Paxton’s school electioneering claims more complex than originally thought

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charter schools

What began with a state senator’s effort to stop what he thought might be illegal politicking by teachers and administrators in several Texas school districts has, after four months and a primary election, defied any simple resolution.

Several school districts warned by Attorney General Ken Paxton to stop using taxpayer underwritten resources to promote candidates or a political party’s primary have agreed in writing to comply.

At least one, Lewisville Independent School District, has not — challenging Paxton’s interpretation of the election laws and the actions of the school officials involved.

“In the context of working together to resolve this matter, the District wishes to express its disappointment about the way your office chose to communicate about these concerns,” Jeff Crownover, Lewisville’s general counsel wrote to an assistant attorney general. “To my knowledge, your office did not attempt to reach out to any Board member or administrator in LISD to express these concerns or obtain the District’s response to the allegations. The District asserts that it would have been extremely helpful for your office to have at least spoken with the District before jumping to the conclusions you reached in your letter.”

Wednesday was the deadline for the districts of Elgin and Galena Park to respond to Paxton’s letters (here and here) outlining what he contends are clear violations of the law.

Officials for the districts did not respond to requests Thursday by The Texas Monitor to confirm that they had complied with Paxton’s request.

When asked for copies of the letters from the districts, a spokesperson for the Attorney General’s office suggested The Texas Monitor make a formal request under the Texas Public Information Act.

“No doubt, Paxton is correct on the broad brush. To the extent that an ISD website carries messages endorsing candidates, you just can’t do that,” Joe Larsen, a Houston attorney and expert on free speech and election laws told The Texas Monitor. “But there are also messages advocating for education, for students and parents, which is part of an educator’s mandate. Were lines crossed here? Yes, but the lines in each of these cases are different and not always clear.”

This is the contention of Lewisville officials. “Based on a full reading of the law in this area, the District contends that the subject of your letter, ‘Request to Cease and Desist Unlawful Electioneering’ (emphasis added) is misleading at best and inaccurate at worst,” Crownover wrote to assistant attorney general Cleve Doty. “You generally declare that the District has engaged in illegal electioneering without defining that term. This is something about which the District would like to get more information from your office.”

Crownover further explained in answers to questions submitted to him by the Texas Monitor Thursday.
“In the letter Lewisville ISD received,” Crownover wrote, “the attorney general alleged two things the District did to violate the law: posted a video encouraging its employees to vote, and sent a tweet (that the District had already removed one week before the AG sent its letter because of potential misinterpretation) pointing out that the legislature is not listening to educators and that needs to change. State law prevents advocating for or against a candidate for office, a political party, or a measure on a ballot.  Neither the tweet nor the video mentions the name of a single candidate for office, a political party, or a measure on a ballot.”

In a video interview with The Texas Monitor, State Sen. Paul Bettencourt, R-Houston, said he was looking for some legal clarity from Paxton back in December after he had noticed signs being circulated by a non-profit group called Texas Educators Vote.

“Texas law could not be clearer” Kevin Roberts, executive vice president of TPPF, said.Teachers groups cannot spend as much as a postage stamp on election advocacy. What I’m seeing is not just advocacy, but partisan advocacy.”

On Jan. 17, Paxton sent a five-page opinion to Bettencourt outlining sections of the  Texas Education Code and the Texas Election Code pertinent to his inquiry.

“Absent an educational purpose in providing students transportation to the polling locations, a court would likely conclude that the transportation serves no public purpose of the school district,” Paxton wrote. “A court would likely conclude that the use of public funds to link to an Internet website promoting a specific candidate or measure is itself a communication supporting or opposing a candidate or measure in violation of this provision.”

A month later, Doty sent letters to Brazosport, Holliday and Lewisville school districts detailing what he said were in violation of the laws he outlined in his opinion to Bettencourt.

Doty included in his letter to Brazosport, screen grabs of Superintendent Danny Massey’s Twitter account that included his retweets of endorsements of Scott Milder, who opposed and was defeated by Lt. Gov. Dan Patrick in the March 6 primary. Doty also singled out a widely circulated get-out-the-vote video done by Lewisville Superintendent Kevin Rogers.

“These school districts must understand,” Paxton said in a statement at the time, “that they are responsible, as all state agencies are, for refraining from spending public funds on advocating for or opposing political candidates. The electioneering of these school districts is unacceptable and a poor example of the civic responsibility, integrity, and honesty that Texas educators should model for our students.”

A week later, he applauded (you can find all of the correspondence at the bottom of the link) the three districts for working with him on the electioneering issue. But while Brazosport and Holliday had sent back pro-forma concession letters, Lewisville did not accept Paxton’s conclusions.

“As you know, uniting behind the common cause of public education is not a violation of any law, and supporting public education generally is not ‘supporting or opposing a candidate for nomination or election to public office or office of a political party, a political party, a public officer, or a measure,’” Crownover said in his letter.

I actually think the line is very clear,” Crownover told The Monitor.  “It is impermissible to expend government resources to advocate for or against a candidate, political party, or measure on a ballot. I have seen very little confusion about this issue – until a letter was submitted to the attorney general raising this issue in response to school districts adopting a Culture of Voting resolution in 2017.

“From that point forward, the attorney general and other groups that appear to oppose school districts promoting a culture of voting have made the issue “fuzzy” by telling school districts that things they have been doing for years are now against the law, without much specific information or legal authority to back that up.  I think the issue may be fuzzy now for some people, but I do not think it is fuzzy under the law.”

The left-leaning Texas Civil Rights Project said that rather than teachers politicking it was the politically motivated work of conservative groups to silence teachers and administrators.

“The right to vote is fundamental. Also fundamental is the duty of educators — teachers, administrators, and bus drivers alike — to prepare the next generation of Texans to be active citizens and regular voters,” Beth Stevens, the voting rights director of the project posted on the website last week. “And so, in 2018, they came for the teachers. Where were you?”

Larsen sees politicking on both sides. Naming names like an incumbent like Patrick or his opponent, Milder, is partisanship and not legal, he said. Casting even general political positions in a partisan way is also wrong.

But the effort to put a stop to it, Larsen said, is also politically partisan. And it becomes clear on the issue of using taxpayer underwritten resources, he said. Administrators used school buses to take teachers and students to the polls for what they argued was civic betterment. A state senator and politically active conservative groups have mobilized the taxpayer-underwritten Attorney General’s office to stop it, Larsen said.

“I think you can see it on both sides,” Larsen said. “But you have to ask how much public money is being spent going after these school districts. And what if the district decides they need lawyers. Who is paying for that? My reading is Paxton was heavy-handed and it smacks of partisanship.”

How far the partisanship question will be carried depends in large part on the next moves of attorneys for Lewisville, Elgin and Galena Park.

Mark Lisheron can be reached at [email protected]

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