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Attorney: Open the Books on Government-Sanctioned DEI…Immediately

February 13, 2023

School districts across the United States are engaged in an effort to not only indoctrinate our children in the “diversity, equity, and inclusion” (DEI) agenda, but to do so under the cloak of secrecy. School administrators have grown increasingly bold in their defense of this agenda, denying information to parents seeking details about what exactly their children are being taught.

That’s exactly what happened to my client, Ann Trethewey, whose children attend school in the Downingtown Area School District in Chester County, Pennsylvania. And it’s why I’m taking action to defend Ann’s parental rights and demand transparency.

Last month, Ann filed an “open records request” with the school district seeking copies of “all documents and materials (paper or electronic) and all presentations used by the Diversity, Equity, and Inclusion (DEI) program director and DEI staff that were used to instruct or lead any training or programs to any staff, teacher, counselor or student in the Downingtown Area School District.” But the district denied her request, claiming this information is exempt from disclosure because it “constitutes or reveals a trade secret or confidential proprietary information.”

Confidential and proprietary trade secrets? The phrase brings to mind sensitive information that, if released, would jeopardize a business’ economic competitiveness over that of a fierce rival. It seems absurd that this exemption could apply to training given by government employees to public school teachers who then use that training to indoctrinate our children.

Now, as a member of the Goldwater Institute’s American Freedom Network of attorneys, I’m challenging the school district’s decision with the state Office of Open Records. After all, the body of caselaw in this area is clear. All cases where courts have recognized the exemption for “[a] record that constitutes or reveals a trade secret or confidential proprietary information” have involved private sector entities conducting commerce. Pennsylvania courts have never extended the confidentiality and proprietary exemption to full-time government employees.

The Downingtown Area School District’s full-time Director of Diversity, Equity, and Inclusion, Justin Brown, is not engaged in any private commerce—he even provided a sworn attestation admitting as much. In that statement, Brown concedes that he derives no commercial benefit from the documents he created and is not involved in any trade or business in which he has competitors, and he fails to identify any supposed competitors. Brown further states that he created the materials prior to his employment with the district and that he will suffer substantial commercial and competitive harm if they are made available to the public.

The specific nature of that harm? Brown doesn’t say.

If this exemption were permitted, it would set a dangerous precedent. Government-sanctioned training materials—which are used to train thousands of government employees daily, but never for commercial purposes—could bypass public disclosure and transparency if officials simply claim they “constitute or reveal a trade secret or confidential proprietary information.”

Brown wants to shield his materials from disclosure because he knows that if they are released, he would be subject to public criticism. As a government official, he should be. In Globe Newspaper Co. v. Superior Court for Norfolk Cnty., (1982), the Supreme Court recognized the paramount importance of a robust debate on the conduct of government officials: “criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.”

Parents in the Downingtown Area School District, in Pennsylvania, and across the nation deserve to know what the government is teaching its children and including in the pedagogy. They deserve a government that is transparent and submits itself to public criticism. If the government decides to engage in controversial training, that is its choice. But that choice carries with it what the Supreme Court described in Globe Newspaper Co. as “a commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” At the very least, parents deserve to know what their children, and their children’s teachers, are being taught by the school districts to whom they fork over their hard-earned tax dollars.

I stand ready to fight for parents’ rights in this battle for transparency.

James J. Fitzpatrick is a Pennsylvania-based attorney and partner at Zimolong LLC, a law firm built on representing conservative causes. As a member of the Goldwater Institute’s American Freedom Network of attorneys, he is representing Ann Trethewey in her fight for transparency and accountability in public schools.



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