The opinion
Filed 5/19/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MAE M. et al.,
Plaintiffs and Appellants, G064332
v. (Super. Ct. No. CVSW2306224)
JOSEPH KOMROSKY et al., OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Riverside County,
Eric A. Keen, Judge. Reversed in part and dismissed in part. Requests for
judicial notice granted in part and denied in part.
Public Counsel, Mark Rosenbaum, Amanda Mangaser Savage,
Mustafa Ishaq Filat, Yi Li, Amelia Piazza, Kathryn Eidmann; Ballard Spahr,
Scott S. Humphreys, Elizabeth L. Schilken and Maxwell S. Mishkin for
Plaintiffs and Appellants.
California Teachers Association, Laura P. Juran, Jean Shin;
Rothner, Segall & Greenstone and Glenn Rothner for California Teachers
Association, California Federation of Teachers, California Faculty
Association, California School Employees Association, and Service Employees
International Union California State Council as Amici Curiae on behalf of
Plaintiffs and Appellants.
ACLU Foundation of Southern California, Amanda Goad,
Christine Parker, Ariana Rodriguez; ACLU Foundation of Northern
California, Elizabeth Gill and Jennifer Chou for ACLU of Southern California
and ACLU of Northern California as Amici Curiae on behalf of Plaintiffs and
Appellants.
Covington & Burling and Nitin Subhedar for LatinoJustice
PRLDEF, California Immigrant Policy Center, and Asian Law Caucus as
Amici Curiae on behalf of Plaintiffs and Appellants.
Penguin Random House, Carolyn Foley, Daniel R. Novack,
Ojasvinee Singh, for Penguin Random House LLC; Jassy Vick Carolan and
Jean-Paul Jassy for Penguin Random House LLC, The Authors Guild, The
Freedom to Read Foundation, Freedom to Learn Advocates, American
Booksellers for Free Expression, National Council of Teachers of English, and
The PEN American Center, Inc., as Amici Curiae on behalf of Plaintiffs and
Appellants.
Rob Bonta, Attorney General, Michael L. Newman, Assistant
Attorney General, Laura L. Faer, James F. Zahradka II, Jonathan Benner,
Alexander Simpson and Edward Nugent, Deputy Attorneys General for the
State of California as Amicus Curiae on behalf of Plaintiffs and Appellants.
Advocates for Faith & Freedom, Robert H. Tyler and Julianne E.
Fleischer for Defendants and Respondents.
C. Erin Friday for Our Duty-USA as Amicus Curiae on behalf of
Defendants and Respondents.
LiMandri & Jonna, Charles S. LiMandri, Paul M. Jonna and
Jeffrey M. Trissell for Elizabeth Mirabelli and Lori Ann West as Amici
Curiae on behalf of Defendants and Respondents.
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Liberty Justice Center, Emily Rae; Atkinson, Adelson, Loya,
Ruud & Romo, Anthony P. De Marco and Han-Hsien Miletic for Chino Valley
Unified School District as Amicus Curiae on behalf of Defendants and
Respondents.
California Justice Center and Julie A. Hamill for California
Policy Center as Amicus Curiae on behalf of Defendants and Respondents.
Dhillon Law Group, Harmeet K. Dhillon, Karin M. Sweigart,
Jesse D. Franklin-Murdock; Center for American Liberty, Mark Trammell,
Josh Dixon and Eric A. Sell for Center for American Liberty as Amicus
Curiae on behalf of Defendants and Respondents.
* * *
The Temecula Valley Educators Association (the Association) and
individual Temecula Valley Unified School District (the District) students,
teachers, and parents (collectively, Plaintiffs) sued the District and five
members of the District’s school board (the Board) (collectively, Defendants),
seeking declaratory and injunctive relief.
Plaintiffs seek to enjoin the Board’s implementation of
“Resolution No. 2022–23/21” (the Resolution), which prohibits District
educators from using “Critical Race Theory or other similar
frameworks . . . as a source to guide how topics related to race will be taught.”
The Resolution prohibits five enumerated elements of “Critical Race Theory”
(CRT) and eight enumerated doctrines derived from CRT. The trial court
denied Plaintiffs’ motion for preliminary injunctive relief. Plaintiffs timely
appealed the court’s order.
To obtain a preliminary injunction, the trial court considers:
“‘(1) the likelihood that the plaintiff will prevail on the merits, and (2) the
relative balance of harms that is likely to result from the granting or denial
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of interim injunctive relief.’ [Citations.]” (Tulare Lake Canal Co. v. Stratford
Public Utility Dist. (2023) 92 Cal.App.5th 380, 396 (Tulare Lake).)
As to the merits, Plaintiffs argue the Resolution is
unconstitutionally vague on its face, 1 in that it is so ambiguous it fails to
“provide fair notice of the conduct proscribed” and lacks “sufficiently definite
standards of application,” which leads to “arbitrary and discriminatory
enforcement.” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 495.)
The trial court found Plaintiffs failed to present sufficient evidence showing
probability of prevailing under the void-for-vagueness doctrine. We find the
Resolution is unconstitutionally vague on its face because it employs
ambiguous language, lacks definitions, is unclear in scope, is seemingly
irreconcilable with state-mandated educational requirements, and contains
no enforcement guidelines.
As for the balance of harms inquiry, the trial court must
“compare[] the interim harm the plaintiff is likely to sustain if the injunction
is denied to the harm the defendant is likely to suffer if the preliminary
injunction is issued.” (Tulare Lake, supra, 92 Cal.App.5th at p. 396.) Rather
than consider both parties’ relative harms, the court reiterated its finding
that Plaintiffs did not show a likelihood of success on the merits by
sufficiently alleging a constitutional violation. And because enjoining a
government entity is a form of irreparable injury (Maryland v. King (2012)
567 U.S. 1301, 1303 (Maryland)), the court concluded, “[T]he balance of
harms weighs in favor of denying the request for a preliminary injunction.”
1 Plaintiffs made three separate constitutional claims against the
Resolution. We need only address their vagueness claim.
4
We find the trial court abused its discretion because its analysis
was premised on the incorrect conclusion that the Resolution does not violate
Plaintiffs’ constitutional rights, and the court ignored the entirety of
Plaintiffs’ evidence documenting the District teachers’ ongoing harm. We
reverse the court’s order denying Plaintiffs’ motion for a preliminary
injunction as to the Resolution’s implementation and enforcement.
Plaintiffs also seek to enjoin the Board’s implementation of
“Policy 5020.01” (the Policy), which requires school staff to notify parents of
any District student who requests to be identified or treated as being of a
gender other than their biological sex. Assembly Bill No. 1955 (2023–2024
Reg. Sess.) (Assembly Bill 1955) recently amended the Education Code to
prohibit such school board policies. (Stats. 2024, ch. 95, §§ 5–6; Ed. Code
§§ 220.3, 220.5.) Since the change in law, the Board rescinded the portions of
the Policy at issue in this appeal. Accordingly, we dismiss as moot Plaintiffs’
appeal as to the Policy.
FACTS
I.
