“If We Have To Face Litigation . . . So What”:  Anderson Union School Board Passes Parental Notification Policy That Raises Both Civil Rights And Labor Concerns

Anderson Union High School District CTA President Shaye Stephens speaks to the AUHSD Board regarding labor concerns related to a new Board policy. Photo by Annelise Pierce.

8.31.23 4:15 This article has been updated after an additional interview to clarify that the source of the parent notification policy was Board Member Jackie LaBarbera, not the ad hoc committee she chairs.

In front of an audience of about fifty community members, the Anderson Union High School Board voted Tuesday night, August 22, to approve a new parental notification policy that appears to contradict both a state assembly bill and the California Education Code. 

The Anderson Union High School District includes about 1,600 students enrolled in one of four Anderson, California high schools. The new Board policy requires credentialed staff, school principals and school counselors to notify parents in writing within three days under certain conditions, including if a student requests a change to the name or pronouns they use at school. Board members made the decision without any mention of consulting legal counsel and despite the stated concerns of several Board members including Board President Joe Gibson and Board Clerk Butch Schaefer. 

Board member Gurney said before the vote that while this is only his first meeting, he wanted to act immediately to approve the new policy because “anytime we are taking something away from the parents it’s a bad deal. And if we have to face litigation from it then so what.” 

Speaking to the Board shortly before the vote, California Teachers Association (CTA) Staff Representative Sean Ferguson said that the policy violates California Assembly Bill 1266 and California Education Code 221.5 and will put educators at Anderson Union schools in the position of having to decide whether to follow the District Board’s policy or state law. 

“What is your plan if educators decide not to follow that policy?” Ferguson asked the Board. “Is there going to be discipline involved? Because I guarantee you that every single staff person within my reach is going to be informed that refusing to follow an unlawful directive does not rise to the level of insubordination. And any attempt to discipline staff members who violate this policy is going to result in litigation.”

Ferguson, who represents twenty-two CTA chapters across three counties, told the AUHSD Board that their new policy also constitutes a unilateral change in working conditions by mandating behaviors that fall under the umbrella of mandated bargaining without having engaged in the legal bargaining process.

After Ferguson spoke, Board Clerk Butch Schaefer shared his concerns about the policy saying that he needed more information before moving forward on it.

“I don’t get emails about this stuff until today,” Schaefer said. “CTA sends something. I got another email from a constitutional attorney that had good points. I want to know if some of these issues have been discussed and what our options are. I don’t want to make a decision until I have everything . . .  When something happens we’re going to get sued. We’ve got to try to nail this down a little bit better.”

Shortly after Schaefer’s statement, Shasta County resident and self-identified “militia” member Rich Gallardo responded with public comment, shouting at various points throughout his speech.

“Some of these people are distracted by feelings and emotions,” Gallardo told the Board. “Feelings and emotions have no place in a constitutional republic. Period. There’s litigation because the school board was brave enough to tell the criminal legislature . . . ‘No. Parents come first.’ That’s why there’s litigation.”

Speaking directly to Schaefer, Gallardo yelled, “and you want to sit here, Butch, and wait for a court opinion and all our God-given, constitutionally-recognized rights continue to be taken away?  It’s time to be bold and say I don’t care what the legislature says. I don’t care what the governor says . . . it’s time to be bold and do what’s right and moral and ethical and constitutional and damn the consequences. We live in a criminal state and a criminal federal government. We will be sued. . . prepare for it!” 

Schaefer was one of the four Board trustees who raised his hand in a vote of approval for the new policy along with Jackie LaBarbera, Staci Adams and Dustin Gurney. Board President Joe Gibson voted against the new policy. Community members present, including Gateway Unified School District Board Members Lindsi Haynes and Shasta County Office of Education Board member Authur Gorman’s spouse, Katie Gorman, applauded loudly in response.

After the vote, Anderson Union High School District CTA President Shaye Stephens raised a number of concerns with the Board. Her questions included labor concerns such as what disciplinary actions the Board would take against teacher if they violated the policy, whether the Board would pay legal fees if teachers are sued as a result of the policy, and when during working hours teachers were supposed to document and report to parents. Stephens also brought up additional concerns such as whether teachers would be trained on how to have these sensitive conversations with parents and how students’ privacy would be protected in the process of mailing out written notification, one option outlined in the policy for notifying parents. 

