School District Must Release E-Mail List of Parents to Whom It Sent Various Ideological Advocacy Messages

"[T]he District wants to be able to use government resources to collect and utilize these e-mail addresses to promote and advance the particular 'community outreach' issues and positions of District (government) leaders while denying others in the community the opportunity to utilize the e-mail addresses to share differing viewpoints."

From yesterday's Wisconsin Court of Appeals decision in Gierl v. Mequon-Thiensville School Dist. (written by Presiding Judge Mark Gundrum and joined by Judges Lisa Neubauer and Shelley Grogan):

[Plaintiff Mark] Gierl's petition for a writ of mandamus states:

On June 24, 2020, the District sent out an email inviting "parents and guardians in our school community to participate in a webinar this Friday on the topic of privilege and race." The email described the webinar, titled "The Talk: A Necessary Conversation on Privilege and Race with Our Children," as including topics such as the "transitional model of change," the "spectrum of racism," the "Phenomenon of the George Floyd case" and "interventions to help become a powerful ally."

Gierl subsequently requested from the District the list of e-mail addresses to which the invitation was sent. In response, the District sent Gierl a letter indicating the invitation was sent to "all parents and staff members" of the District. The District provided the list of all staff e-mail addresses to which the invitation was sent but refused to provide the list of parent e-mail addresses, stating, "the District does not believe that there is a statute or case explicitly requiring or prohibiting disclosure of the list of parent email addresses, and as such, we have decided to respectfully decline your request for parent email addresses." …

The Court of Appeals disagreed with the school district:

[T]he legislature has written:

[I]t is … the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them…. [P]roviding persons with such information is declared to be an essential function of a representative government …. To that end, [WIS. STAT. §§] 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

As our supreme court has noted, this statement "is one of the strongest declarations of policy to be found in the Wisconsin statutes." Following this declaration, Wisconsin maintains a "strong presumption of complete openness with regard to public records."

The District asserts that the parent e-mail addresses do not relate to the "affairs of government and the official acts of those officers and employees who represent them." Like the circuit court, we disagree. The District, a government entity, uses government resources to collect e-mail addresses of District parents and then uses those e-mail addresses to promote and advance selected matters of interest to District personnel….

{[I]n addition to the e-mailed invitation for "The Talk: A Necessary Conversation about Privilege and Race with Our Children," the e-mail list was used by the District for e-mails (1) encouraging the parent recipients to vote in an upcoming District building referendum while touting the "importan[ce]" of the referendum passing, such as referring to the referendum question as an "important item[ ] … that seeks to address high-priority challenges in our public schools related to growth and capacity" and telling e-mail recipients that "85 percent of [stakeholders participating in a recent community-wide survey] believe the District's facility needs should be addressed now"; (2) directed to "Staff, Parents, Guardians, and Members of Our Community" related to "[t]he death of George Floyd at the hands of police officers, one of many in our country's long history of injustice based on race" and referring to "the stark reality that there are still mountains to move and institutions to reshape to eliminate race-based inequities and eradicate racism in this country…. And that change can't happen until our whole society accepts that validity and the history behind it"; (3) asserting the District's "commitment to educating our community about racial equity and inclusion and the need to stamp out systemic racism"; and (4) touting District advocacy for "topics" and "proposed bills" in the legislature. Gierl further avers and the record evidence shows that in "The Talk," a slide was included with a note at the bottom that read: "'Blacks' can be substituted with people of any nationality/ethnicity other than European white since it's people of European dissent who have held institutional power in America since its inception" and that the superintendent closed "The Talk" with his own comments encouraging parents to "advocat[e] at the community-wide level for the change you see needed. It can't just happen in the hallways of the school."} …

While the District relies upon the fact that it has already informed Gierl who it was sending e-mails to, i.e., "District parents," that response only identifies the general body of persons; it does not identify the specific individual's e-mail contact information the District was using. Providing the actual e-mail addresses, as requested by Gierl, does this. Importantly, the e-mail list is the actual "record."

