The dictionary defines “chutzpah” as “unmitigated effrontery or impudence; gall; audacity; nerve.”
Mr. Webster, meet the South Carolina Association of School Administrators.
While school administrator groups across the country stubbornly resist (and often actively oppose) extending free-speech rights to the students and teachers under their supervision, their brethren in South Carolina yield to no one in their First Amendment zealotry.
When it helps them keep secrets from the public.
The Association has convinced a state-court judge to exempt it from complying with South Carolina’s Freedom of Information Act (“FOIA”), on the grounds that opening its records to the public would compromise the organization’s right to formulate its political positions privately. The case is being appealed to the South Carolina Supreme Court.
The underlying case involves a radio talk-show host’s request for documents concerning the Association’s dispute with then-South Carolina Gov. Mark Sanford over the governor’s refusal to apply for federal stimulus money for schools, a decision the Association successfully challenged in court. (The radio host, Rocky Disabato, is known on the air as “Rocky D” to listeners of WTMA-AM in North Charleston.)
On Aug. 15, Circuit Judge G. Thomas Cooper Jr. granted the Association’s motion to dismiss Disabato’s open records suit. Cooper ruled that enforcing the FOIA statute against the school association would unduly burden the organization’s First Amendment rights of free speech and association:
By requiring a corporation to hold its meetings open to the public and disclose its records, the FOIA restricts a corporation’s ability and right to control its speech and not to speak publicly. … The First Amendment does not tolerate laws, such as the FOIA, that require an organization to hire lawyers or engage in litigation and case-by-case interpretations before determining that the organization can discuss political issues.
Having found that the open-records act infringes on freedom of speech, the judge held that the purposes of the Act — honesty and transparency in government — did not justify throwing open all of the Association’s records and meetings. Rather, he held, the Constitution requires a more narrowly tailored approach, such as simply requiring a one-time public report documenting how the Association spends any government funding it receives.
Disabato’s attorneys, from the Columbia law firm of Hall & Bowers, LLC, filed a notice of appeal Sept. 1 asking the South Carolina Supreme Court to hear the case. The case presents intriguing constitutional issues that, if not answered in Disabato’s favor, could cloud the enforceability of all state “sunshine” laws, especially as applied to quasi-governmental bodies like the SCASA.
While it is true that the First Amendment protects the right to speak anonymously — the Supreme Court said as much in a 1960 case, Talley v. California and has said so several times since — the full array of First Amendment freedoms does not apply to speech made in an official capacity by someone exercising governmental authority. Hence, in last term’s case of Nevada Commission on Ethics v. Carrigan, the Supreme Court had no difficulty upholding the constitutionality of Nevada’s conflict-of-interest rules, which require elected officials to refrain from trying to influence votes in which their friends or relatives have a financial stake. (A city councilman reprimanded for violating the ethics code had argued that restricting his participation in a council decision violated his First Amendment rights.)
This principle is now clear when the speaker is an elected official, but it may be less readily apparent when the speaker works for a nonprofit lobbying organization such as the school association. But the SCASA is not just any lobbying group.
Like all such state- and national-level school associations, the SCASA trades on its credibility as the official voice of the school administrators — that is, government officials — who make up its membership ranks. Nowhere on its website does the Association claim to be a private club dedicated to advancing the personal interests of its members — because advancing a political agenda benefiting principals and superintendents at taxpayer expense (and the dues and fees collected by SCASA do largely come from taxpayers) would be unseemly. Rather, the Association claims to speak for the welfare of everyone in the school community, including students.
If two principals got together and pooled their schools’ money to hire a lobbyist, that transaction — and all of the lobbyist’s activities on behalf of the two schools — would be open to public scrutiny under FOIA. If it is a public activity when two principals do it, then it cannot magically become a private activity when 200 principals do it.
Ironically, it is the depth of the Association’s involvement in politics that proved decisive in the circuit court’s ruling. The judge took pains to say that he was not ruling that FOIA can never apply to a private organization — just that it cannot apply to an “issue advocacy organization.” But when a private organization accepts taxpayer money and then uses it to promote changes in state law, the public’s interest in knowing what’s behind that agenda is at its highest.
The SCASA and all of its sibling school associations need to pick an identity and be true to it. Either they are private organizations dedicated to making life easier for school administrators — in which case, they should restructure as private clubs, and members’ dues should not be reimbursable from the taxpayers — or they are public entities with public disclosure responsibilities. In neither event should the First Amendment — which, after all, exists for the foundational purpose of promoting public involvement in government — ever be misapplied to “protect” the secrecy of government decision-making.