By James R. (not Perry) Mason III
HSLDA Director of Litigation
- disclaimer -
The Mississippi Five and the Case of the Missing Case
April 1, 2011, fell on Friday in Mississippi, just like it did everywhere else. We at HSLDA did not know, however, what mischief April Fool’s Day would bring to Mississippi until the following Monday.
That Monday began like most other Mondays. Check email, voicemail, inbox, and calendar. Get coffee. Make plans for the week ahead. Pretty routine—dull even.
“We’ve Got a Situation in Mississippi”
Then around 10:00 a.m., HSLDA Senior Counsel Dewitt (Dee) Black walked into my office with two pieces of paper in his hand and a grave expression on his face.
“We’ve got a situation in Mississippi you need to look at,” he said as he handed me the papers.
Dee is HSLDA’s contact attorney for Mississippi (along with several other states), and I am the director of litigation. When Dee or one of the other six contact attorneys hands me papers, it usually means one of our members has been summoned to court. Not so on this slow-starting Monday.
The first page was an “Official Notice” from a School Attendance Officer (SAO) dated April 1, 2011. “Dear Home Educator,” it began. “The Mississippi Department of Education has received a Court Order from Judge Joe Dale Walker, Chancellor Thirteenth District, Post 2, for a copy of a list of names and addresses of all students and parents of said children in any home schooling program within the Thirteenth District.”
The letter referred to a federal law, the Family Educational Rights and Privacy Act, which is better known by its unpleasant acronym—FERPA. FERPA, the letter said, “allows release of educational records without prior written parental consent if the disclosure is to comply with a judicial order or lawfully issued subpoena.”
The SAO's letter continued, “We are notifying you of the Order so that you may seek protective action to prevent us from releasing this information.” And, the letter warned, “If you do not seek and obtain a court order which prohibits us from releasing any or all of this information, we will be required to release this information ... by Friday, April 8, 2011.”
April Fool’s Day
In other words, the April Fool’s Day letter was an invitation to homeschoolers to sue the truant officer to stop her from doing what the judge had ordered. It stopped short of asking “Pretty please,” but it was no joke. The SAO did not want to release the information and was giving us till Friday to do something about it.
It took a minute to digest the irony of the letter before I could turn to the second page, which was a copy of the order itself. It did not disappoint.
While the order at first glance looked like other orders, it was different in several very important respects. First, it had no case number to link it to any particular case.
Second, the order listed no parties. If Wile E. Coyote sued Road Runner, the case would bear the names of the parties in the form Coyote v. Road Runner. If Road Runner moved to dismiss Coyote’s lawsuit, the ensuing order would list the case number and party names, as well as say whether the motion was being granted or denied. This order simply said “RE: HOME SCHOOL” where you would expect to see the names of the parties.
Finally, the order began:
THIS DAY this cause came on for hearing on the Court’s own motion to provide the Court with a list of the names and addresses of all students in any home schooling program within the Thirteenth District ... and the Court after considering the same finds ... [t]hat it is necessary to provide the Court with a list of names and addresses [of all homeschoolers in the district].
Translation: The judge wanted the information but was told that he could not have it without a court order. Being a judge himself, he knew how to write a court order. So he asked himself to issue the order he wanted. He apparently held a hearing with himself and agreed with the arguments he made in support of his own motion. In spite of how the order began, there was no “cause” and therefore no case.
It was the Case of the Missing Case.
I looked at Dee and asked, “Does this really say what I think it says?” He confirmed that there didn’t appear to be any case before the court and added that he was aware of no plausible legal grounds for the order under Mississippi law.
“We need to fight this,” I said. “Hard.”
“Agreed,” he said.
The letter and order had been faxed to us by an HSLDA member family that lives in the Thirteenth District. Before long, other members who had received the letter were calling, emailing, and faxing—all concerned about the same thing: the release of their personal information to an agent of the state who had no right to it.
I like to think of our 80,000 member families as a “homeschoolers’ early warning system.” There are over 13,000 school districts in America and whenever a public official steps out of line with respect to homeschoolers, more than likely, one of our members will be affected and will let us know—pronto.
The April Fool’s Day fax from our member was like a navy lookout reporting, “Incoming bogey bearing zero-niner-zero!” To stretch the metaphor further, Dee and I sounded the law firm equivalent of “General quarters!”
“I Know what I’m Doing for the Rest of the Day!”
The first step for me was to inform “the Mikes,” as we affectionately refer to HSLDA’s founders, Michael Farris and Michael Smith. These two homeschooling dads started defending homeschoolers over 30 years ago in private practice. Seeing that the need was great, they founded HSLDA in 1983.
Anyone who knows Mike Farris knows that he is a bundle of barely contained energy who keeps a very full schedule consisting of appointments with senators, governors, state homeschooling leaders, and Patrick Henry College students. In his spare time, he writes books, makes educational videos, and heads a Virginia governor’s task force on Lyme disease. In his other spare time, he’s amending the U.S. Constitution to protect parents’ rights and acting as chairman of the Shelby Kennedy Foundation Bible Bee. His office door is jealously watched by an imposing praetorian guard named Michele.
