BILL ANALYSIS Ó
SB 539
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
539 (Glazer) - As Amended July 8, 2015
As Proposed to be Amended
SENATE VOTE: Not Relevant
SUBJECT: Public property: names: Confederate States of America
KEY ISSUE: Should the state prohibit the naming of any school,
building, park, or other state or local public property after a
confederate political or military leader, and should existing
Confederate names be changed and associated signs removed before
January 1, 2017?
SYNOPSIS
The tragic shootings at an African Methodist Episcopal church in
Charleston, South Carolina, have prompted national debate about
the propriety of Confederate symbols in public places. As is
well known, the shooter in Charleston was a white supremacist
who, literally, wrapped himself in the Confederate Battle Flag
in one of his social media postings. Largely in response to this
event, the South Carolina legislature debated and passed, and
the Governor of South Carolina just recently signed, legislation
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to remove the Confederate Battle Flag from the grounds of the
South Carolina capitol. In addition to calling for the removal
of Confederate flags, several editorials from around the country
have called for removing the names of confederate leaders from
public buildings, schools, military bases, and other public
property. As part of this rapidly growing trend, this bill
would prohibit naming any school, building, park, roadway, or
other state or local property after an elected leader or senior
military officer of the Confederacy. It would require that any
existing Confederate names be changed by January 1, 2017. While
names honoring Confederate leaders may be as common as mint
juleps in the southern states of the United States, they are,
not surprisingly, relatively rare in California. To the best of
the Committee's knowledge, there are two elementary schools in
the state named after Robert E. Lee, one in Long Beach and the
other in San Diego, and another in Stockton named after the 10th
President of the United States, John Tyler, who later in life
served in the House of Representatives of the Confederate States
of America. As proposed to be amended, the bill will expressly
state that any cities or counties named after Confederate
political and military leaders (such as the city of Fort Bragg,
California, named after Confederate General Braxton Bragg) would
not be covered by this bill. The amendment taken today will
also clarify that any schools, parks, buildings, or roads
sharing a name with the city in which they are situated would
also not be covered. This Committee will also hear AJR 26,
which calls upon Congress to prohibit the display of any
Confederate flag on federal property and to encourage the states
to do likewise. Because this bill dealt with a different issue
in the Senate, the prior votes are not relevant. There is no
known opposition to this bill.
SUMMARY: Prohibits, as of January 1, 2017, naming any school,
park, building or other public property after certain persons
associated with the Confederate States of America, and requires
removal of existing Confederate names by January 1, 2017.
Specifically, this bill:
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1)Finds and declares the following:
a) The Confederate States of America's secessionist
movement was rooted in the defense of slavery and that to
this day Confederate symbols sow racial divisions in our
society.
b) Using names of Confederate leaders to name California
schools, parks, buildings, roadways, and other public
property is antithetical to California's mission for racial
equality and that California is opposed to enshrining names
associated with the Confederate States of America.
c) Other individuals, such as the escaped slave,
abolitionist, orator, writer, and statesmen, Frederick
Douglas, better represent our aspirations for social good.
1)Provides that on and after January 1, 2017, the name of an
elected leader or senior military officer of the Confederate
States of America shall not be used to name state or local
public property. If such a name is used to name state or
local public property prior to January 1, 2017, the name shall
be changed and any sign associated with the name shall be
removed.
2)Provides that nothing in this section shall be construed to
require renaming a city, county, or other political
jurisdiction that was named after an elected leader or senior
military officer of the Confederate States of America prior to
January 1, 2016, nor shall this section be construed to
require the renaming of any school, building, park, roadway,
or other property that incorporates the name of the city,
county, or political jurisdiction in which it is situated.
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EXISTING LAW:
1)Holds that when the government speaks, it is not barred by the
Free Speech Clause from determining the content of what it
says. A government is generally entitled to promote a
program, espouse a policy, or take a position. (Pleasant
Grove City v. Summum (2009) 555 U. S. 460; Walker v. Texas
Division, Sons of Confederate Veterans (June 18, 2015) 135 S.