THE RESOLUTION
The Board enacted the Resolution in December 2022. The
Resolution stated that “racism has no place” in the District, and rather than
“imposing the responsibility of historical transgressions,” it would instead
“engage students of all cultures in age-appropriate critical thinking that
helps students navigate the past, present, and future.” The Resolution quoted
Dr. Martin Luther King, Jr., and then declared, “[CRT] is an ideology based
on false assumptions about the United States of America and its
population . . . [¶] . . . [¶] [CRT] is a divisive ideology that assigns moral fault
to individuals solely on the basis of an individual’s race and, therefore, is
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itself a racist ideology.” The Resolution stated that CRT “assigns generational
guilt and racial guilt for conduct and policies that are long in the past.” The
Resolution instructed “[CRT] or other similar frameworks will not be used as
a source to guide how topics related to race will be taught.” (Italics added.)
Finally, the Resolution listed five “elements of [CRT]” and eight
“doctrines derived from [CRT]” which educators are prohibited from teaching.
The elements are:
“1. Racism is racial prejudice plus power, a concept that is often
used to argue that (i) only individuals classified as ‘white’ people
can be racist because only ‘white’ people control society and
(ii) individuals in ethnic minorities cannot be racist because they
do not control society.
“2. Racism is ordinary, the usual way society does business.
“3. ‘Interest convergence’ or ‘material determinism’, according to
which the incentive to move away from racist policies depends
primarily on the self-interest of the oppressor class, i.e. ‘whites’.
“4. ‘Differential racialization’, according to which the ‘dominant
society racializes different minority groups at different times, in
response to different needs such as the labor market’[.]
“5. The ‘voice-of-color’ thesis, according to which merely ‘minority
status . . . brings with it a presumed competence to speak about
race and racism’, a concept often used to discredit opposing
arguments on the basis of the opposing person’s race[.]” (Fns.
omitted.)
The eight doctrines are listed as follows:
“a. An individual, by virtue of his or her race or sex, is inherently
racist and/or sexist, whether consciously or unconsciously.
“b. Individuals are either a member of the oppressor class or the
oppressed class because of race or sex.
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“c. An individual is inherently morally or otherwise superior to
another individual because of race or sex.
“d. An individual should be discriminated against or receive
adverse treatment due to the individual's race or sex, or an
individual should receive favorable treatment due to the
individual's race or sex.
“e. An individual, by virtue of his or her race or sex, bears
responsibility for actions committed in the past or present by other
members of the same race or sex.
“f. An individual should feel discomfort, guilt, anguish or any other
form of psychological distress on account of his or her race or sex.
“g. Meritocracy or traits such as, but not limited to, a hard work
ethic or the scientific method are racist or sexist or were created
by members of a particular race to oppress members of another
race.
“h. The advent of slavery in the territory that is now the United
States constituted the true founding of the United States, or the
preservation of slavery was a material motive for independence
from England.”
The Resolution ended with the final prohibition that “social
science courses can include instruction about [CRT], provided that such
instruction plays only a subordinate role in the overall course and provided
further that such instruction focuses on the flaws in [CRT].” (Italics added.)
The Resolution was silent as to a reporting or enforcement
mechanism and as to possible repercussions should an educator violate the
Resolution. A separate school board policy specified that “[a]ny employee who
permits or engages in prohibited discrimination . . . shall be subject to
disciplinary action, up to and including dismissal.” The Resolution stated
CRT “is itself a racist ideology.” Read in conjunction with each other, some
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educators feared that a Resolution violation—even if unintentional—could
result in their termination.
II.
THE POLICY
In August 2023, the Board enacted the Policy. The Policy
required certain school staff to notify District students’ parents in writing
within three days of any District employee becoming aware that a student
was:
(a) “Requesting to be identified or treated as a gender (as defined
in Education Code Section 210.7) other than the student’s
biological sex or gender listed on the student’s birth certificate or
any other official records.
“This includes any request by the student to use a name that
differs from their legal name (other than a commonly recognized
diminutive of the child’s legal name) or to use pronouns that do not
align with the student’s biological sex or gender listed on the
student’s birth certificate or other official records.”
(b) “Accessing sex-segregated school programs and activities,
including athletic teams and competitions, or using bathrooms or
changing facilities that do not align with the student’s biological
sex or gender listed on the birth certificate or other official
records.”
(c) “Requesting to change any information contained in the
student’s official or unofficial records.”
III.
THE LITIGATION
In October 2023, Plaintiffs sued Defendants alleging ten counts of
various constitutional and statutory violations pertaining to the Resolution
and the Policy’s enactment and enforcement. Plaintiffs filed a motion for a
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preliminary injunction in November 2023, 2 which the trial court ultimately
denied.
A. Plaintiffs’ Evidence in Support of Injunctive Relief
Plaintiffs attached as exhibits to their motion for a preliminary
injunction voluminous records proffered to demonstrate how the Resolution is
at-odds with state education requirements and that teachers are confused by
the Resolution’s sweeping mandate. We narrow our summary to the records
relevant to the vagueness claim and the balance of harms analysis.
1. State Education Requirements
Plaintiffs attached records from the California Department of
Education to demonstrate relevant state education requirements. These
include the kindergarten through grade twelve public schools frameworks for
history and social sciences (HSS), arts education, mathematics, health
education, science, and world languages, as well as the HSS content
standards. The HSS content standards mandated that eleventh graders
should be able to “analyze the development of federal civil rights and voting
rights,” including seminal cases like Dred Scott v. Sandford (1857) 60 U.S.
393, Plessy v. Ferguson (1896) 163 U.S. 537, Brown v. Board of Education
(1954) 347 U.S. 483, and including “the roles of civil rights advocates” like
Dr. Martin Luther King, Jr., and Malcom X. And they must examine the
significance of Dr. Martin Luther King, Jr.’s “Letter from a Birmingham Jail”
and “I Have a Dream” speech. Eleventh graders must also “[d]iscuss the
diffusion of the civil rights movement of African Americans from the churches
of the rural South and the urban North, including the resistance to racial
2 The parties litigated other motions and a demurrer, none of
which are pertinent to this appeal’s subject matter.
9
desegregation in Little Rock and Birmingham, and how the advances
influenced the agendas, strategies, and effectiveness of the quests of
American Indians, Asian Americans, and Hispanic Americans for civil rights
and equal opportunities.”
These students must also “analyze the major social problems and
domestic policy issues in contemporary American society,” including “the
changing roles of women in society,” “the reasons for the nation’s changing
immigration policy,” and “the persistence of poverty and how different
analyses of this issue influence welfare reform, health insurance reform, and
other social policies.”
The HSS framework stated that ninth graders should learn about
ethnic studies, which “is an interdisciplinary field of study that encompasses
many subject areas including history, literature, economics, sociology,
anthropology, and political science . . . . [¶] As a field, ethnic studies seeks to
empower all students to engage socially and politically and to think critically
about the world around them. It is important for ethnic studies courses to
document the experiences of people of color in order for students to construct
counter-narratives and develop a more complex understanding of the human
experience. . . . [¶] . . . [C]entral to any ethnic studies course is the historic
struggle of communities of color, taking into account the intersectionality of
identity (gender, class, sexuality, among others), to challenge racism,
discrimination, and oppression and interrogate the systems that continue to
perpetuate inequality.” Ninth grade teachers should hold a discussion
inquiring: “How have race and ethnicity been constructed in the United
States, and how have they changed over time? [¶] How do race and ethnicity
continue to shape the United States and contemporary issues?”
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The health education framework instructed health educators to
“[a]ddress implicit and explicit racial bias, and if racially-charged topics
occur, do not ignore them. Students may benefit from a class meeting or
seminar in which they have an opportunity to discuss issues dealing with
racial inequities or dynamics as they relate to health education topics.”
