November 1, 2017

Sean McPhetridge, Superintendent

Alameda Unified School District
2060 Challenger Drive
Alameda, CA 94501
smcphetridge@alameda.k12.ca.us

Re: School District Censorship of Black Lives Matter stickers, signs, and speakers

Dear Superintendent McPhetridge,

We are writing on behalf of Elodie and Oliver Lewis, two students at Maya Lin Elementary
School in Alameda Unified School District (District). We are deeply concerned that the District
may be refusing to let students distribute and wear Black Lives Matter stickers as well as hold
signs or host speakers on that topic on District campuses. This refusal, if correct, poses unlawful
restrictions on student speech in violation of 48907 and 48950 of the California Education
Code, Article I, 2(a) of the California Constitution as well as the First Amendment. Additionally,
we are concerned that the District is treating student support of the Black Lives Matter movement
differently than similar situations involving bias. We ask that the District immediately rectify the
problems described in this letter.
It is our understanding that on September 7, 2017, District staff removed Black Lives
Matter signs and possibly stickers from a common area at Maya Lin Elementary School. These
stickers and signs were generally available if students wanted to pick them up, and some of those
students did, including Dede Lewis daughter, Elodie. It is likely that these stickers and signs were
a response to two deeply troubling incidents at the school earlier in the week. First, a piece of
student public art at the school containing the phrase Black Lives Matter was vandalized at Maya
Lin Elementary. The vandalized sign had the word Black crossed out and replaced with All.
And on September 5th, a noose was found hanging from a fence at Alameda High School. The
students we represent and many others wore the stickers to show their support for Black students
in the District.
On September 10, 2017, Dede Lewis wrote to Superintendent McPhetridge expressing her
concern that school administrators are saying Black Lives Matter signs arent allowed at AUSD
unless they are a student's art work. In response to that email, the Superintendent stated that he
had received a complaint from an angry parent because their child picked up a Black Lives Matter
sticker at school. The Superintendent then attempted to justify the censorship based on an AUSD
policy that evidently states that The Superintendent, principal, or designee shall not accept for
distribution any materials or advertisements that... 4. Proselytize or position the district on any side
of a controversial issue."

As an initial matter, Superintendent McPhetridge is incorrect in his suggestion that

allowing students to wear or display Black Lives Matters stickers or posters would bear the
Districts imprimatur. See Morse v. Frederick, 551 U.S. 393,405 (2007) (no reasonable person
would believe that a student sign bore the schools imprimatur). Nothing about the stickers or
posters proselytize or position the district on any side of a controversial issue, and accordingly,
this cannot be the lawful basis for the censorship here.
Moreover, Black Lives Matter stickers and signs are protected speech even if the
Superintendent believes that they are controversial. Education Code 48907 gives students the
right to exercise freedom of speech and of the press including, but not limited to, the use of
bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges,
and other insignia. Cal. Ed. Code 48907(a) (emphasis added). This speech must not be
obscene, libelous, or slanderous. Cal. Ed. Code 48907(a). First, Black Lives Matter signs,
stickers, and shirts are protected speech because they communicate a students expression of their
thoughts, ideas, and beliefs regarding the support of Black lives. Additionally, the California
Legislature squarely contemplated speech such as Black Lives Matter stickers, shirts, and signs to
ensure speech, like the type meant to uplift Black students and other marginalized groups, was
protected under the California Education Code. The District has not and cannot make a serious
argument that Black Lives Matter speech is obscene, libelous, or slanderous. Indeed, this type of
speech meant to create a more inclusive campus is quite the opposite. The District is aware that on
September 5, 2017, right before students decided to wear Black Lives Matter stickers, a noose was
found on a fence at Alameda High School that likely made Black students feel unwelcome on
campus.1 Students have a legal right to support their classmates and others within the Black
community through protected speech by wearing and holding Black Lives Matter signs and
stickers.
In addition, the California and federal constitutions protect speech such as Black Lives
Matter stickers and signs. The California Constitution, Article I, Section 2(a) provides that A
law may not restrain or abridge liberty of speech or press. The California Constitution provisions
are more protective, definitive and inclusive of rights to expression of speech than their federal
counterparts. San Diego Unified Port District v. U.S. Citizens Patrol, 63 Cal.App.4th 964, 970
(1998). Additionally, the First Amendment guarantees students a right to freedom of speech and
expression. Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 506 (1969). A district must
meet the high burden of demonstrating the student expression would materially and substantially
interefer[e] with the requirements of appropriate discipline in the operation of the school or
collid[e] with the rights of others to limit student speech. Id. at 513. Similar to protections under
the California Education Code, courts have firmly decided that school districts cannot strip
students of their free speech and expression rights merely because they are at a school. See Tinker,
393 U.S. at 512; Bible Club v. Placentia-Yorba Linda Sch. Dist., 573 F. Supp. 2d 1291 (C.D. Cal.
2008). Wearing Black Lives Matter stickers and holding signs present constitutionally protected
opportunities for Alameda Unified students to express their support for classmates, community
members, and for some, their cultural identity. The District has not claimed that this showing has

