PHILADELPHIA – The Tredyffrin/Easttown School District and the secretary of its Board of Directors have won dismissal of litigation from a local parent, who argued 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.”
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.
UPDATE
On Oct. 31, each side filed opposing cross-motions for summary judgment.
On Dec. 5, a memorandum opinion from U.S. District Court for the Eastern District of Pennsylvania Judge Harvey Bartle III granted the defense’s motion for summary judgment and dismissed the case.
“The defendants here allowed the plaintiff to inspect the materials in issue and to glean all the ideas, concepts and principles about critical race theory the materials may have contained. The defendants simply prevented plaintiff from copying or recording PEG’s specific expression of those ideas, concepts, and principles. They acted as they did because of the School District’s contractual obligation to protect PEG’s copyright,” Bartle said.
“Under Section 106 of the Copyright Act, the author has the exclusive right to reproduce the copyrighted work in copies or phonorecords. Had the defendants not acted to prevent the recordings, they opened themselves up to being sued by PEG for breach of contract and violations of the Copyright Act. Complying with the Copyright Act under the circumstances presented here does not infringe upon the First Amendment. The First Amendment simply cannot be read to nullify the Copyright Clause and the Copyright Act.”
As to Auslander’s claim that that the defendants violated his First Amendment right because they prevented him from benefiting from the fair use doctrine, as part of Section 107 of the Copyright Act – which authorizes “limited use by others of copyrighted writings under certain circumstances.”
“Significantly, it is not the defendants who are relying on the fair use of PEG’s work in order to avoid liability. Defendants had a contractual right to use the materials in full. Rather, it is plaintiff who is invoking fair use as a sword against defendants to justify making his recordings and to impose liability on them for interfering with those recordings,” Bartle said.
“The problem for plaintiff, however, is that the defendants would have no way of knowing whether plaintiff’s recordings of the PEG materials and later use of what was recorded would constitute fair use. Defendants cannot be faulted for refusing to breach their contractual obligations to PEG and for not speculating to their peril that any recordings made by plaintiff would conform with the fair use doctrine. Plaintiff’s fair use argument is without merit. The conduct of defendants in protecting PEG’s copyright does not constitute a violation of plaintiff’s First Amendment rights.”
Bartle then granted the defendants’ motion for summary judgment and denied the plaintiff’s motion for summary judgment.
The plaintiff was represented by Walter S. Zimolong and Nicholas R. Barry of Zimolong, LLC, in Villanova.
The defendants were 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