In refusing to release the parent e-mail addresses, the District, without on-point statutory or case law support, contends the balancing test favors keeping the list secret because releasing it would have a "chilling effect" on parents' willingness to provide their e-mail addresses to the District and thus stifle District-parent communications. But, as the circuit court noted, "[W]hat's missing in the record is support for that position that a chilling effect will occur. In the Court's mind[,] it's largely speculation. Because the record here just does not suggest that the district has any support for that chilling effect argument." The court relatedly noted that the record shows that in 2015 the District released its then-current parent e-mail list to a third-party requestor, a former mayor for the City of Mequon, yet no chilling effect was observed following that release. "[A]fter the 2015 disclosure[,] there's no evidence that the school district received any comments from those persons that may have been receiving emails from whoever the former mayor disclosed the list to, whether it be library, or nature center, or anyone else for that matter. And the district wasn't able to demonstrate that anyone had even come to the district to suggest or request that their information should be withheld or not disclosed." …

The District also expresses concern that Gierl's purpose in requesting the e-mail addresses is to "SPAM [the parents] with his political ideology." Essentially, the District is concerned that Gierl disagrees with some issues or positions about which it has communicated with parents using the e-mail list, and it fears Gierl will utilize the list to identify and perhaps organize parents who might share his views regarding the District's positions.

In short, the District wants to be able to use government resources to collect and utilize these e-mail addresses to promote and advance the particular "community outreach" issues and positions of District (government) leaders while denying others in the community the opportunity to utilize the e-mail addresses to share differing viewpoints. Gierl states: "If the District had the discipline to limit itself to emails about bus schedules, enrollment, office closures and the like, the public interest in accessing this Distribution List would not be as high." We agree; the balancing test does not tolerate utilizing taxpayer resources for an ideological or political monopoly….

Congratulations to Tom Kamenick (Wisconsin Transparency Project), who represented the plaintiff (and who comments here as tkamenick).

Comments

[Longtobefree]

Fascists gotta do fascism.

[Mr. Bumble]

Like the "Outer Limits" come true but everywhere:

"There is nothing wrong with your television set. Do not attempt to adjust the picture. We are controlling transmission. If we wish to make it louder, we will bring up the volume. If we wish to make it softer, we will tune it to a whisper. We will control the horizontal. We will control the vertical. We can roll the image, make it flutter. We can change the focus to a soft blur, or sharpen it to crystal clarity. For the next hour, sit quietly and we will control all that you see and hear. We repeat: There is nothing wrong with your television set. You are about to participate in a great adventure. You are about to experience the awe and mystery which reaches from the inner mind to... The Outer Limits."

[Frank Drackman]

That opening scared the shit out of me as a young child. Then the actual program was just cheezy monsters and special effects.

[Mr. Bumble]

Well, it was 1963 and television production values were pretty cheezy all around back then.

[David Nieporent]

I mean, do you just post random bumper stickers when the whim strikes you? What exactly is the "fascism" here?

[Jazzizhep]

I would call controlling information in the pursuit of govt action is fascist.

[tkamenick]

Really thrilled to see my case on the Conspiracy! One thing I'd like to point out is that our state's Attorney General has issued formal opinions since the 70's opining that government distribution lists are public records that should be released absent some unusual and particular threat to somebody's safety. This is the first published court decision to reach the same conclusion though, so it should be great for transparency around the state. An earlier Wisconsin Supreme Court case did require the release of students' parents' home addresses, but the arguments in that case were solely about the statutory definition of "pupil records" and didn't address the balancing test, which was the focus of this Gierl case.

[ThanksForTheFish]

So if the district limited communications to school business, without the clear perspective that was displayed, would the email list still be required to be public?

[tkamenick]

That's a different case, of course. I acknowledged in my arguments that the public interest in accessing the email addresses would not be as strong at that point. Attorney General guidance suggests that even routine communications would still require the release of government distribution lists, but those were in the context of legislators or executive branch agencies. It's possible that courts would find there's a greater public interest in preserving efficient communications between schools and parents than legislators and constituents.

[Sarcastr0]

Wow - congrats!

[EscherEnigma]

Cool, so you have no respect for other people's privacy.

[Noscitur a sociis]

So... why do you want this list of emails addresses, exactly?

[Illocust]

Good on the court for recognizing that promoting a political belief puts the local governments actions in a different light than just sending out regular updates on non-political items.

[bevis the lumberjack]

A great example of a school district that has strayed way off mission.

[mydisplayname]

The Gauleiter of the Mequon-Thiensville School District deserves this year's Goebbels Award. Perhaps exiled President Podesta could encourage Hansjörg Wyss or Herb Sandler to fund a cash reward of some sort.

[Dr. Ed 2]

WOW!

This will have a *big* impact on fascist gulags like UMass Amherst, where there is no longer a student phonebook published and only favored groups are permitted to send out all-campus emails.

Hence all the left-wing groups get to announce their events. And then as to the racially-specific groups, they get lists with the contact information of all the students of that race on campus.

