We strongly suggest the board delay the implementation timeline of the by-trustee area election system until a more thorough analysis is conducted with respect to the CVRA, and greater community engagement is achieved on this issue.

1. FUHSD Legal Counsel's Prior Letter Supports Doing Additional Analysis on Whether there are CVRA Violations

FUHSD's Legal Counsel with respect to the CVRA appears to be William B. Tunick from Dannis Woliver Kelley. See Community Trustee Area Districting (CTAD) Committee, Meeting Minutes, 2 (Nov. 27, 2023) (referring to Tunick as "District staff, legal counsel"), https://resources.finalsite.net/images/v1701797671/fuhsdorg/ezf8tzqspp5krkwls125/CTADMeetingMinutesNov27.pdf; CVRA FUHSD Presentation (Mar. 7, 2023) (noting Tunick as the presenter), https://resources.finalsite.net/images/v1690823901/fuhsdorg/xk5earmx359nlhigm6i5/BoardTrusteeAreasPresentation.pdf.

The Palo Alto Unified School District (PAUSD) did not agree to switch to trustee-area elections in response to a threatened CVRA lawsuit. In that case, the district attorney stated that there was no compelling evidence of violations, and there was no ensuing CVRA litigation. See https://www.paloaltoonline.com/news/2018/10/25/district-lawyer-no-evidence-of-racially-polarized-voting/.

In that case, PAUSD also was represented by Tunick. In a letter dated October 16, 2018, Tunick wrote the following in response to a letter alleging CVRA violations at PAUSD:

"the District has not seen evidence of racially polarized voting . . .

The August 14 letter asked the District to make a very significant change in the way voters are allowed to elect members of the governing board. The District is not inclined to make this change without more compelling evidence . . . 

While the District seeks to comply with the CVRA it is unwilling to alter its election process based on, what appear to be, unsubstantiated claims."

The FUHSD's CVRA webpage states the following:

"Has the district completed a study to look at polarized voting in the district? If no, what is the cost and a timeframe to complete a study like this?

FUHSD has not conducted a study at this time." See https://www.fuhsd.org/newsroom/trustee-areas

Based on the foregoing, to date, FUHSD has not conduct any analysis on whether there are any CVRA violations. Accordingly, the logic in Tunick's 2018 letter indicates that FUHSD should not make the significant change to its election process of moving to by-trustee elections without substantiated claims of CVRA violations.

2. FUHSD Has Significantly Different Facts Than Those In Prior CVRA Cases

It's not clear that FUHSD is in violation of the CVRA because FUHSD's facts appear to be significantly different than those at issue in prior CVRA cases.

For example, in Yumori-Kaku v. City of Santa Clara, 273 Cal. Rptr. 3d 437 (Cal. Ct. App. 2020), five Asian American residents sued the City of Santa Clara alleging CVRA violations. At the time of trial in 2018, Asian Americans comprised approximately 39.5 percent of the total population and 30.5 percent of its citizen-voting-age population in Santa Clara. In reaching its decision, the trial court observed that no Asian American had ever won a city council election even though Asian American candidates ran 10 times in elections from 2002 to 2016. See https://scholar.google.com/scholar_case?case=910553703537133544

In Jauregui v. City of Palmdale, 172 Cal. Rptr. 3d 333 (Cal. Ct. App. 2014), plaintiffs sued the City of Palmdale alleging CVRA violations, stating that despite a Latino population of approximately 54.4% and an African-American population of 14.8%, no African-American and only one Latino had ever been elected to Palmdale's city council. See https://scholar.google.com/scholar_case?case=1261090111170579590

By contrast, according to the recent FUHSD trustee area process slides, Asian Americans comprise 58.4% of of the total population and 46.3% of the citizen-voting-age population. And the board currently appears to comprised of 60% Asian Americans. See https://resources.finalsite.net/images/v1693004497/fuhsdorg/xwu5j6gvptbukta8xik5/PreMapPublicHearingPresentation8222023FINAL.pdf

Prior FUHSD slides suggests that one purported rationale for by-trustee elections is that "[h]istorically, some areas of the district have not had a board member that has lived in their neighborhood." See https://resources.finalsite.net/images/v1707859595/fuhsdorg/yyx2zevfc2hswc17qxyo/CommunityTrusteeAreaPresentation-MontaVista.pdf slide 16. But, it's far from clear that this history, if true, equates to a CVRA violation. The CVRA is limited to addressing concerns regarding the ability of a protected class as defined by race, color, or language minority group, to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class. See https://scholar.google.com/scholar_case?case=230595561643936816

Additionally, it's unclear whether a transition to by-trustee elections would adequately address the concerns of those from areas of the district that have not had a board member that has lived in their neighborhood, given that by-trustee elections could jeopardize hundreds of millions, if not billions, in future FUHSD bond measures, as discussed below.

