Letter to Hon. Merrick Garland, Attorney General, Department of Justice - Judiciary Republicans Push Back On Justice Department Crackdown On Free Speech Of Parents Protesting School Boards

Letter

Dear Attorney General Garland:
On October 4, you issued a memorandum titled, "Partnership Among Federal, State, Local,
Tribal, and Territorial Law Enforcement to Address Threats Against School Administrators, Board
Members, Teachers, and Staff."1
That memorandum discussed a "disturbing spike in harassment,
intimidation, and threats of violence against school administrators, board members, teachers, and staff
who participate in the vital work of running our nation's public schools."2
You directed the FBI and the
various United States Attorneys to hold meetings with "federal, state, local, Tribal, and territorial leaders
in each federal judicial district within 30 days" in order to "facilitate the discussion of strategies for
addressing threats against school administrators, board members, teachers, and staff…."3
Your press
release for this memorandum involves numerous offices within DOJ, including, inexplicably the National
Security Division, the FBI, and DOJ's Civil Rights Division.4
A few days earlier, on September 29, the National School Boards Association sent a letter to
President Biden asking for help from federal law enforcement "to deal with the growing number of threats
of violence and acts of intimidation occurring across the nation."5
According to that organization, it is
seeing an increased number of "attacks against school board members and educators for approving
policies for masks to protect the health and safety of students and school employees" as well as "physical
threats because of propaganda purporting the false inclusion of critical race theory within classroom
instruction."6
The letter references the PATRIOT Act, a statute that helps the federal government fight
international terrorism, a reference that is entirely inappropriate.
We are concerned about the appearance of the Department of Justice policing the speech of
citizens and concerned parents. We urge you to make very clear to the American public that the
Department of Justice will not interfere with the rights of parents to come before school boards and speak
with educators about their concerns, whether regarding coronavirus-related measures, the teaching of critical race theory in schools, sexually explicit books in schools, or any other topic. Furthermore, we
urge you to instruct the FBI and the various United States Attorneys to make clear in the meetings
discussed above that speech and democratic processes, like those that occur at a local school board
meeting, must be respected.
To be clear, violence7 and true threats of violence are not protected speech and have no place in
the public discourse of a democracy. To the extent such violence and true threats of violence employ
mechanisms within federal jurisdiction, the FBI is squarely within its authority to help local law
enforcement investigate such crimes. However, the FBI should not be involved in quashing and
criminalizing discourse that is well beneath violent acts. The reported heated encounters between
concerned parents and school boards often involve speech that is clearly protected by the First
Amendment. Federal law enforcement muscle should never be used against protesting parents.For example, the NSBA letter references a school board meeting being disrupted in Florida9 and
cites to a Sarasota Herald-Tribune article discussing how the Sarasota County School Board might change
its public comment protocol because of that disruption.10 That article describes how "[o]ver the past year,
large crowds have shown up [at Sarasota school board meetings] to address items that are not always on
the agenda, like critical race theory, masking in schools, or complaints over items in the curriculum" and
that "boards throughout the state are examining their public comment protocols."11 Large numbers of
citizens expressing their concerns in an appropriate forum is not a matter for law enforcement, and it is
even more difficult to imagine what role federal law enforcement would play in such a scenario.
In the very next example, the NSBA letter cites to a Board of Education meeting in Gwinnett
County, Georgia being disrupted.12 In that situation, the supposed disruption appears to have been
participants refusing to wear masks while protesting the school district's requirement that students wear
masks in school.13 This too does not appear to warrant criminal investigation, especially by the federal
government. Rather, these actions look a lot like civil disobedience in protest of public policy, a tactic
often embraced as virtuous by Democrats when it comes to policies they oppose. Not wearing a mask in
a public place may or may not be a violation of a local law, but at most it is a petty offense wholly
unworthy of the federal government's attention and the sort of civil disobedience many Democrats would
embrace if the politics of wearing masks were reversed.
