The Education Department was sued on June 30 after it failed to comply with the Freedom of Information Act’s deadline for releasing records about school discipline. To avoid a court order compelling it to produce the records, it purported to release them. But in reality, it failed to produce some of them. It didn’t realize I would figure that out, because I already had copies of some of those records, due to their authors covertly sending me copies of them. It also wrongly redacted information in correspondence from a Washington lawyer, falsely claiming it was exempt because it was sensitive private information. But the lawyer himself provided me with that correspondence, which shows it was anything but sensitive and thus should have been released.
The Education Department redacted things the public has a right to know, like the name of a person it picked to sit on a panel. It also concealed the fact that a high-ranking official had been receiving correspondence in her private, non-official email account, where it is harder to preserve government records, and more difficult to ensure compliance with the Federal Records Act.
As a result, I am now seeking a court order compelling the Education Department to turn over the records it withheld, remove the redactions from other records, and submit the remaining redacted records to the court from in camera review.
Liberty Unyielding and the Bader Family Foundation sought email correspondence between Education Department officials and various people who write about school discipline — both progressive academics and activists who think school discipline is racist, and conservatives who think it isn’t. After the Education Department failed to comply with FOIA’s deadline of 20-working days to respond to a FOIA request, the Bader Family Foundation sued it in federal court in Washington, DC.
On August 30, the Education Department turned over a few hundreds pages of emails, claiming it had conducted an adequate search for them. But I discovered that its search was incomplete, because it didn’t even turn over the few emails I already in my possession that were sent to the Education Department from people who write about school discipline. For example, I had received blind carbon copies of two emails sent to the acting Assistant Secretary for Civil Rights, Suzanne Goldberg, by Fred Woehrle on May 10, 2021. Both of them discussed “school discipline,” were sent to the highest-ranking Education Department official covered by the FOIA request, and were within the four-month time period covered by the FOIA request. But the Education Department didn’t produce either of these emails in response to the FOIA request — neither the one sent to Goldberg’s official email account, suzanne.goldberg@ed.gov, nor the one sent to Goldberg’s private, non-official email account, sgoldb1@law.columbia.edu. It just acted like the Woehrle emails didn’t exist.
It also redacted Goldberg’s private email address, sgoldb1@law.columbia.edu, from an email that it did release, from Washington lawyer and statistical expert James P. Scanlan. In redacting such email addresses, the Education Department falsely claimed it had only redacted the email addresses of private citizens — “non-federal employees” — which can generally be redacted to protect private citizens’ privacy under Exemption 6 of the Freedom of Information Act, 5 U.S.C. 552(b)(6). But that wasn’t true. It redacted the email address of a federal employee — acting Assistant Secretary Goldberg. Mr. Scanlan made that clear by submitting the court a copy of his email, which contained the email address “sgoldb1@law.columbia.edu” where the redaction had been made by the Education Department (in the redacted version of the email it released to the plaintiff). His email is attached to his sworn declaration filed with the court.
Goldberg is not a private citizen, and she can’t hide her use of the non-official email account from the public. Especially since her non-official email address is publicly displayed on her Columbia Law web page, which identifies her as a”deputy assistant secretary for Strategic Operations and Outreach in the Office for Civil Rights (serving as acting assistant secretary) at the U.S. Department of Education.” Having publicly displayed it, and tied it to her job, she can hardly be said to have a reasonable expectation of privacy in it.
Moreover, there is big public interest in whether government officials are using non-official email accounts to conduct government business, as Congress and journalists have made clear over and over again. (See, e.g., Senate Committee on Environment and Public Works, Minority Report, A Call for Sunshine: EPA’s FOIA and Federal Records Failures Uncovered (Sept. 9, 2013) at 8-13, discussing and criticizing the use of private email accounts to conduct government business at length); Stephen Dinan, EPA Officials Lied About Email Use, Senator Says, Washington Times, March 11, 2013, at A4 (discussing use of private email accounts to conduct government business); Sunshine Law Gets Cloudy When Federal Officials Take Email Home, Washington Times, Aug. 14, 2013, at A1 (same); EPA Staff to Retrain on Open Records; Memo Suggests Breach of Policy, Washington Times, Apr. 9, 2013, at A4 (same)).
Email addresses can be ordered disclosed when there is a public interest in doing so — even private citizens’ email addresses. (See Prechtel v. FCC (2018)).
So it violated the Freedom of Information Act for the Education Department to redact this from the email. The Education Department also violated the Freedom of Information Act by not producing the two emails from Fred Woerhle to Suzanne Goldberg.
A May 11, 2021 6:26 PM email sent to sgoldb1@law.columbia.edu from fredwoerhle@gmail.com begins:
Dear Acting Assistant Secretary Goldberg:
In your opening remarks at today’s event, you cited “a 1995 report from the Children’s Defense Fund called ‘School Suspensions: Are They Helping Children?’ This report found based on OCR’s Civil Rights Data Collection that black students were being disciplined at a higher rate than any other students and not because of higher rates of misbehavior.”
