Trib columnist Paul Rolly brought to light this morning a new tactic in the debate over November's voucher referendum: Intimidation.
He writes,
Voucher advocates who arm-twisted their bill through the Legislature last winter and now seem increasingly nervous the voting public will repeal it, apparently have a two-pronged approach to squelching the repeal effort. I wrote earlier about legislative leaders gathering a squadron of lobbyists to fight against the referendum that would repeal the law. Now, the pro-voucher cabal has employed veteran legal hit-woman Mary Anne Wood to intimidate the other side.
Wood, recently retained as the attorney for Parents for Choice in Education, wrote to Salt Lake County District Attorney Lohra Miller, with copies to the Utah Attorney General's Office and the Lieutenant Governor's Office, alleging criminal activity by the anti-voucher folks working to pass the referendum.
She alleges public school employees have criminally advocated their political cause against vouchers on school grounds and possibly during times for which they are paid. Her example was materials prepared by the anti-voucher group Utahns for Public Schools made available to parents at a back-to-school night held at South Jordan Elementary School, (a legal activity, according to attorneys for the Office of Education).
Another crime, she says, is a memo distributed to school employees by Office of Education attorney Carol Lear spelling out what activities are legal and what are not. Although Lear never advocates one cause over another in the memo, Wood alleges it is a pro-voucher memo.
I haven't seen the letter that Mr. Rolly refers to, from Ms. Wood to Ms. Miller, but I did receive in email a copy of another letter from Ms. Wood to a school principal, dated August 20. It's clearly from the same attorney that Mr. Rolly mentions, and it's on "Wood Crapo LLC" letterhead with the law firm's partners listed across the top. Rather than try to summarize it, I'll just copy it here.
Dear [Name],
Parents for Choice in Education ("PCE") -- the leading proponent of school vouchers in Utah -- has engaged our firm to provide legal assistance relating to the upcoming referendum and apparent violations by public schools of the Political Activities of Public Entities Act, Utah Code Ann. *20A-11-1201 et. seq. (the "Act").
The purpose of this letter is to remind school officials of the requirements of the Act. If you have access to a school attorney, we invite you to review this letter with him or her and to have your attorney contact our office with any questions or comments.
Public officials have responsibilities to abide by the Act, and can be subject to criminal penalities for violations. PCE also believe that it has legal rights unde the Act, and will seek civil redress in federal court of those rights continue to be violated.
PCE has just lodged a complaint with the Lieutenant Governor and the Salt Lake County District Attorney about a school which allegedly distributed anti-voucher materials at a recent Back-to-School Night. PCE did so reluctantly, and only because there have been repeated instances in which it has appeared that some school officials are either unaware of or unconcerned about the prohibitions of the Act.
Because of the important of political neutrality of taxpayer funded institutions to a fair process, PCE intends to follow up on and report any incidents which, it believes, violate the Act, in addition to pursuing the aforementioned civil actions.
Utah Code Ann/ *20A-11-1203 (1) prohibits "expenditures from public funds ... to influence a ballot proposition." The term "expenditure" is broadly defined to include "anything of value." The provision of any school venue and/or access to school constituents is clearly valuable, and therefore would fall within that definition. We therefore believe that allowing school property or school events to be used for advocacy -- even by non-employees or at times other than "contract hours" -- violates the statute.
Utah Code Ann/ *20A-11-1203 (4) allows a public entity to "provid[e] factual information about a ballot proposition to the public, so long as the information grants equal access to both the opponents and proponents of the ballot proposition."
The Utah courts have not interpreted this provision. But we believe that this provision does not permit simply opening up school venues to groups or individuals advocating for or against Education Vouchers, even if both sides of a question are represented, for at least two reasons.
First, materials provided by advocacy groups are not always "factual." Such materials often consist of opinion or non-factual predictions. Second, the word of the Act suggests that the school must make an affirmative decision to compile "factual information," and then to include pro- and con- statements within that "information."
But if, in consultation with any school attorney, you reach a different conclusion, and if you determine that the Act allows schools to simply permit advocates for one position or another to use the school venue, then, at the very least, PCE has rights under the Act and the due process clauses of the state and federal constitutions to equal access. This means that PCE must be permitted to participate on an equal basis in any discussion with school constituents of the Education Voucher issue.
There are hundreds of schools in Utah. The burden cannot be on those with opposing viewpoints to discover when the individuals running each school might decide to make the school a forum for a particular point of view on the referendum.
Due process always requires that a rights holder receive reasonable notice and an opportunity to exercise those rights. Therefore, due process and common sense require that, if you make a determination that any discussion of, or distribution or materials about, the Education Voucher referendum will be permitted at any time on school property or at any school-related function, PCE is entitled to reasonable advance notice, and an opportunity to be present on an equal basis.
