Threats of litigation undermine efforts to hold elected officials accountable

“An evil magistrate intrusted with power to punish for words, would be armed with a weapon the most destructive and terrible. Under pretence of pruning off the exuberant branches, he would be apt to destroy the tree.

Benjamin Franklin
© Copyright Richard Croft and licensed for reuse under this Creative Commons Licence

In the summer of 2019, Justin Parmenter and Kim Mackey were among education activists who were hard at work raising public awareness about two critical issues.  Parmenter is a Charlotte, NC middle school teacher whose writing for his website Notes from the Chalkboard and elsewhere has kept the public informed on education issues and policymakers on their toes since 2016.  Mackey teaches high school near Raleigh and is newly active in providing insight on education policy that moves people to civic engagement through her blog Educated Policy.

The first issue was that Superintendent Mark Johnson had announced his surprise decision to award a contract for the state’s K-3 reading assessment to a computer-based company called Istation–a move which meant significant changes for our youngest readers.  The other was State Treasurer Dale Folwell’s Clear Pricing Project, which had more than 720,000 teachers, state employees, and retirees on a crash course potentially leading toward catastrophic increases in medical expenses. The work earned both Parmenter and Mackey Cease and Desist letters threatening costly civil litigation. 

These educators are not alone in facing repercussions for their advocacy work in North Carolina.

Adrian Wood, North Carolina education activist and author of Tales of an Educated Debutante, received a Cease and Desist letter earlier this year from lawyers representing Wilmington charter school Coastal Prep Academy after expressing concerns about their lack of academic growth.  Wood has also been sued for defamation after shedding light on a case of alleged abuse of a special needs student at a West Virginia school.  

Wake County parent Blain Dillard is also currently facing a civil suit filed by Utah-based curriculum company Mathematics Vision Project after repeatedly claiming at school board meetings and in writing that MVP’s curriculum is harmful to students.

These developments could represent a new strategy to stifle public discourse at a time when public school students and employees are desperate for someone to speak out on their behalves.

Istation:  Justin Parmenter

On June 7, 2019, as many were focused on the beginning of summer break, Superintendent Johnson announced that he was awarding the contract for a K-3 reading assessment to a company called Istation.  Effective immediately, students in these grades would be taking reading assessments alone on a computer rather than reading to a human teacher.  

Two days later, Amy Jablonski, who had worked at the North Carolina Department of Public Instruction (DPI) under Mark Johnson until the end of December, 2018, revealed on social media that Johnson’s choice to award the contract to Istation directly contradicted the advice of a recommendation committee she had led.  

I spoke to Jablonski to get more detail about what had happened.  She said that a broad committee of evaluators had voiced concerns about Istation’s developmental appropriateness and its shortcomings as a screener for dyslexia, among other things.  The committee unanimously selected Amplify’s mClass tool and made that recommendation to Superintendent Johnson.

After corroborating Jablonski’s account, I wrote a blog post about the issue which was shared widely and helped to raise awareness at a time when not many people were talking about it.

As public outrage began to build, both DPI Communications Director Graham Wilson and Johnson himself stated the claims were false and the committee had made no recommendation.  Johnson also warned that non-disclosure agreements prevented those involved from discussing the process–an assertion that was quickly refuted when the agreement forms surfaced, showing any expectation of confidentiality had ended when the contract was awarded.

Hoping to get some light on the truth, I filed a public records request for documents related to the procurement process and encouraged others to do the same.  In mid-July, the Department of Public Instruction finally released records related to the procurement process and contract award. The documents showed that the committee had overwhelmingly recommended mClass.  

Johnson later canceled the procurement process entirely and created a new, smaller evaluation committee which included his close advisors but was almost entirely devoid of educators or subject matter experts with relevant experience.  This new committee recommended Istation instead.

Around the same time the records were released, Istation’s North Carolina attorneys threatened legal action against me, Amy Jablonski, and a school psychologist named Chelsea Bartel who had done a lot of research on Istation.  Their Cease and Desist Demand & Preservation Notice accused me of “making demonstrably false, misleading, and defamatory statements about Istation” and claimed my conduct amounted to defamation and tortious interference with a contract.  The attorney demanded I preserve all text messages, social media posts, voice mails, chat logs, emails, and any other relevant information or I could be severely sanctioned by a court for spoliation of evidence. 

