October 7, 2021
By Timothy Sandefur
The Goldwater Institute filed a motion with a Virginia judge today to defend the rights of two moms in Fairfax County, Virginia, who are under attack by their local school district for exercising their freedom of speech. It’s just the latest example of a growing trend of school districts nationwide aggressively persecuting parents who are trying to promote the best interests of their children.
Fairfax County mother Debra Tisler took an interest in how her school district was spending its money, especially given that the county has been in national news about its legal troubles recently. So she filed a Freedom of Information Act request to find out how much the district was paying for its legal bills. The district turned over more than 1,000 pages of receipts from its law firm, and another Fairfax-area mother, Callie Oettinger, published some of them on her website, specialeducationaction.com, redacting and sharing select documents related to the superintendent, the school board, and investigations into Fairfax County Public Schools’ cyber hacking and its virtual learning launch debacles. Callie did not publish students’ names, or any confidential student or personnel information of any sort.
That’s when trouble started. When the school district realized it had handed over potentially embarrassing material, it demanded that Callie take the material down from her website, and when she refused, district officials sued her—notwithstanding the fact that the Constitution clearly protects her right to publish the information online.
“As a parent, I have a right to know what’s happening in my children’s school, and as a taxpayer, I have a right to know how money is being spent,” Callie said. “I created my site to help advocate for children with special education needs. This includes sharing and holding Fairfax County Public Schools accountable for its noncompliance. I will not let them silence my voice.”
Last week, a state judge issued an order barring Debra and Callie from sharing the documents, and as a result Callie took the documents down from her website. But today, the Goldwater Institute—with the assistance of attorney Ketan Bhirud, a member of Goldwater’s pro-bono American Freedom Network and counsel at the Virginia law firm Troutman Pepper—filed papers asking the judge to withdraw that order and dismiss the case immediately.
“I was shocked to be sued by my children’s school district—all for caring about their education and for speaking out. Fairfax County Public Schools’ school board is readily spending millions on legal fees instead of allocating those funds for direct services to children. The hypocrisy surrounding the actions of the school board is excessive,” Debra said. “FCPS literacy and math proficiency rates are abysmal, and the continuous watering down f the standards and depletions of needed services is egregious.”
“Instead of addressing those needs and expanding their capacity to meet the students’ needs, they have taken it upon themselves to control and reduce opportunity for students,” she continued. “This district has one of the largest budgets in the nation, yet it still can’t get it right. Today, we’re saying ‘enough is enough.’ A lawsuit isn’t going to stop me, and I appreciate the Goldwater Institute for helping me in my fight.”
The state and federal Supreme Courts have made clear in numerous cases that people have the right to publish this type of information. In the famous 1971 “Pentagon Papers” case, the Supreme Court held that the nation’s leading newspapers had a legal right to publish a report on the Vietnam War that had been stolen from the Pentagon and handed over to reporters. As the Goldwater Institute points out in its brief, if the Constitution protects the right to publish stolen military documents in a time of war, it certainly protects the right of mothers and concerned citizens to publish documents the government legally gave to them. For the school board to sue these parents for defending their children’s best interests and speaking out about their government is a shameful abuse of power.
That disgraceful behavior, however, is just one of a number of recent incidents in which school boards have tried to silence criticism or even questions from parents who want to be more involved in their children’s education. When Rhode Island mom Nicole Solas asked school officials in Rhode Island for information under that state’s Freedom of Information Act, the National Education Association (NEA) sued her, seeking to bar the release of the information. Fortunately, once the Goldwater Institute stepped in to defend her, the NEA backed down—although that case is still pending.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.