On this Monday morning, Mike’s door was open and Michele grudgingly allotted me a moment of his time with a cautionary frown. I handed him the papers.
“Boss,” I said, “You really need to read these.”
He took a few moments, glancing up at me occasionally with a glint in his eye and a grim smile forming on his lips.
“I know what I’m doing for the rest of the day,” he said when he had finished reading.
He and Michele quickly cancelled, shuffled, and thoroughly rearranged his otherwise full Monday schedule.
Rainy Days and Mondays
It was Monday. We had till Friday to reverse a court order the likes of which we’d never encountered before. A hundred details would need to be attended to and major decisions about how to proceed needed to be made quickly, with no time for dithering. In the first few minutes, we ticked off a list of questions that would become action items:
- Who will be our Mississippi local counsel?
- What do the state leaders think about the situation?
- What, exactly, is a Thirteenth Chancery District?
- Who are the good guys? Homeschoolers? Truant officers? Both?
- Who are the bad guys? The judge? Truant officers? Both?
- What would be the Mississippi attorney general’s position?
- State or federal court?
- Appeal? Civil rights case? Writ of prohibition?
After working on dozens of cases together, Mike and I have developed a working relationship that lends itself to quick, decisive, but careful action. Mike is bold, aggressive, and optimistic. He immediately sees the big picture and focuses on the pros.
I am more cautious, worry about the details, and think about the precise legal theories and all of the objections to each. My mind runs quickly to the cons.
These early legal discussions tend to be vigorous, freewheeling, sometimes heated, but always collegial and respectful. Mike does me the great honor of listening to my objections and taking them seriously. He knows that I in turn will cheerfully defer to his final decision and work hard to carry it out even if a few minutes before I was vigorously arguing against it.
It was decided that we would file a civil rights complaint in federal court based in large part on FERPA, the federal statute. The homeschoolers would be the good guys (naturally); the SAOs would technically be the bad guys (although sometimes the bad guys side with the good guys once a complaint is filed, and we thought that might be the case here). Our complaint would argue that the judge’s order violated the homeschoolers’ right to privacy by demanding their personal information without just cause.
We would need a federal complaint, a motion for a temporary restraining order, a memorandum of law, and a motion for temporary admission to practice in the federal district court.
Mike located a Mississippi lawyer who was eager to be our local counsel. He is a homeschooling dad himself and practices in both state and federal court. His name is Sharkey Burke.
“Before we go any further,” said Mike, “let’s just note for the record: best name for a local counsel—ever!”
The Mississippi Five
The Thirteenth Chancery District consists of five counties, each with its own SAO. We quickly identified members in four counties who had already contacted us and were willing to join the fight as parties in the case, but we were short one county.
Dee Black conferred with Mississippi state leaders, who were unanimously in agreement that we needed to fight. He notified each of the SAOs that we intended to take legal action and sent an e-lert to everyone on our Mississippi email list to let them know that we were on the case.
A family in the fifth county was finally identified and enlisted. Because the central issue involved the disclosure of homeschoolers’ names, which we did not want to do, we decided to refer to the families in our pleadings as John, Jane, and Children Doe, One through Five. But as their legend grew, first in the South, then throughout the land, they became known as—the Mississippi Five.
In re: Football Practice?
Meanwhile, Mike called one of the SAOs to find out who was her lawyer. She referred him to someone at the Mississippi Department of Education, who referred him to staff legal counsel, who refused to discuss the matter but suggested someone in the attorney general’s (AG’s) office, who didn’t know anything about anything. Frustrated but never bashful, Mike called the AG’s office again and asked to speak to anyone who wasn’t afraid to talk. The switchboard put him through to a high-ranking assistant AG.
After Mike put him in the picture, the AG said that he didn’t blame us for suing in federal court. He also asked a rather unusual question.
“Are you familiar with In re: Football Practice?”
“No,” said Mike. “But if you’re telling me that I need to be, I’ll sure run it down.”
“You need to find that case,” said the AG. “In re: Football Practice,” he repeated, and hung up.
When my sophisticated legal research software failed to pop up the case, I turned to the Google machine and found a newspaper article from summer 2007. The judge for Mississippi Chancery Court, Third District, had concluded that it was too hot for outdoor activities. So he had issued an injunction against football practice. Needless to say, this did not go over well in the land of the Ole Miss Rebels. Another article noted that the Supreme Court of Mississippi vacated the injunction within days.
But we could not find the case.
Sharkey thought he could find it the old-fashioned way by going to the supreme court and looking through the paper files. But that would take time.
A Funny Thing Happened on the Way to the Federal Courthouse
Mike began writing the federal complaint and memorandum, with the theme of protecting the homeschoolers’ right to privacy. Mike writes quickly and persuasively, but he needed cases to cite and we were in uncharted water. So I began researching the law.