Plaintiffs also included an expert declaration from Dr. Rita Kohli
and Dr. Marcos Pizarro (researchers, educators, and authors specializing in
the intersection of race and education) who discussed California “Standards
for the Teaching Profession” and the state’s “Teaching Performance
Expectations” (TPEs). They stated that “[t]o obtain a teaching credential in
California [the TPEs require] teachers [to] demonstrate their ability to create
a culturally responsive classroom environment in which all students can
engage in critical inquiry and develop mastery of the knowledge and skills set
out in the state’s academic content standards.” The TPEs stated that HSS
teachers are expected to “‘teach students how cultural perspectives inform
and influence understandings of history’; [¶] ‘design activities to illustrate
multiple viewpoints on issues’; [¶] [‘]create classroom environments that
support the discussion of sensitive issues (e.g. social, cultural, race, and
gender issues)’; [¶] ‘ask questions and structure academic instruction to help
students recognize implicit and explicit bias and subjectivity in historical
actors’; and [¶] ‘relate [HSS] content to broader contextual understandings so
that students better understand their current world.’” (Fns. omitted.)
2. Instances of Teachers’ Confusion and Fear
Since the Resolution’s enactment, District teachers and members
of the Association have expressed confusion and concern for their students’
education and their ability to properly do their job without reprimand or
termination. Plaintiffs submitted 11 plaintiffs’ declarations, one declaration
11
from the Association president, and 10 expert witness declarations. Plaintiffs
also attached exhibits delineating various teaching requirements set by the
California Department of Education and materials from various Board
meetings. We narrow our summary of Plaintiffs’ evidence here to evidence
relevant to their vagueness claim.
The Association’s president, Edgar Diaz, wrote in his declaration
that the Association encompassed 32 schools and advocated for 1,425 public
education professionals who served approximately 30,000 students. He stated
that “[s]ince the Board’s adoption of the Resolution, the vast majority of
[Association] meetings have dealt with addressing the Resolution, and
particularly to supporting teachers who fear losing their livelihoods if they
are accused of violating it.” He also explained the Association members are
being harmed by the Resolution because it made it “impossible for [the
Association] educators to meet their professional obligations to their
students” and teach state and district mandated concepts. The educators
have “had to change their lesson plans[,] stop teaching books that address
racial and other forms of inequality[,] censor their instruction and their
answers to student questions on standards-mandated topics[,] and limit
classroom conversations to avoid being reported.”
Amy Eytchison, a fourth grade District teacher and plaintiff,
stated in her declaration the Resolution has had an enormous negative
impact on her teaching. She expressed concern and confusion about how to
adequately teach the content standards without violating the Resolution. For
example, she is supposed to teach about “how labor during the mission period
harmed Native American communities, how controversies over the expansion
of slavery impacted California’s bid for statehood, and how hostility toward
Chinese and Japanese laborers led to anti-Asian exclusion movements.” “It is
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unclear to [her] how to facilitate discussions with integrity about these topics
without acknowledging . . . individuals were members of an oppressed group
by virtue of their race,” or that “‘the dominant society racializes different
minority groups at different times, in response to different needs such as the
labor market,’” as prohibited under doctrine (b) and element four of the
Resolution.
Eytchison noted she did not know what a permissible response
was when her students asked her how and why slavery happened. She feared
her answer could mistakenly imply “‘an individual should feel discomfort,
guilt, anguish or any other form of psychological distress on account of his or
her race,’” which would violate doctrine (f) in the Resolution.
Eytchison stated that “[she did] not want to face professional
consequences for such a misunderstanding” and had experienced anxiety in
the classroom due to uncertainties of what is permissible to discuss. As a
result of the uncertainties, Eytchison stated she self-censored her teaching
and wholly avoided topics she would otherwise teach. “Prior to the
Resolution, [she] could speak openly with [her] students about competing
interpretations of historical events and their current impacts, but now [she
was] inclined to avoid such conversations.”
A declaration from sixth grade District teacher and plaintiff
Katrina Miles stated that the Resolution impacted the information available
to students at her school. She regularly taught the book Roll of Thunder,
Hear My Cry, by Mildred Taylor, and was the only teacher to continue
teaching it after the Resolution passed. Since the Resolution, however, she
“avoided using group terms like ‘white,’ and [she] strictly adhered to the text
of the book to avoid making any suggestions or sharing any of [her] own
perspectives with the students [because she did] not want to be misquoted or
13
face the consequences of being reported to the highly partisan Board
members.”
Declaration from plaintiff and District high school world history
and United States government teacher, Dawn Sibby, stated that she read the
Resolution multiple times and attended Board meetings to try to understand
what it restricted, but has been “unable to discern what specific topics and
conduct [would] be found to violate them.” The Resolution’s unclear scope
caused Sibby further confusion because “despite being phrased primarily in
terms of race, the Resolution also place[d] restrictions on non-racial topics
such as discrimination based on sex.”
Sibby struggled with complying with California education
standards and the Resolution, which are in conflict. For example, the HSS
content standards required teaching about “‘the controversies that have
resulted over changing interpretations of civil rights,’ including in Plessy v.
Ferguson and United States v. Virginia,” and how European powers “‘justified
their conquests by asserting arguments of racial hierarchy and cultural
supremacy, offering a vision of civilization in contrast to what they argued
were ‘backward’ societies.’” But Sibby worried that complying with the HSS
content standards would also “cause some students to feel discomfort,” or
that she would use the “‘wrong’” language and be reported and disciplined.
She lamented that “[she did] not know how to meet this requirement without
teaching that individuals have experienced discrimination on the basis of
race and sex. These discussions have to engage with topics of racism and
sexism, which some students have directly experienced.”
Sibby noted that “[t]he Resolution’s lack of clear enforcement
standards [made] the danger of a misstep even greater. . . . [T]he Resolution
itself provide[d] no information on how the Board [would] decide what
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penalties to impose for purported violations” because it would be totally
discretionary.
Declaration of plaintiff and District high school English teacher,
Jennifer Scharf, stated that “since [the Resolution’s] enactment, [she had]
been inundated with questions from [teachers] about what books and ideas
they can and cannot teach,” including “whether the Resolution permit[ed]
them to continue assigning Toni Morrison’s Beloved, and if so, how they
[could] meaningfully teach the novel without talking about racial oppression
and its lasting impacts.” After teaching lawyer Bryan Stevenson’s memoir
Just Mercy, Scharf “felt awful” not discussing persistent inequalities,
drawing connections to current events, or answering students’ questions
about failures in the criminal justice system in order to comply with the
“vague definition of ‘[CRT].’”
B. Defendants’ Evidence in Opposition
Defendants’ evidence in opposition to Plaintiffs’ motion for a
preliminary injunction included defendant and Board member Joseph
Komrosky’s declaration and the Board’s policy No. 6144 (Policy 6144), which
addressed “controversial issues” in the classroom.
Komrosky’s declaration reiterated that the Board’s stated intent
for implementing the Resolution was “to protect all students from racism and
sexism” and “to ensure that students of color receive an education equivalent
to that of their white peers.” His declaration mirrors much of the Resolution
and Policy 6144, at times reciting them verbatim. He stated that “[t]he
Resolution [did] not interfere with the teaching of ethnic studies, history, or
any other subject, nor [was] it antithetical to the teaching of ethnic studies.
