Carol Beth Litkouhi — a Rochester parent and now a newly elected RCS Board of Education trustee — plans to appeal a recent decision from Oakland County Circuit Court regarding a lawsuit she brought against the Rochester Community Schools district after seeking classroom materials related to a gender studies and diversity class.
By: Mary Beth Almond | Rochester Post | Published January 25, 2023
ROCHESTER/ROCHESTER HILLS/OAKLAND TOWNSHIP — Public school teachers aren’t considered public bodies and therefore aren’t subject to Michigan’s public information law, according to a recent judge’s ruling.
The ruling stems from a lawsuit the Mackinac Center Legal Foundation filed in March 2022 against the Rochester Community School District on behalf of Carol Beth Litkouhi — a Rochester parent and now a newly elected RCS Board of Education trustee. She had submitted a Freedom of Information Act request to the district for records about the curriculum in a history of ethnic and gender studies class.
“I never imagined that this would get to the point of even having a lawsuit in the first place,” said Litkouhi. “It started because I just had some questions about this new class that popped up in the curriculum. … I saw a social media post about it and a teacher had posted resources that were going to be used for the class, and they just looked like they were all from one side of the political spectrum, so I was wondering if there were multiple viewpoints being represented in the class or is it all coming from one side.”
Litkouhi, who has children enrolled in Rochester Community Schools, said she was instructed by the district to file a FOIA request.
“They didn’t give me much,” she said. “That first time, they gave me a lesson plan for the first two weeks of school, but it had no course content on it, nothing about the subject matter on the course … and they gave me a course description.”
Shortly after, she said, she filed another FOIA request.
“They then started saying that no public records exist for the class, and I just found that really strange. That prompted me to keep sending FOIA requests, because surely they will eventually have readings or assignments that are going to show up in this class, and they just kept saying no public records exist,” she said.
Litkouhi, in her lawsuit, accuses the district of violating FOIA law by withholding course materials for the class.
“The secrecy about what they are teaching in the class is what prompted me to keep asking about it,” she said. “I’m surprised the school even directed me to send FOIA requests in the first place — that this was the position their lawyers were going to take.”
On Dec. 15, Oakland County Circuit Court Judge Jacob Cunningham ruled the state’s Freedom of Information Act doesn’t apply to teachers because they are employees and not “public bodies”; therefore, their records are not “public records” under FOIA.
“What the court essentially ruled is even if teachers are employees of the district, they don’t qualify as a public body themselves under FOIA, and as a result, the only materials that you can really FOIA for from the district are those that are already within the district’s possession,” said Steve Delie, the director of open government and transparency at the Mackinac Center. “So, essentially, they have no obligation to go and ask for curriculum materials unless they already have them, and if they already have them, then they would have to go and produce them.”
On Jan. 4, the Mackinac Center and Litkouhi filed a Claim of Appeal with the Michigan Court of Appeals, fearing the ruling could make it easier to shield government records.
“I was really shocked by the judge’s ruling in this case, because I would have thought that as soon as readings and assignments are given to students in a public school, that those readings and assignments ought to be considered open to the public,” Litkouhi said. “It looks like Judge Cunningham tried to justify that FOIA only applies to public bodies and teachers are not part of the public body. He tried to argue that the law applies only to records that are prepared or used or retained by the public body in the performance of an official function, as if instructional materials are not part of the official function of the school district. To me, that doesn’t make any sense, because isn’t the official function of a school district supposed to be educating students?”
Even more concerning to Litkouhi now is how the ruling could broadly restrict FOIA from other local government entities.
“Now it could be harder, not just for parents, but other citizens and journalists to obtain information, because those entities could potentially hide documents and reports with lower-level employees and claim they are not subject to FOIA anymore,” she said. “The implications of this are too important to ignore, so I’m really hoping that the decision will be overturned in the appellate court.”
If this logic is extended to the fullest extent, Delie said, the only employees whose records would be subject to FOIA are really state executive employees, based on the way that the opinion was written.
“So it’s really more broad than just teachers and curriculum material. It goes to local governments as well, and that creates questions about who constitutes the actual public body that has to be holding the records,” he said.
Now that the appeal has been filed, Delie says the court will assign a three-judge panel to the case, and both parties will have an opportunity to write briefs on the legal issues.
“Essentially, we will explain the legal arguments, and argue, in our case, why the lower court’s decision was incorrect and contrary to law. In the district’s case, they will argue why the lower court was actually correct in reaching its decision,” he said.
The district’s attorney, Tim Ryan, from Jackson Lewis PC, provided the following statement.
“The court has already determined that the plaintiff has failed to present any evidence to raise a genuine factual issue to support the claim that the Rochester Community School District has committed any FOIA violation. After fully reviewing the pleadings and briefs, the court concluded that there is no evidence to support the claim that the Rochester Community School District has withheld any requested documents from the plaintiff. In fact, Rochester Community Schools has been completely transparent and has provided the plaintiff with hundreds of pages of documents in response to the plaintiff’s several FOIA requests.”
Lori Grein, the executive director of strategic communications for Rochester Community Schools, said the district is “restrained” from discussing the complaint further.
“We wish that we could discuss the complaint, but because it is in litigation, we are restrained from doing so,” she said.
Grein said the district continues “to focus on the education, growth, safety, and wellness of our students, staff and school community.”