The finding stems from a complaint brought by a Fairfax parent and special education advocate  in December after she inadvertently received data on roughly 35,000 students, including special education records, confidential legal memos and mental health conditions. ĂÛÌÒÓ°ÊÓ first reported the disclosure Nov. 1. The records included full names of students involved in lawsuits against the district over alleged sexual assault complaints and those seeing counselors for issues such as suicidal thoughts and depression.

The 180,000-student district has until March 25 to appeal the state’s finding or complete a “corrective action plan” that includes some steps the district has already agreed to, such as additional staff training.

That training, however, was supposed to begin Oct. 31, according to the district’s response to an earlier complaint from the same parent. But during a with a parents group, a district official acknowledged the training had yet to start . 

“That is going to be launched fairly shortly,” said Dawn Schaefer, who oversees special education complaints for the district. “I don’t have an exact launch date, but I can certainly check.” 

In its decision, the state noted the district’s failure to address the repeated violations.

“A perfect policy is of no use if people ignore it,” wrote Patricia Haymes, the director of dispute resolution at the Virginia Department of Education. “Perfect procedures are meaningless if no one follows them.”

Haymes ordered the district to provide a list of all students affected by the disclosure and to verify that their parents have been notified. The district must also submit monthly progress on its implementation of recommendations of the Superintendent Michelle Reid launched following ĂÛÌÒÓ°ÊÓ’s reporting. The state noted the article in its response to the district.

The state’s finding backs up what some Fairfax parents have been saying for years — that district staff members have a pattern of sharing confidential emails and student records with the wrong parents and educators. Experts praised the state for pushing for additional training, but one questioned whether the requirements go far enough, calling them “fairly lackluster.” 

“I don’t know that the families harmed will feel like this is sufficient oversight of the issue,” said Amelia Vance, president of the Public Interest Privacy Center. “Trust has been breached between the community and the district, and more is necessary to fix this.”

Nonetheless, she gave Fairfax’s superintendent credit for being transparent about the district’s mistake and promptly issuing an apology. The district declined to comment on the outcome of the state complaint.

‘A bigger Band-Aid’

Virginia officials previously accepted the district’s assurances that the disclosures were isolated incidents. In mid-December, a state hearing officer said “a series of mistakes” doesn’t necessarily add up to a “systemic violation.” 

The state has “always said it’s a one-off. They operate as if each incident is a silo,” said Callie Oettinger, the parent who gained access to the unredacted records in mid-October when she went to a high school to examine files on her own two children. She made the request under the federal , or FERPA, which gives parents the right to examine their children’s education records.

Pointing to larger concerns in the district, her complaint noted “overlapping” privacy violations that officials were already investigating between March and mid-November last year, including the large October records release and a November incident in which Robinson Secondary School, a seventh through 12th grade school, mailed students’ report cards to the wrong parents. 

Oettinger called the remedy “a bigger Band-Aid” compared with steps the district already agreed to take, including lawyers signing off on record requests before they are released to parents. 

But Todd Reid, a spokesman for the state education department, called the corrective action plan an “intensive requirement of both federal and state special education law” to ensure districts make improvements within a specific time frame. 

‘Not letting it slide’

Another privacy expert blamed these types of mistakes on the “convergence” of more student data, new technologies and parents who want access to records electronically. Steve Smith, founder of the , a national network, said the district should be using systems that “reduce the likelihood of inadvertent sharing.”

But, he added, the backlash from parents can force a district to take better precautions. 

“These things becoming public and the school community losing confidence probably has more impact than a warning from the FERPA office or the state,” he said. “I applaud parents for not letting it slide.”

Several of the documents were internal memos about special education services and litigation brought against the district by two former students who alleged they’d been sexually assaulted. One spreadsheet identified at least 60 students struggling with mental health issues, including some who had been hospitalized or engaged in self harm.

Investigators said that in the future, attorneys should review and label files before a parent inspects them and urged staff throughout the district to be trained on the “importance of redacting and safeguarding confidential information.” In Thursday, Superintendent Michelle Reid said the district would comply with all of the recommendations.

The brief summary of leaves several questions unanswered, including which district officials were responsible for the disclosure and how such a massive breach occurred after a string of similar incidents in recent years.

ĂÛÌÒÓ°ÊÓ first reported on the most recent episode on Nov. 1, two weeks after Callie Oettinger, a parent in the district, reviewed documents that she requested on her own children, a daughter in high school and a son who graduated in 2022.ÌęShe discovered later that the information she copied and downloaded onto thumb drives included private information on thousands of other students.

The disclosure was just the latest in a series of student privacy incidents within the 178,000-student district in recent years. In 2020, obtained Social Security numbers, birthdates and other data on over 170,000 students and employees. In the early weeks of the pandemic, students were subjected to racist and obscene comments and other harassment in that weren’t protected with a password. And multiple parents told ĂÛÌÒÓ°ÊÓ they have mistakenly received other students’ special education records or that their children’s information has been shared with other parents or staff members. 

In 2019, a former superintendent apologized when staff members forwarded information on Oettinger’s son to the wrong people and promised to train staff to prevent future occurences. But in 2021, the district released private data on about a dozen students to another parent, Debra Tisler. Tisler shared the information with Oettinger, a special education advocate, who published redacted versions on . The district sued both parents to get the records back, but .Ìę

A day after ĂÛÌÒÓ°ÊÓ’s report, Reid apologized and announced that a firm with expertise in cybersecurity — — would investigate how the incident occured. Nearly six weeks later, parents whose children were named in the records received a letter notifying them of the disclosure and the district set up a phone line to provide them with more information.Ìę

The summary of the investigation showed that “older thumb drives containing unredacted files” were “unintentionally and unknowingly left within boxes accessible” to Oettinger when she went to her local high school for an in-person review of her children’s records. The probe also included “a forensic examination of a laptop” Oettinger used while she was there.

But Oettinger said the lead investigator, Beth Waller, never contacted her. Waller did not return calls or emails seeking comment.Ìę

Reid’s letter to families stated that Oettinger and her attorney “provided declarations under oath and penalty of perjury stating they have deleted and do not have any of the identifiable student information that was involved in this incident.”

Oettinger said she wished the district had made greater efforts to clarify that she didn’t release any student’s private information.Ìę

She published examples of the documents on her advocacy website to further underscore the point that the district didn’t protect sensitive student data. But she redacted personal identifying information before posting.Ìę

The investigators called the incident “a unique set of circumstances” and an “unusual review,” another description Oettinger objects to. The Individuals with Disabilities Education Act gives parents the right to review records in person.Ìę

In Fairfax, parents are split over whether Oettinger did the right thing in failing to initially inform the district of the error.Ìę

“How do we file a lawsuit against her?” one asked on Facebook. “Let’s def (sic) all band together!”