Teachers [could] still teach on accurate historical events and individuals,
such as Dr. Martin Luther King, the Holocaust, and slavery.”
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As to its clarity, Komrosky stated that “[i]n the Resolution, we
made an intent to include numerous doctrines and tenets to ensure all
students and teachers understood the Resolution. We used precising
definitions, to avoid vagueness and ambiguity. This can be seen in the five
elements and eight doctrines listed.”
Komrosky pointed to Policy 6144, which he attached as an exhibit
to his declaration, stating it is a corollary to the Resolution and provides
guidelines when discussing racism and CRT in the classroom. Policy 6144
“require[d] teachers to ensure that all sides of a controversial issue [were]
impartially presented with adequate and appropriate factual information”
and “help students separate fact from opinion and warn them against
drawing conclusions from insufficient data.” It guarantees students the right
to “study any controversial issue which has political, economic, or social
significance”; “to have free access to all relevant information”; and “to study
under competent instruction in an atmosphere free from bias or prejudice.”
C. Ruling
The trial court heard both parties’ arguments at the preliminary
injunction motion hearing and issued a written order denying Plaintiffs’
motion.
As to vagueness, the trial court concluded that “the [R]esolution
[wa]s sufficiently definite to provide notice of the conduct proscribed and
standards of application[,] in that the Resolution specifically delineates what
‘cannot be taught[,]’” referring to the 13 prohibited concepts derived from
CRT. The court noted “that a person of ordinary intelligence would have a
reasonable opportunity to know what is prohibited[,] as what is prohibited is
set out specifically in the Resolution.” The court found Plaintiffs were “not
likely to succeed on the merits.”
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As to the balancing of harms, the trial court concluded that
because Plaintiffs’ constitutional rights were not infringed, enjoining a
legitimate government action would cause a form of irreparable injury. The
court concluded the balance of harms, thus, weighs in favor of denying the
motion for a preliminary injunction. The court did not discuss the Plaintiffs’
alleged harm with the Resolution in effect. Plaintiffs timely appealed.
DISCUSSION
On appeal, Plaintiffs contend the trial court erred in denying
injunctive relief. They argue the Resolution is unconstitutionally vague on its
face, such that they are likely to succeed on the merits, and the harm they
would incur without an injunction exceeds the purported harm Defendants
would face with an injunction. We agree.
I.
PRELIMINARY INJUNCTION FACTORS AS TO THE RESOLUTION
A preliminary injunction preserves the status quo until a trial
court makes an ultimate determination of a claim’s merits. (Association for
Los Angeles Deputy Sheriffs v. County of Los Angeles (2024) 106 Cal.App.5th
982, 992.) A trial court considers two interrelated factors when determining
whether to issue a preliminary injunction: “(1) the likelihood that the
plaintiff will prevail on the merits, and (2) the relative balance of harms that
is likely to result from the granting or denial of interim injunctive relief.
[Citations.]” (Tulare Lake, supra, 92 Cal.App.5th at p. 396.) These two factors
“are described as interrelated factors because the greater the plaintiff’s
showing on one, the less must be shown on the other to obtain an injunction.
[Citation.] The goal of this test is to minimize the harm that an erroneous
interim decision would cause. [Citations.]” (Id., at pp. 396–397.)
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A. Standard of Review
We review a trial court’s denial of a preliminary injunction for
abuse of discretion, leaving the decision undisturbed unless it “exceeds the
bounds of reason by being arbitrary, capricious[,] or patently absurd.” (Dodge,
Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414,
1420.) But we review questions of law de novo. (People ex rel. Feuer v. FXS
Management, Inc. (2016) 2 Cal.App.5th 1154, 1159.) “Constitutional issues
are always reviewed de novo.” (Vo v. City of Garden Grove (2004) 115
Cal.App.4th 425, 433 (Vo).)
We accordingly apply de novo review to the likelihood of success
on the merits inquiry (the first factor) because we are tasked with considering
whether the Resolution is unconstitutionally vague on its face. And we review
the balance of harms (the second factor) for abuse of discretion. “Of course,
enjoining enforcement of a constitutional ordinance, or failing to enjoin
enforcement of an unconstitutional ordinance, would also constitute an abuse
of discretion within the usual formulation of the standard of review for the
grant or denial of a preliminary injunction.” (Vo, supra, 115 Cal.App.4th at
p. 433.)
B. Likelihood of Success on the Merits (the First Factor)
First, we review de novo whether Plaintiffs made a sufficient
showing that they are likely to succeed on the merits of their claim that the
Resolution is unconstitutionally vague on its face (as opposed to an as applied
challenge). Because the Resolution’s language is ambiguous, lacks
definitions, is unclear in scope, is seemingly irreconcilable with state-
mandated educational requirements, and contains no enforcement guidelines,
we find the Resolution unconstitutionally vague.
18
Plaintiffs accurately argue that the Resolution bans 13 unclear
concepts and “prohibits teaching ‘[CRT] or other similar frameworks’ without
bothering (i) to identify those frameworks or (ii) to explain what makes a
framework ‘similar’ to [CRT] (and thus verboten).”
Defendants contend the Resolution is sufficiently clear in its
prohibition of five elements of CRT and eight doctrines derived from CRT.
They argue that “‘“perfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity,”’” quoting Raef
v. Appellate Division of Superior Court (2015) 240 Cal.App.4th 1112, 1138.
Defendants argue that Plaintiffs “complicate the interpretation of the
Resolution, creating unnecessary confusion about its scope.”
The void-for-vagueness doctrine “derives from the due process
concept of fair warning” and “bars the government from enforcing a provision
that ‘forbids or requires the doing of an act in terms so vague’ that people of
‘common intelligence must necessarily guess at its meaning and differ as to
its application.’ [Citations.]” (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).)
To survive a void-for-vagueness challenge, “(1) [t]he regulations must be
sufficiently definite to provide fair notice of the conduct proscribed; and
(2) the regulations must provide sufficiently definite standards of application
to prevent arbitrary and discriminatory enforcement.” 3 (Snatchko v. Westfield
LLC, supra, 187 Cal.App.4th at p. 495.) We may consider other sources of law
3 We note that the parties dispute whether we should apply the
ordinary, two-part vagueness test or a heightened analysis requiring greater
specificity where the vagueness quells the freedom of speech. (Hynes v. Mayor
of Oradell (1976) 425 U.S. 610, 620.) We need not address whether the
vagueness chills speech because we find the Resolution is unconstitutionally
vague under the ordinary, two-part test.
19
to determine the terms’ clarity, including “judicial construction of similar
provisions.” (Hall, supra, 2 Cal.5th at p. 500.)
“‘“To support a determination of facial unconstitutionality,
voiding the statute as a whole, [Plaintiffs] cannot prevail by suggesting that
in some future hypothetical situation constitutional problems may possibly
arise as to the particular application of the statute.”’ [Citations.]” (Tobe v.
City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) “Rather, the ‘minimum’ our
cases have accepted is a showing that the statute is invalid ‘in the generality
or great majority of cases.’ [Citations.]” (People v. Buenrostro (2018) 6 Cal.5th
367, 388.)
1. The Resolution’s Text is Ambiguous
The Resolution’s plain text is ambiguous and its scope unclear.