AGAIN, WE BELIEVE THAT THE CORRECT READING OF THE ACT WOULD PROHIBIT MAKING SCHOOL PROPERTY OR FUNCTIONS AVAILABLE FOR ADVOCACY BY ANYONE. WE THINK THAT, IF THE SCHOOLS TAKE ANY PART IN THE DISCUSSION OF THE REFERENDUM, THE ACT REQUIRES SCHOOLS TO LIMIT THEMSELVES TO A CAREFUL COMPILATION OF STRICTLY "FACTUAL INFORMATION" REGARDING THE EDUCATION VOUCHER REFERENDUM, WITH PROPONENTS AND OPPONENTS HAVING EQUAL ACCESS TO THE PROCESS OF COMPILING THAT INFORMATION, AND THE OUTCOMES.
BUT, SHOULD YOU, IN CONSULTATION WITH YOUR SCHOOL ATTORNEY, DECIDE TO PERMIT DISCUSSION OF SCHOOL VOUCHERS AND/OR THE REFERENDUM ON SCHOOL PROPERTY OR AT ANY SCHOOL-RELATED FUNCTIONS, OR THE MAKING AVAILABLE OF ANY MATERIAL RELATING TO THE REFERENDUM, PCE DEMANDS PROMPT NOTICE, SUFFICIENTLY IN ADVANCE OF ANY SUCH EVENT TO PERMIT PCE'S PARTICIPATION ON AN EQUAL BASIS.
NOTICE SHOULD BE GIVEN TO PARENTS FOR CHOICE IN EDUCATION BY PHONE, [NUMBER], OR E-MAIL AT [EMAIL ADDRESS].
Thank you in advance for your cooperation.
Very truly yours,
(Signed)
Mary Anne Q. Wood
Intimidation is right, I think, and Mr. Rolly is right, too, about the pro-voucher organization's nervousness that voters will repeal the voucher plan. A letter like this one sends a clear message to a school leader: In case you don't know what the law says, WE will tell you what the law says, and if your own school attorney disagrees with our version of what the law says, then you'd better let us know in advance every time you intend to allow any discussion of vouchers in your school, on your watch, or we will pursue legal action against you.
If I were a school administrator -- knowing that almost anything can be twisted into a violation of some law, and that the folks sponsoring these warnings appear to have unlimited funds from All Children Matter of Michigan to pursue that legal action -- I might be intimidated enough to shut down any conversation of the topic altogether, and to refuse to allow the school to be used for any public forum on the topic, and to refuse to allow anyone to bring any printed materials that referred to the referendum to any function at my school.
And because of the PCE letter's overemphasis on "strictly factual information," I might be intimidated enough to respond to any questions about the referendum with a pat answer like, "Media reports say there is a referendum on the November 6 ballot, and Utahns who are registered to vote may vote on the referendum on that day."
This is what happens when we stray so far from reading the actual text of House Bill 148 and explaining it to one another in plain English. If the plan was really that great, I'd think those supporting it would be proud to explain it line by line, piece by piece. Instead, there are letters threatening to take legal action against school leaders if they allow anyone on campus to talk about the plan, weigh what they know about it, and share their opinions and Utahns.
I have received, too, the memo sent by the Office of Education. (Thanks!) It explains, as Mr. Rolly says, "what activities are legal and what are not." The last sentence of Mr. Rolly's item on this memo confuses me, because I've read the memo for myself and I agree with him that Ms. Lear "never advocates one cause over another", yet the PCE attorney says it is a "pro-voucher memo" and a violation of the law. But wait -- if it's a pro-voucher memo, then why is PCE complaining?
Here's Ms. Lear's note:
POLITICAL ACTIVITIES In Public Schools and/or by Educators
The following are legal and ethical activities:
1. Educators may meet together–outside of contract time, even following a required meeting–to discuss political ideas and activities.
2. School buildings and school facilities (meeting rooms, copy machines, school equipment) must be available fairly and even-handedly to all organized groups and points of view. Administrators are not required to notify voucher supporters of upcoming school meetings or events.
3. Educators may provide factual information at school community council meetings, PTA meetings and other voluntary meetings.
4. Educators may inform patrons of political and education issues through school wide websites, newsletters, school TV announcements, etc. Examples: “SLC voters can hear mayoral candidates at 7 p.m. at West High School” or “Pro voucher information is available in the main office.”
5. Educators can explain their personal opinions to parents or patrons on matters of public concern, upon request. Extended discussions should occur during non-contract time.
Educators should avoid the following activities:
1. Educators should not contact people about their political positions using school email, mail, school directories or other school resources.
2. Educators should not fund-raise or campaign during contract time or PAID association leave time.
3. Educators should not wear political buttons advocating one viewpoint during contract time. Buttons or t-shirts that advocate “VOTE!” or “We love America” are fine.
4. Educators should not try to convince employees whom they supervise. Answering questions and providing factual information are fine.
All of which sounds like common sense to me.
