Legal Brief                                                         Page 10


Frivolous Lawsuits Targeting





An elementary school in Illinois was sued for using a 1st-grade reading series that included Halloween stories featuring witches and a giant. The parents claimed these readings undermined their religious beliefs. Although the school district won, the case went all the way to the Seventh Circuit Court of Appeals, and the district’s legal costs likely went well into six figures.

Another Illinois school district had to endure multiple legal challenges over whether a parent’s complaints against the board of education could be discussed in a closed session. Luckily, the board’s practices and policies were clearly established, meaning the complainant couldn’t use allegations of noncompliance to force the district to compromise on the underlying dispute.

Draining Resources
I am not writing about how to decide the merits of controversial issues, which is fundamentally a decision for local school boards and superintendents. What concerns me is the growing number of individuals and groups that decide if they cannot win on the merits, they will simply wear down the school district until they get what they want.

Several of my clients report an increase in the number and detail of Freedom of Information Act, or FOIA, requests they have been receiving. E-mail campaigns may be waged by these forces to discredit the schools, distorting facts and creating community dissension. Or there will be a rash of complaints to local authorities alleging, without any real basis in fact, violations of local open meetings laws.

As a result of these and other tactics, school districts are required to devote an increasing amount of time and money to managing these heated issues instead of carrying on the business of educating students. Occasionally, lawsuits follow, further draining school resources.

Managing these situations effectively requires superintendents to balance a number of competing interests, while complying with the various laws that affect such relationships (FOIA, Open Meetings Acts, state laws on curriculum issues, first amendment issues). Although there is no way to prevent people from exploiting laws intended to foster open government, schools can take steps to manage these situations effectively.

Updated Protocols
First, make sure your policies comport with the law, while still allowing you to control the flow of public business. If you haven’t reviewed these policies lately, make that a top priority. Policies to review include FOIA requests, open meetings laws (especially agenda-setting, closed session and public-comment protocols) and procedures for curricular and book challenges.

Second, once an issue arises, consult your legal counsel immediately so that you can have assistance in responding to requests, analyzing the legal requirements and crafting written responses that make clear you are in compliance with all your legal requirements. Freedom of Information Act requests, in particular, may include excessive and intrusive demands, so you need to know what your state may allow you legally to withhold. Legal counsel also should review with the school board what it can and cannot do in responding to these challenges.

Finally, it is critical to reach out to the broader community so that everyone’s voice gets heard, not just the protesters. Use opinion leaders within the community to speak out both on the underlying issue and on the issue of civil discourse.

Often, the people who support the school district don’t know there’s a problem and don’t realize the board is getting a skewed perception of the extent of community discontent. (Ten or 20 angry citizens speaking at a board meeting makes it seem like the entire community opposes X, but the fact may well be that only those few people do; no one else even thought it was enough of an issue to come and tell the board to hold to its course.)

In the end, the best that can be said is that some of these incidents can be made into teachable moments, to educate both your students and your community about how to engage in disagreements in a civil, productive way instead of by ambush, innuendo and harassment.

Nancy Krent is a law partner with Hodges, Loizzi, Eisenhammer, Rodick & Kohn in Arlington Heights, Ill. E-mail: nkrent@hlerk.com

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