Santa Ana benches a teacher for too much transparency
In mid-August, with parents prepping children for the new school year and classrooms being swept and decorated to welcome them, Brenda Lebsack was thinking about advertising.
Lebsack, a Santa Ana teacher, wants parents to know that most kids in Santa Ana’s public schools can’t read or do math at grade level.
“My message is, ‘70% of SAUSD students are not meeting reading standards and 80% are not math proficient, yet we have a 91% graduation rate,” Lebsack says. “Our graduation rates keep going up while our academic scores keep going down.”
So, she called a phone number on the city’s bus stops and asked about advertising that fact in Spanish and English on bus benches and shelters. She even proposed including a QR code for a quick link to the government data supporting her claim.
The woman on the other end of the line “told me some of the basic parameters and rules of the ads, basically that they cannot be political,” Lebsack recalls. “She said she would email me information within a day.
Lebsack says she “waited and waited, but the call never came.” So she called again and left a message. The advertising representative texted back, “Good morning, unfortunately the topics are political and we are unable to move further. Thank you for the inquiry. Have a great day!”
It’s unclear how letting parents know that their schools are failing is “political” – Lebsack’s ad copy doesn’t mention a candidate or campaign. But it’s very clear that the First Amendment prohibits Santa Ana – prohibits every American government – from censoring speech, especially when it’s political.
The First Amendment declares, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
From the earliest days of the republic, the courts have said that clear limit on government power applies to every level of government in America – not just to Congress or the president, in other words, but also to state and local governments and districts, from Washington, D.C. to Sacramento and all the way down to Santa Ana and the bus benches Santa Ana owns on the streets of the fourteenth-largest city in America’s most populous state.
Isn’t Brenda Lebsack’s message about her city’s schools protected by the First Amendment?
I put that question to Focus Media Group, the Florida-based company that manages bus bench advertising for Santa Ana and governments all over the country. In an email, Focus Media’s director of municipal relations replied, “We do not set the advertising standards or determine what is deemed acceptable for our clients’ advertisements.”
Who does? “These guidelines are dictated by our municipal contracts, in this case, specifically with the City of Santa Ana,” the spokesperson said. “Currently, we are seeking additional guidance from the city to ensure our actions are fully compliant with their requirements.”
I followed with a question about how Focus makes these decisions. “Does your company interpret those guidelines in order to determine whether advertising content is permissible?” I asked. “Or do you send all advertising content to city staff for their direct approval?”
“Please refer to the comments in my previous email,” he replied. “We have no further comments at this time.”
That time was two weeks ago. After telling me they’d look into the matter, Santa Ana city officials ignored multiple requests for comment.
In the meantime, school has started and Lebsack worries that she’s lost what parents and educators like to call “the teachable moment,” in this case the time just before classrooms opened – when Lebsack might really have drawn the public’s attention to the city’s failing schools.
Santa Ana’s 2022 advertising contract with Focus is available on the city website. And it shows what sure looks like a straightforward violation of the First Amendment. In one place, the contract says bus bench advertising is banned if “the City in its sole discretion deems it offensive to community standards of good taste.” In another, the contract asserts the city’s right to prohibit “messages that are political in nature, including messages of political advocacy, that support or oppose any candidate or referendum, or that feature any current political office holder or candidate for public office, or take positions on issues of public debate.”
For good measure, the contract also bans “images, content or copy related to religion or religious ideas or viewpoints.”
These would seem to be clear violations of the First Amendment, says Julie Hamill, president of the California Justice Center.
“The First Amendment does not allow city officials to exercise unbridled discretion to deny a sign permit on the basis of ambiguous or subjective reasons,” Hamill said. “Santa Ana’s standards include a number of unconstitutional provisions, including a prohibition of signs that ‘promote material which the City in its sole discretion deems offensive to community standards of good taste.’”
As for the city’s “blanket prohibition on religious signs,” Hamill says that’s also bound for a collision with the courts. “That’s a content-based restriction that will not survive a First Amendment challenge,” she says – and then, because she’s an attorney, she helpfully adds a citation (Reed v. Town of Gilbert, 2015) and an explanation of that decision (“Content-based restrictions that target speech based on its communicative content are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”
And you can practically hear the opening to The Good, the Bad, and the Ugly – the spaghetti western surf guitar over Mexican rhythms – when Hamill concludes, “I could highlight every unconstitutional provision in the City’s sign standards but I don’t have all day. I encourage the city to retain a First Amendment lawyer to assist them in revising their sign standards.”
The problem of poor-performing public schools and government censorship isn’t limited to Santa Ana, of course. California ranks No. 1 in per-student spending but near the bottom of student achievement. Hoping to hide that fact, state superintendent of public instruction Tony Thurmond, facing a tough re-election campaign in 2022 delayed the release of nationwide testing until after Election Day. Lance Christensen, Thurmond’s opponent in that race (and my colleague at California Policy Center) told EdSource, “The fact that the department is not willing to publish now suggests that scores will be lower and the current state superintendent does not want to be held accountable for the results.”
Facing public criticism for what looked like a transparently bad magician’s trick, Thurmond released the test results just days before Election Day, but late in the voting cycle. “Monday’s public release of the data almost didn’t happen,” reported the Los Angeles Times. And now that it had, the data showed that “two out of three California students did not meet state math standards, and more than half did not meet English standards.”
More baffled than angry, Lebsack says “it’s just really insane that they just shut us down like that.” She can’t understand why Santa Ana wouldn’t want locals to know what government officials already know – because the data is on government servers, and it shows that the public schools we pay for are failing our children.
Will Swaim is president of the California Policy Center and co-host of National Review’s Radio Free California podcast.