At the U.S. Senate Judiciary hearing last Wednesday, Attorney General Merrick Garland was questioned about the Department of Justice’s overreach into local disagreements between school boards and parents. State school board associations in Georgia, Virginia, Alabama, and Idaho issued statements that they do not want federal law enforcement. Despite calls from state attorneys general to retract his October 4 memo calling for federal law enforcement involvement, Garland refused.
Major government directives should be informed by the facts and the law. But Garland’s memo cites neither. Senator Chuck Grassley of Iowa, Ranking Member of the Senate Judiciary Committee, criticized Garland’s plan to create a national task force of the criminal division and national security division in a short 1-page memo. Grassley, in his opening statement to the committee hearing, stated:
The last thing the Justice Department and FBI need is a vague memo to unleash their power—especially when they’ve shown zero interest in holding their own accountable.
Commissioners Gail Heriot, Peter Kirsanow, Stephen Gilchrist, and J. Christian Adams of the U.S. Commission on Civil Rights wrote to Garland that his memorandum does “not cite any specific examples of ‘harassment, intimidation and threats of violence’ that would provide any basis for law enforcement action by the Department.”
Garland would benefit from some legal advice from his predecessor in the Carter Administration. Former U.S. Attorney General Benjamin R. Civiletti identified several rationales for the Attorney General to restrain federal criminal law investigation and enforcement:
[T]here are strong reasons for exercising the federal government’s powers narrowly: (1) the separation between federal and local criminal justice systems as created by the Constitution, (2) respect for local government’s ability to make their own criminal justice decisions, (3) the justifiable fear of a federal police force, (4) the federal government’s emphasis on few, specialized criminal cases, and (5) the prevention of undue overlap and confusion.
Civiletti was correct to note the “fear of a federal police force” in the power of the Department of Justice in criminal law enforcement. Here, the National School Boards Association (NSBA) had requested investigation and enforcement under statutes granting the federal government a large amount of power — such as the PATRIOT Act and the Conspiracy Against Rights statute, where violations can be punished with fines, any term of years in prison, to even the death penalty.
Federalism principles also apply here. As New York University Professor Diane Ravitch and former Brown Center on Education Policy Director Tom Loveless have stated:
Federal government responsibilities in education have always been limited. The word “education” does not even appear in the U.S. Constitution. States and local school districts have always made the day-to-day decisions about instruction, teachers, textbooks, and the like…. There is no reason to believe that the president or Congress is well-suited to decide who should teach, what should be taught, or how schools should be organized. Nor do we know of any evidence that the U.S. Department of Education is in a better position to direct local schools than the people who work in them and send their children to learn there.
Shockingly, a key supporter of using federal law enforcement to investigate parents now has a role at the U.S. Department of Education. Two days after NSBA President Viola Garcia signed a letter requesting federal law enforcement help, Garcia began serving her 3-year term as an appointee to the Department of Education’s National Assessment Governing Board. The National Assessment Governing Board is statutorily required to “include[..] the active participation of teachers, curriculum specialists, local school administrators, parents, and concerned members of the public.” But Garcia’s role in this whole fiasco raises concerns about whether she can be objective.
Garcia’s letter stated it was written “on behalf of our state associations,” but NSBA failed to get input from any of the state associations, or even members of its own board of directors, before sending the letter. When actually consulted about the matter by Parents Defending Education, over 20 state school associations said they want to keep their focus local, directing their efforts on the needs of the children in their schools and voices of parents in their particular community. After denouncing the NSBA letter and the failure of NSBA to incorporate their local input, state school associations in Ohio, Pennsylvania, and Missouri formally withdrew from the organization.
What has become apparent is how out of touch the leadership in Washington, D.C. is with what’s happening on the ground in America.