[ThanksForTheFish]

Not necessarily. This case seems specific to Wisconsin open record laws.

[Dr. Ed 2]

Public records laws are remarkably similar.

[David Nieporent]

This is yet another Dr. Ed story that is so obviously true, like Bigfoot and Area 51.

[Frank Drackman]

There is a talk that nonblack Americans have with their kids, too. My own kids, now grown 29 and 26, have had it in bits and pieces as subtopics have arisen. If I were to assemble it into a single talk, it would look something like the following.

1: Avoid concentrations of blacks not all known to you personally.

2: Stay out of heavily black neighborhoods.

3: If planning a trip to a beach or amusement park at some date, find out whether it is likely to be swamped with blacks on that date (neglect of that one got me the closest I have ever gotten to death by gunshot).
Do not attend events likely to draw a lot of blacks.

4: If you are at some public event at which the number of blacks suddenly swells, leave as quickly as possible.

5: Do not settle in a district or municipality run by black politicians.
6: Before voting for a black politician, scrutinize his/her character much more carefully than you would a white.

7: Do not act the Good Samaritan to blacks in apparent distress, e.g., on the highway.

8: If accosted by a strange black in the street, smile and say something polite but keep moving.

9: Lord loves a workin' man.
10: See a Doctor and get rid of it.

Frank

[Old Smokin' Egg]

I'm trusting that the court copied the slide correctly, because I haven't got the stamina to sit through the hour-plus video of "The Talk", and it doesn't appear to be possible to page through the slides. But if the school district really put out a slide including the passage "it's people of European dissent who have held institutional power", should they be in the education business at all? It's "descent", folks—something you'd have learned if your English classes were more about vocabulary, spelling, and grammar, and not so much about battling systematic oppression.

[tkamenick]

That was a typo in the court's decision.

[subpatre]

It's dissent the court recognized many of America's founders were religious descenders of European decent. 😉

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

On the other hand, immigrants to America from Europe could indeed be considered dissenters.

[Ben_]

People who want to seriously discuss things like "Privilege and Race" only understand the world in terms of "an ideological or political monopoly".

[Frank Drackman]

Everyone says they want to talk about race, and then when you talk about race, they get mad that you're talking about race, and speaking of Race, why can't Asians drive?? I mean safely, or even just skillfully, just find me one decent Professional Driver of Oriental Origin, and I don't mean an actor from one of those stupid "Fast & Furious" movies, that's an example of bad driving.

[Rossami]

Wow, the District's comment about spamming email was a blatant own-goal. Of course that's what he wants to do - and it's identical to what you wanted to do (and did).

[David Nieporent]

It sounds like the district was misusing the lists, but this still doesn't sound like a good decision to me. When I provided my email to my kids' school, I did so for the school's use. If I had known it would be randomly given out to any schmoe who filed a public records request, I'd have approached it differently. (I'd probably have used a throwaway email address, instead of giving out the one that I only give out for high priority communications — like messages from my kids' school.)

[Absaroka]

That's kind of my take. I'll defer to the court on the law, but it seems bad policy to let government entities collect addresses (email or snail) and then release them, or use them for other than official business.

(as an aside, I note "The court relatedly noted that the record shows that in 2015 the District released its then-current parent e-mail list to a third-party requestor, a former mayor for the City of Mequon", so the district seems happy to release them for some not-official-business reasons)

[Jazzizhep]

It’s bad for the school district to use those emails for political advocacy. There might be a case against the school district for doing things that breach parents’ privacy concerns.

[Voize]

I agree with the sentiment, but is the beef properly with the court's decision or with the District's misuse? If the parents provided contact information trusting that it would not be used for political spam it is the District that violated that trust.

[David Nieporent]

Sure, but that injury isn't remedied by allowing even more people to spam you!

[EscherEnigma]

Since when is the identity of everyone that has a kid at a school something that anyone can request?

What an atrocious, privacy-violating decision. Bad on you, Wisconsin.

[shawn_dude]

A lot of states have "sunshine laws" that do this across a wide variety of records.

I have a negative gut reaction to having my email address exposed like this. But I don't think this is that big of a deal given today's spam-control technologies. The parent's will quickly block whichever crazy starts to send them B.S. I think the school should be required to let people know that their name, address, email, and presumably phone numbers are open to public records requests.

[Rossami]

Or alternatively, the school can refrain from using those data elements in ways that turn them into public records. A list of contact information collected for the sole purpose of calls by the school nurse or the attendance line, for example, would not be public records under the law.