Earlier, we discussed Biden administration rules that restricted charter schools (which left-wing teachers unions oppose), and gave local school officials more leverage to block them.
The Bader Family Foundation filed a lawsuit over the failure of the Education Department to respond to a Freedom of Information Act request about those rules and the influences that led to them.
But the Education Department has continued to cite FOIA exemptions to withhold most of the relevant records. This month, it has withheld all but 18 of the 598 pages it processed as part of its monthly installment of records. Pages 3-573, 588-594, and 597-98 were withheld in their entirety. There were more limited redactions on each of the remaining 18 pages. You can see those records at this link.
Similarly, last month it totally redacted all but four of the 574 pages it processed in October, as you can see from the records it produced, which are available at this link.
The wholesale redactions make it harder to assess any unstated reasons or motives the Education Department may have had for its rules, rules that were criticized as harmful and unjustified by entities across the political spectrum, ranging from the progressive Washington Post to non-partisan think-tanks and conservative legal foundations.
Among the things withheld by the Education Department are “the four issues we have to respond to DPC on” regarding the rule. The Domestic Policy Council (DPC) drives the development and implementation of the President’s domestic policy agenda in the White House and across the Federal government, ensuring that domestic policy decisions and programs are consistent with the President’s stated goals. T
So the White House was obviously keenly interested in the rule, but the redaction makes it impossible to see what concerns it had about the rule, or what ulterior motives it may have had for approving the rule. (The “four issues we have to respond to DPC on” are mentioned on page 2 of the most recent batch of records, in an email from the Education Department’s Jessica Cardichon).
Over the past six months, thousands of pages of records have been redacted in their entirety by the Education Department in the batches of records it released. That defeats FOIA’s whole purpose as “a means for citizens to know ‘what their Government is up to.’” The Supreme Court stressed that such knowledge is “a structural necessity in a real democracy.” As one president declared, a “democracy requires accountability, and accountability requires transparency.” The FOIA “encourages accountability through transparency.”
The Supreme Court has explained that the “basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”
As noted earlier, upon reading the first set of released records, which are available at this link, a constitutional lawyer said “three things” jumped “out at” him: (1) agency officials “called a meeting because of” the Washington Post “editorial calling out the proposal as being terrible for disadvantaged kids, and then also circulated a piece by” the Fordham Institute, criticizing the Education Department’s proposed rule, yet went forward with it anyway; “(2) they were absolutely (maniacally) dedicated to issuing it over the July 4th holiday, despite the number of comments,” showing a hasty, ideologically zealous approach to agency decisionmaking; and “(3) they note that they can just plug in the weighting of the priorities” contained in their rule — the “competitive, investigational or mandatory” priorities “in their matrix” — “to generate any future grant application.” As he observed, that “throws some cold water on their insistence” in litigation over the rules “that they won’t really be using them in the future,” supposedly rendering legal challenges to them moot.
The lawyer also found interesting the fact that the office at the Department of Education office responsible for the charter school rules was being influenced by offices in the Department of Education that don’t have any expertise in charter-school issues, but are heavily fixated on racial bean-counting at the expense of educational innovation, such as the Office for Civil Rights (OCR). On page 525 of the first set of released records, a Biden administration official says, “I like the OCR revised sentence.”