Another wrote, “Do you understand the stress and anxiety you have caused to thousands of families in your self-righteous quest for ‘justice?’ “

But Oettinger said past privacy violations made her skeptical that the district would properly address the matter.

Other parents defended Oettinger’s actions. “If she hadn’t reported it to the public, we would never have known about it,” said Jill Janson, who has two children whose information were included in the records released. “If [Fairfax County Public Schools] isn’t uber careful with a parent they have a long history with regarding data spills, then just how careful are they with a regular person off the street?”

Oettinger has complained several times to the Virginia Department of Education about the October disclosure. But state officials maintain that the district does not have a systemic problem. 

In October, following a previous complaint, the state said the district had assured officials that staff members would receive training on student privacy. That training began Oct. 31, but the district did not respond to a question on how many staff members completed it.Ìę

“This school division is the Commonwealth’s largest,” Cecil Creasey Jr., a state hearing officer, wrote Dec. 11 when he ruled on an appeal from Oettinger. The district’s size, he said, is not an excuse, but helps to explain why such errors occurred.

But Oettinger and other critics argue the district should be able to secure student privacy given the millions of dollars it spends on legal fees.

“I have heard ‘human error’ too many times through the years,” Oettinger said. “It isn’t an excuse. Can you imagine the president accidentally including Putin in an email and then blaming human error?”

In a federal court motion filed Nov. 14 that cited ĂÛÌÒÓ°ÊÓ’s exclusive reporting, attorney Andrew Brenner described the disclosure as “at best, careless,” particularly after the former student won a legal battle against the district for her right to remain anonymous. Brenner asked the U.S. District Court for the Eastern District of Virginia to compel Fairfax to explain how her name ended up in documents released as part of a records request that had nothing to do with her case.

A hearing on the motion is set for Dec. 15.

Known as B.R., the woman is as well as the former students she alleges sexually assaulted her in 2011, with a trial set to begin in March. The motion asks for the names of all district employees involved in producing the materials that identified her as well as the district’s steps “to collect, review, compile and transmit the documents” prior to their release.

The district’s response to the motion could provide insight into how unredacted records on tens of thousands of students were released to a parent and special education advocate. The documents included sensitive, confidential information such as grades, disability status and mental health conditions.

Following ĂÛÌÒÓ°ÊÓ’s report, the district apologized and launched an investigation. A firm with expertise in cybersecurity — — is handling the probe, but some parents with children named in the disclosure said so far, no one has contacted them. Superintendent Michelle Reid said in she will share a summary of the investigation once it’s complete.

Callie Oettinger, the parent who received the records, went to her local high school in mid-October to examine what she thought were records pertaining to her own two children. Her son, who received special education services in the district, has since graduated, and her daughter is still in high school. She copied computer files onto thumb drives as a paralegal observed and helped her identify some of the records. 

While most of the documents set aside for her review included her children’s names, they also revealed information on what she estimates were at least 35,000 other students. B.R.’s full name was listed in a document labeled “attorney work product” and marked “privileged and confidential,” as well as in an email to board members about litigation to discuss in a 2020 closed meeting.

The records also identified another former student with a separate Title IX case against the district. In reached last year, the district agreed to always redact the student’s real name from any copy of the document and only use a pseudonym when referring to the case. Her attorneys did not respond to a request for comment.

The day after issuing its apology, the district sent Oettinger a strongly worded email demanding that she “return all files removed, including any and all physical media used for unauthorized extraction of information from FCPS.” The letter referred to the documents as “wrongfully retained information.”

To her attorney, the language suggested Oettinger was at fault. 

“She’s done nothing illegal, and they have no legal right to compel her to do anything,” said Timothy Sandefur, vice president for legal affairs at the Goldwater Institute, a Phoenix-based libertarian think tank. Oettinger posted redacted documents from the recent trove on she runs on special education issues. “If they want assurance that she is not going to publish any kind of confidential information about kids, she absolutely will not publish confidential information about children. She has assured everybody of that already.”

Oettinger sent the thumb drives to Sandefur, who has since communicated with attorneys conducting the district’s investigation. But he declined to provide an update on the district’s progress. The attorneys conducting the investigation also didn’t respond to requests for comment.

A need for ‘robust action’

Oettinger didn’t initially alert the district to the disclosure because, she said, it has failed to make improvements after previous privacy violations. In fact, on Oct. 19 — the third and final day that Oettinger reviewed files in person — the Virginia Department of Education responded to one of her earlier complaints, finding the Fairfax district out of compliance with the federal Family Educational Rights and Privacy Act, or FERPA.

The decision only pertained to her son and was not a statement about the district’s overall privacy record.

Patricia Haymes, who directs the state agency’s Office of Dispute Resolution and Administrative Services, noted that officials have had “ongoing concerns” regarding student confidentiality in Fairfax and “believed that there was a need for the school division to take more robust action to ensure sustainable compliance.” But she also said the district assured her in September that it was taking steps “regarding the confidentiality of and access to student records.”

In that Sept. 27 letter, the district said it was training staff on their obligations under FERPA and the Freedom of Information Act, and was planning a “mandatory training” for principals and other administrators in charge of student records and special education. Training was scheduled to begin Oct. 31 and employees have two months to complete it. 

On. Nov. 8, Oettinger appealed the state’s decision, citing ĂÛÌÒÓ°ÊÓ’s reporting on the accidental records release. Both the district and the state have “failed to ensure compliance — and now here we are,” she wrote. “You have enough for [the district] to be found at fault for systemic noncompliance.” 

The district disputes that it has violated the law. In a Nov. 21 response to Oettinger’s appeal, it described the disclosure as a “single instance of what appears to be human error” and said that Oettinger’s in-person review of the documents, which FERPA allows, was “outside the typical electronic document production that FCPS employs.“

Oettinger said she has faith in Reid, who became superintendent last year, to push for tighter security.  The two have exchanged emails and met in person multiple times. Oettinger said she’s “choosing to believe Reid’s trying to change the district’s culture and that she knows me enough to know I’d never do anything nefarious.”

Some special education experts in the state are baffled by the district’s mistake. 

“It’s just the norm that when you do a document production, you are careful about what you shouldn’t be disclosing — whether it’s other students’ names or legal advice,” said Jim Wheaton, a William and Mary Law School professor who runs a legal clinic for future attorneys that plan to work on special education issues. “It just blows my mind that they would be so reckless.”

