November 16, 2021
By Timothy Sandefur
This morning’s ruling in favor of Virginia moms Callie Oettinger and Debra Tisler is a victory for freedom of speech, and an instructive example of the bullying tactics that school boards across the country have adopted toward parents who dare to challenge how their tax dollars are being spent—or who even just ask questions, as in this case. Now that we are at last allowed to discuss the case publicly, here’s a recap of how the Fairfax County School Board abused its authority to violate the constitutional rights of parents seeking to protect their children’s best interests.
It all began with a question: How much money is the Fairfax School Board spending on its lawyers, and why?
Some months ago, Debra filed a request under Virginia’s Freedom of Information Act, seeking information about how much money the School Board was spending on its lawyers, and why. The Board turned over 1,300 pages of electronic documents, which Debra shared with her friend Callie, who runs the website specialeducationaction.com. After carefully deleting any potentially confidential information about students or employees, Callie published some of these pages on her website, to show local residents that the Board was wasting taxpayer money.
That’s when school bureaucrats, embarrassed by what the documents contained, demanded that the two women take the information off the website and “return” (that is, destroy) the documents. It sent them a second batch of 1,300 pages—this time with items deleted which had not been deleted the first time around. And when Callie and Debra said no, the Board sued them, asking the Court to forbid them from publishing the documents or sharing the information they contained. On September 30, a Virginia judge agreed, issuing an order that barred them from sharing the information pending further legal review.
That order was what lawyers call a “prior restraint”—a prohibition on speaking—and the U.S. Supreme Court has made clear that prior restraints are almost never constitutional. What’s more, it made little sense, given that the information was already posted on other websites, including a community discussion board called fairfaxunderground.com. (How that website got the information we don’t know—Callie and Debra did not post the documents there.)
Yet the Board went ahead, asking the court to issue a second injunction against them, and also to force them to disclose the identities of any person they had shared the information with.
What was the School Board hiding?
Why was the Board so intent on preventing the public from seeing the documents? The Board falsely claimed that Callie and Debra were trying to publish confidential information about students or school employees, but that’s just been an attempt to hide facts that the Board is (rightly) embarrassed about: how much the Board spends on lawyers and how careless the Board is with confidential information.
Consider just one example: Most of the documents are bills the Board’s lawyers sent to the Board—bills that list how much the Board is spending and why, and some of the charges are, frankly, outrageous. Consider this item from Page 886. That page says that the Board’s attorney charged taxpayers $73.75 to spend fifteen minutes for:
Received electronic notice of filing of Order granting NWLC leave to file Amicus Brief, appearance of counsel of Emily Mallen and Neena Chaudhry, and Disclosure Statement; examined same.
An “electronic notice of filing” is an email a lawyer receives when someone files something in a case she’s working on. In other words, this attorney claims to have spent fifteen minutes reading an email notification that says “something was filed in the case.” Not reading the thing that was filed, mind you—just reading the email that says something was filed. Apparently, that took fifteen whole minutes, and cost seventy-four bucks.
Fairfax County was demanding that everything except the words “Received” and “examined same” be censored—that is, that Debra and Callie be legally prohibited from publishing that information. But without that information, it would have been impossible to show the public that the Board is spending far too much taxpayer money on legal representation. And while that might seem like a minor example, it’s only one out of approximately ten thousand censorship demands the Board was asking the judge to enforce.
Callie and Debra have also long been concerned about the School Board’s careless and irresponsible handling of private student information. Ironically enough, when they asked for these legal bills, the Board turned over documents that contained the names of students and school employees—a perfect example of the Board’s failure to protect confidential information. Callie and Debra took care not to publish that information—yet the Board, which had disclosed it in the first place, sued them after it revealed this personal info. And what better way to prove to the public that the Board was careless with private information than to publish the documents the Board had carelessly turned over? If the Board had succeeded in its lawsuit, it would have been able to prevent parents from knowing that the Board itself had compromised private information.
A major victory for parents’ rights and transparency in government
Fortunately, the court refused to go along. It held that forbidding Callie and Debra from disseminating the documents would be an unconstitutional prior restraint. It relied on the 1989 Supreme Court decision Florida Star v. BJF, which held that even if the government accidentally gives someone information, that person has the right to publish it.
Today’s decision is a prime example of why the Goldwater Institute’s efforts to protect transparency in government are so crucial. In recent months, school bureaucrats have taken to bullying and intimidating parents who stand up against what they see as the wasteful and dangerous actions of their local school boards. When Rhode Island mom Nicole Solas filed a request for information about what went on in her daughter’s kindergarten classroom, the nation’s largest teacher union sued her—and Fairfax County’s own schoolyard bullies did likewise when Callie and Debra just asked to see how their tax dollars are being spent. We were proud to step in to defend Nicole, Callie, and Debra—but so much work still remains to be done.
Parents should be involved with their children’s education—and taxpayers should be engaged in demanding information about how their tax dollars are being spent. For school officials to abuse their power—and waste still more taxpayer money—punishing parents who exercise their legal rights is indefensible.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.