Ben Allen (arm extended), then chair of the California Legislative Jewish Caucus, speaks with Gov. Gavin Newsom at a meeting in March 2019. (Photo/Courtesy California Legislative Jewish Caucus)
Ben Allen (arm extended), then chair of the California Legislative Jewish Caucus, speaks with Gov. Gavin Newsom at a meeting in March 2019. (Photo/Courtesy California Legislative Jewish Caucus)

Everything you need to know about the ‘guardrails’ built into the California ethnic studies law

Earlier this month Gov. Gavin Newsom signed Assembly Bill 101 into law, making California the first state in the nation to add ethnic studies to its list of required high school courses. Though the bill had the unanimous support of the California Legislative Jewish Caucus, it roiled some Jewish community groups who feared it would open the door to one-sided criticism of Israel in the classroom. 

The Jewish caucus shared those concerns, and it appears Newsom did, too. 

The governor — who vetoed a similar bill last year — in a signing statement pointed to a series of “guardrails” inserted at different stages of the amendment process that would, in his words, “ensure that [ethnic studies] courses will be free from bias or bigotry and appropriate for all students.” 

The changes were important in consolidating Jewish community support for the bill (or at least ameliorating some critics). Both the S.F.-based Jewish Community Relations Council and members of the California Legislative Jewish Caucus cited them as key to their endorsement. The Jewish Public Affairs Committee of California, whose board includes representatives of many of the largest Jewish nonprofit organizations in the state, including Jewish Federations in San Francisco and Los Angeles, celebrated the guardrails in a lengthy statement.

But what are they? And how do they work?

The guardrails amend the ethnic studies bill, which itself amends the massive body of law governing the operation of California’s public schools and state universities known as the California Education Code. Local school boards are responsible for complying with the code. If they don’t, they could be vulnerable to lawsuits.

The first three guardrails were proposed last year by members of the caucus, including state Sen. Ben Allen of Santa Monica, then chair, and Assemblymember Jesse Gabriel of the West San Fernando Valley, then-vice chair (Gabriel is now the chair). They were not created out of whole cloth; they were adapted from existing provisions of the Ed. Code.

man in suit with mask reads book in state capitol chamber
Assemblymember Jesse Gabriel, chair of the state’s Jewish caucus, reads a book handed out by the caucus to other lawmakers on Holocaust Remembrance Day on April 8, 2021. (Photo/Courtesy California Jewish Caucus)

They state that any course in ethnic studies, in order to fulfill the new requirement, must: 

1) Be “appropriate for use” with students “of all races, religions, nationalities, genders, sexual orientations, and diverse ethnic and cultural backgrounds”; 

2) Not “reflect or promote, directly or indirectly, any bias, bigotry, or discrimination against any person or group of persons” within a protected group; and 

3) “Not teach or promote religious doctrine.”

According to Gabriel, the second clause is the most consequential for concerns raised by Jewish groups.

The reason Jewish organizations were outraged over ethnic studies in the first place was because of a first draft of a state-ordered Ethnic Studies Model Curriculum that included criticism of Israel, did not deal meaningfully with antisemitism, and did not mention Jews. It presented the boycott, divestment and sanctions movement in a favorable light, calling it a protest movement aiming to free Palestinians living under “apartheid” conditions, likening it to the movement for climate justice and #MeToo. It also referred to the creation of Israel as the “Nakba,” Arabic for “catastrophe,” which is how the event is described by most Palestinians. 

Though the curriculum has been revised, schools don’t have to use it, and there are still some activists — including those who wrote the first draft of the ESMC — applying their own vision for ethnic studies directly to school districts.

The “directly or indirectly” clause was put there to defend not only against overtly biased material in ethnic studies classes, but material that may be considered biased, such as teaching BDS uncritically, Gabriel said.

“There is a strong argument that BDS, at a minimum, indirectly promotes bias against Israelis,” he said, or “indirectly promotes bias against Jews.”

“We didn’t want there to be any question,” he said.

The fourth guardrail directly names the controversial first draft of the Ethnic Studies Model Curriculum. It was introduced this year in the Senate Appropriations Committee with the support of chair Anthony Portantino.

The guardrail says “it is the intent of the Legislature” that school districts “not use the portions of the draft model curriculum that were not adopted by the Instructional Quality Commission due to concerns related to bias, bigotry, and discrimination.” 

The clause does not specify which portions were cut due to bias concerns. In March, the Department of Education released data showing that of the approximately 80,000 public comments it received about the Ethnic Studies Model Curriculum since 2019, more than 38,000 were summarized as “comments about Jewish Americans and/or antisemitism.” The second most frequent were “comments about Armenian Americans,” received over 9,000 times.

The fifth guardrail requires transparency from school districts adopting ethnic studies curricula of their own. It says if a school district wants to do so, it needs to hold at least two public meetings first, and give members of the public the opportunity to weigh in.

The guardrail states that any locally developed ethnic studies course “shall first be presented at a public meeting of the governing board of the school district,” and shall not be approved until the public “has had the opportunity to express its views on the proposed course.” 

This particular amendment will not affect school districts that already teach ethnic studies, including San Francisco, Oakland, San Mateo, and many others. But the other four guardrails will apply to all ethnic studies courses, including those developed before the mandate bill.

Some opponents of AB 101 have criticized the guardrails as weak or insufficient for the task of blocking biased content across California’s more than 1,300 public high schools.

Tammi Rossman-Benjamin
Tammi Rossman-Benjamin

Tammi Rossman-Benjamin, a strident opponent of the ethnic studies measure who directs the Santa Cruz-based Amcha Initiative, called the guardrails “purely optics” that “carry zero weight when it comes to preventing school districts” from teaching anti-Israel content.

Others, like Elina Kaplan of the Alliance for Constructive Ethnic Studies, which has serious concerns about AB 101 but does not oppose it outright, called them “tools.”  The guardrails, she said, “are only as good as the guards.”

For Gabriel, the guardrails are not meant to advance lawsuits, they are meant to avoid them.

“We wanted to be crystal clear, and leave no ambiguity that this is where the Legislature stands. This is what the law says,” he said. “My hope is that the guardrails are so unambiguous that any school board, or any teacher, looks at this and says, ‘we do not want to get close to that problematic curriculum.’”

Gabe Stutman
Gabe Stutman

Gabe Stutman is the news editor of J. Follow him on Twitter @jnewsgabe.