Ct. 2339.)
2)Prohibits the State of California from selling or displaying
the Battle Flag of the Confederacy, also referred to as the
Stars and Bars, or any similar image, or tangible personal
property, inscribed with such an image unless the image
appears in a book, digital medium or state museum that serves
an educational or historical purpose. (Government Code
Section 8195.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill - along with AJR 26, which the Committee
will also hear today - concerns the propriety of racially
divisive Confederate names and symbols in public places. Both
this bill and AJR 26 were prompted by the recent shootings at an
African-American Church in Charleston, South Carolina, where the
shooter was an avowed white supremacist who draped himself in
the Confederate Battle Flag on social media. This violent
incident has prompted discussions about the appropriate
placement of Confederate names, flags, and symbols in public
places. AJR 26 calls upon Congress to ban the display of any
Confederate flags on federal property, while it encourages the
several states to do the same.
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This bill, on the other hand, would prohibit naming any school,
building, park, roadway, or other state or local property, after
an elected leader or senior military officer of the Confederacy.
It would require that any existing Confederate names be changed
by January 1, 2017. While names honoring Confederate leaders
may be as common as mint juleps in the southern states of the
United States, they are (not surprisingly) relatively rare in
California. To the best of the Committee's knowledge, there are
two elementary schools named after Robert E. Lee, one in Long
Beach and the other in San Diego, and another in Stockton named
after the 10th President of the United States, John Tyler, who
later in life served in the House of Representatives of
Confederate States of America. There are also plaques in
Southern California and along stretches of Highway 99 that
allegedly contain tributes to Jefferson Davis, the President of
the Confederate States of America; however, it is not clear to
the Committee whether these plaques are on public land, or
whether government or private entities placed them there. As
proposed to be amended, the bill would expressly state that any
towns or cities named after Confederate political and military
leaders (such as the city of Fort Bragg, California, named after
Confederate General Braxton Bragg) would not be covered by this
bill. Similarly, no school, park, building, roadway, or other
public property that shares a name with the city in which it is
situated would be subject to this bill.
The Confederate "Cause." According to the author, despite
frequent claims that the Confederate side in the Civil War
fought to protect states' rights, the declarations published at
the time make it clear that the primary issue in the Civil War
was slavery and the South's determination to preserve it. There
is, indeed, a great deal of historical support for this
position. As noted in the analysis of AJR 26, the argument that
the South fought the Civil War to protect states' rights
generally came later. At the time, the declarations of
secession focused overwhelmingly on the issue of slavery. When
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states' rights were invoked, it was most often to defend a
state's right to maintain slavery, and the social structure that
slavery supported.
Prigg v. Pennsylvania and the Myth of States' Rights. The
ability of Southerners to selectively invoke states' rights was
nowhere better illustrated than in the pre-Civil War case of
Prigg v. Pennsylvania (1842). That case considered whether the
Fugitive Slave Clause of the U.S. Constitution and Fugitive
Slave Act of 1793 preempted the "personal liberty" laws enacted
by Northern states. Without ever using the word "slave," the
Fugitive Slave Clause (U.S. Const., Article IV, Section 2) says
that any "person held to service of labor" that escapes to
another state is not "discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service
of labor may be due." This constitutional provision does not
say how a claim could be made or how a slave would be "delivered
up" to the party making the claim. Congress established a
bare-bones procedure with the Fugitive Slave Act of 1793, which
allowed a slave owner or his "agent" to capture the alleged
runaway and bring him or her before any state or federal judge
to obtain a "certificate of removal." This certificate allowed
the owner or agent to forcibly take the alleged runaway back to
the owner. Hoping to protect free black citizens from wrongful
seizures, Northern state legislatures enacted what became known
as "personal liberty" laws. These laws supplemented federal law
by requiring agents to meet state evidentiary and due process
requirements, including a requirement that any alleged "runaway
slave" receive a jury trial to determine his or her status.
While the Fugitive Slave Law required agents to obtain a
"certificate of removal" from state courts, the personal liberty
laws asserted the state's right to impose minimum standards when
agents came before its courts.
