In North Carolina, education is a topic of frequent debate. Teachers, parents, and others often weigh in, sometimes critically, on some of the most important topics affecting our students. But a recent slate of legal challenges to people advocating on education issues raises questions about free speech and its place in a world that mixes public decision-making with private operations.
The story picks up with Amy Jablonski, Democratic candidate for state Superintendent of Public Instruction.
Over the summer, Jablonski posted on her Facebook page about the state’s decision to use Istation as the state’s new reading diagnostic tool. In her post, she criticized the choice, saying it went against the recommendation of the evaluation committee charged with studying the option. She said in the post that she knew this because she was a part of that committee.
About a month later, she received a cease and desist letter from Istation.
“It was shocking. It definitely gave me pause,” Jablonski said. “Being an educator and not having a large bank account or lawyers around, it was a little frightening.”
Jablonski kept quiet about the cease and desist letter. But that changed when she found out others received them too, including Charlotte-based middle school teacher Justin Parmenter, and Chelsea Bartel, a school psychologist in the Triangle.
Parmenter, who had been vocal about his criticism of the Istation pick on his blog Notes from the Chalkboard, knew that Jablonski had received a letter, so he wasn’t completely floored when he got one too.
“I won’t say that I was expecting it, but I won’t say it was a total surprise because I knew what happened to Amy,” he said.
Jablonski and others went public with their cease and desist letters and were interviewed for stories in various media outlets. Jablonski said she felt compelled to talk when she heard that others were being targeted.
“Now they’re coming after two educators in our state,” she said. “Come after me, but don’t come after our educators.”
At the time that news was breaking about all of this, Istation released a statement saying that the letters were necessary because the criticism was “misrepresenting Istation by making false, misleading and defamatory public statements about the company … “
” … Istation can no longer ignore the misinformation that is being disseminated to unfairly harm and malign Istation,” the letter states.
Read about the Istation choice and the resulting controversy here.
A case of trademark infringement?
Kim Mackey is a teacher near Raleigh. In July, she posted a blog in which she talked about State Treasurer Dale Folwell’s Clear Pricing Project, an effort aimed at controlling rising health care costs.
Her blog post included an infographic, and that infographic included the logo of the State Health Plan of North Carolina. In August, she received a cease and desist letter from the Office of the State Treasurer because of her use of the logo.
“Your website’s use of the Plan’s logo is causing confusion among the Plan’s customers. This confusion may cause substantial harm to our trademark by facilitating the loss of its effectiveness in establishing a distinct association between it, our products and services, as well as the goodwill of the Plan,” the letter stated.
Mackey agreed to remove the logo, and the office followed-up to say they were satisfied. She said she was surprised by the letter because it was her understanding that her use of the logo as part of her blog post was protected speech. Nevertheless, she complied quickly because she says she was only given 10 days to act.
“That didn’t really give me much time to wrap my head around it, explore the legal precedence around the use,” she said, adding later: “Your initial gut reaction is you want to be sure that you’re not going to end up in court, but that is also combined with wanting to be sure that you’re speaking your mind and freely being able to do so.”
Parent sued for criticizing curriculum
According to court documents, in 2018, Blain Dillard, a Wake County Public Schools parent, began criticizing a new kind of math being used in his child’s school called MVP: Mathematics Vision Project.
Dillard began complaining when his son, a freshman in high school accustomed to getting As and Bs in math, started getting Ds and Fs. When Dillard tried to figure out what was going on, he discovered that Wake County had adopted a kind of math instruction called MVP. After looking into it further, he concluded that the problem lay with the instruction, not his son, and he became a vocal critic.
In July, he was sued by MVP. In a statement posted on its website in September, the company gave this rationale for the suit.
“Mr. Dillard falsified information. He invented fake students and fabricated extreme stories about their experiences in Wake County math classrooms. When the district chose to continue using MVP Math because of the positive outcomes for students, he accused the district of falsifying its own data, though he has no evidence or basis for this accusation. Mr. Dillard spread these and other falsehoods within and beyond Wake County, even proactively contacting other school districts. These libelous actions are illegal, and unfair to both Wake County Schools and our organization,” the statement said.
Jeffrey Hunt, an attorney for Dillard, has the following statement about the case on a website that goes through the particulars of the lawsuit and situation in detail.
“It is alarming that a parent would be sued for defamation for expressing opinions and making truthful statements about his son’s high school math curriculum. The lawsuit appears to be an attempt to silence Mr. Dillard and other critics of MVP, and to chill their First Amendment rights to speak about MVP’s services,” the statement says. “We believe the lawsuit has no legal merit and we intend to vigorously defend the right of Mr. Dillard, as well as other parents, to have a voice in the education of their children.”
Public or private?
These aren’t the only legal challenges to education advocates either. Adrian Wood, an education blogger at Tales of an Educated Debutante, has posted publicly about receiving a cease and desist letter for her criticism of a Wilmington Charter school and being sued for defamation for speaking out about a case of alleged abuse at a school in West Virginia.
Ann McColl is currently the CEO of The Innovation Project, but she has practiced in education law for years. She said the larger issue with all of these challenges is that they reflect the merging of public and private when it comes to education and free speech. Citizens have a right to free speech when it comes to being critical of government, its agencies, and its leaders, she said.
“It’s much harder to meet standards of defamation and slander against government, because there are different standards because we do want to protect free speech,” McColl said.
But those standards are weaker when a citizen is going up against a private company like Istation or MVP.
“If part of your complaint is that it’s not a really good product, then you’re potentially at risk from a third party,” McColl said.
This can lead to a confusion for people speaking out on education issues that concern them. They may be able to criticize Superintendent Mark Johnson all day about the Istation procurement process, but if they start bashing Istation itself, they could open themselves up to trouble.
“The idea that when people criticize the curriculum or Istation or whatever, that now that private party has a worry … that is an interesting implication,” she said.
McColl also said that sending cease and desist letters is a pretty standard practice for private businesses when they have concerns about something that’s being said. They are often sent because the company is trying to put a critic on notice that the company thinks they are saying inaccurate things.
“We’re letting them know,” she said. “Now you know that we think that. Now you just can’t say that you’re mistaken.”
McColl said there is no standard that has to be met before a cease and desist letter can be sent. It may seem scary to those who receive it, but they have no way of knowing if they should really be worried.
“We don’t know when they have been used that there is remotely even any legitimate concern,” she said.
In Mackey’s case, the situation is a little murkier since it involves trademark use, McColl said.
“The trademark, there the issue is if someone takes something that identifies with an entity … and puts it on their material, the legitimate concern is whether people will misunderstand,” she said.
Whatever the case, the legal actions don’t seem to be deterring the advocates on the receiving end of them.
Mackey said she went public with her cease and desist letter, because she wants others to know that if they get one too, they shouldn’t keep quiet about it.
“My concern is that if there’s others who may have received that and aren’t sharing, then that could be problematic,” she said.
Parmenter said that he couldn’t speculate as to Istation’s motivations, but that he felt like the cease and desist letter was a bad move on the company’s part.
“It felt like just being frightened into silence,” he said. “As someone who works a lot on advocacy, that didn’t feel like the right response.”
That hasn’t stopped Parmenter from writing, though he is taking a longer view when he does.
“I guess it doesn’t make me think: Should I write about this?” he said. “But it does make me think kind of a couple of steps down the road. Where could this go? What could happen next?”
