By Timothy Sandefur
December 27, 2021
The Fairfax County School Board quietly asked a judge last week to dismiss the lawsuit it filed against two Virginia moms for publishing information about how the Board spends taxpayer dollars. Callie Oettinger and Debra Tisler, who are represented by Goldwater Institute attorneys, won a crucial court victory for the First Amendment and parents’ rights last month after refusing to give in to the Board’s demands.
The School Board’s abandonment of the lawsuit came despite its claims to the media that it intended to pursue the case. And it not only brings an end to a startling act of unconstitutional bullying by public school bureaucrats, but it also erases even the small part of the case that the School Board actually won (a part the judge called “a very tiny” element of the lawsuit).
The case began in September, when the Fairfax School Board filed a lawsuit against Debra and Callie, two parents who filed Freedom of Information Act requests seeking invoices about how much the School Board was paying for legal representation. School officials emailed Debra over 1,300 pages of documents, which had been redacted but which still contained the names of some students and school personnel, as well as the bank account numbers of the School Board’s law firms. After redacting the names and other confidential information, Callie published some of these documents on her website, specialeducationaction.com, which publishes news and commentary about the school district. Among other things, she and Debra pointed out that the shoddy quality of the redactions proved the School Board wasn’t being careful about protecting confidential information.
Shortly after the documents went up, however, school officials filed suit against the pair, asking a state judge to force them to delete the documents, take them off the website, identify anyone else they’d shared the documents with, and even pay the schools’ attorney fees. On September 30, a Fairfax County judge ordered the website taken down pending a later hearing.
This case is just one of the latest examples of public school bureaucrats attacking parents for daring to ask questions about how tax dollars are being spent and what is being taught in schools. But with the Goldwater Institute’s help, parents are fighting back.
Assisted by American Freedom Network member Ketan Bhirud, Goldwater lawyers stepped in to defend Callie and Debra, filing a motion to dismiss arguing that the First Amendment protects the right to publish information the government gives you, and that any attempt to censor these moms would be an unconstitutional “prior restraint” of free speech.
What’s more, it soon became clear that school officials were trying to keep the public from learning about the excessive fees Fairfax County was spending for its lawyers. For example, one invoice showed that school attorneys charged taxpayers nearly $75 to read a one-sentence email.
On November 16, the trial judge sided with Callie and Debra. “The Board argues vociferously that this is not a prior restraint,” he said. “I equally vociferously disagree with that. This is about as much a prior restraint as there ever could be.” Calling the School Board’s arguments “almost frivolous,” he ruled that “what the defendants are doing is enforcing their rights under the First Amendment, and those rights, enforcing their rights under the First Amendment, is about as high in the public interest scale as you can get.”
Throughout the case, we acknowledged that Callie and Debra had never published confidential student or employee information, and had no desire to—but under Supreme Court precedent, the government had no power to silence them even if they did. Still, we acknowledged that the judge could block them from publishing the bank account information, and the judge agreed, issuing an order that barred publication of bank account and tax identification numbers—but otherwise entirely rejecting the School Board’s effort to censor the two parents.
In comments to Fox News the day after that ruling, a Fairfax County spokesman tried to imply that Callie and Debra were engaged in the “intentional sharing of sensitive student or employee information—a false statement—and that the government would move forward with the lawsuit anyway.”
But that ended last week when, without fanfare, the School Board’s lawyers filed a motion for a “nonsuit”—a procedure under Virginia law that not only dismisses the case, but also erases any orders previously issued, meaning that even the order blocking publication of the bank account numbers is no longer in operation (although, of course, Callie and Debra do not plan to share that information). Simply put, a “nonsuit” pretends the case never occurred to begin with.
This case represented a disgraceful abuse of power by school officials who have a legal and moral obligation to respect the rights of parents and citizens—particularly those who are engaged in their children’s education and seeking to improve their community. The Fairfax County School Board repeatedly lied to the public throughout this case—falsely claiming that these parents were publishing student information, for example—in an effort to distract from the fact that the Board itself had failed to secure private information. And it tried to bully two parents who were simply exercising their rights under the Constitution and the Freedom of Information Act, rather than be forthright about how it spends taxpayer money.
We’re proud to have helped defend their rights and the rights of parents across the country fighting back against extreme attacks by public school officials who want them to stop asking questions. We’re happy to end this year on a high note, by seeing this case brought to an end.
Timothy Sandefur is the Vice President of Litigation at the Goldwater Institute.
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