Brenda Stephens has been on the Orange County, N.C., school board in North Carolina for about twenty years. She said she remembers civil rights protests from the 1960s, and was once as the board chair in an acrimonious vote.
But Stephens, a Black woman whose board has been wrestling with controversial issues like COVID-driven mask mandates, said she鈥檚 never before had to go through a back door to get to a public meeting out of concerns for her safety.
And she can鈥檛 remember a time when threatening messages, intimidation, and during her school board鈥檚 work have defined her community in the Durham-Chapel Hill area as they do now.
鈥淭here鈥檚 so much bullying and threats,鈥� said Stephens, the board鈥檚 vice-chair, who plans to take concealed firearms training and buy a gun. 鈥淭oday鈥檚 environment is a totally different environment than what it was 20 years ago.鈥�
Different, yes. But so dysfunctional that the FBI should get on the case?
The climate for school board officials and other K-12 leaders has indeed been particularly rough this year amid fights over critical race theory and mask mandates. Yet the Biden administration鈥檚 decision last month to have the U.S. Justice Department help address threats and violence linked to that climate has touched off a heated debate on that point.
A letter to Biden leads to a political uproar
In late September, the National School Boards Association asked President Joe Biden for a federal intervention to stop a surge in 鈥渢hreats or actual acts of violence鈥� involving schools. Stating that these were not 鈥渞andom acts,鈥� the association said the incidents should be reviewed to see if they could be classified as domestic terrorism under the USA PATRIOT Act, an anti-terrorism statute, among other federal laws.
The U.S. Department of Justice responded a few days later by announcing that, among other things, the FBI will help state and local officials monitor and respond to illegal threats and activities targeting K-12 leaders.
The Justice Department鈥檚 announcement was notable for what it did not say. It did not announce an investigation into opponents of critical race theory or COVID-19 rules. It did not confirm that federal law enforcement would classify threats or harassment targeting school leaders as domestic terrorism. But it left enough room for interpretation to spark notable backlash related to those issues.
Republican U.S. senators condemned it as an attack on people who merely want to speak out about their children鈥檚 education; U.S. Sen. Josh Hawley noted that the Justice Department did not define what would constitute a threat worthy of a federal response. Conservative groups denounced the response as an attack on the free speech of political opponents. And intense media coverage has continued to give the issue fuel.
The backlash extended beyond conservatives and others normally critical or hostile of Biden and reached the people who would ostensibly be helped by FBI support. Several state school boards associations condemned the NSBA鈥檚 move, saying they were not consulted.The and school boards associations recently cut ties with the NSBA over the issue. (The NSBA declined to comment on defections or criticism among its members.)
Some see a connection between school board disruptions and the Jan. 6 riots at the U.S. Capitol, and how carefully orchestrated political intimidation and worse are now part of an acceptable strategy to gain power and influence. The NAACP鈥檚 Legal Defense and Educational Fund likened those disrupting and threatening school boards to mobs who tried to intimidate Black children integrating public schools decades ago. A limited federal response targeting lawbreakers, in their view, is responsible support for educators afraid for their own safety.
Yet others see a different imbalance of power: local school officials who have ignored the public鈥檚 legitimate and urgent concerns, especially during the pandemic. The Department of Justice鈥檚 stated strategy, they鈥檝e said, is mere cover for the education establishment and their allies in the Biden administration to intimidate people into silence and stigmatize their views.
State and local public health officials have also been subject to during the pandemic that鈥檚 left some fearful for their safety or led them to quit. In mid-October, a group representing city and county health-care leaders told Garland that his strategy to protect school leaders should .
Experts observing the turmoil in schools over the last several months have repeatedly said there鈥檚 a long history of national and cultural battles affecting local schools. But school board members are facing an unprecedentedly rapid spread of discord about issues that many parents have little to no expertise in or experience with, said Rebecca Jacobsen, a professor of education policy at Michigan State University.
鈥淚鈥檓 not sure it was the right thing to do. It might just have escalated this,鈥� Jacobsen said of the NSBA plea to protect school leaders and the Justice Department鈥檚 response. 鈥淏ut at the same time, they鈥檝e just never been set up to handle this kind of widespread, national phenomenon.鈥�
Stephens has found nothing deficient in how Orange County鈥檚 law enforcement has responded to the situation鈥攐n the contrary, she heaped praise on the local sheriff. She鈥檚 worried that the news about the FBI鈥檚 response to the situation, however limited, will only make the tension in her community worse and make her job harder. And she said she doesn鈥檛 want people鈥檚 First Amendment rights endangered.
Yet Stephens would welcome any practical federal assistance in dealing with illegal threats and other activity if the need arose. If rioters invaded the halls of Congress at the start of the year to try to overturn election results, she reasoned, what would stop something similar or worse from occurring at one of her school board meetings?
