubt such wrongful intent could be found if an educator in good faith attempts to comply with Proposition 227 or in good faith attempts to comply with the school district guidelines regarding the langauge of instruction.” Maj. op. at 894-95. But school district guidelines are of no help when the officials promulgating those guidelines are accountable to parents for the implementation of “an English language educational option” -the enforcement provision at issue specifically targets school board members, elected officials, and administrators, as well as teachers. Will a teacher be held liable when she “wilfully and repeatedly” teaches under a 60 percent guideline imposed by the school board, even though warned by the parents of a student that they consider that inadequate? Does adherence to such a guideline constitute “good faith” even when the officials of the school district may be sued as well? Must she disobey to show “good faith,” despite her obligation to teach in conformity with official school district policies and guidelines?5-1
Despite the majority‘s hyperbole, plaintiff teachers need not establish that the terms of Proposition 227 are “unfathomable,” “boundless,” or “incomprehensible.” Notably, not even appellees have argued that the terms “nearly all” and “overwhelmingly” would survive the strict vagueness scrutiny that the First Amendment commands.7-1 Yet the majority so concludes. Teachers do not have fair notice of when and how much English is required to avoid personal liability; delegation of enforcement to the whims of individual parents invites ad hoc and subjective enforcement; and the vague terms of the provision result in a real and substantial chilling effect on expression within the ambit of First Amendment protection. The parental enforcement provision of Proposition 227 allows for what can best be described as a means of “legalistic ambush.” Cohen, 92 F.3d at 972. “If teachers must fear retaliation for every utterance, they will fear teaching.” Ward v. Hickey, 996 F.2d 448, 453 (1st Cir. 1993).
Notes
As detailed in Article 2 (commencing with Section 305) and Article 3 (commencing with Section 310), all California school children have the right to be provided with an English language public education. If a California school child has been denied the option of an English language instructional curriculum in public school, the child‘s parent or legal guardian shall have legal standing to sue for enforcement of the provisions of this statute, and if successful shall be awarded normal and customary attorney‘s fees and actual damages, but not punitive or consequential damages. Any school board member or other elected official or public school teacher or administrator who willfully and repeatedly refuses to implement the terms of this statute by providing such an English language educational option at an available public school to a California school child may be held personally liable for fees and actual damages by the child‘s parents or legal guardian.
The second test developed from Pickering v. Bd. of Educ., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983) in the context of a public employee‘s speech. Under Pickering-Connick, a public employee‘s speech in effect receives no First Amendment protection unless it involves a matter of public concern. Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 978 (9th Cir. 1998). If the speech involves a matter of public concern, then courts must determine whether the employee‘s interest in expression outweighs the government‘s interest in workplace efficiency and avoiding workplace disruption. Id. Several cases have applied this test to a teacher‘s instructional speech. See, e.g., Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 368-69 (4th Cir. 1998) (en banc); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 800 (5th Cir. 1989); Nicholson v. Bd. of Educ., Torrance Unified Sch. Dist., 682 F.2d 858, 864-65 (9th Cir. 1982).
The third test developed from Rust v. Sullivan, 500 U.S. 173 (1991) and Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) in the context of government speech. Under Rust-Rosenberger, when the government is the speaker, in the sense that the government is conveying a particular message through a person, that person receives no First Amendment protection. At least one case has applied this test to a teacher‘s instructional speech. See Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 491-92 (3rd Cir. 1998).