“I think those are all good things that we need to address,”  Board President Gibson responded. 

“Okay,” Stephens answered, “So CTA’s stance on that is that we are very concerned that you’re passing Board policy without considering these things before passing Board policy.”

As Stephens also told the Board, the new policy contradicts another existing AUHSD policy enacted to comply with state education law. An asterisked note at the bottom of the new policy states that it will supersede all other policies.

Several audience members who supported the new policy told the Board that while it may violate state law, that’s okay because state law on the issue violates the Constitution. None produced evidence of prior court decisions that supported their view of the issues’s legal standing. 

The AUHSD policy closely mirrors a similar policy in the Chino Valley School District which is currently being probed by California’s Attorney General Rob Bonta due to concerns that it violates students’ Civil Rights. In an August 4 press release about the Chino Valley policy, Bonta said that students should not fear going to school simply for being who they are, emphasizing that the new policy threatens the safety and well-being of LGBTQ+ students by the “forced outing” of their identity to parents who may be unaccepting of their gender identity.

Bonta’s letter includes references to California’s education law and previous court precedent saying that courts have recognized that gender identity is a protected privacy right under the Constitution and that the California Department of Education has instructed that “disclosing that a student is transgender without their permission may violate California’s anti-discrimination law by increasing their vulnerability to harassment.”

“Today’s announcement,” Bonta wrote on July 20, “stresses our commitment to challenging school policies that target and seek to discriminate against California’s most vulnerable communities. . . . My office has a substantial interest in protecting the legal rights of children in California schools and protecting such children from trauma and exposure to violence. I will not hesitate to take action as appropriate to vigorously protect students’ civil rights.”

Shasta Scout is reaching out to Bonta’s office for comment on AUHSD’s decision. 

Questions asked by Board Member Schaefer seemed to indicate that AUHSD’s new policy, which bears an identical policy number to the one passed in Chino Valley, was brought to the board by an an hoc chaired by Board Trustee Jackie LaBarbera. LaBarbera did not dispel that idea during the Board meeting but later contacted Shasta Scout to say that the new policy came only from her, not from the ad hoc committee.

The committee Schaefer was referring to was voted into existence by the AUHSD Board a few months ago to study three Board policies, one of which has significant overlap with the new policy. During discussion about that ad hoc committee, LaBarbera indicated that she is not only the chair, but the only individual on the committee. She said she works with a study team but cannot reveal who is on it because the group agreed to both confidentiality and anonymity.

LaBarbera’s decision to keep details related to the ad hoc committee and study team private concerned Board Clerk Schaefer who said he has received emails from others in the community who have asked to join the ad doc committee and had not received a response. He repeatedly asked LaBarbera how committee or study team members are chosen and whether they represent a diverse group. 

She said the study committee does include both teacher representation and administrative representation but does not include student representation due to legal concerns. She did not offer more information about the ad hoc committee saying she hoped the Board who had voted for her to chair the committee would trust her decisions as chair. 

Speaking to Shasta Scout by phone today, August 23, Ferguson said the Board’s decision to adopt the new policy has already resulted in an official demand for bargaining sent to the Board by the CTA this morning.  

“If you read the policy there are both prohibitions and mandated actions (included in it) that fall within the scope of bargaining. Any policy that requires (certificated staff) to do something then begs the question of what happens if they don’t. And again this one is particularly tricky because it puts the educator between state law and education code and board policy. We need to hammer out at the bargaining table exactly what discipline will occur if teachers violate it.”

“Any time the state passes a new law,” Ferguson continued, “We can’t (as a teachers union) push back against the law but we can bargain the impact. This policy has expectations around teacher responsibilities during their workday and you don’t get to do that unilaterally.”

The new policy also raises questions about students’ expectations of privacy. Under current California law, students who share certain information within the school setting are guaranteed privacy. The Board did not discuss whether students would be informed that guaranteed privacy for certain disclosures has changed due to the new policy. 

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