In Prigg v. Pennsylvania, the agent of a Southern slave owner
sought to take Margaret Morgan from Pennsylvania, where the
census listed her as a "free person of color," back to a man in
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Maryland who claimed to own Morgan. Using the higher standards
of Pennsylvania's personal liberty law, the court refused to
issue Prigg, the owner's agent, a certificate of removal. When
Prigg attempted to take Morgan back to her alleged owner without
a certificate, he was arrested and charged with kidnapping.
Prigg's appeal eventually reached the U.S. Supreme Court. The
question before the court was whether the federal Fugitive Slave
Act preempted Pennsylvania's personal liberty law and its higher
evidentiary standards. Justice Joseph Story, a New Englander
who opposed slavery but, being a former Federalist, believed in
a strong national government, issued a mixed ruling. First, he
held that the Pennsylvania state law was preempted by the
federal law, which was the "exclusive" manner for returning
fugitive slaves (or as we might say today, it "occupied the
field" on the return of fugitive slaves.) But Story then went
on to say that while Pennsylvania could not pass a law that
conflicted with federal law, the states were not required to
enforce or participate in the execution of that federal law. If
the federal government wanted to return fugitive slaves, it
could use its own federal courts and federal marshals. State
courts and sheriffs could not interfere with federal removal,
but they need not take part in it.
Chief Justice Roger Taney, a Southern slave owner and later the
author of the infamous Dred Scott decision, wrote a concurring
opinion. Taney agreed with the central holding - that federal
law preempts state law - but he wrote separately to object to
Story's suggestion that states could not be compelled to
participate in the enforcement of federal law. Federal law not
only preempted state law, Taney believed; it compelled state
officials to enforce federal law. If Southerners were supposed
to believe in states' rights, no one had told Taney. Like other
Southerners, he apparently invoked states' rights when it
protected slavery and abandoned it when it threatened slavery.
(Prigg v. Pennsylvania reprinted in Hall, et.al. American Legal
History: Cases and Materials 233-237 (4th Ed. 2014).)
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The South Carolina Declaration of Secession. Taney was not
alone in his views. South Carolina, the first state to secede
from the Union, announced its decision to the world with a
"Declaration of the Immediate Causes Which Induce and Justify
the Secession of South Carolina," in December of 1860. The
Declaration's central contention is that the Union should be
dissolved because the federal government had failed to live up
to its promise, especially by failing to force Northern states
to comply with federal law. After Northern states started to
follow Story's cue by passing laws prohibiting the use of state
courts and sheriffs to enforce federal law, the South demanded a
stronger Fugitive Slave law to compel Northern assistance, which
they obtained with the Fugitive Slave Act of 1850, as part of
the compromise that brought California into the Union as a free
state. But even this law was not strong enough for South
Carolina, as Northern states allegedly continued to pass laws
and behave in ways that skirted federal law. Defenders of the
view that the South stood for "states' rights" usually cite the
Declaration's "compact theory" of the federal constitution - the
idea that sovereign states had made the compact and sovereign
states could leave it. But defenders of the theory that states
caused the Civil War ignore the fact that South Carolina
justified secession by claiming that the federal government had
failed to use its power against the Northern states to establish
their own court procedures and evidentiary standards. The South
Carolina Declaration cited the efforts of Northern states to
"nullify Acts of Congress" as evidence of "an increasing
hostility of the part of the non-slaveholding States to the
institution of slavery." The final straw was the election of
Abraham Lincoln. The Declaration quoted Lincoln's statement
that "Government cannot endure permanently half slave, and half
free," to argue that Lincoln planned to abolish slavery in the
South (despite Lincoln's repeated assurances that he only sought
to prevent the extension of slavery into the Western
territories). Lincoln's Republican Party, the Declaration
claimed, sought not only to exclude slavery from the
territories, it wanted to wage war "against slavery until it
shall cease to existing throughout the United States."
("Declaration" reprinted in Hall, supra 253-255.)