But he said that there’s not much parents can do about such violations. They can file complaints, but there’s no right to sue under FERPA.

“In religious terms,” he said, “it’s, ‘Go forth and sin no more.’”

The students, 12- and 16-years-old at the time of the alleged incidents, said district officials failed to respond adequately to their reports — accusations they deny. In court, the students’ lawyers fought successfully for their right to stay anonymous.

“It’s completely irresponsible,” said Shiwali Patel, an attorney with the National Women’s Law Center, which supporting one of the former Fairfax student’s requests to keep her identity private. She said a lot of victims of sexual violence don’t come forward because they “don’t want to have their name out there in the public.”

ĂÛÌÒÓ°ÊÓ reported Wednesday on the district’s release of records on an estimated 35,000 students to a parent who has been an outspoken critic of Fairfax’s data privacy record. District officials declined to comment on the specifics of the disclosures, but late Wednesday issued an apology and launched an “external legal investigation” to determine how staff released the documents.

Two weeks ago, Callie Oettinger, a special education advocate, went to her local high school to review what she thought were records she had requested on her children. But she ended up with a trove of digital files that included personal information such as addresses and disability diagnoses, and that named students who had engaged in self-harm or been hospitalized. “We are deeply sorry that this happened,” the district said, predicting the probe “could take some time” due to the large number of affected students.

In addition, Superintendent Michelle Reid responded to an email from Oettinger, saying that she had “spoken with staff and requested an immediate and thorough review into this deeply concerning matter.” 

The documents also named students with disabilities involved in a over the use of seclusion and restraint. Following a local news investigation, almost 1,700 instances involving over 200 students during the 2017-18 school year. Some students as young as six were isolated in a room dozens of times during the year. The case ended in 2021 with in which the district promised to phase out such practices by the end of last school year. Court documents only used students’ initials, but the documents released used their full names. 

“Absolutely, student names should have been protected,” said Denise Marshall, executive director of the Council of Parent Attorneys and Advocates, a nonprofit that joined the parents who sued the district. She called the leak “an egregious breach of privacy.”

One of the documents on those students, labeled “attorney work product” and “privileged and confidential,” also contained the names of two former students involved in Title IX cases against the district. It identified them as “Jane Doe,” but then listed their real names in parentheses. Their last names were also included in an email from John Foster, the district’s general counsel, to board members about cases they’d discuss in a 2020 closed meeting.

In the , a plaintiff identified as Jane Doe was a 16-year-old Oakton High School student when she alleged that she was sexually assaulted during a three-day band trip in 2017. She sued in 2018, saying that officials violated Title IX because they knew about the allegations, but waited until the trip was over to address it. She alleged that the district discouraged her from contacting police and when they told her parents, suggested their daughter would face discipline for having sex while on the trip.

Doe won her case in the U.S. Court of Appeals for the Fourth Circuit, but it ended in a settlement last year after the U.S. Supreme Court declined to hear the district’s appeal. She received almost $588,000 in , but the district made no admission of responsibility. The agreement includes a stipulation that the district will always redact Doe’s real name from any copy of the document and only use a pseudonym when referring to the case.

Lawyers for both students declined to comment on the recent disclosures.

The second case, , is set for trial in March in a federal district court. B.R., as she’s named in the suit, was a 12-year-old student at Rachel Carson Middle School in 2011 when she said an older group of students repeatedly raped, tortured and threatened her with death over a four-month period. She alleged that they were part of a gang tied to sex trafficking in Northern Virginia.

While she later reported the alleged attacks to the police, she said the detective who investigated was a former school resource officer in the district who quickly closed the case. The district argued that staff responded appropriately, but a by the U.S. Department of Education’s Office for Civil Rights concluded the district could have acted more quickly. As a result, the district updated its policies.

At 19, she sued the district and her alleged attackers, saying educators ignored her requests for help. The school district argued the case should be dismissed because she missed a deadline for requesting to use a pseudonym. The in B.R.’s favor, but the district appealed to the Fourth Circuit.  

The National Women’s Law Center was one of 52 organizations that argued the case should continue, despite what it called a “procedural technicality.” In November 2021, the ruled in favor of the plaintiff. 

“In many of these cases, plaintiffs are proceeding with a pseudonym. That is not uncommon,” Patel said. “For the district to push back against that is a bullying tactic. It doesn’t impact their ability to defend the lawsuit.”

The documents identify current and former special education students by name and include letter grades, disability status and mental health data. In one particularly sensitive disclosure, a counselor identified over 60 students who’ve struggled with issues like depression, including those who have engaged in self-harm or been hospitalized. 

A letter from the district to the state provides copious details about the condition and care of a medically fragile fourth grader. And a document containing “attorney work product” marked “privileged and confidential” references a pair of Title IX cases. It identifies two students as “Jane Doe” — a common practice with alleged victims of sexual assault or harassment — but then names the students in parentheses.

The disclosure of private student data is likely the largest since 2020, when the hacker group MAZE , including Social Security numbers and birthdates, on over 170,000 students and employees in the nation’s 13th-largest district. But this time, it looks like human error, rather than ransomware, was to blame. 

“Why worry about people from the outside?” asked Callie Oettinger, who received the recent document collection. “They’ve got the door wide open from the inside.”  

Oettinger, a parent and special education advocate with a long and contentious relationship with Fairfax administrators, went to a school on three consecutive days last month to examine her children’s files — data such as test scores, attendance records and audio recordings of meetings she’s been requesting for years. In addition to boxes of paper files, the district provided her with thumb drives and computer discs that Oettinger estimates include personal data on roughly 35,000 students.

Parents who have challenged the district over special education services said the leak opens their children to further harm. Among the records released to Oettinger was a 2019 email exchange in which officials questioned the cost of an independent educational evaluation for Julie Melear’s son, who has dyslexia. 

“Is my kid, for the rest of his life, going to have to look over his shoulder to see what Fairfax is putting out there?” asked Melear, who had three children in the district and now lives in Denver.

The latest disclosure is not an isolated incident. Oettinger, who also runs a special education , said the district has repeatedly released information on her now 19-year-old son to other parents and unauthorized staff and, on at least six occasions between 2016 and 2021, provided her with documents on children who are not her own. One was a 2020 internal on special education that included students’ names, their attorneys and costs for services.

But those instances seem small compared to the volume of records she received in October, which span the years 2019 to 2021. It also comes four years after the district’s former superintendent apologized to Oettinger for a similar disclosure and two years after a county judge ruled against Fairfax in a case related to leaked student records. 