1
Noose found near Bay Area high school prompts hate crime investigation ABC 30 News, Sept. 7, 2017,
http://abc30.com/noose-found-near-bay-area-high-school-sparks-outrage/2387052/. (An Alameda High parent stated
her frustration with the Districts response to supporting Black students after the District found the noose by saying
"If it's an unknown thing or [Black students] don't feel backed up or protected by the school, then it creates a sort of
hostile environment for them.").

materially and substantially disrupted school classes. The fact that a parent may have complained
clearly does not satisfy this exacting standard.2

School districts do not have a right to censor protected speech based on arbitrary reasons
or because they believe a topic is controversial. The District has and continues to allow students
to wear other content-based shirts and stickers as well as hold signs with different messages. For
example, students wear sports team shirts, love wins messages, shirts opposing anti-Semitism,
and other messages that express students views. The District has no legitimate basis for allowing
students to express these views, but dismiss student support for their Black classmates. We were
happy to see that the District did not interfere with student support for other issues, but the District
cannot decide that it draws the line when Black students need support.
Given the significance of fostering robust conversation regarding Black Lives Matter,
racial justice, and promoting inclusiveness and diversity across the District, we strongly urge you
to allow students to wear stickers and shirts stating Black Lives Matter or any variation with similar
meanings. We also urge the District to clarify students can have and hold Black Lives Matter signs
on campus and that speakers with Black Lives Matter messages are permitted on campus. Given
the seriousness of this issue, we request that the District or its legal representative respond to us
with their decision by November 13, 2017, regarding how it plans to rectify this problem.
Thank you in advance for your prompt consideration in this matter.

Sincerely,

Abre Conner
Staff Attorney, ACLU of Northern California

Enclosures:
Emails from Superintendent
Pictures of removed Black Lives Matter stickers and signs

CC: Alameda Unified School Board

2
To the extent that the Superintendent is claiming that community members are not permitted to distribute materials
at school, that is a different issue than whether students are permitted to distribute, wear, and/or display Black Lives
Matters stickers and posters at school.

3

From: "McPhetridge, Sean" <smcphetridge@alameda.k12.ca.us>
Date: September 11, 2017 at 5:05:47 PM PDT
To: Dede Lewis < >
Cc: "Zazo, Kirsten" <kzazo@alameda.k12.ca.us>
Subject: Re: BLM signs at AUSD

I'd be happy to meet with you to discuss, Dede. Clearly you and I both have personal viewpoints
that would probably be best explored together when we would have time to unpack the issues.

Please know I do not see these issues or groups espousing these concerns as equivalent, but
nonetheless Board Policy and legal precedents guiding us in this work prevent us from opening
up to one viewpoint without opening up to the other viewpoint, regardless of beliefs or values
that are espoused. I hope the case is illustrative of the point of why schools are known as limited
public forums: it is simply the case that once we allow a particular viewpoint then we have to
allow other viewpoints to have the same access, and that is why Board Policy 1325 exists in
AUSD and in many California districts. Indeed, that policy is based on California School Boards
Association's model policy for all the districts in the state. But, that said, I can understand your
frustration with the issue, and I can find it frustrating as well while also understanding the need
for us legally to adhere to the policy and follow legal precedent.

Anyway, should you want to meet to discuss further, I look forward to doing so and will ask
Kerri Lonergan to reach out to you to schedule a time convenient for us both.

Sincerely,

Sean McPhetridge

On Sep 11, 2017, at 4:21 PM, Dede Lewis < > wrote:

Hi Sean,

Thanks for your response. I find it upsetting to say the very least, and I am happy to gather other
parents arhat feel the same way. It really sounds like you are playing both sides here.

My kindergartener also came home with a sticker on. I don't know where it came from, but I was
so pleased to see the community rallying around our students of color after this sign was defaced.
What did the other parent not appreciate about it? The radical notion that black kids matter, too?