鈥淚 signed up to help students and parents,鈥� Stephens said. 鈥淭his is not what we signed up to do.鈥�
Making an example of someone to deter violence
The most forceful intervention of the federal government into local education matters, amid violence and upheaval, is generally considered to have involved the racial integration of schools, such as the deployment of troops to Little Rock, Ark., in 1957.
Less well known is the FBI鈥檚 鈥淩esponsibilities鈥� program in which the bureau collected information on possible 鈥渟ubversives鈥� among teachers and other groups from 1951 to 1955 under then-Director J. Edgar Hoover.
A 1974 fight over textbooks in Kanawha County, W.Va., schools became defined in large part by violence; elementary schools were dynamited. A federal grand jury eventually convicted a minister of amid the dispute. by a U.S. attorney.
But the idea of federal officials prosecuting someone for throwing an object at a school board member in a random incident isn鈥檛 especially plausible, said James Anderson, the director of the Justice Policy Program at the RAND Corporation.
Yet he also said it would be entirely normal for federal law enforcement agents to get involved in crimes such as kidnapping and firearms-related offenses, if they were to involve local school officials, and bringing a prosecution as a way to make a public example and deter others.
鈥淭here鈥檚 a pretty low bar for federal involvement,鈥� Anderson said.
There鈥檚 no firm tally of how many violent or other illegal incidents targeting school officials have occurred recently. And whether such activity is organized remains unclear; members of the far-right Proud Boys group with anti-mask protests at school events. (The FBI the Proud Boys a domestic terrorist group, although Canada calls it a 鈥渢errorist entity.鈥�)
In one well-publicized incident, three men, angry about COVID-19 rules, were by local law enforcement when they sought to make a 鈥渃itizen鈥檚 arrest鈥� of an Arizona principal and showed up at her school with zip ties due to anger about a COVID-19 quarantine. So far, there鈥檚 no public sign of federal involvement in that case.
Then there are threats and other actions that aren鈥檛 protected by free speech law. A crux of the school boards association鈥檚 argument is that such activity isn鈥檛 happening at random.
A creative federal prosecutor, Anderson said, could get involved if an ostensibly political group isn鈥檛 careful, or actively encourages illegal activities. The Racketeer Influenced and Corrupt Organizations (RICO) Act was enacted decades ago in large part to target organized crime, but has since been used in a variety of contexts, Anderson noted.
鈥淚f you鈥檙e a national organization that鈥檚 interested in this issue鈥� and encouraging people to protest school board policies, Anderson said, 鈥測ou鈥檇 want to make sure that none of your employees, and none of your representatives, are advocating violence or is too closely connected with someone who is advocating violence.鈥�
FBI task forces that involve cooperation with state and local officials, like the one announced in early October, . But invoking controversial federal laws to address school board unrest is not, said Brian Hauss, staff attorney with the Speech, Privacy and Technology Project at the American Civil Liberties Union.
鈥淚t鈥檚 hard to imagine the situation where the PATRIOT Act would be the appropriate [tool] in dealing with that kind of situation,鈥� Hauss said.
The key author of the PATRIOT Act was more blunt. In an Oct. 12 Wall Street Journal column, former Republican Rep. F. James Sensenbrenner of Wisconsin said the law simply 鈥渄oesn鈥檛 apply to parents鈥� behavior at school-board meetings.鈥�
鈥淭he memorandum will chill free speech, undermine civil liberties, erode public confidence in federal law enforcement, divert resources from actual terrorist threats, and weaken congressional support for key antiterrorism laws,鈥� of the Justice Department鈥檚 response.
But Anderson, of RAND, said that the Justice Department was 鈥渂asically calling for a bunch of meetings. That鈥檚 the only concrete action I see.鈥�
鈥淚f the FBI were systematically investigating parents involved in protests at these school board meetings, that would be a cause for grave concern,鈥� said the ACLU鈥檚 Hauss. Yet he added, 鈥淚 have not seen anything that supports the contention that the FBI is targeting parents based on their protected First Amendment activity.鈥�
鈥榁ituperative, abusive, and inexact鈥�
Two Supreme Court court decisions concerning threats against public officials, and the extent to which organized protest movements are responsible for subsequent violence, could be important precedents in the current situation.
In 1966, during the Vietnam War, Robert Watts said he had been drafted into the U.S. military. Announcing that he would not report, he added, 鈥渋f they ever make me carry a rifle the first man I want to get in my sights is LBJ,鈥� referring to President Lyndon B. Johnson. Watts was arrested and tried for violating the federal statute that makes it a crime to knowingly and willfully threaten the life of the president.