Contacted last week, Fairfax officials — who pledged to improve security after the 2020 breach — appeared unaware they had given Oettinger access to students’ personal data. The district’s communications office forwarded an inquiry from ĂÛÌÒÓ°ÊÓ to Molly Shannon, who manages the district’s public records office. In an email, Shannon asked a reporter to identify who accessed the records and where it occurred ”so we can investigate and remediate the issue at the school, notify any affected families, and work with the parent to ensure other students’ information is properly secured.” 

Under , the district is required to alert parents “as soon as practicable” if there’s a violation under the Family Educational Rights and Privacy Act, or FERPA.

The records release is the latest dilemma for Virginia’s largest school system, which has come under intense scrutiny for its handling of special education. Following a federal civil rights probe last year, to make up for services it failed to provide to students with disabilities during the pandemic. For years, federal officials the state to improve its monitoring of districts to ensure they’re complying with all special education laws. As recently as February, they told former state Superintendent Jillian Balow that remained a sticking point.

Data leaks linked to are not unique to Fairfax. In 2017, for example, the Chicago Public Schools posted , including health conditions and birthdates, to unsecured websites. Time-consuming records requests to school districts have also skyrocketed in recent years, fueled in part by controversies over COVID protocols, library books and curriculum. Many districts have struggled to keep up, but one expert said Fairfax shouldn’t be one of them.

“I have a lot more sympathy for the many, many small districts,” said Amelia Vance, founder and president of the Public Interest Privacy Center. But with an annual $3.5 billion budget, Fairfax, she said, “certainly seems to have the resources and they’ve had these requests for years. If they don’t have a system to respond in a protective manner, in an efficient manner, that’s on them.”

Phyllis Wolfram, executive director of the Council of Administrators of Special Education, a national organization, said she doesn’t think it’s common for districts to release students’ files to the wrong parent. But if record requests are increasing, she said, security should be tighter. 

“Given the shortage of school staff all around, we must be extra vigilant and ensure high-quality training for all staff,” she said. 

‘Process and protocols’ 

FERPA is that gives parents the right to examine their children’s educational records. Oettinger said she asked to see original documents in person — after the state overruled the district’s initial refusal — because past responses have been incomplete or contained electronic files that didn’t open. 

She said she is unsure who in the district ultimately signed off on the recent release. On Oct. 16th, she received an email from Shannon saying the records were ready. From Oct. 17 to 19, she sat in a small room next to the main office of her local high school and viewed the files. A paralegal from the central office supervised as she copied records to thumb drives and scanned paper documents on her phone, Oettinger said. He offered assistance and even called in an IT expert when a media file didn’t open. She recorded everything and shared audio files of her visit with ĂÛÌÒÓ°ÊÓ. Ironically, she said, some of her own children’s records are still missing.

At one point, she spotted an unredacted document with a teacher’s notes and suspected there were more. But she said she didn’t realize the full scope of the disclosure until she began reviewing the files at home. 

She filed a complaint with the U.S. Department of Education’s Office for Civil Rights on Oct. 20 and contacted a handful of parents she knows with children named in the documents.

Oettinger said she didn’t report the leak to district officials because she doesn’t trust them — a skepticism that has only intensified over time. When her son had reading difficulties in elementary school, educators responded three times that an evaluation “is not warranted,” according to district records and, she said, told her that boys learn to read slower than girls. 

“You get one chance with your kid, and there’s no handbook,” she said. “In special education especially, nobody knows what to do. All you know is that you’re fighting.”

It took an independent evaluation for her son to be diagnosed with dyslexia, and by seventh grade, he had an Individualized Education Program, a plan that outlines the services a district is obligated to provide students with disabilities. Like thousands of Fairfax parents, she also complained that the district failed to follow that plan during the pandemic. He graduated in 2022, but her daughter remains a Fairfax student.

As she navigated the system for her son, she became a sounding board for other families. She launched her website, Special Education Action, in 2020. She’s filed at least 100 complaints with the state education department over special education services in the district and another dozen with the federal civil rights office, of which at least two have resulted in investigations. Her persistence — sending detailed, sometimes biting, emails and pressing for answers to all her questions — has earned her a reputation for “berating” staff, according to one 2019 email from Dawn Schaefer, director of the district office that handles special education complaints.

“It’s obvious you don’t know what you’re talking about, so let me break it down for you,” Oettinger wrote in a 2020 email to a staff person regarding a diagnosis for her son.

In addition to requests for documents on her own children, she submits Freedom of Information Act requests with the district each year for more general data that she uses in her advocacy role. In one internal 2020 email she obtained, John Cafferky, an attorney who handles special education cases for the district, said she files them because she’s “waiting for someone to slip up.” 

District officials have promised her they would do a better job of safeguarding student privacy. In a 2019 email exchange with former Superintendent Scott Brabrand, Oettinger reported multiple cases of school staff forwarding information about her son to the wrong people. 

“I am sorry to report that the school did make a mistake and unintentionally provided information about your son to another parent,” he responded. “We take student privacy very seriously. Following our process and protocols is paramount to ensuring we protect student information.”

Following the 2020 ransomware incident, the district and released a statement saying it was “committed to protecting the information of our students, our staff, and their families.” The state also stepped in to help the district clean up its “internal practices, and ensure it should not happen again,” state Superintendent Lisa Coons told ĂÛÌÒÓ°ÊÓ.

But it did. 

In 2021, another Fairfax parent, Debra Tisler, filed a public records request seeking invoices for legal services in an attempt to learn how much Fairfax was spending on attorneys’ fees related to students with disabilities. The district released records that included personal information on about a dozen students. 

Tisler shared the files with Oettinger, who posted , with names blacked out, on her website. The district to get the records back, but lost the case. 

Judge Richard Gardiner, who heard the lawsuit in a Fairfax County district court, said the records were “obtained quite lawfully.” 

“The [district], for whatever reason — maybe it was ineptness, I don’t know; I have no evidence on that — made the decision to turn over the information, and they’re stuck with that,” he said, according to of the hearing. 

Following the lawsuit, an from December 2022 showed the district’s in-house attorneys didn’t finish redacting students’ personal information before its records office released the documents. Fairfax instituted new procedures to ensure records go through multiple reviews, including checks by a paralegal and a staff attorney. The district also to keep up with demand.

‘Basic data protection’

But it appears the system broke down. Some parents whose records ended up in the recently released files said they weren’t surprised because they, too, have previously received documents pertaining to other students.

“Some of the information I found out about other people’s children I don’t want to know,” said Melear, the parent who relocated to Denver. 

In the files released to Oettinger, Torey Vanek’s daughter was included on a spreadsheet of students who receive special education services or accommodations for a disability. A ninth grader at Woodson High School, her daughter has dyslexia. 