Because CRT underpins the entire Resolution, a clear and commonly
understood definition of CRT is crucial. The Resolution defined CRT as “a
divisive ideology that assigns moral fault to individuals solely on the basis of
an individual’s race and, therefore, is itself a racist ideology.” The Resolution
operates as if this definition is universally accepted, but the text does not
indicate where this definition is derived, or whether it is shared with anyone
else besides the Board. This definition seems to represent the Board’s
subjective perception of CRT. Defendants rely on Komrosky’s declaration for
the position that the Resolution “used precising definitions, to avoid
vagueness and ambiguity,” but the Resolution is not sufficiently definite just
because a Board member who enacted it stated as much.
Making matters worse, the Resolution does not provide any
examples of CRT or how CRT intersects with school curriculum. Clear
examples could have made the Board’s definition of CRT more
20
understandable or, at the very least, could inform teachers about what they
can and cannot teach.
Similarly, there are no guidelines for how a teacher should
modify their curriculum, if at all. Defendants point out that Policy 6144 is
meant to accompany the Resolution to aid teachers in discussing these
“controversial topics” in their classroom, but we find this only confuses the
issues further. Policy 6144 seems in conflict with the Resolution, rather than
its corollary, because it requires educators to teach any controversial issue
that has political, economic, or social significance, and requires them to
provide students with all relevant information and ensure all sides are
impartially presented. This seems to not just encourage instruction on
intersectional and systemic racism, but to require it.
Another cause for concern is the prohibition of other similar
frameworks. As discussed, we do not know what the Resolution meant when
it referenced CRT, let alone frameworks similar to CRT. Other similar
frameworks leaves open for interpretation whether a teacher could be
unwittingly implicated for teaching a topic wholly separate from racial
inequities, but that could be categorized as having a similar framework by
whoever is interpreting the Resolution. Understandably, Sibby was similarly
confused by the unclear scope, as she stated, “despite being phrased
primarily in terms of race, the Resolution also places restrictions on non-
racial topics such as discrimination based on sex.” Is instruction on gender
inequality also prohibited by the Resolution? Age discrimination? This
creates obvious issues of interpretation, which leaves the Resolution
enforcement subject to arbitrary practices.
When this issue was presented to Defendants’ appellate counsel
at oral argument, counsel replied that “other similar frameworks are
21
expanded within the Resolution . . . itself,” and “similar frameworks would
include and encompass the 13 elements and doctrines that are listed in the
Resolution.” Counsel’s answer is not found in the Resolution’s text, nor does it
follow logically—if the Resolution is referring to the 13 elements and
doctrines of CRT, why would it not simply say so rather than use the open-
ended phrase, other similar frameworks?
The Resolution culminates with a confusing caveat that teachers
can teach CRT if it is “subordinate” to the course and “such instruction
focuses on the flaws of [CRT].” What are the flaws? The Resolution never
explains. At oral argument, when asked what the flaws of CRT are,
Defendants’ appellate counsel replied, “At the risk of sounding
redundant . . . the 13 doctrines and elements that are laid out would
inherently be the flaws of critical race theory.” But this is circular—if we
adopt counsel’s interpretation, then an educator can teach the prohibited
concepts and elements if they focus on the prohibited concepts and elements.
2. Plaintiffs’ Evidence Demonstrates Instances of Ambiguity
Aside from the issues that the Resolution’s plain text presents,
the District teachers have experienced anxiety and confusion in knowing
what is prohibited by the Resolution and fear extreme repercussions without
guardrails for even accidental violations.
Plaintiffs analogized their vagueness claim to Santa Cruz
Lesbian & Gay Cmty. Center v. Trump (N.D.Cal. 2020) 508 F.Supp.3d 521
(Santa Cruz), which enjoined portions of President Trump’s Executive Order
No. 13950 as unconstitutionally vague, and Local 8027 v. Edelblut (D.N.H.
2023) 651 F.Supp.3d 444 (Local 8027), which found a state statute
prohibiting public school teachers from teaching divisive concepts to be
unconstitutionally vague. We are, of course, not bound by an intermediate
22
federal court’s decisions (Flannery v. Prentice (2001) 26 Cal.4th 572, 579), but
such decisions may nevertheless be instructive (id., at p. 580).
In Santa Cruz, President Trump issued an executive order that
prohibited teaching certain “‘divisive concepts’” in federal agency diversity
trainings. (Santa Cruz, supra, 508 F.Supp.3d at p. 529.) The executive order
defined “‘divisive concepts’” as, in relevant part, “‘(1) one race or sex is
inherently superior to another race or sex; (2) the United States is
fundamentally racist or sexist; (3) an individual, by virtue of his or her race
or sex, is inherently racist, sexist, or oppressive, whether consciously or
unconsciously; (4) an individual should be discriminated against or receive
adverse treatment solely or partly because of his or her race or sex; . . . (7) an
individual, by virtue of his or her race or sex, bears responsibility for actions
committed in the past by other members of the same race or sex; (8) any
individual should feel discomfort, guilt, anguish, or any other form of
psychological distress on account of his or her race or sex; or (9) meritocracy
or traits such as a hard work ethic are racist or sexist, or were created by a
particular race to oppress another race.” (Ibid.)
The district court found that the executive order’s divisive
concepts were unconstitutionally vague. (Santa Cruz, supra, 508 F.Supp.3d
at pp. 530, 544–545.) In determining whether the executive order “provided
ample exceptions, limitations and safeguards to ensure that a person of
ordinary intelligence had ‘fair notice of what conduct is prohibited’ [citation.]”
(id., at p. 544), the court considered Plaintiffs’ declarations (id., at pp. 543–
544). The declarations emphasized that work “trainings on unconscious bias
[was] critical to Plaintiffs’ missions and their work.” (Id., at p. 543.) They
described the difficulty they were having knowing whether they were
violating the executive order by continuing their job duties, which included
23
training health care professionals to provide affirming care to their LGBT
patients. (Id., at pp. 543–544).
The district court noted that the “‘[d]ue process clause does not
require impossible standards of clarity,’ [Citation.]” but concluded the
executive order contained “no such guardrails” (Santa Cruz, supra,
508 F.Supp.3d at p. 544), and “the Government’s own interpretation of the
reach of [the executive order] provide[d] even more uncertainty about the
scope of prohibited conduct” (ibid).
Santa Cruz is instructive, and we adopt the district court’s
analysis. The Resolution’s eight doctrines derived from CRT are nearly
identical to the divisive concepts defined in the executive order. The court in
Santa Cruz found the Plaintiffs’ declarations persuasive to support that
facially vague challenge, where they described how the executive order’s
ambiguity impacted their work and understanding of whether they were
violating the executive order.
Similarly, the teachers are confused by the Resolution’s
prohibited concepts, unsure of the listed concepts’ meanings or application to
their curriculum, and unsure how to comply with the Resolution and their
state-mandated instruction. Eytchison stated that she was uncertain what
was permissible to discuss in the classroom. She did not know how to answer
her students’ questions about how and why slavery happened without
mistakenly implying that “an individual should feel discomfort, guilt, anguish
or any other form of psychological distress on account of his or her race.”
Miles stated that she avoided using the term “white” when teaching about a
book that involved race to ensure compliance with the Resolution. Sibby
made efforts to understand the Resolution and attended Board meetings but
24
was still “unable to discern what specific topics and conduct [would] be found
to violate” the Resolution.