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According to a number of historians, the argument that the South
had fought the Civil War to protect "states' rights" did not
emerge until the 1880s or 1890s. In separate works, historians
David Blight, Thomas Brown, Cecilia O'Leary, and James Loewen,
suggest some possible reasons for this reinterpretation. First,
these historians argue, there were late-19th century efforts at
national "reconciliation" between North and South that required
a changed understanding of the cause of the war. The South
could only be reconciled, and the efforts of its troops honored,
if the war was about something other than slavery. By the
1890s, it was easier to honor the South and its Confederate
soldiers if they had fought for constitutional principles, as
opposed to the defense of slavery. It was also during the 1880s
and 1890s that Southern states faced the first challenges to its
Jim Crow segregation laws, most notably in the Civil Rights
Cases of 1883, and Plessy v. Ferguson in 1896, which gave us the
"separate but equal" doctrine. The states' rights argument was
convenient in that context, and the re-interpretation of the
Confederate "cause" gave it an historical pedigree. While the
declarations issued by the Southern states at the time of the
war claimed that the war was about the preservation of slavery,
the writings of the 1890s greatly diminished the role of slavery
and suggested that the war was about states' rights and Southern
honor. (See e.g. David Blight, Race and Reunion: the Civil War
in American Memory; Thomas J. Brown, Public Art and the
Commemoration of the Civil War; Cecilia O'Leary, To Die For: the
Paradox of American Patriotism; James Loewen, Five Myths About
Why the South Seceded, Washington Post, February 26, 2011.)
Constitutional Considerations Minimal. Because this bill will
be heard on the same day that the Committee hears AJR 26, it is
useful to consider the ways in which they are similar and
different. As noted in greater detail in the AJR 26 analysis,
while a state law prohibiting the use of Confederate symbols by
private persons or entities would raise serious - and perhaps
insurmountable - First Amendment issues, such is not the case
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where the government is the speaker and there is no competing
speaker. In the session that just ended, the U.S. Supreme Court
once again upheld the government's right to dissociate itself
from Confederate symbols. The Court ruled that the Texas
Department of Motor Vehicles did not violate the free speech
clause of the First Amendment when it rejected an application by
the Sons of Confederate Veterans (SCV) for a "specialty" license
plate that included an image of the Confederate Battle Flag.
The Court reasoned that because license plates are issued by the
government, bear the name of the state, and often include mottos
that honor or promote the state, they have historically been
seen as representing speech that the state endorses. The
government, as a speaker, therefore, has the right to control
its messages. The Court held that when the government speaks,
it is not barred by the free speech Clause from determining the
content of what it says. A government is generally entitled to
promote a program, espouse a policy, or take a position.
(Walker v. Texas Division, Sons of Confederate Veterans (2015)
135 S. Ct. 2239, citing Pleasant Grove City v. Summum (2009) 555
U. S. 460.) This bill, like AJR 26, raises even less of a
constitutional issue than policies at issue in the Texas case
discussed above. That case presented a colorable conflict
between the government's right to convey its preferred message
and the ability of individuals to use government property to
convey a different, or even contrary, message. This bill,
however, does not present any competing individual free speech
claim. This bill deals only with government speech: what it
decides to name a school, building, or other property.
Flags v. Names. Even though both AB 539 and AJR 26 arose out of
the same set of concerns and seek to prevent memorializing the
Confederacy, there is arguably a considerable difference between
prohibiting Confederate flags and prohibiting Confederate names.
As noted in the AJR 26 analysis, the meaning attributed to the
Confederate Battle Flag has changed over time and has become
associated with various racist groups and causes. Before the
1940s, the Confederate Battle Flag was rarely seen in public
places, as it was used mostly for annual Confederate
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commemorations and veterans' parades. By the 1950s and beyond,
however, the Confederate flag became associated with resistance
to integration, the Ku Klux Klan, and, most recently, the rise
of neo-Confederate white supremacy groups. In short, the
meanings of the flag cannot be dissociated from its subsequent
history. It is not clear, however, that the names of
Confederate leaders have been used by hate groups in the same
way, undergone a similar transition in meaning, or evoke the
same connotations or emotional responses. It is conceivable
that naming a school or a park after Robert E. Lee, for example,
might mean that one respected Lee, but not that one supported
the cause for which he fought. However, flying the Confederate
more strongly suggests support for the movement that the flag
symbolizes. Put differently, Lee does not necessarily symbolize
the Confederacy; the Confederate flag, almost by definition,
symbolizes the Confederacy.