 “There is a joint frustration among many parents in Fairfax,” Vanek said. “Part of me is not surprised, but part of me is like this is just basic data protection.” 

One likely effect is obvious. “There is going to be some closing of doors,” said Halley Potter, a senior fellow at The Century Foundation, a progressive think tank. “It’s going to be a landscape in which it’s harder to secure access in most competitive schools.” 

But further down the line, a ruling against schools that factor race in admissions could affect a host of other academic mainstays, from scholarships to the centrality of tests like the SAT and ACT.

The ruling might not end diversity efforts outright. Granting preferential admission to low-income students, children of single parents or those from communities where students often don’t go to college could achieve similar results, experts say, without courting legal trouble. 

“ don’t want race used in admissions, but Americans do want selective institutions to be racially diverse,” said Richard Kahlenberg, a non-resident scholar at Georgetown University’s McCourt School of Public Policy, and an expert on integration. He thinks the court’s decision could reflect that paradox. “They don’t want to be seen as simply dismissive of the aspiration of racial diversity.”

The court is expected to issue decisions in two lawsuits — brought by Students for Fair Admissions against Harvard University and the University of North Carolina — later this month. The plaintiff in both cases argues that the weight universities place on race in admissions violates anti-discrimination laws and puts Asian American students at a disadvantage. 

‘Next generation’

While the cases don’t deal directly with K-12 schools, the high court’s decision could elevate the importance of a recent lower court ruling rejecting a legal challenge to diversity efforts at an elite Virginia high school. Thomas Jefferson High School for Science and Technology in Alexandria, Va., removed a rigorous admissions test and a $100 application fee, and reserved seats at the school for the top 1.5% of 8th graders in each middle school. Coalition for TJ, the plaintiff in the case, called the revised admissions criteria discriminatory against Asian American students. 

The 4th Circuit Court of Appeals rejected that view. “The policy challenged here is not just race-neutral: It is race blind,” Fourth Circuit of Appeals Judge Toby Heytens wrote in the

The conservative Pacific Legal Foundation, which represents the plaintiffs, said board members’ desire to increase the number of Black and Hispanic students at the school motivated the new policy. They plan to ask the Supreme Court to hear the lawsuit. 

Kahlenberg, who testified on behalf of Students for Fair Admissions about race-neutral alternatives, called the TJ case a “next generation issue.”

If the Supreme Court rules that universities can no longer ask applicants to identify their race, they might see the Fairfax case as a chance to “spell out in further detail the line between what is acceptable and unacceptable,” he said. “I think the answer will be that the TJ program is perfectly fine.” 

‘Formative experiences’

The college admissions industry, meanwhile, has been preparing for the end of affirmative action for months. Beginning in August, for example, colleges can hide a student’s race if it’s included in the , a uniform application for undergraduate admissions accepted at more than 1,000 colleges and universities nationwide.  

The American Association of Collegiate Registrars and Admissions Counselors earlier this year to review all of their policies and practices related to diversity, equity, and inclusion and to examine any area, such as mission statements and recruitment efforts, where race is a factor — “no matter how minor” — to determine if changes are needed.

Organizations that focus on high school graduation and college enrollment say they plan to continue to identify students who would be the first in their families to attend college, regardless of race. 

“In some ways for us, it will be business as usual — to serve underserved students. That’s been really the heart of our work long before this became a hot-button issue,” said Pam Johnson Davis, director of fellow support for OneGoal, a nonprofit that works in eight states to increase graduation and college enrollment rates. Eighty-six percent of the students served by the organization are Black or Hispanic. She supports 400 “fellows” in the Chicago area who are already in college or another postsecondary program.

If students are barred from bringing up their race even in their admissions essays — a hypothetical scenario that came up during Supreme Court — teachers at OneGoal schools would still encourage students to write about barriers they overcame to pursue education, Davis said.

Facing discrimination, raising younger siblings, translating for parents who don’t speak English — “these are really formative experiences in students’ lives,” she said. “Their stories will be shaped by their cultural and socioeconomic backgrounds.”

Stephen Barker, a spokesman for the organization, added that opportunities for Black and Hispanic high school students to earn college credit could become more important for colleges and universities if the court strikes down affirmative action in admissions. 

“Institutions need to double down on those partnerships [with districts] if they want to keep that diversity going in a race-neutral way,” he said.

But he said it’s hard to predict what importance universities might place on other aspects of a student’s application, including GPAs, honors classes, and SAT and Advanced Placement exam scores if race no longer factors into the equation.

The potential end of affirmative action in admissions a growing movement away from requiring the SAT or ACT for admission, with some researchers and advocates for educational equity arguing the tests are biased against Black and Hispanic students and . According to FairTest, an advocacy group, are now test-optional or don’t even accept the exams.

But others say that criticism of the tests is misguided and that they still serve as a good predictor of how well students will perform in college. Adam Tyner, national research director at the Thomas B. Fordham Institute, a conservative think tank, said are “deeply vetted” to remove content that might disadvantage minority students. GPAs, he added, are less controversial, but large remain.

He doesn’t think the test-optional trend is only about removing barriers for Black and Hispanic applicants. Admissions officers may have other motivations, he said.

“Either [universities]think that the exams aren’t so important or 
 they, for financial reasons, desire an excuse for admitting more affluent students with less academic preparation,” he said.

With or without admissions exams, the end of race-conscious admissions would put more pressure on K-12 counselors serving Black and Hispanic students, Kahlenberg said.

“For years, the [private] prep school kids have had the upper hand. There are fewer students per counselor and they can put time into writing impressive letters [of recommendation],” he said. “Here’s an opportunity for public school counselors to paint a picture of students who have done remarkably well despite the barriers.”

Virginia’s courts routinely rule against parents of students with disabilities who sue to ensure their children are receiving an appropriate education, according to a class action lawsuit filed in federal court this week.

The suit names the Fairfax County Public Schools in northern Virginia as well as the state department of education, which trains and certifies hearing officers to review parent complaints. The suit alleges the state maintains a list of “school-friendly hearing officers” who are more likely to rule against families that challenge district decisions about services for their children.

Trevor and Vivian Chaplick, parents of a Fairfax student with autism, ADHD and other “profound” disabilities, along with they’ve created, filed the suit on behalf of all students in the state who participated in due process proceedings since 2010. Virginia state Superintendent Jillian Balow and Fairfax schools Superintendent Michelle Reid — last year’s national superintendent of the year — are also named as defendants.Ìę

“Due process is a parent’s recourse if something goes wrong,” said Callie Oettinger, a Fairfax parent who runs documenting special education complaints in the district. “What happens is they lawyer up and they’ll spend millions fighting you.”