But ultimately, in Watts v. United States, the Supreme Court ruled Watts鈥� remark was 鈥減olitical hyperbole鈥� and did not violate the law. In its 1969 opinion, the court found that, 鈥渢he language of the political arena 鈥� is often vituperative, abusive, and inexact.鈥�
The same year Watts made his comment about being drafted, a Mississippi branch of the NAACP organized a boycott of local businesses by Black residents in Mississippi鈥檚 Claiborne County. The boycott consisted of picketing and nonviolent activity, but violence did occur targeting those businesses. At one point during the boycott, Charles Evers, a Mississippi NAACP field secretary, reportedly said, 鈥渋f we catch any of you going in any of them racist stores, we鈥檙e gonna break your damn neck.鈥� In 1969, white business owners sued the NAACP and others for lost earnings stemming from the boycott.
In its 1982 decision in NAACP v. Claiborne Hardware Company, the Supreme Court ruled that the NAACP鈥檚 protest was protected under the First Amendment, and that the group could not be held liable for individual acts of violence they had not authorized or directed, even if it occurred during the boycott. The Mississippi Supreme Court had previously ruled that the boycott was a conspiracy carried out through illegal force.
(The NAACP v. Claiborne decision was in a recent legal dispute involving a , DeRay McKesson, and his culpability for a person鈥檚 injuries from violence committed by someone else at a protest.)
Both Supreme Court decisions, Hauss said, effectively set a high threshold for when legitimate political activity devolves into threats and violence not protected by the U.S. Constitution.
A legal distinction also exists between a person who threatens a school board member鈥檚 life while waving a gun, he noted, and a person who tells that official 鈥淚 know where you live鈥� and attends an organized protest on a public street outside the official鈥檚 house.
Proper caution or the wrong target?
Those downplaying the disruptions at meetings are ignoring the lesson of the U.S. Capitol riot in January of this year, said Adam Laats, a professor of education at the State University of New York鈥檚 Binghamton University, who has studied violence and protests involving school boards.
He said hoping that people intent on disrupting public business will simply calm down and refrain from illegal violence and threats without some sort of deterrence is wishful thinking after the Jan. 6 insurrection.
鈥淭o me, this looks like a way for the executive branch to signal sympathy for one side of these disputes,鈥� he said of the Justice Department鈥檚 response. 鈥淚t鈥檚 a measure of support for beleaguered and besieged school board members.鈥�
The message is especially strong, Laats said, because it came from Attorney General Merrick Garland, the nation鈥檚 top law enforcement officer, and not U.S. Secretary of Education Miguel Cardona, even if it has the potential to 鈥渇uel this sense of martyrdom and unfair usurpation鈥� among its loudest critics.
But it鈥檚 the frequent unwillingness of school boards to be responsive to and empower parents during the pandemic, not the idea that they are disruptive and violent, that should be the focus of public attention, said Michelle Walker, a parent and organizer in Oregon at Open Schools USA. Her group has criticized schools that have kept classrooms closed during the pandemic, among other COVID-19 policies.
The Department of Justice鈥檚 action, in her view, is at best a perplexing distraction that could blow a handful of unlawful incidents out of proportion.
鈥淭he majority of parents aren鈥檛 acting like that. The majority of school board meetings aren鈥檛 happening like that,鈥� said Walker, who switched her daughter to a private school this school year to assure access to in-person learning.
Walker said that some parents who hear about the Biden administration鈥檚 response might be discouraged and stop participating in local schools altogether, even if they don鈥檛 get angry or claim to be persecuted.
鈥淚 don鈥檛 think we should be wasting taxpayer dollars on all of this training and other things that I was reading about鈥� from the Justice Department, said Walker.
That sentiment, and stronger ones, are to be expected, Hauss said.
鈥淲hen someone is out of power and unhappy with public officials, they can vent their anger in very strong terms,鈥� he said. 鈥淚f people no longer feel like they鈥檙e able to do that, the concern is, what else might they resort to?鈥�
At the same time, Hauss stressed, that principle doesn鈥檛 address the profound impact threats can have on people who are elected to serve their communities.
鈥淲ho鈥檚 going to want to be a school board official if you鈥檙e going to be afraid for your life?鈥� he said.
Wondering whether to step away from the job
For all the attention focused on how teachers are prepared for their jobs, 鈥淲e鈥檝e never had strong school board training,鈥� including for how to handle the current surge in divisive politics, said Jacobsen of Michigan State University.
Stephens, the school board member in North Carolina, said she鈥檚 thinking about not running for another term, citing a 鈥渘eed to give some of these young mothers a chance鈥� to do her job.
But she also said she would not bow out of a re-election campaign just because of the anger being directed at her and her colleagues.
鈥淭hey are not running me off the board. I鈥檓 not going to allow anybody to think that they can run me off,鈥� Stephens said.
If anyone shows up on her property to threaten her or worse, Stephens said, 鈥淭hey might meet their maker.鈥�
