I recently engaged in a friendly disagreement with a valued reader over the Fayetteville Public School District's materials, which advocate the highly contentious and divisive critical race theory.
She insisted it was not involved with CRT.
I responded by citing an FOIA lawsuit filed before Circuit Judge Mark Lindsay on June 25, 2021, which wound up proving thousands of CRT materials were indeed included in the district's files.
CRT is described as an academic concept and neo-Marxist ideology that distorts and rewrites history, claims racism is systemic in our society's systems, classifies people based on race, and teaches children to judge people based on skin color and sex.
Here's what Fort Smith Attorney Joey McCutchen, who represented the plaintiff, Ila Campbell, in filing the FOIA requests and lawsuit against Fayetteville's district, said: "We filed six separate FOIA requests asking for any records on the district's policies and all CRT materials in their possession. They denied every one of them based on the same flimsy grounds that they were too broad."
So Campbell, with McCutchen, decided to sue for public release of the information.
Filing a lawsuit prompted the school district to produce 8,000 records related to those FOIA requests that proved Campbell correct. "We learned from our FOIA request that Fayetteville Public Schools are indoctrinating teachers, and therefore students, with critical race theory. Critical race theory and the list of associated buzzwords, such as 'white privilege,' 'equity, diversity, and inclusion,' 'unconscious bias,' 'anti-racism,' all promote the same politicized and divisive agenda," said McCutchen.
"Judge Lindsay gave a fair FOIA trial. I don't know if all judges would have done the same," he told me. "He listened to the evidence and not political winds in the city of Fayetteville. At the conclusion of the FOIA case, he went back to chambers and formulated his well-reasoned judgment and opinion.
"Upon returning to the bench, the first words out of Judge Lindsay's mouth were to quote the intent behind our FOIA: "It is vital in a democratic society that public business be performed in open and public manner so that the electors shall be advised of the performance of public officials and of decisions that are reached in public activity."
Here I'll slip in my two cents: Good for Judge Lindsay for a valid ruling.
"We must never forget that government works for us, we don't work for government," said McCutchen. "We must never allow government to respond to FOIA requests (in this case six different requests) with the smug and arrogant response saying: 'The request is not sufficiently specific to enable the custodian of records to locate the records,' or in four of the six requests, 'Would you consider limiting your request?'"
The attorney said the board's initial denials caused him to wonder how many other citizens filing FOIA requests might have given up after the school district stonewalled them in similar manner. "Our concerns were there were important yet hidden issues regarding children. ...
"Ila Campbell learned from those documents that critical race theory is indeed being foisted upon teachers and children in the district and she educated hundreds of parents in the NWA community to that.
"It also was telling, I felt, that the district hired two lawyers to fight our FOIA lawsuit from start to finish," McCutchen continued. "They never admitted the district had violated FOIA in its multiple denials. Lawyers even provided the court with a 39-page brief on all the reasons they supposedly hadn't broken the law. Today, I still wonder how many dollars the defense of this case wound up costing the taxpayers of Fayetteville."
Lindsay ruled the district violated the FOIA by not responding to requests within three days, as the law prescribes. "The district blatantly and unapologetically provided their response after the FOIA deadline," said McCutchen. The judge ordered the district to pay Campbell's attorney's fees. By acting the way it did in denying our original legitimate and thorough requests, the district was being reckless with other people's money."
Our FOIA law badly needs tougher punishment to hold FOIA bad actors accountable, he emphasized, as he has in the past. "Have them pay personally, or have more prosecutors with the will and courage to file criminal charges against violators."
I lost track long ago how many times I've advocated the same thing. Public figures proven to have knowingly violated our FOIA need to suffer meaningful consequences. I wouldn't be opposed to a hefty fine and jail time for those who repeat.
"My hope in this case and others is that we sent a message to the Fayetteville Public School District and other Arkansas school districts to respect, learn and follow the letter of our FOIA or be hauled into court," said McCutchen.
"I can't tell you or our state enough about the respect I have for Ila Campbell and the courage she displayed as a citizen in pursuing this matter in the public interest. It has been a highly contentious subject nationwide and especially in a liberal city with a liberal university. It's a community with resulting political power galore and still the 'little guy' won."
Mike Masterson is a longtime Arkansas journalist, was editor of three Arkansas dailies and headed the master's journalism program at Ohio State University. Email him at mmasterson@arkansasonline.com.