The lawsuit comes as parents across the state are seeking compensatory — or make-up — services due to school closures during the pandemic. Under the Individuals with Disabilities Act, districts are required to evaluate and provide services to students if educators failed to follow a child’s individualized education program, or IEP. But the lawsuit claims Virginia’s system was rigged against parents long before the pandemic. 

According to the complaint, hearing officers ruled in favor of northern Virginia families only three out of 395 times between 2010 and 2021. Statewide, there were just 13 out of 847 cases in which hearing officers found districts at fault over that same 11-year period, according to documents the Chaplicks obtained through public records requests. 

Twenty-two of the hearing officers, who act as judges in such cases, have “been virtually unchanged over the last two decades, which represents two generations of disabled children seeking a better education under the IDEA,” the complaint said. “Despite (or because of) the incredibly one-sided outcomes from these hearing officers, the VDOE continued to recertify these same 22 hearing officers.” 

Because of their son’s severe needs and aggressive behavior, the Chaplinks asked the district to place their son in a residential school. The district refused, and when the parents prepared to file for due process, a district social worker told them they would lose. They thought the staff member was exaggerating — that is, until they collected the data.

Charles Pyle, a spokesman for the Virginia Department of Education, said officials would not comment on pending litigation.

“The department is committed to ensuring that students with disabilities receive all services and supports that they are entitled to under federal and state law,” he said.

Julie Moult, a spokeswoman for the Fairfax district, said officials had not been served with the lawsuit and were not able to comment.

Reid, who is new to Fairfax this year, previously served as superintendent of the Northshore School District near Seattle, the first in the nation to close a school because of COVID. The district, with about 23,000 students, is a fraction of the size of Fairfax, which has an enrollment of roughly 180,000. 

‘That’s how hard it is’

The case is the latest probe into whether Fairfax  — one of the nation’s largest districts — is denying the civil rights of students with disabilities. In January, 2021, in the final days of the Trump administration, the Office for Civil Rights into the district’s handling of services for students with disabilities during school closures. 

Kimberly Richie, who led the civil rights division at the time, took action after seeing news reports of t schools opening for child care, at the parents’ cost — but not for students with IEPs. Now Richie is a deputy superintendent at the Virginia education department, whose includes special education. Oettinger sees that as a good sign.

“These were people who were trying to actually do something before they left office,” she said. 

Prior to the pandemic, parents sued the district for its use of physical restraint and seclusion of students with disabilities. In December 2021, it reached with the plaintiffs and disability rights organizations to ban the practice. 

The new lawsuit includes the names and decisions of hearing officers, in northern Virginia and statewide. One is Frank Aschmann, an Alexandria, Virginia, attorney who has ruled in favor of parents in one out of 62 cases over a 20-year period. 

Debra Tisler was one of those 61 parents he ruled against. With a severely dyslexic son, she began asking the Fairfax district to evaluate him in fourth grade, but she said they kept putting her off for a year — even though she had been a special education teacher in the district from 1997 to 2014.

“That’s how hard it is,” she said, referring to efforts to get her son the literacy instruction that experts recommended. She taught him herself, but had to hire private speech and language tutors. “By 6th grade, he had hit a complete wall.”

She filed for due process in 2019, arguing that the district would not give her access to her son’s educational records so she could prepare a case and that they had failed to provide him with an adequate literacy program. 

Aschmann ruled against the family on multiple points, including refusing to compel the district to turn over records and stating that the student’s struggles in his Spanish class did not constitute evidence of the district’s failure to implement his IEP. 

Aschmann did not return a call seeking comment.

“They are ruining children’s lives,” said Tisler, who now volunteers as an advocate for other families and serves as an expert witness in due process hearings. “All they care about is how much money they get.”

In January 2020, an invoice shows Fairfax paid Aschmann $12,400 for the 99 hours he spent on Tisler’s son’s case. Parents who lose to their district, she said, can file in state or federal court. States tend to transfer the cases to federal courts, but most families, she said, don’t have the financial means to pursue cases that far. 

“You just get bounced around,” she said.

Correction: While the Virginia Department of Education selects hearing officers to review due process cases in special education, it is the Virginia Supreme Court that ultimately decides the outcomes.

“There is no evidence of any animus against Asian Americans,” said Don Verrilli, a former U.S. solicitor general representing the school district.

In the wake of the pandemic and George Floyd’s murder in 2020, the district amended the admission criteria for Thomas Jefferson High School for Science and Technology — T.J., for short — to increase equity and build a student body better reflected the diversity of northern Virginia. The district removed a rigorous admissions test and a $100 application fee, and reserved seats at T.J. for the top 1.5% of 8th graders in each middle school. 

As a result, the makeup of the Asian student population declined from 73% to 54% last year, a drop that amounted to what plaintiffs, Coalition for T.J., called illegal “racial balancing.”

But Verrilli told a three-judge panel for the 4th Circuit Court of Appeals that the policy “benefited all races.” In fact, the number of low-income Asian students admitted last year — the first year the policy was implemented — increased from one to 51, Verrilli said.

The coalition’s only evidence, he said, is an “expression by the board that it [wanted] to increase opportunities for African American and Latino students.”

As school districts nationally seek to increase educational opportunities for historically underrepresented minorities, they’ve faced pushback from those who say they discriminate against Asians and rely on racial stereotypes that portray them as high achievers. A similar debate in higher education challenging race-conscious admission policies at Harvard University and the University of North Carolina will take place next month before a conservative U.S. Supreme Court.

Since 2007, the court has given K-12 districts less leeway to consider race in admissions to special programs or schools. But Erin Wilcox, an attorney with the Pacific Legal Foundation, a libertarian firm representing Coalition for T.J., said the board members’ stated intent was enough to qualify as “racial balancing.” 

She described admissions for a competitive school like T.J as a zero-sum game that “disproportionately burdens” one group of students because of their race. 

Even though the board adopted a resolution calling its policy race-neutral, board members, she argued, made statements in text messages suggesting “Asian American students were in the way. They needed to clear out room to increase the numbers of black and Hispanic students.”

Court documents showed that Board Member Abrar Omeish told Board Member Stella Pekarsky in a text that the had an “anti asian [sic] feel.” She added “lol.”

In March, U.S. District Judge Claude Hilton sided with Coalition for T.J. and The plaintiffs and want the three-judge panel to uphold Hilton’s decision, while the school district, and the want the appellate court to overturn the district court.

“It’s safe to say the country’s split on the issue,” said Andrew Ferguson, solicitor general for Virginia, one of the 15 states that filed a brief supporting the plaintiffs.

