Alison Collins’ strange and terrible $87M lawsuit

Eerily similar 2010 precedent does not bode well for embattled S.F. Board of Education commissioner

by JOE ESKENAZI APRIL 2, 2021 (missionlocal.org)

Alison Collins’ Wednesday lawsuit vs. the San Francisco Unified School District and five of her Board of Education colleagues was so convoluted that it forced everyone to create a word problem of the sort we endured in junior high school to tally up its monetary demands. 

If Alison sues the San Francisco Unified School District, City and County of San Francisco and five fellow school board commissioners, and seeks $12 million in general damages from each defendant and $3 million in punitive damages from each board member defendant, what are the total damages sought? 

The trick here is that, while it’s confusingly worded, “City and County of San Francisco” isn’t actually a party to this suit (so far). So the equation looks something like this: 6($12 million) + 5($3 million) = $87 million. 

The lawsuit was not delivered by a train leaving Cleveland at 60 miles per hour. Alas. You can’t have everything. 

Reading through Collins’ complaint, however, she may end up with nothing. This lawsuit is an amazing document, and not in a good way — and all the more so because three different law firms were involved in its crafting. That’s on par with four writers being credited with the screenplay of Dirty Dancing: Havana Nights.

The legal text is scattered with biblical scripture and inspirational sayings of the sort one would expect to find on cross-stitch samplers; it opens, unsubtly, with the recitation of the illustrious Pastor Martin Niemöller quote regarding acquiescence in the face of Nazi atrocities.

This is an odd and grating choice in both style and substance: Whatever the hell is going on with our schools and our Board of Education, it’s not exactly as bad as Hitler. 

Nor is this lawsuit. But it’s still bad: There are typos and misspelled names and nonsensical turns of phrase (“beyond a pixel of a doubt”)  and pages upon pages of cut-and-pasted, irrelevant court decisions with the Westlaw citations still embedded within them.

But, more substantively, it’s bad on facts. And bad on law. And that’s just plain bad. 

But, first, the backstory. 

The year 2020 was rough for everyone. But for the school board, it was the 2020 of rough years. 

There was the vote to rename 44 schools, despite provably deficient historical research, an arbitrary and sloppy process from the renaming committee, and despite the fact that, you know, all the schools are closed. There was the acrimonious decision to scrap the merit-based entrance system at Lowell High School. And there is the long-running misery regarding the city’s shuttered schools, spaced-out Zoom students, declining enrollment, parents’ (read: mothers’) imploding careers and the school board’s deliberate decision to not bring in a consultant to form pandemic plans.

And then, in March, 2021, came Alison Collins’ tweets

The Dec. 4, 2016, tweetstorm — written two years before Collins was elected to the school board — laments anti-Black and anti-brown attitudes and behaviors at San Francisco public schools and, particularly, in among Asians. But, in doing so, Collins — the only Black woman on the school board — deployed sweeping generalizations that Asian Americans felt played into reductive stereotypes and negative tropes.

“This isn’t really a lawsuit. It’s more of an op-ed pretending to be a lawsuit.” UC DAVIS LAW PROFESSOR ASH BHAGWAT

These tweets were unearthed by extreme partisans mounting a recall effort of Collins and two of her colleagues, and vehemently opposed to altering the status quo at Lowell. This was neither an organic nor a good-faith effort; the tweets were, additionally, dropped during a glut of anti-Asian violence, resulting in inevitable conflations of words written in pre-Trump 2016 and the volatile, post-Trump situation on the ground in 2021. 

That was unfortunate. As was the decision by media outlets to reflexively label the tweets “racist,” and preclude a more complex discussion. It’s also unfortunate that partisan operatives essentially dictated a story and forced everyone to react. 

But Collins’ behavior in 2021, at which time she is an elected official and overseeing a plurality-Asian school system, was perhaps the most unfortunate of all. Numerous Asian elected officials and/or community leaders said Collins either blew them off or was dismissive and defensive. Calls for her resignation soon grew nigh-unanimous among city leaders, who long ago lost patience with the Board of Education. On March 25, Collins’ school board colleagues voted to strip her of her title of vice president and her committee positions — though, it should be noted, not remove her from the board altogether. 