This is the exact situation the void-for-vagueness doctrine seeks
to ameliorate. Teachers are left to self-censor and potentially overcorrect,
depriving the students of a fully informed education and further exacerbating
the teachers’ discomfort in the classroom. Rather than lead the classroom and
moderate healthy discussion, the teachers are forced to leave children’s
questions unanswered or potentially let a classroom conversation about race
devolve out of fear that their intervention would trigger a Resolution
violation.
The Association president Diaz wrote in his declaration that the
Resolution made it impossible for teachers to meet professional obligations
and teach mandated concepts. Sibby exemplified this struggle, noting she
was required by the state to teach about “‘the controversies that have
resulted over changing interpretations of civil rights,’ including in Plessy v.
Ferguson and United States v. Virginia.” She worried this would violate the
Resolution, she would use the “‘wrong’” language, and she would be subject to
discipline.
In Local 8027, supra, 651 F.Supp.3d 444, a district court found a
state statute that prohibits educators from teaching four “concepts” (id., at
p. 447) related to race to be vague on its face (id., at p. 464). Three of the
concepts mirror the Resolution’s “doctrines derived from [CRT]” at issue in
this appeal. The Local 8027 court posited several instances in which a
teacher may unintentionally violate the statute: “[f]or example, beyond
teaching the historical existence of Jim Crow laws, teachers are supposed to
discuss their evolution and how such practices can be prevented. In this
context, it is not difficult to imagine that a discussion of remedies for past
25
discrimination such as reparations would take place, which could subject a
teacher to sanctions for teaching a banned concept.” (Id., at p. 462.) The
district court found it concerning since teachers “have an affirmative duty to
teach topics that potentially implicate several of the banned concepts.” (Ibid.)
We find Local 8027 analogous given the textual similarities in
the statute’s prohibited concepts and the Resolution’s prohibited doctrines.
We find it instructive that the district court also took issue with the
difference between teaching the historical facts about Jim Crow laws and
holding a discussion about past discrimination and remedies such as
reparations. This exact inquiry was posited by the Plaintiffs both in their
motion for injunctive relief and in their appellate briefing. Plaintiffs raised
the issue because Education Code section 51220, subdivision (b)(1), mandates
that teachers “provide a foundation for understanding . . . human rights
issues, with particular attention to the study of the inhumanity of genocide,
slavery, and the Holocaust, . . . and contemporary issues.” But could a teacher
be disciplined if their lesson on Jim Crow laws, and still-prevalent
contemporary racial issues, causes a student to perceive that “[a]n individual
should feel discomfort, guilt, anguish or any other form of psychological
distress on account of his or her race”? Or if the lesson covers implicit racial
bias? If a teacher of color shares a personal anecdote exemplifying modern
ramifications of the Jim Crow era, could they be disciplined for teaching that
“merely ‘minority status . . . brings with it a presumed competence to speak
about race and racism’”?
In their appellate briefing, Defendants state that “[t]he
Resolution does not ban discussions on slavery, historical figures (i.e., Jim
Crow), or the human rights issues concerning such topics.” Rather, it
“prohibits leading a discussion that ‘[a]n individual, by virtue of his or her
26
race or sex, is inherently racist and/or sexist, whether consciously or
unconsciously’ or that ‘[a]n individual is inherently morally or otherwise
superior to another individual because of race or sex.’” We find this confusing
because Jim Crow was not a “historical figure,” but a pejorative term
referring to a Black man, derived from a musical caricature of a Black man
played by a white man in blackface.4 Also, students are not merely taught
historical facts about Jim Crow laws, but rather about the discriminatory Jim
Crow laws era, segregation, subsequent racial inequities in the criminal
system, socio-economic divide, and an ideological rift that contributed to the
civil rights movement. These lessons could potentially violate the Resolution,
as discussed above.
In a similar disagreement, Plaintiffs raised the question whether
teachers would be subject to a violation if they instruct on Dr. Martin Luther
King, Jr.’s “Letter from a Birmingham Jail,” which is required teaching by
the California Department of Education for eleventh graders. Plaintiffs posit
that because Dr. Martin Luther King, Jr. criticized white moderates for their
inaction in the letter, an educator teaching this lesson could violate the
Resolution if someone perceived that “[a]n individual, by virtue of his or her
race . . . bears responsibility for actions committed in the past or present by
other members of the same race.”
Defendants in their reply state that “[n]othing in the language
prohibits teaching that Dr. King believed white moderates were failing to
support the civil rights movement and have discussion on the topic.” We are
4 Despite discussing Jim Crow in Defendants’ appellate briefing,
Defendants’ appellate counsel stated at oral argument that she believed Jim
Crow was “a civil rights individual.”
27
still left to guess whether a teacher could face repercussions if they suggest in
their instruction on this topic that white moderates, in fact, failed to support
Dr. Martin Luther King, Jr., and the civil rights movement, or if the
Resolution requires they only teach that this was Dr. Martin Luther
King, Jr.’s belief.
It is clear from the Resolution’s text and the record evidence that
Plaintiffs’ constitutional right to fair warning about what conduct is
forbidden has been impinged. (Hall, supra, 2 Cal.5th at p. 500.) The language
lacks definition and clarity and leaves the reader to guess the meaning of the
Resolution’s terms and enumerated prohibitions. (Ibid.)
3. The Resolution is Silent About Enforcement
The district court in Local 8027 found a great importance for
teachers to have fair notice of what conduct constitutes a violation because
they could be subject to termination or losing their teaching credentials
(Local 8027, supra, 651 F.Supp.3d at p. 462), without a clear scienter
requirement (id., at p. 460). The court found the statute’s enforcement
procedural safeguards deficient because the California Department of
Education would be required to investigate every possible case reported by
anyone. (Id., at p. 463.)
The Resolution similarly exposes educators that incur a violation
to potentially lose their job, even where the teacher commits a violation
incidentally. The Resolution does not even include a reporting scheme or any
procedural safeguards to protect against arbitrary or discriminatory
enforcement. The silence leaves us, and the teachers, with many questions.
What is the reporting process for perceived violations? Is there an
investigation procedure? Will their right to fair notice and hearing be upheld?
Will they have a union representative at the hearing? Who determines
28
whether a teacher violated the Resolution? What is the burden of proof at the
hearing? Is the potential punishment a verbal warning or loss of their
teaching credentials? Who determines the repercussion? The Resolution is
unconstitutionally vague because it is devoid of any guideline for its
application, which leaves it vulnerable to “arbitrary and discriminatory
enforcement.” (Snatchko v. Westfield LLC, supra, 187 Cal.App.4th at p. 495.)
C. Balance of Harms (the Second Factor)
Next, we consider whether the trial court abused its discretion
when it found the balance of harms weighed in favor of denying injunctive
relief.
Plaintiffs contend the trial court erred when it concluded the
Resolution did not violate their constitutional rights and when it failed to
consider the harms outlined in the numerous declarations. Plaintiffs argue
the balance of harms weighs in favor of injunctive relief because teachers
across the district “face severe, even career-ending penalties for guessing
incorrectly whether the Resolution’s ill-defined provisions permit or prohibit
instruction on a given topic,” among other alleged harms. Plaintiffs also cite
to Ketchens v. Reiner (1987) 194 Cal.App.3d 470, arguing that infringements
on the Plaintiffs’ constitutional rights, “for even minimal periods of time,
unquestionably constitutes irreparable injury” (id. at p. 480). Plaintiffs argue
that, in contrast, Defendants would suffer no harm should the status quo be
maintained.
