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Education Department illegally stonewalls College Fix request about ‘Free Speech Hotline’: legal expert

The U.S. Department of Education’s refusal to comply or even properly respond to a Freedom of Information Act request by The College Fix is a violation of federal law, according to a Washington D.C.-based legal expert.

“The U.S. Department of Education continues to violate the Freedom of Information Act (FOIA), especially about subjects it doesn’t care about, such as freedom of speech,” stated constitutional law attorney Hans Bader in a Dec. 27 piece for Liberty Unyielding headlined “Education Department illegally stonewalls FOIA request about ‘Free Speech Hotline.'”

On March 31, 2021, The College Fix filed a freedom of information act request with the department to see what types of complaints had been reported to a “Free Speech Hotline” the agency launched in December 2020.

Last week, The Fix reported that in the nine months following the request, the Education Department has not handed over any relevant documents or really responded in any substantive way to the FOIA other than to grant a waiver of the typical freedom of information act fees.

According to FOIA.gov, the Freedom of Information Act provides the public with the right to request access to records from any federal agency: “Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.”

Bader argued that the department’s stonewalling of The Fix’s request violates the act:

FOIA requires federal agencies to provide a substantive response to Freedom of Information Act requests within 20 working days, and turn over the records “promptly” thereafter if they aren’t exempt from disclosure. But the Education Department still hasn’t turned over the records requested by a conservative newspaper in March, and it hasn’t even provided the legally-required “determination” about whether it will ever turn over those records.

The hotline was created while Betsy DeVos, an appointee of President Donald Trump, served as Education Secretary. The current secretary is Miguel Cardona, appointed by President Joe Biden.

Bader’s foundation currently has two FOIA lawsuits pending against the Education Department. One is for records about school discipline and the other is for records about the 1619 Project:

The Education Department turns over records much faster after it gets sued for violating FOIA. Two FOIA requests were jointly submitted by Liberty Unyielding and the Bader Family Foundation (BFF) in late May, about school discipline and the 1619 Project. When the Education Department failed to respond within the required 20 working days over those requests, it was sued by BFF in two lawsuits filed in the U.S. District Court for the District of Columbia (see here and here). The Education Department then turned over what it claimed were all the records it was required to produce in August and October of 2021.

Those lawsuits continue, because BFF has argued that the Education Department’s response was sloppy, overlooked responsive records, and improperly redacted information from the records it produced. BFF has asked the court to issue an order commanding the Education Department to conduct a more thorough search, and to turn over unredacted records.

Read the full report at Liberty Unyielding here and The College Fix’s report on its Free Speech Hotline FOIA here.

MORE: Ed Dept. launches ‘Free Speech Hotline’ to combat cancel culture on campus

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About the Author
Fix Editor
Jennifer Kabbany is editor-in-chief of The College Fix.