‘Contrary to Supreme Court precedent’

Stefan Lallinger, a senior fellow at The Century Foundation, who teaches about desegregation at American University, said it’s a mistake to consider the T.J. case a K-12 version of the Harvard and North Carolina cases. 

The Supreme Court has allowed colleges and universities to consider race on a narrow basis. But the precedent in K-12 hinges on a in a case against the Seattle Public Schools and the Jefferson County Public Schools in Kentucky. In that case, the court said school districts couldn’t explicitly use race in their efforts to create more diverse schools. 

But in a separate opinion, Justice Anthony Kennedy wrote that districts still had a “compelling interest” to seek racial integration. Since then, districts have largely moved toward based on students’ socioeconomic status.

In arguing that Fairfax’s policy is discriminatory, Hilton and the Coalition for T.J. are “essentially asking the court to make a decision that is contrary to a Supreme Court precedent that has been upheld many times,” Lallinger said. 

While he thinks the Fairfax district will prevail at the appellate level, he said the plaintiffs are making a “play to a Supreme Court that is a radical Supreme Court.” 

In addition to the Fairfax County case, Pacific Legal also represents plaintiffs in similar federal cases involving three other school districts — New York, Boston and Montgomery County, Maryland.

In each district, the application process for specialized schools was changed to “deemphasize or just completely eliminate” an objective test for admission in order to achieve racial balancing, said Wen Fa, a senior attorney at the firm. He said those districts also lack test prep and mentorship opportunities that would help students improve their chances of earning a spot in those schools.

Strategies that districts have adopted in the wake of the Seattle case are “covert forms of discrimination,” he said. “The Constitution requires the government to treat individuals as individuals and not on the basis of their membership in any racial group.”

The Senate on Wednesday confirmed Judge Ketanji Brown Jackson to replace retiring Justice Stephen Breyer on the U.S. Supreme Court. With a vote of 53 to 47, Jackson picked up support from three Republicans — Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah.

According to the White House, Jackson, who will be the first Black woman on the court, watched the vote with President Joe Biden.Ìę

Ketanji Brown Jackson, President Joe Biden’s nominee for the U.S. Supreme Court, said Wednesday that if confirmed, she would recuse herself from an upcoming case focusing on race-conscious college admissions involving Harvard University.Ìę

Jackson is currently on the Harvard Board of Overseers. Her term runs through June.

“Your and my alma mater, Harvard, is currently being sued for its explicitly and, in my view, egregious policy of discriminating against Asian Americans,” Republican Sen. Ted Cruz of Texas said during Jackson’s second full day of hearing before the Senate Judiciary Committee. “If you’re confirmed, do you intend to recuse from this lawsuit?”  

Jackson responded, “That is my plan, senator.”

The , which combines challenges to race-based admissions decisions at both Harvard and the University of North Carolina, is considered the most significant case involving both race and education in several years. The plaintiffs argue that the admission policies discriminate against Asian applicants. The debate is taking place in K-12 as well with a recent federal judge’s against the Fairfax County Public Schools regarding its so-called “racial balancing” practice at a selective science and technology school. Observers speculate that the court, with a 6-3 conservative majority, would of the plaintiffs. But if Jackson is confirmed, which appears likely, her recusal would create the potential for a 4-4 tie. 

If that’s the case, the “lower court decision would remain intact,” explained Cedric Powell, law professor at the University of Louisville. That means both Harvard and the University of North Carolina could keep in place their current practices of considering underrepresented groups when making admissions decisions. 

Edward Blum, president of Students for Fair Admissions, the plaintiff in both cases, said in response to Jackson’s statement that, “as a litigant, it would be improper for us to comment.”

The case, which is scheduled to be heard in the court’s next term, starting in October, would typically be scheduled for one hour of oral argument. the court could allot one hour for each petition, in which case Jackson could participate in the case against the University of North Carolina. 

Monday’s vote sends the bill, which , to Gov. Glenn Youngkin for a signature. Youngkin listed the legislation as part of his “day one game plan” and has made parental input into public curriculum a central part of his political platform. One of his campaign ads featured a Fairfax County mother who to remove Toni Morrison’s Pulitzer Prize-winning novel “Beloved” from her son’s high school Advanced Placement English course.

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The language of the bill, sponsored by Sen. Siobhan Dunnavant, R-Henrico, is to legislation that passed the General Assembly with bipartisan support in 2016. If signed into law, it would require the Virginia Department of Education to draft model policies on notifying parents of any sexually explicit materials assigned in class.

Parents would also be permitted to review the material and request alternative assignments. Every local school district would be required to adopt a policy consistent or more comprehensive with the statewide model. 

Once a bipartisan issue in Virginia, the push to give parents greater control over potentially controversial curriculum has become politically contentious since the gubernatorial race between Youngkin and former Gov. Terry McAuliffe. Youngkin criticized McAuliffe for vetoing the 2016 bill on the campaign trail while pledging to ban other “divisive concepts,” including critical race theory, from public schools.

The idea of banning books has also sparked fierce local debate, both in Virginia and nationwide. Multiple school districts, including and , temporarily removed multiple texts from school library shelves after parents complained about explicit scenes. attracted national attention after banning the graphic novel “Maus” — a visual retelling of the Holocaust from the perspective of the author’s father — from being taught in classrooms.

Dunnavant’s legislation wouldn’t apply to library books, but Democrats have argued the bill amounts to classroom censorship.

“The consequences of this bill are clear,” said Del. Alfonso Lopez, D-Arlington, before Monday’s vote. “Teachers who are already overworked are not going to create two lesson plans. So what they’re not going to do is, they’re not going to teach the most controversial or dynamic or insightful ideas.” 

The bill’s definition of “sexually explicit” comes from a that limits what content state employees can access on government-provided computers. Republicans have consistently argued the legislation gives parents a reasonable level of control over what their children are exposed to in school.

“To steal Del. Kilgore’s phrase, let’s all calm down for a minute,” Del. Carrie Coyner, R-Chesterfield, responded.

“It’s not an overly broad definition,” she added. “It’s something we don’t let adults in the Commonwealth access if they’re state employees.”

is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Robert Zullo for questions: info@virginiamercury.com. Follow Virginia Mercury on and .

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To wind down after a chaotic school year, Austin Ambrose, who teaches third grade in Nampa, Idaho, purchased some fun reads he hoped would keep his students engaged until summer break — and like much good children’s literature, provide a window into another culture.

One title, , tells a Harry Potter-type story set in Brooklyn featuring a young Black boy. But when the book turned up on a , one family at Gem Prep, a charter school, argued it ran afoul of the prohibiting schools from promoting critical race theory.