Après ça, le déluge. 

So that’s the backstory. But it’s at this point that, to employ a very technical legal term, the cheese slips off the plaintiff’s cracker. Because, reading through the suit, it well and truly appears to claim that the school board’s March 25 vote was the culmination of a conspiracy — perhaps a years-long conspiracy. 

The suit recounts several lengthy 2016 instances of Collins and other Black public school parents speaking out against anti-Black and anti-brown attitudes and bullying. 

And then this: 

For all the world, this reads as if a group of future school board commissioners, who hadn’t been seated yet in 2016, hatched a conspiracy to sink Collins, who also hadn’t been elected or seated yet. Several of them would, in fact, endorse her in 2018.  

And even if it’s just convoluted and poorly written and the alleged conspiracy didn’t commence until more recently, it’s still nonsensical. Three of the defendants who voted to bump Collins out of the VP slot also voted along with her to end merit-based admissions at Lowell. 

It certainly must come as a surprise to Commissioner Kevine Boggess, who is a Black parent, to learn that he was party to a conspiracy to discredit Collins due to her advocacy for Black parents. Just as it must come as a jolt to Commissioner Mark Sanchez, a Latino, to discover he had it in for Collins due to her work on behalf of Latinos. 

But it grows more nonsensical still: It wasn’t Collins’ colleagues on the Board of Education who “launched a scorched earth (sic) search for evidence to silence Ms. Collins, including raiding the Twitter account of Ms. Collins” (insofar as one can “raid” items posted on social media for all to see). And it wasn’t the school district writ large doing this. 

It was the pro-recall, pro-merit-based Lowell partisans, who admitted it and even boasted about it. 

God help us, but a lawsuit demanding $87 million in damages from a cash-strapped school system that hasn’t even managed to open its buildings, let alone properly ventilate them, doesn’t seem to know who it’s suing. 

Perhaps the relevant documents were lost on that train from Cleveland. Join Mission Local in keeping reported news alive.

Your humble narrator reviewed Collins’ suit with half a dozen Constitutional scholars. They were not amused. 

“This isn’t really a lawsuit,” summed up UC Davis law professor Ash Bhagwat. “It’s more of an op-ed pretending to be a lawsuit.” 

Among the more minor problems with this problematic suit is that Collins’ attorneys describe the school district, which pays board members $500 a month, as her “employer” — and structure their technical claims thusly. And yet, state law expressly exempts “persons elected by popular vote” from the definition of “public school employee.”  

The suit’s defamation-like claims also baffled law professors; Collins’ colleagues are free to label her or her tweets as “racist,” if that’s how they see it (and vote accordingly). Collins, moreover, is a public figure — rendering the burden of winning on a defamation-like claim nigh-impossible. 

“If Jerry Falwell can’t get damages for Hustler magazine and Larry Flynt saying he lost his virginity to his mother in an outhouse, I don’t know how she will recover from her fellow politicians saying ‘we think this was a racist statement and we don’t agree with it,’” summed up San Francisco State political science professor Nick Conway, a former attorney and administrative law judge.

The Mission has been at the center of the pandemic in San Francisco.

Mission Local has been here to cover it.Keep us on the scene.I’m not interested

Similarly, Collins’ claim of “intentional infliction of emotional distress” from her colleagues struck scholars as bizarre in the context of elected office. “This is absurd,” said Joel Paul, a UC Hastings professor. “You can’t complain when people express opinions about you that are hostile. That is part of the job of a public official.” 

So, those are the smaller problems. A bigger, Constitutional problem is in Collins’ claim that she was denied due process and deprived of her property in violation of the Fourteenth Amendment. A government employee’s job is, in fact, considered “property” — but, remember, Collins didn’t lose her “job,” only her titles. She is still being paid, and is still voting (she even voted on the resolution stripping her of her titles). 

Collins is entitled to be on the Board of Education; the voters put her there. But she is not entitled to any specific position on that board, especially a position chosen through an internal vote of board members. So, those claims crumble. 

