Fairfax School Board Sued Over National Merit Secrecy

Mark Spooner | Fairfax Schools Monitor

Fairfax Schools Monitor has sued the Fairfax County School Board to compel the release of its factual findings concerning the National Merit “commended student” controversy.  The suit was filed on April 27 in the Fairfax County General District Court under the Virginia Freedom of Information Act. (“FOIA”).

Background

In December 2022 an article in the City Journal reported that administrators at the prestigious Thomas Jefferson High School for Science and Technology (“TJ”) had delayed informing students of their high achievements on the PSAT examination administered by the National Merit Scholarship Corporation, and had downplayed the significance of the awards when the information was released.  The article is HERE.  The administrators reportedly justified their actions by explaining that they didn’t want to hurt the feelings of other students who hadn’t done as well.  The article quoted one administrator as saying, “We want to recognize students for who they are as individuals, not focus on their achievements.”

The article created a firestorm of controversy, both in the local media and nationally.  The incident seemed to illustrate how the School Board’s preoccupation with “equity” had morphed into a war on merit.  Just a year earlier, the Board had eliminated the entry exam for TJ, and had otherwise revamped the admissions criteria, in order to reduce the predominance of Asian Americans in the student body and to increase the number of other minorities.

The Superintendent of the Fairfax County School System (“FCPS”) initially stated that the failures at TJ appeared to be due to a one-time human error, but the controversy heightened when it was revealed that the same failures had occurred at other county high schools.  The Superintendent quickly announced that an independent third party would be hired to investigate the facts, and she promised to be transparent with the findings.  A Richmond-based law firm, Sands Anderson PC, was hired to conduct the investigation.

Limited Release of the Investigation’s “Key Findings”

On March 29 the school system published a document labelled as the “Key Findings” of the Sands Anderson investigation.  The document is HERE.  The actual report was not released.  The “Key Findings” document attributed all the failures to logistical issues and totally rejected the suggestion that a desire to downplay merit played any role.  Indeed, the document stated that Sands Anderson had found “no evidence” to support such an allegation.

The “Key Evidence” publication was written in a defensive, argumentative, cast-all-the-blame elsewhere manner, and it posed as many questions as it answered, as summarized in a March 30 article on this site.  See HERE.  For example, if the law firm’s investigation was a complete vindication, why wasn’t it being released?  How could it be that there was “no evidence” that “woke” considerations played a role in the high schools’ decisions, given that a mother of a TJ student had quoted school administrators of admitting otherwise?  Did the Sands Anderson law firm even interview the mother?  How complete, and how objective, was the law firm’s investigation?  What witnesses were interviewed, and what documents were reviewed?

Given these and other questions, Fairfax Schools Monitor submitted a FOIA request on March 30.  FCPS responded on April 24, after having invoked every possible delay.   It refused to produce the Sands Anderson report, or any part of it, based on two alleged exemptions from the FOIA disclosure requirements — “attorney-client privilege” and an “authorized closed meeting” provision.

The Lawsuit

We filed a petition in the Fairfax County General District Court on April 27 to compel production of the Sands Anderson report and related materials.  The court filing is HERE and HERE.  

The petition contends that the claim of “attorney-client privilege” has no merit.  The privilege applies when legal advice is being given by a lawyer to a client, but the Sands Anderson report does not appear to do that.  Based on how it has been described by FCPS itself, the report isn’t a legal opinion letter; it is a factual report.  The facts could have been gathered and summarized by a management consultant, by an accountant, or by any other competent person or organization.  Hiring a lawyer to conduct a factual investigation doesn’t create any more of a “privilege” than hiring someone else to do the job.  And even if the Sands Anderson report did contain some snippets of legal advice, the proper remedy would be to redact the privileged excerpt and to disclose the remainder, not to withhold the entire document.

Even more fundamentally, any privilege that might apply has been waived by FCPS.  The “Key Findings” document supposedly discloses what Sands Anderson told FCPS in its report.  Once a person voluntarily discloses the substance of an attorney’s communication, any privilege that might have applied is waived.

These are basic principles of law, learned by every law student.   The in-house lawyer for FCPS  presumably knows the law and yet is fighting to keep the Sands Anderson report secret.  This raises real questions about what FCPS is trying to hide.

We will provide updates about the case as it proceeds.

P.S.  A couple of collateral documents were produced by FCPS in response to our request.  The most noteworthy disclosure in them is that FCPS paid the law firm $196,895 for its work.

This article was first published at FairfaxSchoolsMonitor.com (subscribe here).

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