White Lives Matter is a false equivalency, because there are no systems in place that have been
marginalizing white folks for generations. Our country wasn't built on enslaving white lives and
the value of white lives in our society have never been in question. Kids and families were
leaving school feeling unsafe and unwelcome after the sign was altered. This was the day after
the DACA decision and the noose being found at Alameda High. Altering that sign is not just a
matter of semantics or trying to be more inclusive.
Saying "Black Lives Matter" does not imply anything about any other lives. It is not anti police,
or anti any other "kind" of life. It is simply acknowledging that Black Lives Matter, too. Today
when you see "9/11 Never Forget" wouldn't interpret that as meaning 9/11 is the only tragic
event worth remembering. You wouldn't respond with "All Days Matter!" today we are
acknowledging 9/11. A sticker that said "Keep Tahoe Blue" wouldn't lead you to presume that
you are anti preservation of other lakes. Would you say "what about Crater Lake? All Lakes
Matter?" Probably not.

My final thought on this is as the superintendent, do you truly feel that acknowledging the value
black lives in our community is "positioning the district on the side of a controversial issue?"
Why is that one parent's feeling of discomfort over a sticker, more important than the feelings of
black families at our school who felt unsafe when the sign was defaced by a member of the
community. Please provide me with clarity on these points. If we are going to be the "Everyone
Belongs Here" district we have a lot of work to do.

I look forward to hearing when we can meet.

Thanks,

Dede

Sent from my iPhone

On Sep 11, 2017, at 3:02 PM, McPhetridge, Sean <smcphetridge@alameda.k12.ca.us> wrote:

Dear Dede:

Thanks for your email.

Please note I heard about this issue late last week when a parent called to complain about their
kindergarten child coming home with a Black Lives Matter sticker which the family did not
appreciate and did not solicit.

Per your request, please know AUSD Board Policy 1325 guides us in this regard. The specific
relevant language in that policy is excerpted as follows: "The Superintendent, principal, or
designee shall not accept for distribution any materials or advertisements that... 4. Proselytize or
position the district on any side of a controversial issue." But I think this language probably now
merits some unpacking and explaining to define the issue further for you.

As you are probably aware, public schools are considered to be limited public forums where
principals are given discretion to determine what kind of invited speakers and/or print media are
allowed on campus. And, in this case, because one cannot open the school to the public and
allow one kind of controversial speech to exist without opening up to the other side, it becomes
problematic to allow certain parents/guardians that ability to speak or share posters/stickers
without offering same to those of opposite viewpoints. To take this to the logical next step to
explain why public schools are considered limited public forums and why Board policies like
this exist in most districts, can you imagine how students and families and staff would feel if we
were required to allow a White Lives Matter sign/speaker on the property? Legal precedents in
cases on this type of issue mandate we establish public schools as limited public forums to
safeguard against that kind of situation wherein we would have to open up to all viewpoints once
we open up to one viewpoint, no matter what personal feelings we might have about any
viewpoint.

So it is more than just AUSD Board Policy that guides us in this regard. Like most school
districts, this policy exists in AUSD because of court cases and legal precedents that require us to
establish schools as limited public forums.

I hope that answers your question. Should you have additional questions, please feel free to reply
so we can work to answer them. I am happy to arrange a meeting with you and our staff to help
explain further if need be.

Sincerely,

Sean McPhetridge
Superintendent
Alameda Unified School District

-----Original Message-----
From: Dede Lewis [
Sent: Sunday, September 10, 2017 10:12 PM
To: McPhetridge, Sean <smcphetridge@alameda.k12.ca.us>; Zazo, Kirsten
<kzazo@alameda.k12.ca.us>
Subject: BLM signs at AUSD

Hi Sean and Kirsten,

Hope you are well. I'm hoping you can help me with something. I've heard second hand, that
school administrators are sayings Black Lives Matter signs aren't allowed at AUSD unless they
are a student's art work. I found that shocking to be coming from the "Everyone Belongs Here"
school district. I was unable to find and specific policy or language that does not allow these
signs.

Please advise.

Thanks so much,

Dede

Sent from my iPhone

Home Blog Recognizing the Value of Black Lives is not Controversial

Recognizing the Value of Black Lives is not

Controversial
November 1, 2017
SHARE:
By: Dede Lewis follow @ACLU_NorCal
In early September, a noose was found hanging on a fence at Alameda High
School, then came the news about plans to end DACA. And on Sept. 6 at Back to
School Night, my kids school joined the ranks of schools in Alameda who took
unwelcoming actions against a marginalized group. A handmade sign containing
the phrase Black Lives Matter was altered to say All Lives Matter.

Students and their families across our island community were feeling unsafe and
unwelcome after these incidents.

To show support and promote inclusivity in our school community, a family

provided Black Lives Matter yard signs and stickers for families to voluntarily take
home. My kindergartener came home that night proudly wearing a sticker given to
her by a classmate. My 4th grader was discussing what the phrase meant, and
confessed he didnt understand why it was a difficult message for some to
comprehend. I was pleased to see the community rallying around our students of
color, including placing a Black Lives Matter yard sign at the school where the
now defaced sign had once been.