Defendants argue, and the trial court agreed, that the Resolution
does not violate Plaintiffs’ constitutional rights. Defendants state that
“[Plaintiffs] cannot enjoin a statute out of fear alone” and that the Plaintiffs’
claims are “‘wide-ranging, conclusory, and unfocused,’” and thus permit the
court to deny a preliminary injunction, citing Harmon v. City of Norman,
29
Oklahoma (10th Cir. 2020) 981 F.3d 1141, 1150). Defendants contend that an
injunction would “deprive[] children of a public education crafted out of the
District’s democratic process and policy judgments.” And finally, Defendants
cite to Maryland, supra, 567 U.S. at page 1303, for the premise that “‘[a]ny
time a [government] is enjoined by a court from effectuating statutes enacted
by representatives of its people, it suffers a form of irreparable injury.’
[Citation.]”
The balance of harms section in the trial court’s written order
denying injunctive relief only addressed the potential harm Plaintiffs faced
without the injunction. The court relied on the same premise in Maryland as
Defendants, and concluded “the balance of harms weighs in favor of denying
the request for a preliminary injunction as to . . . the Resolution.” Because
the court’s analysis was conclusory, premised on the incorrect conclusion that
the Resolution did not violate Plaintiffs’ constitutional rights, and lacked
consideration of Plaintiffs’ proffered record evidence, we find the court abused
its discretion. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley, supra, 105
Cal.App.4th at p. 1420.)
Although the second factor in the preliminary injunction analysis
is commonly referred to as a showing of irreparable harm, it is somewhat of a
misnomer. Rather than solely requiring the plaintiff to show irreparable,
irreversible harm as the colloquial reference implies, the trial court
“compares the interim harm the plaintiff is likely to sustain if the injunction
is denied to the harm the defendant is likely to suffer if the preliminary
injunction is issued.” (Tulare Lake, supra, 92 Cal.App.5th at p. 396.) Indeed,
“‘[i]rreparable harm’ does not mean ‘injury beyond the possibility of
repair . . . .’ [Citation.] ‘“[T]he word ‘irreparable’ is a very unhappily chosen
one, used in expressing the rule that an injunction may issue to prevent
30
wrongs of a repeated and continuing character . . . .”’ [Citation.]” (Donahue
Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th
1171, 1184.)
Certainly, a plaintiff’s showing of significant or irreparable harm
weighs in their favor as the court conducts the balancing of harms analysis.
Section 526 of the Code of Civil Procedure enumerates instances of harm that
authorize a trial court to grant a preliminary injunction, including “great or
irreparable injury.” (Code Civ. Proc. § 526, subd. (a)(2).) But it also includes,
as relevant here, when “a party to the action is doing . . . some act in violation
of the rights of another party to the action respecting the subject of the
action, and tending to render the judgment ineffectual” (id., § 526, subd.
(a)(3)), and when monetary relief “would not afford adequate relief” (id.,
§ 526, subd. (a)(4)).
1. Plaintiffs’ Harm without Injunctive Relief
Rather than address the harms that Plaintiffs established in the
record, the trial court stated the Resolution did not violate their
constitutional rights. Not only is this an incorrect conclusion, as discussed
ante, but is also an incomplete summary of Plaintiffs’ harm submitted in the
record. Indeed, the record included over 20 declarations in support of their
motion for an injunction, all of which the court failed to address.
Pertinent to our review and narrowed to the harms from the
Resolution’s unconstitutional vagueness, the District teachers’ various
declarations collectively demonstrate ongoing stress since the Resolution’s
enactment. The evidence from declarants Diaz, Eytchison, Sibby, Miles, and
Scharf establish that the teachers are struggling to comply with the
Resolution because it is unclear and is seemingly at-odds with state
31
education requirements. They fear disciplinary action for mistakenly
violating the Resolution.
Diaz explained, “[T]he vast majority of [Association] meetings
have dealt with addressing the Resolution, and particularly to supporting
teachers who fear losing their livelihoods if they are accused of violating it.”
This speaks volumes because the Association advocates for over 1,425 public
education professionals. And it comports with the teachers’ declarations,
which specifically stated they do not know what will violate the Resolution
and “lack of clear enforcement standards makes the danger of a misstep even
greater.”
Teachers are torn between providing students with lessons that
meet state requirements and complying with the Resolution. Eytchison
struggles to answer her students’ questions about slavery for fear that she
could be reported for inadvertently implying one of the enumerated
prohibited elements or doctrines in the Resolution. She does not know how to
comply with the Resolution while also teaching state-mandated topics related
to labor exploitation, Native American communities, and the anti-Asian
exclusion movements without violating the Resolution. Sibby is unsure how
to teach about the controversies that have resulted over changing
interpretations of civil rights and past civil rights United States Supreme
Court cases or how to teach about European imperialism without discussing
CRT or violating the Resolution’s provisions.
Unsure of what conduct is prohibited and fearful of arbitrary
enforcement, teachers are erring on the side of caution and self-censoring.
Miles was the only teacher at her school to continue teaching Roll of
Thunder, Hear My Cry after the Resolution’s enactment, but she avoided
using the term “white” in classroom discussions about the book to comply
32
with the Resolution. Eytchison no longer discusses “competing
interpretations of historical events and their current impacts” with her
students to avoid Resolution violations.
2. Defendants’ Harm with Injunctive Relief
As for Defendants’ harm should an injunction issue, the trial
court relied on one sentence taken from Maryland, supra, 567 U.S. 1301. This
is insufficient. In Maryland, a state statute permitted law enforcement to
collect DNA from individuals charged but not yet convicted of certain
offenses. (Id., at p. 1301.) A Maryland Court of Appeal overturned a
defendant’s rape conviction after concluding the law violated the Fourth
Amendment right to privacy. (Id., at p. 1302.) The state applied for a stay of
the judgment pending the United States Supreme Court’s disposition of its
petition for writ of certiorari. (Ibid.) The Supreme Court considered whether
Maryland demonstrated “‘a reasonable probability’” that the Supreme Court
would grant certiorari, “‘a fair prospect’” that the Supreme Court would
reverse, and “‘a likelihood that irreparable harm [will] result from the denial
of a stay.’ [Citation.]” (Ibid.)
By the time the Supreme Court considered irreparable harm, it
had already found “a fair prospect that [the Supreme Court would] reverse
the decision below” because the statute passed constitutional muster.
(Maryland, supra, 567 U.S. at p. 1303.) The Supreme Court found there was
sufficient record evidence that Maryland faced ongoing, irreparable harm to
the state’s “law enforcement and public safety interests” because the state
“would be disabled from employing a valuable law enforcement tool for
several months.” (Id., at pp. 1303–1304.) It considered that matches from the
state’s DNA swab program resulted in 58 criminal prosecutions, removing
violent offenders from the general population. (Id., at p. 1303.) The court
33
critically noted, “[the fact t]hat Maryland may not employ a duly enacted
statute to help prevent these injuries constitutes irreparable harm.” (Ibid.)
