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School Boards, ‘Domestic Terrorism,’ and Free Speech: Inside the Debate

By Andrew Ujifusa — October 20, 2021 13 min read
Brenda Stephens, a school board member with Orange County Public Schools in Hillsborough, N.C. has purchased a weapon and taken a concealed carry class over concerns for her personal safety.
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Brenda Stephens has been on the Orange County, N.C., school board in North Carolina for about twenty years. She said she remembers civil rights protests from the 1960s, and was once removed as the board chair in an acrimonious vote.

But Stephens, a Black woman whose board has been wrestling with controversial issues like COVID-driven mask mandates, said she’s never before had to go through a back door to get to a public meeting out of concerns for her safety.

And she can’t remember a time when threatening messages, intimidation, and angry disruptions during her school board’s work have defined her community in the Durham-Chapel Hill area as they do now.

“There’s so much bullying and threats,” said Stephens, the board’s vice-chair, who plans to take concealed firearms training and buy a gun. “Today’s environment is a totally different environment than what it was 20 years ago.”

Different, yes. But so dysfunctional that the FBI should get on the case?

The climate for school board officials and other K-12 leaders has indeed been particularly rough this year amid fights over critical race theory and mask mandates. Yet the Biden administration’s decision last month to have the U.S. Justice Department help address threats and violence linked to that climate has touched off a heated debate on that point.

A letter to Biden leads to a political uproar

In late September, the National School Boards Association asked President Joe Biden for a federal intervention to stop a surge in “threats or actual acts of violence” involving schools. Stating that these were not “random acts,” the association said the incidents should be reviewed to see if they could be classified as domestic terrorism under the USA PATRIOT Act, an anti-terrorism statute, among other federal laws.

The U.S. Department of Justice responded a few days later by announcing that, among other things, the FBI will help state and local officials monitor and respond to illegal threats and activities targeting K-12 leaders.

The Justice Department’s announcement was notable for what it did not say. It did not announce an investigation into opponents of critical race theory or COVID-19 rules. It did not confirm that federal law enforcement would classify threats or harassment targeting school leaders as domestic terrorism. But it left enough room for interpretation to spark notable backlash related to those issues.

Republican U.S. senators condemned it as an attack on people who merely want to speak out about their children’s education; U.S. Sen. Josh Hawley noted that the Justice Department did not define what would constitute a threat worthy of a federal response. Conservative groups denounced the response as an attack on the free speech of political opponents. And intense media coverage has continued to give the issue fuel.

The backlash extended beyond conservatives and others normally critical or hostile of Biden and reached the people who would ostensibly be helped by FBI support. Several state school boards associations condemned the NSBA’s move, saying they were not consulted.The Louisiana and Pennsylvania school boards associations recently cut ties with the NSBA over the issue. (The NSBA declined to comment on defections or criticism among its members.)

Some see a connection between school board disruptions and the Jan. 6 riots at the U.S. Capitol, and how carefully orchestrated political intimidation and worse are now part of an acceptable strategy to gain power and influence. The NAACP’s Legal Defense and Educational Fund likened those disrupting and threatening school boards to mobs who tried to intimidate Black children integrating public schools decades ago. A limited federal response targeting lawbreakers, in their view, is responsible support for educators afraid for their own safety.

Yet others see a different imbalance of power: local school officials who have ignored the public’s legitimate and urgent concerns, especially during the pandemic. The Department of Justice’s stated strategy, they’ve said, is mere cover for the education establishment and their allies in the Biden administration to intimidate people into silence and stigmatize their views.

State and local public health officials have also been subject to a “wave” of threats and withering criticism during the pandemic that’s left some fearful for their safety or led them to quit. In mid-October, a group representing city and county health-care leaders told Garland that his strategy to protect school leaders should cover public health officials as well.

Experts observing the turmoil in schools over the last several months have repeatedly said there’s a long history of national and cultural battles affecting local schools. But school board members are facing an unprecedentedly rapid spread of discord about issues that many parents have little to no expertise in or experience with, said Rebecca Jacobsen, a professor of education policy at Michigan State University.

“I’m not sure it was the right thing to do. It might just have escalated this,” Jacobsen said of the NSBA plea to protect school leaders and the Justice Department’s response. “But at the same time, they’ve just never been set up to handle this kind of widespread, national phenomenon.”

Stephens has found nothing deficient in how Orange County’s law enforcement has responded to the situation—on the contrary, she heaped praise on the local sheriff. She’s worried that the news about the FBI’s response to the situation, however limited, will only make the tension in her community worse and make her job harder. And she said she doesn’t want people’s First Amendment rights endangered.

