Fact-Checking the Court Order on Lowell High School

Over the next week, the SFUSD Board of Education will be taking action to respond to a recent Court decision regarding Resolution 212–2A1 In Response to Ongoing, Pervasive Systemic Racism at Lowell High School (commonly referred to as the “Lowell Resolution”).

Current status

On February 9, 2021, the Board adopted the Lowell Resolution, which calls on the District to take immediate action to address ongoing concerns about the discriminatory culture at Lowell High School and more generally in the District.

The resolution established a community action committee to support a district-wide Equity Audit. In order to conduct this work, it established a partnership with the Education and Civil Rights Initiative at the University of Kentucky. The resolution also made changes to Lowell’s selective enrollment process.

Opponents of the resolution filed a lawsuit to block its implementation. Nonetheless, the District prevailed. The Court affirmed the District’s authority to take all actions outlined in the resolution, including actions taken to change admissions policies, despite any technicality related to the prior posting of Board meeting agendas.

A little context

As a result, many families have reached out in recent days to share concerns about necessary actions the Board will take to move forward on admission next year.

I appreciate the public’s interest in this important topic. So, in support of the community and the District’s commitment to safe and inclusive schools, I have posted a link to the entire Court Order below as well as a helpful summary of key legal issues, written by NAACP attorney Peter Cohn. Mr. Cohn is not only a recognized legal expert but also has personal experience with prior litigation surrounding the 1978 SF NAACP desegregation lawsuit and 1983 settlement known as the Consent Decree. Some of the very same people behind the latest lawsuit have also contributed to segregationist attitudes and policies that led us to this place.

The most diverse class in decades

Whether students choose to apply to Lowell High School or any one of SFUSD’s amazing options, I believe our focus should be on students. I look forward to the results of the Equity Audit and am committed to ensuring all students have access to welcoming, safe and enriching learning environments, wherever they go to high school.

SFNAACP Branch and NAACP support for the SF Board of Education to adopt Superintendent Matthew’s New Resolution for Lowell High School admissions for the 2022–2023 School Year

Both the National Association for the Advancement of Colored People (NAACP) and the San Francisco NAACP (SFNAACP) have often been called upon and compelled to correct false narratives whether they are at the national or local levels. We have certainly all seen the profound damage that the big lie at the national level — the Trumpian false and unfounded view that the presidential election was stolen from him — has caused to all the people of our nation in the course of the January 6, 2021 deadly insurrection at the U.S. Capitol and its aftermath. It has torn apart families and communities and is seeking to undermine voting rights at the federal, state and local levels.

In much the same way, the SFNAACP and our community of goodwill in San Francisco now calls upon the San Francisco Board of Education to not permit local false narratives in the media and elsewhere to go unanswered and be projected in the San Francisco Unified School District, which can predictably cause harm to our children, families and larger community. The false narrative is that the Petitioners in the Brown Act case of Friends of Lowell Foundation, Lowell Alumni Association and Asian American Legal Foundation had fully prevailed on November 18, 2021, in its State Court action against the San Francisco Board of Education; SFUSD; Superintendent Matthews; et al. The truth is that the Petitioners had not fully prevailed against the Board and SFUSD Respondents and had not obtained the wide-ranging relief that they sought.

The best evidence of the local false narrative can easily be established by simply reading Judge Ethan Shulman’s November 18, 2021 SF Superior Court Order “Granting In Part the Petition for Writ of Mandate and Related Relief” which is attached to this message. (See link below.)

Friends of Lowell Foundation, Lowell Alumni Association, Asian American Legal Foundation v SFUSD, Vincent Matthews Lawsuit

In any fair reading of the Judge’s order granting only in part the Petition for Writ of Mandate and contrary to the SF Chronicle and other media reporting, the Judge did not re-establish any particular student admissions policy for Lowell going forward nor did he overturn any of the good work of the SFNAACP and the National NAACP related to the University of Kentucky’s contract and its related Equity Audit for Lowell High School.