Legal research requires at least two important traits: the ability to read quickly and carefully, and the ability to be objectively inquisitive. Sometimes researching one case leads to another, which leads to another, ending with an unexpected gem. Sometimes the same process leads to a dead end.
In my FERPA research I found a promising case: “The purpose of FERPA is to ... protect [parents’ and students’] right to privacy by limiting the transferability and disclosure of their records without their consent.”
But the case continued: “FERPA does not provide a privilege that prevents the disclosure of student records. Rather, by threatening financial sanctions, it seeks to deter schools from adopting policies of releasing student records.”
Congress adopted FERPA under its spending clause powers, which suggested that our federal complaint could be in trouble. When Congress promises money to the states, it comes with strings attached. If a state accepts the money but fails to do what Congress demanded as a condition for receiving it, often the state must give the money back. Sometimes a federal spending clause statute sounds like it is intended to protect individual rights, but really it’s just a carrot for the states to do Congress’s bidding.
A quick search of United States Supreme Court cases yielded the 2002 case of Gonzaga University v. Doe and this depressing case summary: “Held: FERPA’s provisions create no personal rights to enforce under federal civil rights statutes.”
When I took this case to Mike I said, “The bad news is that the decision was 7 to 2.”
He looked at the case and responded, “The even more bad news is that John Roberts argued for the winning side.” Roberts is now chief justice of the Supreme Court of the United States.
Everything Tastes Better on a Writ
After about 10 seconds, Mike said, “So—we start over. We do a writ of prohibition in the Supreme Court of Mississippi. The theme will be that the judge acted outside the scope of his office.”
A writ of prohibition is an unusual procedure that allows a superior court to correct an inferior court when an appeal would not be adequate to do so. Neither of us had ever prepared one and neither had Sharkey.
By 11:00 Monday evening, Mike had drafted a petition for a writ of prohibition, a motion to stay enforcement of the order, and a memorandum of law in support of both.
Early Tuesday morning, I put the finishing touches on our documents. Soften the tone here, beef up the argument there. Double-check the cases and the quotes. When my fellow litigation attorney, Darren Jones, arrived, he reviewed everything with particular attention to the supreme court’s rules on format and for style generally.
By 10:00 a.m. we were ready to send the writ, motion, and memorandum to Sharkey, who would need to carefully review them himself before filing them. Our goal was to file before the court closed on Tuesday.
Football Practice Redux
Just as I was about to send everything to Sharkey, I got an email from him with an attachment. It was the In re: Football Practice case. Somehow, he’d been able to dig it up after all. It was only two pages long, but it confirmed that what we had prepared was exactly right.
After the chancery judge enjoined football practice, several schools and athletic associations filed a writ of prohibition in the Supreme Court of Mississippi. The supreme court noted that the order had no case number, no pending cause of action, and no parties. The court declared the order void and vacated it, which meant that it could not be enforced.
Mike quickly incorporated Football Practice into our documents and we sent them on to Sharkey. At 4:00 Sharkey notified us that the writ had been filed and that he was faxing it to the chancery court and each of the five SAOs.
“Don’t Mess with the Homeschoolers”
The next morning, I called one of the SAOs to confirm that she’d received the writ and to find out what instructions she had received. She said that she had been told not to release the information before the supreme court ruled.
“Mr. Mason,” she said with a sweet Southern twang, “I just want you to know that this wasn’t our idea. We love our homeschoolers.”
She said, “We told the judge he didn’t want to mess with the homeschoolers. They’ve got that legal defense fund and they won’t stand for it.” In fact, she had been referring any homeschooler who called her about the situation to HSLDA.
I didn’t say it, but in my heart I was shouting, “Preach it, sister!”
On Thursday, the supreme court granted the motion to stay and gave the judge till April 18 to “specifically address the issue of under what authority the March 23, 2011 order was issued.”
The judge filed a desultory answer explaining that he was just trying to enforce the compulsory attendance laws. He didn’t explain how having the names of all of the families who were lawfully homeschooling would help him to do that, and we can think of no logical connection. The state supreme court couldn’t, either. On April 21, the court granted our petition and vacated the order.
Sic Semper Tyrannis
We never learned exactly why the judge wanted the names and addresses of the homeschoolers in his district. But the Case of the Missing Case was not really about names and addresses. The judge had temporarily lost sight of his right role in the American political system. Judges don’t pass the laws, they don’t prosecute the offenders, and they surely don’t commence the cases over which they preside. The order had attempted to consolidate the legislative, executive, and judicial powers in one man. That is what James Madison referred to as tyranny in The Federalist, No. 47.
HSLDA’s offices are on the campus of Patrick Henry College in the Commonwealth of Virginia. Every schoolchild is taught that Patrick Henry proclaimed, “Give me Liberty, or give me Death.” And the commonwealth’s motto is Sic semper tyrannis, or, “Thus always to tyrants.”
Good words to live by. So say the Mississippi Five. So say we all.