San Diego Historian, Playwright and Actor Wins Lawsuit Against County Library for Race Discrimination

San Diego County is paying to settle the federal discrimination lawsuit filed by a white performer after the County Library refused to allow her to play black characters in her one woman show because of her race.

Under the terms of the settlement, which was inked earlier this month, San Diego is giving Annette Hubbell, the playwright and actress, $60,000. Additionally, she is allowed to perform her show, including in black roles, at a Library branch.

In the settlement, San Diego also pledges not to discriminate against vendors or contractors based on race or ethnicity.

The settlement marks something of an about-face for San Diego, which had been fighting the lawsuit fiercely in court, insisting it had a right to discriminate against Hubbell for artistic purposes.

In a motion to dismiss filed this May, County lawyers argued that Hubbell’s performance is government speech they have the right to control.  And having a white woman play the roles of blacks sends the wrong message for them.

“Defendants claim only the very limited speech right for the Library not to be required to put on an inherently expressive dramatic performance in which a white woman would portray one or more Black women to Library customers,” they argued. “Defendants claim only the right not to express a particular unintended message that they do not wish to express that would be “inescapably interwoven” into any performance in which a white woman would speak in the first-person perspective as a Black woman.”

“Coercing the Library’s speech through the application of anti-discrimination laws to the inherently expressive Library production alleged in this case would inevitably weaken the Library’s ability to function and pursue its missions.”

Additionally, San Diego County spokeswoman Donna Durckel defended–albeit with circuitous language–excluding Hubbell based on her race in a statement to the California Globe this June.

She said that, “I can share that the San Diego County Library remains steadfast in its mission to promote an inclusive and welcoming environment for all. This includes ensuring that our programs align with our values of equity, respect, and inclusivity.  Each library program is individually evaluated based on specific context, structure, and potential impact. We strive to create spaces where multicultural communities can share their own stories authentically.”

Hubbell was represented by the Sacramento-based Pacific Legal Foundation.

Pacific Legal Foundation lawyer Andrew Quinio told the California Globe that the settlement “sends the message that the government– whether it is a local governor or public library –can not discriminate against individuals based on their race.”

“You had an individual who was cleared to perform” until the Library decided she was the wrong race to play black characters.   “At the end of day the government can not discriminate based on race. Even if they couch this as First Amendment rights they are restricted from making these decisions. The 14th Amendment [guarantee of equal protection] and Proposition 209 outlaw what San Diego did to Ms. Hubbell.”

Quinio speculated that San Diego might have reversed course and settled the case out of fear of the Trump Administration.

“I think when you consider what the Trump Administration has been doing through their [Justice Department] civil rights department, I would suspect that played a part in [San Diego’s]  decision making,” he mused.

But, “I don’t think they had a strong position–given the clear restraints on government. San Diego was not in any position to discriminate against Ms Hubbell based on her race.”

Hubbell’s performances use characters’ own words. Her show is called “Women Warriors.” It is based on her 2019 book about historical figures, most of them women.

Since 2009, she has done more than 400 performances in theaters, schools and libraries and club meetings.  She has portrayed the Puritan poet Anne Bradstreet, Irish Christian missionary Amy Carmichael, black abolitionist Harriet Tubman and others.

Nobody ever objected to her playing black characters until the wokesters at the San Diego County Library entered the picture.

Hubbell previously told the California Globe that she always got positive feedback from black women after her shows.

“I’d like to note that my most ardent supporters are black women who, after seeing a performance, thank me for reintroducing these wonderful women back into the public eye. After this library debacle, I asked women of color if they are bothered by my skin color, and they respond with a puzzled look. Of course not, it’s the message that’s important, is often the reply. And besides, they add, you disappear.”

Hubbell’s lawsuit against the San Diego County Library system and San Diego County was filed on May 1 of this year in the United States District Court for the Southern District of California.  The lawsuit charges that the Library and San Diego County violated the 1964 Civil Rights Act prohibition on race discrimination by federally funded programs and also the federal law 42 U.S.C. § 1981 that prohibits denying somebody a contract based on his race.   It also says San Diego ran afoul of the California Constitution prohibition against race discrimination in public contracting. That provision, of course, is the result of Proposition 209.

According to the lawsuit, in March 2023, Hubbell signed a contract with San Diego County to perform her show at “any or all” of the San Diego County Library system branches.  The contract gave her complete artistic control of her show.

In December 2023, Rancho Santa Fe Library Branch Manager Christina Patterson asked Hubbell to perform Women Warriors at the Rancho Santa Fe branch. Patterson asked her to perform as the black abolitionist Harriet Tubman, the black educator Mary McLeod Bethune and white novelist Harriet Beacher Stowe.

The show was scheduled for March 21, 2024.

But “On March 6, 2024, Ms. Patterson requested that Annette change her performance and refrain from portraying the two African American figures, Tubman and Bethune. The reason Ms. Patterson gave was that “our administration was uncomfortable with you performing a black character as a white woman.” She asked Annette to replace Bethune and Tubman with white figures.”

But Hubbell refused to make the changes.

So the branch library cancelled her performance.

Hubbell complained about the discrimination to other Library and County officials. But they backed the decision to cancel her performance.

Her lawsuit says quite eloquently that the Library’s racial purity scheme is an affront to American values.

“The stories of America’s great historical figures are part of our shared national heritage. Annette believes that passing that heritage down through storytelling must be done without regard for the race or color of the storyteller or the figures they portray. To do otherwise would risk our shared humanity and common understanding that elevates the content of one’s character over the color of one’s skin. The San Diego County Library disagrees. It chose to gatekeep our shared national heritage on the basis of race. “

Under the terms of the settlement, Hubbell is slated to do her show at the Bonita-Sunnyside branch library. The date is yet to be determined.

But Hubbell told the California Globe  today she is going to perform as the black abolitionist  Harriet Tubman, the black educator Mary McLeod Bethune and white novelist Harriet Beacher Stowe. “I plan to portray the same characters that I was originally asked to portray. I’m a storyteller; that’s what I do.”

Hubbell said that she was always optimistic that the lawsuit would succeed but she sounds rightly resentful that the Library is not offering her any kind of apology.

“I  was very confident that I would win this lawsuit; the county broke state and federal law when they cancelled my show for no other reason than my skin was the wrong color,” she emailed. “I have no idea why it took them so long to figure this out. It’s a mystery to me.”

“This lawsuit could have been dropped the day it was filed had they apologized. To draw it out was not a good use of County resources. Although they agreed never to discriminate again, they stopped short of an apology. Instead they offered, without any prompting from me, the sum of $60,000. Recent health issues meant the decision to settle now was the wise choice.”

“I will not keep the money. Like those women warriors who, guided by the Holy Spirit, fought to make the world a better place, the funds will go, anonymously, to individuals who help others. Those warriors, as did the other characters in my book, spent their lives righting wrongs. With tools of kindness, grace, mercy, and a bit of stubbornness, look what they accomplished.”

San Diego County spokeswoman Donna Durckel ignored a question about why the County reversed course and decided to settle the case.  In response to an emailed inquiry on the settlement, she said only “the County reached a resolution reflecting the settlement agreement.”