It’s no secret that public school board meetings across the country have been tumultuous of late, with concerned parents showing up to criticize board policies that cover topics such as mask mandates, transgender bathrooms, preferred pronouns, sex ed curriculums and the teaching of Critical Race Theory (CRT).

Loudoun County, Virginia, in particular has been a flashpoint for parent protests against objectionable policies imposed by a progressive school board. One parent was arrested  at a board meeting concerning a proposed transgender policy when he attempted to voice his concerns about the alleged rape of his daughter in the girls bathroom by a gender-fluid boy wearing a skirt. A physical education teacher was suspended for speaking his mind about forcing school employees to use preferred gender pronouns for students not in keeping with their biological sex, while another resigned from her position in protest over proposed board policies concerning CRT.

On October 4, the United States Attorney General (AG), Merrick Garland, sent a “memorandum” to the directors of the FBI and the Executive Office for U.S. Attorneys, as well as to the head of the Department of Justice’s (DOJ) Criminal Division and all federal prosecutors, instructing them to use all of the DOJ’s “authority and resources” to discourage “threats of violence or efforts to intimidate individuals based on their views.”

The AG’s memorandum reportedly came in response to a letter from the National School Boards Association (NSBA) to President Joe Biden claiming that school leaders across the country were under threat from “domestic terrorism,” referring to the parent protests in various places. But not all state-level school board associations agreed with the premise of the NSBA letter. Eleven such state associations have severed ties with the NSBA over it.

Garland’s memorandum, according to a new lawsuit filed by the American Freedom Law Center (AFLC) on behalf of parents in Saline, Michigan and Loudoun County, Virginia, is a direct threat to their freedom of speech and the right to direct the education of their children, and constitutes unlawful discrimination based on political and religious beliefs and views.

According to the allegations in the lawsuit,

“The AG Policy creates a ‘snitch line,’ by ‘open[ing] dedicated lines of communication for threat reporting, assessment, and response.’  In short, the AG Policy is a direct threat and warning to parents and private citizens across the United States, including Plaintiffs, that the Department of Justice and its FBI will be investigating you and monitoring what you say at these school board meetings, so be careful about what you say and how you say it, thereby chilling such expression.

“The October 4, 2021, memorandum is a one-page screed that rubber-stamps the claims of ‘progressive,’ left-wing activists.  It fails to address the Department of Justice’s lack of jurisdiction to intrude on interactions between parents and local school boards in the absence of any federal crime, and it fails to account for the fact that the First Amendment protects political dissent—even dissent that rises to the level of intimidation or harassment.”

AFLC Co-Founder and Senior Counsel Robert Muise explained the basis of the lawsuit in a press release.

“The government is without authority to criminalize First Amendment activity that might cause another to feel ‘harassed’ or ‘intimidated,’ even if that is what the speaker intended, absent a showing that the speech itself falls within one of the very narrow, recognized exceptions, such as making a ‘true threat’ or engaging in ‘fighting words’ or ‘incitement’—which is not happening here,” Muise said. 

“First Amendment freedoms, such as those possessed by the objecting parents and private citizens, are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle government interference.  There is no question that the purpose and intended effect of the Attorney General’s recent pronouncement is to silence dissenting opinions, in violation of the First Amendment.”

In addition to the lawsuit, 17 state attorneys general have written to President Biden and AG Garland expressing their objections to the AG’s memorandum.

“The bottom line is that actual threats and violence towards school administrators, board members, teachers, or staff are rare, and there are already existing criminal and civil legal remedies available if individuals threaten or conspire to commit violence against public officials in person, by U.S. mail, by email or otherwise,” the letter reads. “A physical assault on a school administrator, board member, teacher, or staff is just that, a criminal assault and will be addressed under state law. Even the NSBA letter itself acknowledges that in the rare instances where there were physical escalations, local law enforcement immediately intervened.”

The state AGs go on to request immediate action to reverse Garland’s memorandum.

“[W]e request that you immediately withdraw the October 4, 2021 Memorandum, to immediately cease any further actions designed to intimidate parents from expressing their opinions on the education of their children, and demand that you respect their First Amendment rights to freedom of speech and to raise their children.”

Attorneys general from Indiana, Alabama, Arizona, Arkansas, Georgia, Kansas, Louisiana, Mississippi, Missouri, Montana, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and Utah signed the letter.

The parents’ lawsuit, filed in the United States District Court for the District of Columbia, is Saline Parents v. Garland.

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