Is this old report’s claim about misbehavior rates — which is not actually shown by CRDC data — obsolete in light of more recent surveys and studies showing that black students do in fact have higher rates of misbehavior in school?
For example, data from the National Center for Education Statistics shows a much higher rate of misbehavior among black students for certain offenses, such as fighting in school.
But the Education Department never gave me this email, or any response to it by Goldberg, even after I suggested to it that it search Goldberg’s sgoldb1@law.columbia.edu, and even after I noted that I had expected to see some emails from Fred Woerhle.
Agencies have a duty to search for records even in private, non-official email accounts used by their employees, as the D.C. Circuit Court of Appeals ruled in a case I argued. (CEI v. OSTP (2016)).
But it did no such thing. Thus, it improperly withheld agency records.
The Education Department also redacted the name of a person it invited to sit on a school discipline panel, claiming it was a private matter that was of no public interest. But that very email made clear that that person’s identity was important, because the Biden administration viewed that person — who is probably a progressive activist — as an expert on school discipline, whose views should shape federal policy about school discipline.
The Education Department told the panelists it invited, “The Office for Civil Rights and Civil Rights Division have invited you as panelists because of your expertise in issues related to school discipline and climate.” Bader Decl. Ex. 6 (April 28, 2021 5:26 PM email).
The public has a right to know the names of such “experts” and influential people, even when they are private citizens. For example, a court ruled that the names of people who submitted comments to an agency were releasable, to shed light on who was influencing agency decisions; as it explained, “Disclosing the mere identity of individuals who voluntarily submitted comments regarding the Lincoln video does not raise the kind of privacy concerns protected by Exemption 6 . . . . Moreover, the public interest in knowing who may be exerting influence on [agency] officials sufficient to convince them to change the video outweighs any privacy interest in one’s name.” See People for the American Way Foundation v. National Park Service (2007).
The Education Department also chose to use very narrow search terms in searching for emails about school discipline, just using the terms “school discipline” or “school disciplinary policies,” not other words like “student discipline” or “suspension” or “expulsion.” So its search results excluded many emails that involved school discipline. That violated its duty under FOIA to conduct a search “reasonably calculated to uncover all relevant documents.” (Weisberg v. DOJ (1983)).
Agencies are not supposed to use a few narrow search terms that fail to capture most documents sought by a FOIA requester. For example, federal agencies have a duty to “construe a FOIA request liberally,” said a court in ruling that a FOIA request seeking information “pertaining to” Perot reached “information about Perot” even if it “does not mention Perot’s name.” (See Nation Magazine v. U.S. Customs Service (1995)).
On June 4, the Biden administration issued a notice calling for new federal policies about school discipline, in light of the fact that “students of color” are disciplined more often than “their White peers.” It cited a controversial report by the U.S. Commission on Civil Rights “finding that: Students of color as a whole, as well as by individual racial group, do not commit more disciplinable offenses than their white peers.”
But as a Washington Post news reporter noted in 2019, the Commission never showed that “finding” was true. The Commission’s chairwoman, who is now President Biden’s nominee to head the Education Department’s Office for Civil Rights, “pointed to a few spots” in the Commission’s report to “claim that there are no underlying differences in student behavior. But those citations did not offer such evidence. One set of data referenced in the report showed the opposite,” noted The Post’s Laura Meckler.
Moreover, studies and surveys show that black students do have higher rates of misbehavior in school. Data from the National Center for Education Statistics shows blacks are much more likely than whites to get into fights at school — 11.4% of blacks did so, compared to 5.2% percent of whites, according to the Education Department’s NCES Indicators of School Crime and Safety: 2016.
Emails released in response to the FOIA lawsuit show that the Education Department should have known better than to claim that students of color don’t commit more disciplinable offenses than their white peers.
Those emails show that the Education Department was aware of the federal School Safety Commission report, which cited research finding that school misbehavior rates differ by race. A highlighted portion of that report notes that “researchers” had “analyzed the specific circumstances underlying these suspensions and discovered that ‘the racial gap in suspensions was completely accounted for by a measure of the prior problem behavior’ of the student.” An unhighlighted portion of that report points out that
research studies reveal that black youth, in comparison with their white counterparts, are … disproportionately involved in delinquency and crime (Earls, 1994; Hawkins, Laub, & Lauritsen, 1998), and are more likely to behave in ways that interfere with classroom and school functioning (Beaver, Wright, & DeLisi, 2011). These studies, and others from various disciplines, suggest that the school disciplinary rates may also reflect the problematic behaviors of black youth—problem behaviors that are imported into schools and into classrooms.