The NSBA letter describes14 a similar meeting in Clark County, Nevada in which participants
exchanged allegations of who was a "Marxist" and who was a "racist."15 According to a news report, that
meeting appears to have been disrupted on different occasions, but local law enforcement also appears to
have been capable of handling the disruptions.16 Then the NSBA letter describes school board meetings
in Michigan, one of which involved "the [school] board … call[ing] a recess because of opposition to
critical race theory." 17 The article cited in the letter about this incident described the school board
meeting being delayed to another day because "two board members were speaking to one another and the
audience kept interrupting…. after multiple warnings to the public, [the school board president]
announced that they would be going into recess and reconvene another day."18 Again, this appears to be
passionate civic engagement that local law enforcement can handle if it evolves into criminal action.
And at one point the NSBA letter states, "Other groups are posting watchlists against school
boards and spreading misinformation that boards are adopting critical race theory curriculum and working
to maintain online learning by haphazardly attributing it to COVID-19."19 It supports this claim with a
citation to a partisan Substack article titled, "TPUSA launches project targeting school member," which
attacks the right-wing group Turning Point USA.20 Law enforcement at every level must always remain
neutral in the marketplace of ideas, and your office should make clear that federal law enforcement may
never intervene in the marketplace of ideas.
The school board meetings at issue in the National School Boards Association letter largely
appear to involve parents being frustrated by COVID-19 mask mandates for children as well as the
possibility of school curricula newly incorporating the controversial academic discipline generally known
as critical race theory. Parents who get upset about these topics, and others, are engaging in speech that is
clearly protected under the First Amendment. We ask you to explain how any of this rises to the
definition of criminal harassment. After a year of prolonged school closures, even well after it was clear
that schools could safely reopen amidst COVID-19, parents are understandably asking questions and
seeking accountability. Even if tempers flare at school board meetings because of these and other topics,
that does not make the discussions of them any less protected under the First Amendment. As a former
federal appellate judge, you are surely well aware that the legal threshold in the United States for what
speech can be sanctioned because of its propensity for inciting lawless action is a high bar. In the seminal
Supreme Court case Brandenburg v. Ohio, the Court ruled that speech could only be sanctioned for
condoning illegal activity if that speech "is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action."21 We seriously doubt the discourse at school board meetings
across the country rises to this level.
Moreover, angry parents are not necessarily threatening parents, especially in the eyes of the law.
In Virginia v. Black, the Supreme Court ruled in 2003 that only "true threats" were unprotected by the
First Amendment, stating, ""True threats' encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals."22 Parents who are angry at school board members, and even verbally
attack them on a personal level, are not necessarily making true threats, and is not the job of law
enforcement -- and cannot be the job of law enforcement, especially the FBI -- to make sure parents are
nice to their elected officials. They are certainly not domestic terrorists who require the use of tools such
as the PATRIOT Act and the expertise of the National Security Division.
Violence and true threats of violence should have no place in our civic discourse, but parents
should absolutely be involved in public debates over what and how our public schools teach their
children, even if those discussions get heated. When you were sworn in as the Attorney General, you
took an oath to uphold our Constitution, and now your fundamental job is to protect the rights of all
Americans. Perhaps the most basic and most important right every American has is the right to question
our governments, from the heights of the Congress and the Presidency all the way down to the local
school boards. That includes asking them some very tough questions and requesting changes to school
policies. It is not appropriate to use the awesome powers of the federal government -- including the
PATRIOT Act, a statute designed to thwart international terrorism -- to quash those who question local
school boards. By even suggesting that possibility, important speech by American citizens will be chilled
in school board meetings across this country. Your job now is to make clear to all stakeholders and the
American people that such action is decidedly not the role of the federal government nor the role of any
other government in the United States -- in fact, it can never be.
If you have any questions, please contact John Schoenecker on Ranking Member Grassley's staff
at (202) 224-5225.
Sincerely,