3. Trustee-Area Elections Are Not The Only Option

FUHSD has not received any notices alleging CVRA violations, and as noted above, its facts appear to be distinguishable from those in prior CVRA cases. Even if FUHSD were to receive such a notice in the future, as noted earlier, the PAUSD example demonstrates that not changing to by-trustee area elections in response to alleged CVRA violations does not automatically lead to millions of litigation costs.

4. Trustee-Area Elections Would Have Adverse Consequences For FUHSD

A move to by-trustee elections would have significant adverse consequences for FUHSD and jeopardize hundreds of millions, if not billions, in future FUHSD bond measures.

Under a by-trustee system, trustees would be more focused on the short-term issues of only their narrow trustee district rather than the broader long-term interests of FUHSD. For instance, while the immediate effects of closing an existing high school would fall disproportionately on only the residents in the trustee district of the closed high school, in the long-term, this decision would exacerbate existing enrollment and funding issues at FUHSD schools as more parents would consider alternatives to FUHSD.

There is broad community consensus that by-trustee elections will lead to changes to the FUHSD schools. At recent meetings with FUHSD board members, community members have repeatedly raised concerns that by-trustee elections will lead to school closures. A petition noting this concern, which was started on January 20, 2024 (https://www.change.org/p/postpone-implementation-of-by-trustee-area-election-in-fremont-union-high-school-district), currently has more than 2000 signatures. The Sunnyvale Equity in Education organization has also publicly stated that by-trustee elections will lead to a reopened or new high school in Sunnyvale, which seems achievable only with the closure of an existing school in FUHSD. See Sunnyvale Equity in Education posting (Dec. 31, 2023), https://www.facebook.com/p/Sunnyvale-Equity-in-Education-SEE-100089514400981/ ("Sunnyvale for Equity in Education (SEE) entered 2023 with three main goals . . . mid-term - achieve representation on the Fremont Union High School Board (FUHSD); long term - inspire a reopened or new high school in our community . . . SEE believes the FUHSD transition to trustee area elections in 2024 will move us toward our mid-term goal of representation.").

The misalignment between trustees and the long-term interests of FUHSD resulting from by-trustee elections would make it more challenging to obtain voter approval for future FUHSD bond measures that have been used to, among other things, continue critically needed renovation and modernization of FUHSD schools. As context, Measure G, authorizing FUHSD to issue up to $275 million in bonds, recently passed with only 55.71% voter approval. This measure required a 55% supermajority vote for approval, meaning Measure G passed by only around 300 votes. See https://ballotpedia.org/Fremont_Union_High_School_District,_California,_Measure_G,_Bond_Issue_(June_2022).

5. FUHSD Board Should Engage In More Analysis On The CVRA Before Making A Decision

In August 2023, the Supreme Court of California issued its decision in Pico Neighborhood Assn. v. City of Santa Monica, 15 Cal. 5th 292 (Cal. 2023). See https://scholar.google.com/scholar_case?case=230595561643936816. This case is currently before the California Courts of Appeal, and supplemental opening briefs were filed on December 6, 2023. See, e.g., https://www.santamonica.gov/media/Attorney/Election/20231206-COSM%20Supplemental%20Opening%20Brief%20on%20Remand.pdf. Given the profound implications of by-trustee elections, the FUHSD board should, absent any credible allegations of CVRA violations, wait for additional guidance from this case before making any decision on the CVRA for FUHSD.

In its August 2023 decision, the Supreme Court of California clarified that the CVRA is only applicable if there is both racially polarized voting and dilution of a protected class's ability to elect its preferred candidate. The FUHSD board should engage in an analysis on these issues because of the adverse impacts to FUHSD from by-trustee elections mentioned above.

The Supreme Court of California's decision also highlighted several alternative remedies to by-trustee elections, including cumulative voting, limited voting, and ranked choice voting. The FUHSD board should also consider these alternatives in the case where there is both racially polarized voting and vote dilution.

This much needed analysis could be done in parallel with the current effort to develop trustee area boundary maps. Only with this additional analysis will FUHSD achieve greater community engagement and alignment on any decision that is made with respect to the CVRA, which is necessary to address the challenges facing FUHSD and obtain support for future bond measures.