Merced County’s largest school district has been put on notice by a legal group that a statement read during public school board meetings may expose the district to legal action for threatening freedom of speech.

Brianna Vaccari

The Merced FOCUS

Furthermore, the statement read before the public comment portion of Merced City School District’s board meetings chills speech and undermines democracy, according to a letter from Annie Cappetta, a legal fellow for the California-based First Amendment Coalition.

On Oct. 28, Cappetta emailed the warning letter to the Merced City School District’s governing board and superintendent, asking the board to disavow the problematic statement and writing that continuing to repeat it could expose the district to legal action under the First Amendment and the Brown Act, California’s open meeting law.

In the letter, Cappetta highlights a routine statement read by the school board president before the public comment period of school board meetings.

Dating back to March 2022, per Cappetta’s letter, the Merced City School’s board president reads a statement explaining the parameters of public comment. It includes the following warning:

“It is important for members of the public to understand that derogatory comments against district employees or others made in a board meeting can be actionable as defamation under certain circumstances.”

Cappetta in the letter told the school board that continuing to read the statement may expose the district to legal action under the First Amendment and the state’s open meeting law, the Brown Act.

“A public official’s first duty is to uphold the Constitution. An official’s threat of legal action against critics violates the First Amendment and undermines democracy,” the letter says.

In an interview with The Merced FOCUS, Board President Allen Brooks said the statement at hand is read to protect employees, and the board is committed to transparency and free speech.

The Merced City School District is the county’s largest school district, serving 11,500 students from preschool to eighth grade, and employs 1,400 staff across 18 schools.

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What Does the Letter Say?

The First Amendment Coalition is a California-based nonprofit organization that educates, advocates, and litigates for government transparency and First Amendment protections.

Cappetta’s letter cites case law and precedent as evidence pointing to why the board’s statement threatens free speech.

“I take no position on the substance of any disputes you may have with individual members of the public, but such threats of legal action chill protected speech, undermine the First Amendment, and attack the foundation of democracy,” Cappetta wrote.

California law guarantees immunity for statements made in legislative proceedings, including school board meetings, the letter says. The public has the right to hold public servants accountable, and to speak during public comment on matters related to that government entity.

“More fundamentally, critique of government is democracy, not defamation,” Cappetta wrote. “This is true whether the speech in these public meetings implicates elected officials, district employees, or even fellow community members.”

According to case law, the First Amendment encourages public debate and protects critiques of the government and public officials, the letter says. Cappetta urged the board to uphold the First Amendment and reminded trustees that by oath, it’s their responsibility to do so.

Furthermore, Cappetta wrote, a derogatory comment isn’t necessarily defamatory. The legal standard to prove defamation against a politician is “exceptionally demanding” and “guarantees the breathing room necessary for robust debate to survive in a free society.”

“Threatening legal action for so-called ‘derogatory’ comments improperly chills speech before members of the public have the opportunity to give critical comment,” Cappetta wrote.

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Statement Not Intended to Be Threat, Says President

Brooks told The Merced FOCUS the statement was added earlier in his term on the board, before he was board president.

“It was during a time when the district was having some turmoil. We were having some heated meetings, and that’s where that statement came from,” he said. “We wanted to make sure that we protected the people in our district, but also protected people’s freedom of speech. So that’s where that came from.”

The statement is not intended to threaten anyone’s freedom of speech, he said. Rather, it is meant to prevent district employees from becoming subjected to public comments that may be harmful, he said.

In a phone interview with The Merced FOCUS, Cappetta said elected officials must listen to criticism, even if they don’t want to.

“It is the public officials’ responsibility to listen to public opinion, even when it’s critical, and to uphold the Constitution, even when they don’t like it or don’t want to be held accountable,” Cappetta said.

The First Amendment Coalition had not heard back from anyone in the district by Thursday.

Brooks said he forwarded the letter from the First Amendment Coalition to the district’s legal team and didn’t discuss it further. He couldn’t say for sure whether the district planned to respond or change the language read before public comment to omit the warning.

“As a board, I try to stay in my lane that I’m supposed to be in, and that’s improving our school system for our children,” Brooks said.

Cappetta said the statement about defamation can be construed as a threat by members of the public.

“What really troubles me is that the warning is so misleading that members of the public could be thinking that they might be getting sued imminently for defamation, when they’re completely protected under the law for criticizing their elected officials,” Cappetta said.

When asked, Brooks told The Merced FOCUS he does not think reading the statement about derogatory comments and defamation has prevented anyone from giving public comment.

“Nothing’s really changed from public comment since then,” he said. “We have never shut anyone down for making a statement, right? …We have been a board that is open to listening and open transparency. Please look at our record. Since we’ve been on a board, that’s been one of the main things. We’ve been transparent – transparent not only with the community, but transparent with the board and transparent with the staff and the district.”

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Statement Read During Last Meeting

The Merced City School board met Oct. 22, and Cappetta sent her letter Oct.28.

Brooks did read the statement warning about “derogatory comments” again during Tuesday’s board meeting after receiving the letter.

And someone criticized him – and asked him to step down – because of it, during public comment.

Donna Polk, who previously worked as the board’s executive assistant, mentioned the First Amendment Coalition letter, saying she was “shocked, but should not be surprised” Brooks repeated the statement.

“Why don’t you care about freedom of speech? Where are our high paid lawyers from Lozano Smith on this issue? Are they telling you it’s okay to continue, even though the question should be, should you continue?” Polk asked. “Why do you continue to double down on your actions against the public and their concerns?

“I again ask the board president and clerk to step down,” she continued. “You are clearly not capable of considering what is best for the district, the community and the rest of your board. At some point in time, you should be ashamed and address your actions.”

Previous Brown Act Violations

It isn’t the first time the Merced City School’s board has been criticized for how it conducts business.

Earlier this year, the Merced County Civil Grand Jury in its report found the board violated California’s open meeting law, the Brown Act. The district’s current superintendent, Julianna Stocking, began her new job one day before the grand jury report was published.

Last year, Merced County Superintendent of Schools Steve Tietjen also warned the board that it likely violated the Brown Act, pointing to a discrepancy between online and printed agendas.

At the start of 2023, the board underwent governance training in an effort to work through evident internal division and gain a better understanding of its role. After that is when it unanimously voted to hire Stocking.

About the Author

Brianna is the accountability and government watchdog reporter for The Merced FOCUS.