In the midst of COVID-19, our national turmoil and the positive Black Lives Matter movement, Palo Alto has become embroiled in the issue of access to our beloved Foothills Park. As two City Council members who have been immersed in the details, we wanted to share what we've learned on the issue so that people are informed about what is actually at stake when asked to sign the petition that is now circulating for a referendum.
Some view Foothills Park through a racial lens, and indeed some of Palo Alto's history is similar to that of cities around us and across the country with the unconscionable race-based discrimination of those times. But in other important ways Palo Alto has been racially progressive over the decades, including being one of the very few Bay Area cities to oppose the rent discrimination of CA 1964 Prop 14; forming Midpen Citizens for Fair Housing, the first fair housing agency in the country; and honoring Joseph Eichler, who required explicit inclusionary agreements at a time when few others did.
Yet while the historical perspective is important, the legal arguments raised with Foothills Park in a lawsuit brought by ACLU and NAACP are based not on racial equity, but instead on the U.S. Constitution's First Amendment.
The decision of the ACLU and NAACP to emphasize a racial storyline, which obscures the actual substance of their suit, has triggered two unfortunate reactions:
• First, while it rallied their supporters, the campaign also rallied many other people who simply don't see Foothills Park as a segregationist issue and who feel insulted at being told they are racist. As we've seen across our nation, this kind of it-rallies-both-sides polarization hurts our capacity for principled and thoughtful discourse, even among reasonable people.
• Second, the Palo Alto community — among the most educated in the nation — is astute enough to doubt that a race-based legal case for Foothills Park admission would stick. Because the plaintiffs aggressively marketed their case on this basis, and not on the more substantial First Amendment constitutional aspect, many Palo Altans wrongly view the lawsuit as frivolous.
Both these things have helped spur the petition.
Let us therefore try to clarify the substance of the lawsuit.
The legal claim is that Foothills Park is subject to our federal First Amendment rights to free speech and assembly, overriding any Palo Alto ordinance. The argument is that even though the city owns the land, public parks, like public sidewalks, are special common areas; and unlike private citizens' property or even many other public facilities, we can't ban nonresidents from gathering there.
Although we have the right to manage the park, limit the number of visitors, charge fees and so forth, the suit asserts we can not discriminate on the basis of residence in allowing access. So while each case is unique, this issue would be the deciding factor; not race or other social-justice concerns.
The council discusses the details of lawsuits in closed session with legal counsel, including outside specialist counsel, in order to protect our ability to litigate without disclosing strategy to the opposing side. This is an important protection for residents, but is understandably frustrating to all involved.
We both initially voted for the pilot program and for placing the long-term question on the 2022 ballot for voters to decide. After we understood the First Amendment nature of the lawsuit, we both changed our view and voted for the settlement.
If the petition organizers collect the 2,581 signatures needed, the settlement will be voided and the lawsuit proceeds. If the city wins the litigation, then we can do what we want.
If the city loses the litigation, then Palo Alto's "residents-only" policy, including the pilot project, is struck down. A referendum becomes meaningless; the park will be opened on terms determined in a federal court. The current settlement, which waives us paying the ACLU's legal fees and allows a few things like residents' priority access to facilities like campgrounds, would not apply.
In this outcome, the city may also be required to pay high plaintiffs' attorneys' costs. The ACLU and its private firm partner are currently working pro bono, but if they win the lawsuit, they will seek to recover their full legal expenses from Palo Alto. Those expenses would divert funds from already pandemic-challenged programs like the Children's Theater, Youth Community Services, public safety, and ironically, parks.
Those considering signing the petition should consider two important factors:
• First, the petition does NOT actually give residents control over Foothills Park access via a referendum; instead it revives the First Amendment lawsuit, which the city must first win before any referendum means anything. The petition is a high-stakes bet on that lawsuit, whose odds depend not on social justice or transparency, but on details of Constitutional First Amendment law.
• Second, the decision to place this bet will be made not by majority vote but by the 4% of residents (2,500 out of 67,000) who sign the petition. Those 4% will irreversibly commit the other 96% of Palo Altans to this course. This places a significant responsibility on the 4%, and signers should understand the financial risk here.
Finally, let us end with a plea on a different but urgent matter. The COVID-19 situation is at a critical juncture. While we've all grown weary of it, we must renew our efforts to isolate in order to slow the transmission rate. Our health care system is at risk of being overwhelmed. Please do all you can to support the county and state directives now in effect.