By Thomas K. Pendergast
The George Washington High School Alumni Association won the first round in its court fight with the San Francisco Unified School District over a series of murals on the life of the first president, the school’s namesake.
The alumni association is suing the district because, it alleges, the district did not follow the California Environmental Quality Act (CEQA) when it decided to cover up the murals before going through the CEQA process, thus committing “unlawful pre-commitment.”
The district responded by filing a “move for a judgment on the pleadings,” which could have been an early knock-out blow to end the case, on the grounds that the alumni association failed to allege sufficient facts to demonstrate any unlawful pre-commitment for removing the murals from public view in violation of CEQA.
The court sided with the alumni association this time, allowing the case to continue.
Last August, with a 4-3 vote, the board backed off from a previous unanimous vote in June to cover more than a dozen “Life of George Washington” fresco murals in the lobby area of the high school with paint, which would have permanently destroyed the artwork. Now the plan is to preserve them but cover them over with some kind of solid material.
The artwork is controversial because it includes images of Afro-American slaves that Washington owned and pioneers walking past the corpse of a First Nation warrior, with the president standing off to the side and pointing the way forward. Critics of the 83-year-old murals say these images are not appropriate for a high school because they traumatize some students.
Artist Victor Arnautoff painted the series when the building was completed in 1936, during President Franklin Roosevelt’s New Deal era. The project was funded through the federal Works Progress Administration (WPA), which created many public schools and libraries throughout San Francisco and the nation, including this school.
A Russian immigrant who became a communist after studying art under the renowned muralist Diego Rivera, Arnautoff practiced “social realism” with his art, which often contained critical social commentary from a leftist point of view.
Those on the Reflections and Action Committee calling for the destruction of the murals, however, say the artwork does not represent SF Unified School District values and that the depictions in the mural “glorify slavery, genocide, colonization, manifest destiny, white supremacy and oppression.”
Because an Environmental Impact Report would be required, plus materials, covering them with panels would cost between $645,000 and $825,000 and take about a year to complete.
At a hearing on March 6 in San Francisco Superior Court, attorneys for both sides went before a judge and pled their cases.
“Whether the district approved the project is a question of law,” the attorney for the district, Sabrina V. Teller of the law firm Remy, Moose, and Manley, said. She told the judge that the district challenged the sufficiency of the petition facts, because they “do not support the petition claims … a perception for momentum is not a fact, only action (counts).”
Teller explained that the school board directed its staff to develop a project using the CEQA review process, and she noted that it is the alumni’s burden to provide the facts but “not go on a fishing expedition for facts to support their claim.”
She noted that a requirement for CEQA review is to consider not doing anything to the murals as one of the alternatives.
“Implicit in the direction (to undertake CEQA review) is that (to consider) not doing anything to the murals is required for CEQA review,” she said. So she called it “premature” to bring this lawsuit now. She also described the lawsuit as a “delaying action.”
The alumni association’s attorney, Susan L. Brandt-Hawley of the Brandt-Hawley Law Group, argued that the two votes by the school board should be considered action enough to count as more than just a perception of momentum.
“Every single member of the school board did not support leaving the murals as they are,” Brandt-Hawley said. “Before they begin the CEQA process, an agency may not take action in a manner that forecloses the possibility of alternatives. It’s on public record that the board already decided that the mural be covered rather than left as it is. The school board voted for the murals to be covered rather than left as it is.”
By taking these votes, she explained, the board took action before beginning the CEQA process, and did not seriously consider the alternative of leaving them alone.
“They did not consider the ‘whether,’ as opposed to the ‘how,’” she said. The difference in cost between painting them over versus covering them with solid materials “was what they discussed. And three of the seven board members still wanted to paint them over…. There was no discussion of leaving them alone.”
But Teller countered that “the CEQA process does not preclude officials of having opinions. What matters is whether they took concrete steps. They have not contracted anyone, no steps have been taken. The district has not approved this project. They are starting the CEQA process.”
In her rejection of the district’s argument, the Honorable Judge Anne-Christine Massullo said the alumni association “identified several actions (the district) took prior to and including the Board’s unanimous decision by vote that suggest, ‘as a practical matter,’ it committed itself to the project to preclude any alternatives, mitigation measures, or the alternative of not going forward with removing the mural. The Board has voted on two separate occasions to remove the mural, and preapproved significant funding for that purpose. The Board also appointed an 11-member community action committee ‘to consider the future of the mural.’ …
“At the June 18 public meeting … (the alumni association) objected to any consideration of removing the mural and requested the Board prepare an EIR (Environmental Impact Report). Members of the Board, meanwhile, expressed their strong desire to remove the mural. There was no consideration about leaving the mural in place.
“On June 25, 2019, the Board voted unanimously to remove the mural by painting over it and announced its decision on its websit,” Massulo said. “Under the heading ‘What is planned for the mural now?’ the Board declared it had ‘voted unanimously to remove the mural from public view.’ The Board held an additional hearing in August for the purpose of reconsidering its decision of painting over it, stating that: ‘Subsequent to the June 25 meeting, staff has conducted further analysis and concluded that painting over the mural will result in undue delay in comparison to alternative means of removing the mural from public view.’ To avoid any expectation of delay, the Board voted to delete the option of painting over the mural and instead utilize quicker ‘means of removing the mural from public view.’
“For the purposes of ruling on a motion for judgment on the pleadings, the allegations … are sufficient to raise a claim for unlawful pre-commitment.
“For the foregoing reasons, the motion is denied,” Massullo concluded.
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