Practical Implications and Local Efforts. It is difficult to
assess the impact of this bill because the Committee has only
limited information about how many parks, buildings, schools, or
other public properties are named after Confederate leaders.
There are two Robert E. Lee Elementary schools: one in San Diego
and the other in Long Beach. According to news reports, there
have already been local efforts to change those names. For
example, Assembly Member Lorena Gonzalez wrote a letter to the
school board in San Diego requesting that the school be named
after someone more appropriate for California's history.
Citizens in Long Beach have reportedly already begun a petition
drive to change the name of that school. As for other schools,
it may not be easy to determine the source of the names. For
example, Tyler Skills Elementary School in Stockton was formerly
called John Tyler Elementary School. Tyler was the tenth
president of the United States, but later in his career was
elected to serve a term in the House of Representatives of the
Confederate States of America. It is not entirely clear whether
Tyler Skills Elementary would need to change its name again
under this bill, or if it's earlier name change had anything to
do with the fact that John Tyler deserted the Union and joined
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the Confederacy.
Why Stop with Confederates? The premise of this bill appears to
be that because Confederate elected officials and senior
military officers led a cause dedicated to the preservation of
slavery and racial hierarchy, their names should not sully our
public places. This may not be an unreasonable demand, but it
begs the question of why the bill should single out
Confederates. Our earliest U.S. Presidents, Washington and
Jefferson, among others, were slave owners. Removing their
names from public places would require massive changes, starting
with re-naming our nation's capital. Numerous places in
California are named for Junipero Serra, the priest who led the
Franciscan missions. Some believe that Serra should be
canonized; others believe that Serra was a genocidal maniac.
Many others no doubt hold more complicated views that fall
somewhere in between. Many buildings and places in California
are named after former Governor Earl Warren, who as state
Attorney General led the charge to intern persons of Japanese
descent, including American citizens, during World War II. If
we start looking too closely into the persons whose names are on
our parks, streets, buildings, and schools, we may find that not
all of them are worthy of commemoration.
ARGUMENTS IN SUPPORT: According to the author, the "use of
Confederate-associated names in California public schools,
buildings, parks, roadways, and other public property is
antithetical to California's mission for racial equality." The
author contends that "the Confederate States of America and its
secessionist movement were rooted in slavery," and therefore
"California has no interest in enshrining the names of those
associated with the Confederacy, its secessionist movement, or
their ideals in our public schools, buildings, parks, or other
state property."
Proposed Author Amendments: The author wishes to take a number
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of clarifying amendments in this Committee. They do two things:
(1) clarify that the bill does not apply to cities or to
schools, parks, buildings, and other properties that share the
name of the city in which they are situated; (2) clarify that
the bill only applies to the names of elected leaders and senior
military officers of the Confederacy, as opposed to any name
"associated" with the Confederacy.
- On page 3 line 11-16 strike existing subdivision (a) and
insert:
On and after January 1, 2017, an elected leader or senior
military officer of the Confederate States of America shall not
be used to name state or local public property. If such a name
is used to name state or local public property prior to January
1, 2017, the name shall be changed and any sign associated with
the name shall be removed.
- On page 3 strikes lines 17-20 and insert:
(b)Nothing in this section shall be construed to require the
renaming a city, county, or other political jurisdiction that
was named after an elected leader or senior military officer of
the Confederate States of America prior to January 1, 2016, nor
shall this section be construed to require the renaming of any
school, building, park, roadway, or other property that
incorporates the name of the city, county, or political
jurisdiction in which it is situated.
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REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
Analysis Prepared by:Thomas Clark, Ph.D, J.D. / JUD. / (916)
319-2334