Defendants and the trial court alike assert that Plaintiffs failed
to establish irreparable harm and quote Maryland for the premise that any
time a court enjoins a government from employing a statute or resolution,
they have incurred irreparable harm per se. We are mindful that a court
enjoining a government’s statute is “‘a form of irreparable injury’” (Maryland,
supra, 567 U.S. at p. 1303), but it is not a one-size-fits-all card. Indeed, if we
accepted this premise as a blanket rule, then government rule-making bodies
would avoid injunctions in every instance, even where, as here, its
constituents’ constitutional rights were at stake. In contrast to Maryland, we
have found the Resolution does not pass constitutional muster. Certainly, a
court may enjoin unconstitutional acts. (Code Civ. Proc., § 526, subd. (a)(3);
Vo, supra, 115 Cal.App.4th at p. 433 [“failing to enjoin enforcement of an
unconstitutional ordinance[] would also constitute an abuse of discretion
within the usual formulation of the standard of review for the grant or denial
of a preliminary injunction”].)
Further, the record here does not similarly show that Defendants
would face any harm should an injunction issue. This ties back into the first
factor about vagueness. The ambiguity and politicized spectacle surrounding
CRT compounds the issues. What racist ideologies and other similar
frameworks have the District’s school children been subjected to that warrant
the Resolution and denial of an injunction? It seems if these students have
been subjected to such racist ideology all this time, there would be evidence
in the record establishing as much. But significantly, Defendants’ appellate
counsel conceded at oral argument that there is no evidence that any of the
34
Resolution’s enumerated elements or concepts of CRT have ever been taught
in District schools.
Instead, aside from their argument aligning their case to
Maryland, the only evidence of harm Defendants refer to is the Resolution
itself and Komrosky’s declaration. The Resolution asserts without support or
examples that “[CRT] assigns generational guilt and racial guilt for conduct
and policies that are long in the past” and “assigns moral fault to individuals
solely on the basis of an individual’s race.” Komrosky’s declaration reiterates
the Resolution’s goals and vouches for its constitutionality. Neither
adequately articulate what CRT is, how it is implemented in the District’s
teachings, or how it harms its students, teachers, staff, or the public interest.
What is harmful about the status quo should the preliminary injunction
issue?
We conclude the trial court abused its discretion when it failed to
consider any of Plaintiffs’ evidence. We find Plaintiffs provided significant
evidence of compelling harm, especially when weighed against Defendants’
devoid record and unspecified harm.
We reverse the trial court’s order denying injunctive relief solely
as to the Resolution.
II.
THE POLICY ISSUE IS MOOT
Plaintiffs allege the trial court erred in denying the motion for a
preliminary injunction as it relates to the Policy. Plaintiffs argue the Policy
violates the equal protection clause because it unconstitutionally
discriminates against gender nonconforming students on the basis of gender
and sex. Defendants contend that the Policy applies to cisgender and gender
nonconforming students equally, and therefore, the Policy passes rational
35
basis review because the Board has an interest in ensuring parents receive
information about their child to protect children.
Assembly Bill 1955 5 became effective January 1, 2025. (See Stats.
2024, ch. 95.) The statute bars “[a]n employee . . . of a school district [from
being] required to disclose any information related to a pupil’s sexual
orientation, gender identity, or gender expression to any other person without
the pupil’s consent unless otherwise required by state or federal law.” (Stats.
2024, ch. 95, § 5; Ed. Code, § 220.3, subd. (a).) Assembly Bill 1955 states that
“[a] school district . . . , or a member of the governing board of a school
district . . . , shall not enact or enforce any policy . . . that would require an
employee . . . to disclose any information related to a pupil’s sexual
orientation, gender identity, or gender expression to any other person without
the pupil’s consent, unless otherwise required by state or federal law.” (Stats.
2024, ch. 95, § 6; Ed. Code, § 220.5, subd. (a).) And “[a]ny policy . . . that is
inconsistent with subdivision (a) is invalid and shall not have any force or
effect.” (Stats. 2024, ch. 95, § 6; Ed. Code, § 220.5, subd. (c).)
We ordered the parties to submit supplemental briefs in light of
Assembly Bill 1955. Plaintiffs informed us that the California Department of
Education (Department) issued an investigation report that found the Policy
violates Education Code section 220’s prohibition against discrimination.6
5 Assembly Bill 1955 is codified in Education Code sections 217,
220.1, 220.3, and 220.5.
6 Plaintiffs request we take judicial notice of supplemental
exhibits A through G. We take judicial notice of exhibit A (Board meeting
minutes, Jan. 28, 2025) and exhibit D (Department investigation report)
(Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.252) but decline to take
judicial notice of the remaining exhibits as irrelevant (Evid. Code, § 210).
36
The Department’s report instructed the District to not implement paragraphs
(1)(a) and (b) of the Policy and to notify the employees and parents/guardians
that the Policy will not be implemented. Both parties informed us that the
Board rescinded paragraphs (1)(a) and (b) of the Policy on December 17,
2024. 7 Plaintiffs notified us that, “[d]ue to the rescinding of [the Policy],” the
Board drafted a new policy “as a starting point to accomplish the objectives of
the rescinded policy in the correct manner.” There is no evidence that the
new policy is in effect or whether the text is the same as the original.
Defendants contend that the constitutional claim against the
Policy is moot given the relevant portions are rescinded. Plaintiffs argue the
issue is still a live controversy because the Board’s “actions establish a
‘reasonable expectation’ that the Board will persist in its unlawful conduct,”
citing Center for Local Government Accountability v. City of San Diego (2016)
247 Cal.App.4th 1146, 1157, in that it intends to enact the same or similar
Policy.
It is well settled that we only decide actual, live controversies.
(Giles v. Horn (2002) 100 Cal.App.4th 206, 226.) A case is moot where,
although it originally presented a justiciable controversy, an intervening
event occurs which renders it impossible for the court to grant the party
effectual relief. (Id., at p. 227.) “This rule has been regularly employed where
injunctive relief is sought and, pending appeal, the act sought to be enjoined
has been performed.” (Ibid.)
7 Defendants request that we take judicial notice of their
supplemental exhibits 1 through 5. We take judicial notice of exhibit 1, which
evidences the rescinded portions of the Policy. (Evid. Code, §§ 452, subd. (b),
459; Cal. Rules of Court, rule 8.252.) We decline to take judicial notice of the
remaining exhibits as irrelevant (Evid. Code, § 210).
37
We agree with Defendants that this appeal related to the Policy’s
constitutionality is moot given the relevant portions of the Policy are
rescinded. At oral argument, Defendants’ appellate counsel represented to us
that the current Board consists of different Board members, and they do not
intend to adopt a similar policy or related policy. We are mindful that
Plaintiffs desire a finding of unconstitutionality to prevent future enactment
of a similar provision, but the record does not show there is a new policy in
effect, nor does it show us the text of a proposed future policy. We presume
the Board will act in good faith and follow the law. Indeed, “‘[t]he appellate
court cannot render opinions “‘ . . . upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the
matter in issue in the case before it.’” [Citations.]’ [Citation.]” (Giles v. Horn,
supra, 100 Cal.App.4th at pp. 226–227.) We find the issue moot.
DISPOSITION
We reverse the trial court’s order as to the Resolution and
remand for the court to issue a preliminary injunction. We dismiss the appeal
related to the Policy as moot. Plaintiffs are awarded costs on appeal as the
prevailing party. (Cal. Rules of Court, rule 8.278(a)(1).)
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
MOTOIKE, J.
38