A few days ago, voters in the Orange Unified School District received this mailer about Measure S, the $288 million school facilities bond on the ballot this November:
The mailer, paid for by the OUSD, tells voters that if they approve Measure S, then “our community’s students” will get the “technology and facilities they need to succeed!” Neutral, it isn’t.
There are laws governing what school districts can and cannot do when communicating with the public regarding school bond measures. In 2009, the California Supreme Court ruled school districts cannot produce or distribute literature that “expressly advocates” on a bond measure. That leaves a gray area in which school districts strive to persuade voters to approve school bonds without crossing that thin, fuzzy line into express advocacy. The court ruled such activities have to be judged by “style, tenor and timing” as to whether they are legal or illegal.
OC Daily asked Jon Coupal, president of the Howard Jarvis Taxpayers Association, to review the mailer. In the past, HJTA has successfully litigated against local government overreach in this regard.
“Given the timing of the distribution, a sympathetic judge might conclude this crosses the line,” said Coupal, “We’re seeing more and more of this crap.”
No one should be under any illusion as to the district’s intent in paying for this mass mailing: influence voters to approve Measure S. It cannot honestly be read any other way. It isn’t a dry, straightforward presentation of what Measure S will do, but a persuasion piece aimed at convincing OUSD voters that approving Measure S would be a good thing. The tone and tenor and style all focus on the positive outcomes the district promises will result from voter approval.
It is certainly advocacy, but does it meet the state Supreme Court standard of “express advocacy”? That’s a more difficult call – but unless someone files suit seeking to stop the Orange Unified School District from running a “Yes on Measure S” campaign with taxpayer dollars, the point will be academic.
UPDATED: OC Daily reached out a leading election law attorney