Stanford Researchers Threatened By CA Dept. Of Education

CALIFORNIA — Two of the nation's best-known legal scholars and authorities on the First Amendment joined in the defense this week of embattled Stanford University professor of education Thomas Dee.

Laurence Tribe, a professor emeritus at Harvard University and author of an influential text on constitutional law, and Martha Minow, a professor and former dean of Harvard Law School, both signed a friend-of-the-court brief that asks an Alameda County Superior Court judge to protect Dee's free speech rights from penalties that the California Department of Education has threatened over an alleged breach of a research agreement.

Dee filed a brief last month critical of CDE in a lawsuit that charges the state, including CDE, failed to protect low-income Black, Hispanic and other vulnerable student groups from the disproportionate impact of remote learning during the pandemic.

CDE is alleging that Dee's brief in the disproportionate impact case violated a data research partnership that he signed as a faculty adviser with the John Gardner Center for Youth and their Communities at Stanford.

As a condition of Gardner Center's getting access to the data, the agreement requires that all signers agree not to testify in any litigation "adverse" to CDE. The department is threatening to fine him $50,000, rescind all data that the Gardner Center received and prohibit him from future data access — even though the lawsuit, known as Cayla J. v. California, has nothing to do with the Gardner Center data partnership and Dee didn't use any data collected from it in his brief.

In its brief on Dee's behalf, which the ACLU of Southern California co-authored, Tribe and Minow said the ban on participating was clearly a violation of Dee's free speech rights, targeting testimony that disagrees with its viewpoint.

And the application, to a lawsuit unrelated to the data partnership, is "breathtakingly broad," they wrote. "The government may not condition a benefit — here, access to government education data — on giving up a right, including and especially the right to speak freely without being subject to a viewpoint discriminatory scheme," they wrote.

Minow has been a professor at Harvard Law for more than 40 years. Along with constitutional law, she writes and teaches about digital communications, democracy, privatization, military justice and ethnic and religious conflict.

On Wednesday, EdSource writer John Fensterwald interviewed Minow about the importance of advocating on Dee's behalf. The transcript has been edited for length.

EdSource: I was interested to see that you and Laurence Tribe co-signed an amicus brief. What was your interest in this issue?

Martha Minow: It's a very large issue that involves the freedom of academics and researchers to pursue their research and to use it to be critical even of the government. And even when they have signed a waiver that ostensibly waives their right to be so critical or to use such research. That's a huge issue. Those kinds of conditions occur in contracts that increasingly are being presented to academics and other researchers. So this is really the core of the First Amendment.

EdSource: Is this the first time you've heard of an instance like this?

Martha Minow: I have not heard of other instances. It was news to me. There may be others, but if so, that's very worrisome. One of the precedents is a case that I actually had a brief in long ago. The League of Women's Voters versus the FCC involved conditions on a broadcast license. A little different than a researcher, but similarly government-imposed restrictions were found to be unconstitutional. These are not waivable (rights) even though the licensee had signed the agreement. Where I know that it's already entered the academy in a substantial way is where an industry sets limits on the use of the research, whether it's the tech companies or pharmaceutical companies.

EdSource: Is this case particularly egregious because it seems to be viewpoint discrimination? It doesn't say that you can't testify on behalf of the government.

Martha Minow: You're exactly right. So not only is there a silencing of the researcher, it is viewpoint restriction, which is the worst kind of restriction of speech — even speech that falls outside of First Amendment protection. If there's viewpoint restriction, it violates the First Amendment, no question about it. Dr. Dee could be used by the government, by the school system, to testify on its behalf. It's only in being critical that the restriction applies.

EdSource: It's being applied to cases that have nothing to do with the data that you received.

Martha Minow: Absolutely. It's so broad. Even if it could ever be conceived there's some urgent government purpose, this is so broad, in that it covers totally unrelated material with regard to the agreement that was signed.

EdSource: Are you concerned that perhaps, if it's allowed, other agencies might see this and do the same?

Martha Minow: Absolutely. This is the creeping restrictions on speech that could jeopardize academic freedom, accountability of government, political speech and knowledge building. This goes to the core of it all.

EdSource: Have the ones dealing with industry putting restrictions on the use of data been litigated?

Martha Minow: There are some that have litigated, but it's not the government, right? The First Amendment only applies when it's a government action.

EdSource: To what extent can agencies use the right of review to ensure privacy protections, which you've written a lot about? Is there a worry that they'll use leverage to delay or restrict things that they don't like?

Martha Minow: I don't know how to speculate about that. There are always dangers of the kind of ruse or delays that any party of litigation can use, but I don't know anything in this context. Of course, privacy, even trade secrets, are protected information that a researcher may come across. But then you would want to be sure that any restrictions on the speech are narrowly tailored. This is not narrowly tailored.

EdSource: If agencies like the California Department of Education require a review to ensure accuracy, is there a problem with that in itself, or how it's used?

Martha Minow: I'd have to understand better whether the review actually leads to censorship. If there's a review and the government concludes with a disagreement with the researcher about the interpretation of data, and it's not about factual accuracy, then I think we're in dangerous territory.

EdSource: I'm curious how you learned about this particular case.

Martha Minow: The First Amendment is one of my ongoing areas of interest. This is something that I've written about and litigated, so I follow this area.

Copyright © 2023 Bay City News, Inc. All rights reserved. Republication, rebroadcast or redistribution without the express written consent of Bay City News, Inc. is prohibited. Bay City News is a 24/7 news service covering the greater Bay Area.

This story was originally published by EdSource.