Brenda Stephens, a school board member with Orange County Public Schools in Hillsborough, N.C. has purchased a weapon and taken a concealed carry class over concerns for her personal safety.

Yet Stephens would welcome any practical federal assistance in dealing with illegal threats and other activity if the need arose. If rioters invaded the halls of Congress at the start of the year to try to overturn election results, she reasoned, what would stop something similar or worse from occurring at one of her school board meetings?

“I signed up to help students and parents,” Stephens said. “This is not what we signed up to do.”

Making an example of someone to deter violence

The most forceful intervention of the federal government into local education matters, amid violence and upheaval, is generally considered to have involved the racial integration of schools, such as the deployment of troops to Little Rock, Ark., in 1957.

Less well known is the FBI’s “Responsibilities” program in which the bureau collected information on possible “subversives” among teachers and other groups from 1951 to 1955 under then-Director J. Edgar Hoover.

A 1974 fight over textbooks in Kanawha County, W.Va., schools became defined in large part by violence; elementary schools were dynamited. A federal grand jury eventually convicted a minister of conspiring to bomb schools amid the dispute. The case was prosecuted by a U.S. attorney.

But the idea of federal officials prosecuting someone for throwing an object at a school board member in a random incident isn’t especially plausible, said James Anderson, the director of the Justice Policy Program at the RAND Corporation.

Yet he also said it would be entirely normal for federal law enforcement agents to get involved in crimes such as kidnapping and firearms-related offenses, if they were to involve local school officials, and bringing a prosecution as a way to make a public example and deter others.

“There’s a pretty low bar for federal involvement,” Anderson said.

There’s no firm tally of how many violent or other illegal incidents targeting school officials have occurred recently. And whether such activity is organized remains unclear; members of the far-right Proud Boys group have been linked with anti-mask protests at school events. (The FBI does not consider the Proud Boys a domestic terrorist group, although Canada calls it a “terrorist entity.”)

In one well-publicized incident, three men, angry about COVID-19 rules, were arrested and charged by local law enforcement when they sought to make a “citizen’s arrest” of an Arizona principal and showed up at her school with zip ties due to anger about a COVID-19 quarantine. So far, there’s no public sign of federal involvement in that case.

Then there are threats and other actions that aren’t protected by free speech law. A crux of the school boards association’s argument is that such activity isn’t happening at random.

A creative federal prosecutor, Anderson said, could get involved if an ostensibly political group isn’t careful, or actively encourages illegal activities. The Racketeer Influenced and Corrupt Organizations (RICO) Act was enacted decades ago in large part to target organized crime, but has since been used in a variety of contexts, Anderson noted.

“If you’re a national organization that’s interested in this issue” and encouraging people to protest school board policies, Anderson said, “you’d want to make sure that none of your employees, and none of your representatives, are advocating violence or is too closely connected with someone who is advocating violence.”

FBI task forces that involve cooperation with state and local officials, like the one announced in early October, are commonplace. But invoking controversial federal laws to address school board unrest is not, said Brian Hauss, staff attorney with the Speech, Privacy and Technology Project at the American Civil Liberties Union.

“It’s hard to imagine the situation where the PATRIOT Act would be the appropriate [tool] in dealing with that kind of situation,” Hauss said.

The key author of the PATRIOT Act was more blunt. In an Oct. 12 Wall Street Journal column, former Republican Rep. F. James Sensenbrenner of Wisconsin said the law simply “doesn’t apply to parents’ behavior at school-board meetings.”

“The memorandum will chill free speech, undermine civil liberties, erode public confidence in federal law enforcement, divert resources from actual terrorist threats, and weaken congressional support for key antiterrorism laws,” Sensenbrenner wrote of the Justice Department’s response.

But Anderson, of RAND, said that the Justice Department was “basically calling for a bunch of meetings. That’s the only concrete action I see.”

“If the FBI were systematically investigating parents involved in protests at these school board meetings, that would be a cause for grave concern,” said the ACLU’s Hauss. Yet he added, “I have not seen anything that supports the contention that the FBI is targeting parents based on their protected First Amendment activity.”

‘Vituperative, abusive, and inexact’

Two Supreme Court court decisions concerning threats against public officials, and the extent to which organized protest movements are responsible for subsequent violence, could be important precedents in the current situation.

In 1966, during the Vietnam War, Robert Watts said he had been drafted into the U.S. military. Announcing that he would not report, he added, “if they ever make me carry a rifle the first man I want to get in my sights is LBJ,” referring to President Lyndon B. Johnson. Watts was arrested and tried for violating the federal statute that makes it a crime to knowingly and willfully threaten the life of the president.

