Education Department illegally stonewalls FOIA request about ‘Free Speech Hotline’

Education Department illegally stonewalls FOIA request about ‘Free Speech Hotline’
U.S. Department of Education

The U.S. Department of Education continues to violate the Freedom of Information Act (FOIA), especially about subjects it doesn’t care about, such as freedom of speech.

FOIA requires federal agencies to provide a substantive response to Freedom of Information Act requests within 20 working days, and turn over the records “promptly” thereafter if they aren’t exempt from disclosure. But the Education Department still hasn’t turned over the records requested by a conservative newspaper in March, and it hasn’t even provided the legally-required “determination” about whether it will ever turn over those records.

That newspaper, The College Fix, reports:

In December 2020, the U.S. Department of Education announced the creation of a new “Free Speech Hotline” that college students and professors could use to file complaints if their First Amendment rights were violated on campus.

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One year later, the department is still withholding records detailing the nature of the complaints filed with the hotline.

On March 31, 2021, The College Fix filed a freedom of information act request with the department to see what types of complaints had been reported. Aside from being granted a waiver of the typical freedom of information act fees, The Fix has not heard back from the department regarding the request.

In April, a spokesperson for the department did confirm the hotline was still active.

“Under the previous administration, the Department established an email inbox to receive complaints regarding campus speech,” a spokesperson told The College Fix at the time. “At present, the Department’s new leadership is assessing this inbox and it remains online.”

But The College Fix heard nothing back from the March FOIA request, nor from a September 27 email sent asking for an update as to the status of the March request.

In December, a department spokesperson declined to comment on the status of the request, instead directing The Fix to the FOIA department, which had declined to respond to the September 27 email.

The request is currently listed on the department website as “processing.”

The hotline was created while Betsy DeVos, an appointee of President Donald Trump, served as Education Secretary. The current secretary is Miguel Cardona, appointed by President Joe Biden. An attempt by The College Fix to contact DeVos for comment was unsuccessful.

The impetus behind the hotline was a March 2019 executive order signed by Trump that would order institutions of higher education that receive federal research funds to enforce their free speech protections on campus. At the signing, Trump said he was taking “historic action to defend American students and American values that have been under siege.”

The department has also declined to divulge the number of complaints filed with the Free Speech Hotline. The address to report complaints is FreeSpeech@ed.gov.

In short, the Education Department still hasn’t responded substantively to The College Fix’s FOIA request, even after nine months.

The Education Department turns over records much faster after it gets sued for violating FOIA. Two FOIA requests were jointly submitted by Liberty Unyielding and the Bader Family Foundation (BFF) in late May, about school discipline and the 1619 Project. When the Education Department failed to respond within the required 20 working days over those requests, it was sued by BFF in two lawsuits filed in the U.S. District Court for the District of Columbia (see here and here). The Education Department then turned over what it claimed were all the records it was required to produce, in August and October of 2021.

Those lawsuits continue, because BFF has argued that the Education Department’s response was sloppy, overlooked responsive records, and improperly redacted information from the records it produced. BFF has asked the court to issue an order commanding the Education Department to conduct a more thorough search, and to turn over unredacted records.

But at least the Education Department released 1338 pages of records in response to one of BFF’s requests (about the 1619 Project), and 357 pages in response to the other (about school discipline), as a result of being sued.

The College Fix has received no records in response to its FOIA request at all. It also may need to sue the Education Department before it obtains any of the records it asked for.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com

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