National Merit Awards Controversy — Update

As previously reported, a controversy erupted in December of last year regarding delays by administrators in the Fairfax County Public School system (FCPS) in notifying students and families about prestigious National Merit “commended student” awards.  In response, the FCPS Superintendent announced that a law firm was being hired to conduct an independent investigation into the reasons why the awards had been withheld or delayed, and she promised FCPS would be transparent with the results.  The Virginia Attorney General also initiated an investigation into the matter.

On March 29, FCPS issued a document entitled “Key Findings of Related External Investigation.”  It purported to be an accurate summary of the law firm’s final report, but it was an argumentative document that raised as many questions as it answered.  See “Did Fairfax Schools Hide Academic Awards from Families — Update,” Mar. 30, 2023.   When Fairfax Schools Monitor asked to see the actual report, FCPS refused, so a formal request for it was submitted under the Virginia Freedom of Information Act (FOIA).  FCPS still refused to disclose the report, claiming it was protected by attorney-client privilege, so a lawsuit was filed in Fairfax County General District Court to require its release.  See “Fairfax School Board Is Sued Over National Merit Secrecy,” April 28, 2023.  In the suit, we claim that the law firm’s report (or at least most of it) is a summary of factual findings, not legal advice, such that it is not privileged.  We also contend that any privilege that might have applied was waived when FCPS voluntarily disclosed the report’s “key findings.”

By law, FOIA suits are supposed to be expedited, but FCPS told the court it needed to put witnesses on the stand to justify its refusal to release the report.   The judge stated that such a hearing couldn’t be accommodated quickly, so a pretrial conference was scheduled for July 19.  At that time, the parties are expected to be ready for trial.

Yesterday, the FCPS revealed a significant new development:  The Attorney General’s office, in connection with its investigation, has asked FCPS to provide access to the law firm’s report.  FCPS has refused, so the Attorney General has asked the Fairfax County Circuit Court to issue a subpoena for it.  FCPS has filed a brief in opposition.

The FCPS Superintendent published a video yesterday, explaining FCPS’ position.  She argues that the report is legally privileged and also that FCPS owes secrecy to its teachers and staff, who might be harassed and threatened if their explanations for their conduct were revealed to the public.

It’s not yet known when the Circuit Court will decide whether to issue the subpoena requested by the Attorney General.  It might be before, or after, the hearing in our FOIA suit.

We are confident that the courts will ultimately require the independent report to be disclosed, and will update this post with any significant developments.

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