But ultimately, in Watts v. United States, the Supreme Court ruled Watts’ remark was “political hyperbole” and did not violate the law. In its 1969 opinion, the court found that, “the language of the political arena … is often vituperative, abusive, and inexact.”

The same year Watts made his comment about being drafted, a Mississippi branch of the NAACP organized a boycott of local businesses by Black residents in Mississippi’s Claiborne County. The boycott consisted of picketing and nonviolent activity, but violence did occur targeting those businesses. At one point during the boycott, Charles Evers, a Mississippi NAACP field secretary, reportedly said, “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” In 1969, white business owners sued the NAACP and others for lost earnings stemming from the boycott.

In its 1982 decision in NAACP v. Claiborne Hardware Company, the Supreme Court ruled that the NAACP’s protest was protected under the First Amendment, and that the group could not be held liable for individual acts of violence they had not authorized or directed, even if it occurred during the boycott. The Mississippi Supreme Court had previously ruled that the boycott was a conspiracy carried out through illegal force.

(The NAACP v. Claiborne decision was cited in a recent legal dispute involving a prominent Black Lives Matter organizer, DeRay McKesson, and his culpability for a person’s injuries from violence committed by someone else at a protest.)

Both Supreme Court decisions, Hauss said, effectively set a high threshold for when legitimate political activity devolves into threats and violence not protected by the U.S. Constitution.

A legal distinction also exists between a person who threatens a school board member’s life while waving a gun, he noted, and a person who tells that official “I know where you live” and attends an organized protest on a public street outside the official’s house.

Proper caution or the wrong target?

Those downplaying the disruptions at meetings are ignoring the lesson of the U.S. Capitol riot in January of this year, said Adam Laats, a professor of education at the State University of New York’s Binghamton University, who has studied violence and protests involving school boards.

He said hoping that people intent on disrupting public business will simply calm down and refrain from illegal violence and threats without some sort of deterrence is wishful thinking after the Jan. 6 insurrection.

“To me, this looks like a way for the executive branch to signal sympathy for one side of these disputes,” he said of the Justice Department’s response. “It’s a measure of support for beleaguered and besieged school board members.”

The message is especially strong, Laats said, because it came from Attorney General Merrick Garland, the nation’s top law enforcement officer, and not U.S. Secretary of Education Miguel Cardona, even if it has the potential to “fuel this sense of martyrdom and unfair usurpation” among its loudest critics.

But it’s the frequent unwillingness of school boards to be responsive to and empower parents during the pandemic, not the idea that they are disruptive and violent, that should be the focus of public attention, said Michelle Walker, a parent and organizer in Oregon at Open Schools USA. Her group has criticized schools that have kept classrooms closed during the pandemic, among other COVID-19 policies.

The Department of Justice’s action, in her view, is at best a perplexing distraction that could blow a handful of unlawful incidents out of proportion.

“The majority of parents aren’t acting like that. The majority of school board meetings aren’t happening like that,” said Walker, who switched her daughter to a private school this school year to assure access to in-person learning.

Walker said that some parents who hear about the Biden administration’s response might be discouraged and stop participating in local schools altogether, even if they don’t get angry or claim to be persecuted.

“I don’t think we should be wasting taxpayer dollars on all of this training and other things that I was reading about” from the Justice Department, said Walker.

That sentiment, and stronger ones, are to be expected, Hauss said.

“When someone is out of power and unhappy with public officials, they can vent their anger in very strong terms,” he said. “If people no longer feel like they’re able to do that, the concern is, what else might they resort to?”

At the same time, Hauss stressed, that principle doesn’t address the profound impact threats can have on people who are elected to serve their communities.

“Who’s going to want to be a school board official if you’re going to be afraid for your life?” he said.

Wondering whether to step away from the job

For all the attention focused on how teachers are prepared for their jobs, “We’ve never had strong school board training,” including for how to handle the current surge in divisive politics, said Jacobsen of Michigan State University.

Stephens, the school board member in North Carolina, said she’s thinking about not running for another term, citing a “need to give some of these young mothers a chance” to do her job.

But she also said she would not bow out of a re-election campaign just because of the anger being directed at her and her colleagues.

“They are not running me off the board. I’m not going to allow anybody to think that they can run me off,” Stephens said.

If anyone shows up on her property to threaten her or worse, Stephens said, “They might meet their maker.”

A version of this article appeared in the October 27, 2021 edition of Education Week as School Boards, ‘Domestic Terrorism,’ And Free Speech: Inside the Debate

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