As does Collins’ overarching claim that her First Amendment rights have been trampled. Yes, there are Supreme Court cases protecting public employees from retaliation for their personal speech. “But that doesn’t apply to policymaking employees,” explains Zachary Price, a UC Hastings professor. “She’s more like a legislator. And legislators, I’m sure, get stripped of committee assignments all the time based on things they say.” 

Indeed they do, and you don’t have to hunt far and wide for a germane example. In 2007, after Supervisor Chris Daly insinuated that Mayor Gavin Newsom was a coke fiend, Board President Aaron Peskin removed Daly from the consequential position of Budget Committee chair, stating that friction between Daly and the mayor’s office had grown untenable. 

Daly did not sue his colleagues on First Amendment grounds and demand scores of millions of dollars. That would have been ridiculous: Deliberative bodies such as the Board of Supervisors and Board of Education are entitled to select the committee members, presidents and vice presidents of their choosing — or unselect them, as it were. Simply put, deliberative bodies tend to choose the leaders who reflect their preferred ideologies or worldviews. This is often a political matter. But it’s hardly revelatory that there’s politics involved in politics. 

There’s also a relatively recent legal precedent that spells this out expressly — and is so analogous to the Collins case that it nearly beggars belief. That would be the 9th Circuit Court of Appeals’ 2010 ruling in the Blair vs. Bethel School District matter. 

In this case, an elected member of the Bethel District (Washington) School Board named Ken Blair was stripped of his title of vice president in a vote of his colleagues, and then turned around and filed a suit claiming he was being retaliated against for his protected First Amendment activity. 

Yes, that’s astoundingly similar: An outspoken school board vice president voted out of his position by his colleagues, but who remains a voting member of the board, and sues on First Amendment grounds. 

He didn’t demand $87 million, no, but this is downright eerie. 

“I have represented families of people who have been executed by the police in misconduct cases. And even in those cases we didn’t get a sniff near $87 million.S.F. STATE POLITICAL SCIENCE PROFESSOR AND FORMER ATTORNEY NICK CONWAY

And Blair lost. At every level. The 9th Circuit panel ruled that Blair’s First Amendment rights were not chilled, and his colleagues were entitled to strip him of his leadership position in favor of a “vice president who better represented the board’s majority view.” 

The ruling finds that while “the First Amendment protects Blair’s discordant speech as a general matter; it does not, however, immunize him from the political fallout of what he says.” 

And furthermore: “The Board’s action didn’t prevent Blair from continuing to speak out, vote his conscience, and serve his constituents as a member of the Board … [but] the First Amendment doesn’t shield public figures from the give-and-take of the political process.” 

Blair (unsuccessfully) filed his suit under the very same federal statute Collins is deploying: 42 U.S.C. § 1983. Fascinating. 

“If I was an attorney for the School Board,” says S.F. State’s Conway, “this is the first case I’d cite.” 

So, that’s the good, the bad, and the ugly of this lawsuit. But, truth be told, there seems to be plenty more of the latter two. 

“A lot of stuff in here seems highly extraneous,” sums up Bhagwat. “It makes one think the audience is not just the courts.” 

If the legal experts are correct, the courts won’t think much of this lawsuit. So, it remains to be seen what the general public makes of it. 

As such, we’ll learn how city residents respond to a suit aiming to siphon $87 million from San Francisco’s school system. 

A prediction: Not charitably. 

“Let me put it to you this way,” says Conway. “I have represented families of people who have been executed by the police in misconduct cases. And even in those cases we didn’t get a sniff near $87 million.” 

George Floyd’s family, in fact, agreed to a $27 million settlement.

Collins has truly overachieved in personifying and popularizing a recall initiated by fringe political forces. This is part of why so many left-leaning figures had called for her to step down. 

In the meantime, San Francisco students and parents eagerly await the day they can return to school in-person for truncated daily schedules, and from only two to four days a week. It’s a major haul to get everything into place in the coming days. And now, a school board, which has not exactly acquitted itself with distinction, is in the midst of tearing itself apart.  

It’s going to get worse before it gets better. That appears to be beyond a pixel of a doubt.  

JOE ESKENAZI

Joe was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. “Your humble narrator” was a writer and columnist for SF Weekly from 2007 to 2015, and a senior… More by Joe Eskenazi

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