When I dropped off my kids at school the following day, I noticed the sign was
gone. After discussing with other parents, I learned that Black Lives Matter signs
were not allowed on school grounds unless they were part of a students artwork
per the administration.

While trying to understand and find the policy that supports this, I began an email
exchange with the superintendent. Id communicated with him on previous
occasions and have known him to be a compassionate person who wanted our
school district to embody the Everyone Belongs Here motto.

He told me he was aware of the situation because another parent complained that
their child came home with a sticker that was unsolicited and unappreciated. I
was then pointed toward a policy that allowed the superintendent to ban
controversial language. The exchange was backed by false equivalencies and
misunderstandings. The choice to remove the sign seemed to be a knee-jerk
reaction to appease the feelings of the offended parent, rather than keep it and
show solidarity for our students and their families. It left me feeling the districts
guiding policies diminish the affirmations of Black children in their school. This is
unacceptable. While I feel the superintendent is well intentioned, I also feel that his
interpretation of these policies requires further analysis and clarity.

In my experience, when folks want to change the phrase "Black Lives Matter" to
"All Lives Matter," they do not do so to demean Black people. They think they are
being more inclusive, or perhaps don't fully understand the message. Nor do they
often consider how dismissive changing that one word can be.

Saying Black Lives Matter does not mean ONLY Black lives. It is simply
acknowledging the value and contributions specifically of Black members of our
society during an arguably pivotal time for race relations in our country. It is an
acknowledgement that ALL people are not affected by systemic racism or bias.
ALL lives are not disproportionately ending at the hands of law enforcement. Our
country wasnt built on enslaving ALL lives. ALL students are not
disproportionately labeled with "behavior problems" or as "aggressive" or
"threatening due to the implicit bias of teachers and administrators.

If I saw someone wearing a "Save the Rainforest" shirt, I wouldn't go up to them

and say "I just got back from Sequoia National Park, it was amazing and ALL
forests matter." I would remember that these beautiful giant sequoias have the
privilege of being protected in our national parks. Calling to save them would be
kind of silly, because they are not in immediate danger of deforestation. Calling to
save all trees would be tone deaf to the situation of the rainforest trees that face
eminent threats.

In our current political climate, it is going to take voices of all shades to speak up
so ALL children can truly thrive in our society. As a white woman, I know I need
to listen to people who dont look like me, and havent had the privilege of
experiencing our country in the same way I have. It is my hope that in having more
of these sometimes uncomfortable conversations, we can equip teachers,
administrators, and parents with language to support children and families. We can
have a dialogue and write policies that create a more empathetic and equitable
learning community for students.

Recognizing the value of Black lives is not controversial. And saying Black Lives
Matter does not imply anything about any other lives. The value of white lives has
never been up for debate. All lives truly dont matter until we acknowledge that
Black lives matter.

Dede Lewis is an Alameda resident, mother of two children, and co-founder of the
AUSD Support Group for Parents with students on IEPs. She serves on the AUSD
Special Education Strategic Planning Group, Maya Lin Social Justice and Equity
Committee, and Alameda For Black Lives.

File Under :
Free Speech, Racial Justice
 2060 Challenger Drive
Alameda, CA 94501
Phone 510.337.7000

AUSDs Statement on Black Lives Matter on School Campuses

The ACLU released a press release Wednesday morning claiming that AUSD had
issued a Black Lives Matter ban on our campuses. The headline and facts reported
were misleading. We would like to take this opportunity to clarify the issues involved.

First and most importantly, AUSD has no ban on Black Lives Matter material. AUSD
honors our students First Amendment right to engage in political speech. As such,
students on our campuses have been wearing Black Lives Matter t-shirts and stickers,
creating Black Lives Matter artwork, and supporting Black Lives Matter as a
movement for some time.

What AUSD does not allow is the posting or distribution of materials by outside groups
or community members. This policy has been in place since 2009 and was created with
guidance by the California School Boards Association. It is a policy that is shared by
many districts in the state. It applies not only to social or political issues but
commercial establishments, private educational institutions, and any other type of
issue or entity.

This policy exists because, as a government agency, we cannot pick and choose
among various causes to support. In other words, if we allow one group to use our
facilities for publicizing their cause, we have to allow all groups to use our facilities to
publicize their cause. This could become quite controversial quite fast and disrupt our
teaching and learning environments.

We are aware that the ACLUs press release distressed some community members.
We hope this clarification helps to reassure all community members that the ban
reported by the ACLU does not exist. To the contrary, we support our students rights
to discuss and display materials related to social and political issues.

www.alameda.k12.ca.us