October 12, 2021
By Timothy Sandefur
When Debra Tisler and Callie Oettinger of Fairfax County, Virginia, suspected their local school district was wasting taxpayer money on excessive legal fees, they did what responsible and engaged citizens do in a democracy: They asked to see the receipts. They have that legal right under the state’s Freedom of Information Act (FOIA)—and the school board turned over 1,000 pages worth of information. Then it realized that something in there was embarrassing—and that’s when things got ugly.
The school board demanded that Callie remove the documents from the website where she’d published some of them—after having redacted any confidential information. That’s right: Callie blacked out any personal info before posting the documents, because the school board failed to do so. She had no legal obligation to do that—the U.S. Supreme Court has made clear that you have a constitutional right to publish lawfully obtained information about the government—but she still chose to take that precaution.
But that wasn’t enough for school bureaucrats. They filed a lawsuit against Callie and Debra, asking a state court to force Callie to take the documents off her website, and to order Debra to “return” them. (That last part is bizarre, since these aren’t physical documents—just computer files—so it’s not clear how you “return” them.) But in any event, the point was clear: School board officials were demanding censorship. The natural question to ask is: Why? What does the Fairfax County School Board not want the public to know?
On Thursday, the Board told reporters that Callie and Debra publicized “private information about other people’s kids.” That is a lie. Callie and Debra never published private information about kids or school employees. And it is an intentional lie, too. How do we know? Because the Board did not make that claim in the complaint it filed with the court. Instead, it only told the court that Callie and Debra have documents the Board doesn’t want them to have. The Board knows it would get in a lot of trouble if it told the judge that Callie and Debra published any private information, since that isn’t true. In other words, the Board is willing to lie to the press—but not to the court.
What, then, do Fairfax County schools not want people to know? Debra and Callie think the board spends too much money on its lawyers, and here’s what they asked the Board to provide:
1. Any and all electronic and paper communications between [a certain member of the school board] and 1) Fairfax County School Board Member or Members, 2) Fairfax County School Board Clerk, 3) Fairfax County Schools Superintendent, 4) Fairfax County Public Schools Office of General Counsel, 5) Fairfax County Public Schools outsourced counsel regarding the Fairfax County Public Schools School Board recall and removal efforts by the public.
2. All outsourced counsel, legal services invoices, and paid legal services invoices from June 1, 2020 to August 12, 2021.
And the Board admits it turned over what it calls “privileged information”—that is, communications between the Board and its lawyers. (Under Virginia law, once that information was turned over, it was no longer privileged.) All of that makes one rather curious about what it is that the Fairfax County School Board doesn’t want people to know.
The First Amendment, of course, protects everyone’s right to publish information they legally obtain. In the “Pentagon Papers” case, the Supreme Court said the nation’s leading newspapers could even publish stolen military documents during a war! And the Court has also said you can publish untrue things about government officials. Here, the documents are not untrue and were not stolen—they were turned over legally to two concerned moms who are trying to find out how the Fairfax County School Board is spending their tax dollars. And instead of complying with their responsibilities, school bureaucrats have resorted to lawsuits, bullying, and unconstitutional demands for censorship. That’s quite an example to set for our children.
Unfortunately, a state court has issued an order commanding Callie to remove the documents from her website—and she’s complied (although, of course, nothing can ever really be deleted from the web.) So we’re not allowed to say what these documents contain, for now. But it does leave one to wonder: What is the School Board trying to hide?
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.