SF Had Right to Remove 'Early Days' Statue Deemed Racist, Judge Says

A San Francisco Superior Court judge last week upheld the San Francisco Art Commission’s decision last year to remove the controversial Civic Center Plaza statue “Early Days,” rejecting a lawsuit alleging that the commission was “motivated by prejudice against people of European heritage and culture,” to unlawfully “desecrate … a piece of fine art.”

The plaintiffs alleged the arts commission illegally wasted public resources by removing the art solely on the justification that “it was racist and painful to Native Americans and those who shared the interpretation of it being racist and that its existence represented white supremacy.”

But Judge Cynthia Ming-mei Lee called that reason enough, citing city policies allowing for the removal of public art following “‘significant adverse public reaction over an extended period of time (five years or more),’” she wrote.

“Accordingly the SFAC had discretion to remove the statue based on racism and the Court may not interfere with its decision.”

Tom DeCaigny, San Francisco’s cultural affairs director and a defendant in the lawsuit, said in a statement the “decision affirms the Arts Commission’s authority to remove racist imagery from the public realm.”

He continued, “This is an important victory for the Native American community and their allies who have fought for many years to see this historically inaccurate and racist depiction of indigenous people removed.”

The arts commission sought to remove “Early Days” from the Pioneer Monument sculptural group near City Hall after determining its depiction of a Native American kneeling beneath a Spanish vaquero and missionary was degrading and historically inaccurate.

Activists opposed the statue for decades, and calls for its removal escalated in 2017 amid a national movement against Confederate statues and other racist monuments. The arts commission voted to replace the “racist and disrespectful sculpture” with a didactic plaque.

But Petaluma attorney Frear Stephen Schmid challenged the decision before the San Francisco Board of Appeals, calling its removal “tantamount to destruction” and akin to “taking the lips off the Mona Lisa.” The board ultimately rejected his argument, and the statue was removed last September.

Schmid, a white man, filed the lawsuit last November claiming the arts commission was “ethically [sic] and racially motivated in favor of one racial/ethnic group, Native Americans,” hence violating his civil rights by “by vilifying the artistic work, the European Catholic priest, [and] the Vaquero[.]”

But Schmid and co-plaintiff Patricia Briggs, the judge wrote, lacked standing to sue on civil-rights grounds because they “are not the artists of Pioneer Monument,” and called their claim that the statue’s removal was a violent act “unsupported by legal or statutory authority.”

Nor was the judge persuaded by plaintiffs’ argument that the statue’s removal violated the charitable and public trust doctrines, pointing out that the latter only applies to “the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands[.]”

Schmid could not be reached for comment.

Last October, the San Francisco Board of Supervisors voted to approve a measure requiring broader representation of women in statues and other artworks on city-owned property.