On Page 7 of the Order, Judge Schulman made clear the exact broad relief that the Petitioners — Friends of Lowell Foundation, Lowell Alumni Association and Asian American Legal Foundation — were specifically seeking and he stated it in the following manner: “1) rescinding the Resolution; 2) returning Lowell to its prior status as an academic high school with merit-based admissions; 3) terminating the District’s contracts with the University of Kentucky; and 4) terminating the Equity Audit Committee.”

While the Judge did find that there was a Brown Act (Open Meeting law) violation in enacting SF Board of Education Resolution 212–2A1, he did not go beyond that partial ruling of holding the resolution itself to be null and void. The Judge specifically denied the Petitioners request: 2) to return Lowell to its prior status as an academic high school with merit-based admissions (Pages 10–11) because the Board can cure or correct its Brown Act Violation; 3) to terminate the District’s University of Kentucky Contract with the College of Education Civil Rights Initiative (Pages 11–12) because that contract was properly noticed in the June 22, 2021 agenda and it was a contract let by competitive bid “upon which a party has, in good faith and without notice of a challenge to the validity of the action, detrimentally relied”; and 4) to terminate the Equity Audit Committee (Pages 13–14) because it too had subsequently been properly noticed and formed not only at the Board’s September 21, 2021 meeting but also in its earlier meetings on May 12th and 19th of 2021 and petitioners provided the Court with no legal authority to terminate it. Normally, when parties lose on the major relief that they sought, it is a false narrative to assert that they fully prevailed. Here, they clearly did not.

Very importantly and the SFNAACP encourages the San Francisco Board of Education and District to appreciate, the Court gave the SF School Board a straightforward and simple path to cure its Brown Act violation and to revisit the question of its student assignment policy with respect to Lowell High School. Judge Schulman stated: “Respondent Board shall, within 30 days, file a return showing that it has complied with the writ” (Page 14).

The Court has basically completed its work and that of the SFUSD regarding Resolution №212–2A1. No further action on that resolution is needed because it has been fully resolved by the order of the court as set forth above. The Court did not require the Board to resubmit the February 9, 2021 resolution. Like many other courts that choose not to manage or run school districts, the Court here specifically declined to directly order the Board to restore any specific assignment plan for Lowell (Pages 10–11). Therefore, the Board is free to fully exercise its discretion with respect to Lowell admissions as long as it is done in full compliance with the Brown Act.

The San Francisco Board of Education now needs only to advise the Court within the 30 day period that the earlier resolution has been set aside — as the Court has directed — and that it plans to fully comply with the Court’s order by giving proper Brown Act notice for a new resolution regarding Lowell High School admissions. The Superintendent’s new resolution can affirm that the prior resolution was set aside by order of the Court and it is the Board’s intention to fully comply with the court order by proceeding with a new properly noticed resolution. The best evidence of that is the December 1, 2021 SFUSD Press Release announcing Superintendent Matthew’s and the Board’s plans to introduce a new resolution on December 7, 2021 recommending that the SFUSD utilize the same admissions policy for Lowell for the 2022–2023 school year as it did for the current school year and that there will be a final vote on the new resolution at a special meeting on December 16, 2021. In addition to the SFUSD Press Release, the Board should also include the number and language of the new resolution. This is exactly what the Court wanted and ordered. The Court unequivocally left the policy decision around Lowell admissions to the sound discretion of the School Board and District and did not require anything more.

Lastly, both the SFNAACP and national NAACP respectfully submit that the best and most constructive way forward for the San Francisco Board of Education and the SFUSD is to not go backward in promoting the above false local narrative or letting it further cause conflict within our community but to go forward in implementing the Superintendent’s new proposed resolution with full Brown Act compliance for the benefit of all the school children of San Francisco.

With every best wish,

Attorney Peter Cohn

SFNAACP Branch Counsel

mom of twins. education nerd. public school warrior. reformed cat-lady. amateur urbanist. social justice addict. BLERD. & most recently Board of Ed Commissioner