PHILADELPHIA – The Tredyffrin/Easttown School District and the secretary of its Board of Directors have denied allegations from a local parent that his First Amendment rights were violated when he attempted to inspect records of Critical Race Theory curriculum being taught.
Benjamin M. Auslander first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 12 versus Tredyffrin/Easttown School District and Arthur J. McDonnell (in his individual and official capacities). All parties are of Chester County.
“Defendant Tredyffrin/Easttown School District openly maintains a CRT curriculum program for teachers, staff, and students. The curriculum and program are produced by a third-party vendor, Pacific Educational Group. The School District pays for the PEG CRT curriculum and program using taxpayer funds. Auslander is a parent of a student in the school district and a taxpayer in the school district,” the suit said.
“Auslander made a Right to Know Request on Jan. 19 for all records, lesson plans and materials prepared by PEG, the school district’s CRT consultant. On Jan. 26, defendants denied plaintiff’s request for copies of the PEG training materials asserting the materials were protected by copyright. On Jan. 26, defendants agreed to allow plaintiff to conduct an in-camera review of the PEG CRT training materials. However, Auslander was notified he could not copy or photograph the records because the documents were protected by copyright.”
The suit added that on Feb. 7, Auslander went to the Tredyffrin/Easttown School Board Administrative Offices located at 940 West Valley Road, Suite 1700, Wayne, PA 19087, to inspect the records and that defendant McDonnell was present at the inspection.
During Auslander’s review of the records he made verbal recordings on his smart phone of what his eyes were seeing, leading McDonnell to threaten Auslander with criminal and civil liability if he continued to record the sound of his own voice in this manner.
The suit explained that McDonnell threatened to hold the plaintiff liable under the Wiretapping and Electronic Surveillance Control Act for recording his own voice, and under copyright laws.
“Defendant Mr. McDonnell also called the school district’s attorney and threatened to call PEG’s attorney. After Auslander refused to stop recording his voice, defendant McDonnell terminated the meeting and ordered plaintiff to vacate the premises. Defendant McDonnell made these threats after consulting with counsel,” the suit stated.
“At all times, defendant McDonnell was acting as an actual or apparent agent or official representative of defendant Tredyffrin/Easttown School District. Defendant McDonnell, was or should have been aware that by threatening, coercing and ending Auslander’s inspection of public documents because he was exercising his First Amendment right to speak, defendant McDonnell was violating Auslander’s clearly-established rights. Defendants knowingly violated Auslander’s clearly-established constitutional rights.”
UPDATE
In an answer from the defendants on May 9, Auslander’s allegations were essentially denied in their entirety.
“Plaintiff failed to sufficiently state any claims upon which relief can be granted. Defendants’ are entitled to immunity as to the allegations and claims in the complaint. Plaintiff’s claims are barred because this Court does not have jurisdiction over challenges to responses to right-to-know requests or appeals from decisions of the Pennsylvania Department of Open Records,” the answer’s new matter stated.
“Plaintiff’s claims are barred by the doctrines of laches, consent, waiver, estoppel, collateral estoppel, res judicata and/or acquiescence. Plaintiff’s claims are barred by the doctrine of unclean hands and other equitable defenses. Defendants reserve the right to rely on additional defenses if and when such defenses become known during the course of litigation. Defendants reserve the right to amend this answer to assert any other defenses that become known or available.”
The same day, the parties agreed to a stipulated confidentiality order pertaining to proprietary information connected to the PEG education materials in this case.
For counts of restricting First Amendment rights and retaliation in violation of the First Amendment to the U.S. Constitution, the plaintiff is seeking the Court to order the following reliefs:
• To enter a preliminary and permanent injunction that prevents defendants from interfering with plaintiff, Auslander’s, constitutionally-protected First Amendment rights;
• To enter a preliminary and permanent injunction prohibiting defendants from interfering with plaintiff, Auslander’s, constitutionally-protected First Amendment right to video and audio record or copy or photocopy all records defendants produced in response to plaintiff’s right to know request;
• To enter a preliminary and permanent injunction prohibiting defendants from preventing plaintiff, Auslander, from making video or voice recording or copies or photocopies of any material prepared by Pacific Educational Group;
• Awarding plaintiff nominal damages, costs and attorneys’ fees under 42 U.S.C. Section 1988, and all other relief that the Court deems just, proper, or equitable.
The plaintiff is represented by Walter S. Zimolong and Nicholas R. Barry of Zimolong, LLC, in Villanova.
The defendants are represented by Brian Richard Elias and Christina Gallagher of Wisler Pearlstine, in Blue Bell.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-01425
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com