It was the first time I’d been threatened with a lawsuit, and the idea of facing a $100 million corporation in court certainly gave me pause.  I stepped back and took a critical look at all of the work I’d done on Istation.  What I saw was my strong desire for truth and transparency in government and a system where our education policies are informed by the consensus of the people who are most knowledgeable about how they will affect our children.  That desire had led me to devote countless hours to  researching the matter, speaking with dozens of people who are deeply invested in education and government in North Carolina and learning much about everything from dyslexia to procurement rules.  In sharing information that I felt would be helpful to the public, not one time had I stated anything that I did not understand to be absolutely true. So, with a continued eye toward truth and accuracy, I followed the advice of a trusted friend and “kept cooking.”

Clear Pricing Project: Kim Mackey

This summer, a swirl of uncertainty pervaded conversations among North Carolina’s public school teachers and state employees as they tried to wrap their heads around State Treasurer Dale Folwell’s Clear Pricing Project (CPP).  The intent of this project was to decelerate rising health care costs through transparent pricing, but Folwell’s strategy to achieve this goal by threatening out-of-network status to providers who did not sign on made over 720,000 members feel like hostages in a health care showdown.

This confrontation rekindled other concerns I had with actions taken by the NC General Assembly and Treasurer Folwell since he took office in January 2017.  To me, this was just the latest action in a series of attempts to reduce membership in the State Health Plan. I chose to turn my mental notes into public ones. 

I wrote a blog post detailing my concerns and posted it on July 23.  On July 26, I created an infographic summarizing the key points.  This infographic of inconvenient truths was shared widely and accelerated a campaign against the CPP as teachers, state workers, and retirees contacted lawmakers to demand an end to their hostage status.  It also triggered my receipt of a cease and desist letter with a threat of possible civil litigation from Treasurer Folwell’s office.

The letter accused me of trademark infringement for using the logo of the State Health Plan of North Carolina within my “internet material.”  A State Health Plan attorney alleged that my use violated the Lanham Act by “causing confusion among the Plan’s customers” and “infringe[s] and dilut[es]” the confidence in the trademark and “goodwill of the Plan.” 

As I understand it, the protest material I created this summer is protected under the First Amendment with freedoms of speech, press, and petition as validated by precedents set by the National Labor Relations Board.  Nonetheless, I removed the logo as a courtesy.

To comply with the request, I was unable to just update the infographic in previous posts, and had to remove the entire post, which also erased most of the digital democratic dialogue that had taken place across social media.

A representative of the Treasurer’s Office acknowledged my compliance with their request and wrote, “We consider this matter resolved at this time.”

On Labor Day, I shared my cease and desist letter and related concerns, since a trend in advocates receiving such threats had appeared to emerge this summer.  As far as I could tell, I was the fourth North Carolina educator to receive such a letter. I hoped sharing this information would empower other possible recipients to share theirs.  I also hoped calling out this concerning fact pattern could discourage these potentially intimidating tactics.

After reopening the sign-on window in an attempt to keep the CPP on life support and facing growing public pressure,Treasurer Folwell relented.  To the relief of public school teachers , state employees, and retirees, there will now be two networks where new network signatories and current providers who did not sign on to the program will continue to be in-network.

Are these tactics designed to impose the will of the Treasurer’s Office?  Are they appropriate? After criticizing Plan decisions I was threatened with legal action.

Impact on public discourse and the path forward

While the real motivation behind these lawsuits and threats is only known by the actors behind them, the impact of those actions is crystal clear: people who face being dragged through expensive legal proceedings are less likely to voice concerns about our elected officials’ policy decisions.

Acts of litigation which are intended to intimidate and silence critics is sometimes known as strategic lawsuits against public participation, or SLAPP.  Twenty nine states currently have some sort of anti-SLAPP laws on the books.  In Texas, for example, courts can expedite dismissal of SLAPP suits and enforce sanctions against plaintiffs in such cases designed to “deter the party who brought the legal action from bringing similar actions” in the future.  There are no anti-SLAPP statutes in North Carolina.

Robust public discourse is essential to a healthy democracy.  It helps shape public opinion which, ideally, should guide policymakers who are elected to serve their constituents.  The Founders of this nation were concerned enough about protecting that discourse to craft the First Amendment to the United States Constitution. If threats of litigation diminish today’s public debate or silence criticism of elected officials, it’s something that should concern us all.

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