California Teachers Ass'n v. State Board of Education

Opinion by Judge BOOCHEVER; Dissent by Judge TASHIMA

ORDER

The opinion in the above-entitled case, filed August 29, 2001, and published at 263 F.3d 888 (9th Cir.2001), is amended by adding a footnote 4 after the first sentence of the second full paragraph on page 893 of the opinion. Footnote 4 should read as follows:

The numbers of all subsequent footnotes are changed accordingly.

OPINION

Proposition 227, a California ballot initiative entitled “English Language in Public Schools,” codified at California Education Code §§ 300-340, restricts the use *1145 of languages other than English by educators in public schools. The enforcement provision, section 320, allows aggrieved parents to sue and hold personally liable any teacher, administrator or official “who willfully and repeatedly refuses to implement the terms of this statute.” Cal. Educ.Code § 320. California Teachers Association, et al. (“Plaintiffs”) argue that the terms of the initiative, and specifically the terms of section 320, violate the First Amendment and the Fourteenth Amendment by failing to define clearly when and how much use of non-English will expose educators to personal liability. Plaintiffs request this…

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-English 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 ,…