Under the school’s policy, Ambrose had to offer the student an alternative book to read.

“I told them, ‘I’m only trying to expose your child to different cultures and experiences,’” he said. “These conversations are going to help them when they get into the real world because they are going to meet people who are different from them.”

Idaho is among nine states so far to ban critical race theory — which holds that racism is baked into U.S. systems and institutions to purposely keep people of color at a disadvantage. Lawmakers in at least 20 more states have proposed similar laws to block what they see as a dangerously divisive form of indoctrination. But for many teachers, the backlash feels like a new kind of McCarthyism, one where they fear being harassed, for a wide array of classroom activities. It doesn’t help that the clash comes as school leaders are struggling to help students — many of them lagging up to a year behind in core subjects — bounce back from the pandemic. To that end, educators are steering an unprecedented influx of federal funds toward their recovery.

“It’s a huge distraction at a time when we can’t afford a distraction,” said Dan Domenech, executive director of AASA, The School Superintendents Association. “This has been a year the majority of students were not exposed to the kind of learning they should have been exposed to. Now you’re going to paralyze teachers because they are afraid to teach.”

The furor is hard to miss.

The Nevada Family Alliance wants teachers to wear to prevent them from “going rogue and presenting their own political ideas.” A mother in South Kingston, Rhode Island, to learn how the district teaches race and gender issues. And a conservative watchdog group, maintains an “indoctrination map” showing districts influenced by critical race theory.

In suburban St. Louis, tensions over issues of race and curriculum have grown so fraught that educators feared for their physical safety.

Several Rockwood School District administrators had private security officers stationed at their homes. In June, school officials spent nearly $5,000, according to district spokeswoman Mary LaPak, to place private security for two weeks at the home of a district literacy coordinator, who instructed teachers in an April email to remove a lesson plan for a “culture and identity” unit from the online classroom management system “so parents cannot see it.”

In a letter, the local teachers union called on district officials to protect educators from “personal attacks and outright threats of violence” following the backlash. Parents argued the district was teaching critical race theory and “making white kids feel bad about their privilege,” according to the email.

‘Eye of the beholder’

That’s a lot of mileage for an idea most Americans hadn’t even heard of until six months ago.

In that brief span, critical race theory emerged from grad school obscurity to become something of a Rorschach splatter of our anxious political moment. Some see little more than an attempt to reclaim episodes of Black history like the 1921 Tulsa race massacre or the long practice of Jim Crow redlining. For those who decry it, at school board meetings and , it encompasses a host of ills, from anti-bias training to that other “CRT” — culturally responsive teaching, the integration of students’ cultural and ethnic backgrounds into the classroom. Some have lumped social-emotional learning and restorative discipline into the mix.

Because it can be so hard to define, Jonathan Zimmerman, an education historian at the University of Pennsylvania, called the dust-up over critical race theory “scarier” than similar controversies, such as the recent clash over teaching The New York Times Magazine’s .

“The 1619 Project is a thing you can look up; it’s a very specific document with a curriculum attached to it,” he said. “Critical race theory isn’t in that category. It’s kind of in the eye of the beholder. And if that eye has watched a lot of Fox News, it’s going to behold a lot of critical race theory.”

Fox has used the term times so far in 2021, according to the Washington Post. And conservative organizations such as continue to highlight schools that focus on students’ racial or gender differences. found that least 165 such “grassroots” groups have sprung up over the past year, many with ties to GOP strategists.

Republicans see it as a winning strategy they can ride into the 2022 midterms. Celinda Lake, a Democratic pollster, expects the fight to keep playing out in school board elections.

“We’ve gone through different waves, but school board races are very unequal terrain because the right spends so much time focused on them,” she said.

In Virginia’s Loudoun County Public Schools, a conservative group, Fight for Schools, has launched over board members’ support for equity-related initiatives of Lilit Vanetsyan, an educator in neighboring Fairfax County Public Schools, went viral when she appeared before the Loudoun board to declare that classrooms had become “indoctrination camps.” While the Fairfax district confirmed she is an employee, she also runs a Instagram account and is a correspondent for the Right Side Broadcasting Network.

In Tennessee, a chapter of , a group seeking more parental influence over school policies, opposes teachers’ use of the autobiography . Bridges wrote the 2009 book, which is aimed at second graders, about her experience as one of the first Black students to attend all-white schools in New Orleans. According to local news reports, the group objected to the book showing a crowd of “angry white people” protesting integration.

When parents equate key aspects of the civil rights movement with critical race theory, they “have become very confused,” said Erika Sanzi, the director of outreach at Parents Defending Education, a nonprofit at the center of efforts to resist what they see as “harmful” political agendas in the classroom. (The organization’s website does not identify funders, and Nicole Neily, the group’s president, declined to to name them out of concern for “donor privacy.”)

Sanzi said she’s not necessarily in favor of the GOP-backed legislation because she’s “still hanging on to the belief that we beat bad ideas with better ideas.” But she does question the messages some young elementary students are getting about their “whiteness.”

At an elementary school in Bellevue, Washington, for example, a for the 2020-21 school year said that students would “have explicit conversations about race, equity, and access,” and that fourth and fifth graders would be responsible for implementing schoolwide anti-racist strategies. The plan has since expired and the district said it allows parents to opt their children out of “identity-related discussions.”

“These are children who believe in Santa Claus and put their teeth under their pillow,” Sanzi said.

At outside Columbus, Ohio, the confusion ran so deep that two families asked to remove their children from a course that focuses on critical thinking.

To their parents, that sounded a lot like critical race theory.

In a February email to the school’s principal, one father who pulled his child from class said “he didn’t want his kid feeling guilty about ‘Marxist critical race theory,’” recalled Robert Estice, who teaches the required course. The class syllabus has no mention of Marxism or critical racial theory. For seventh grade, course themes include “How do I know what I know?” and “How do I interact with others to understand their perspectives?”

“I don’t want to put ideas in kids’ heads that aren’t their own ideas — that they wouldn’t have come to themselves,” Estice said.

Some educators wonder whether the laws will take away a powerful tool that teachers have to connect with students — their own personal stories.

“I was a teacher, and one of the things I loved the most was the freedom to teach,” said Tramelle Howard, a board member in the East Baton Rouge Parish School System in Louisiana, where a bill curtailing the teaching of critical race theory failed to advance in the legislature this session. “I did not shy away from my lived experience. I had white male students in my classes, and it wasn’t my job to get them to think a certain way, but to think critically.”

‘Intentional agenda’

Little of this has anything to do with actual critical race theory, the legal term coined by scholar Kimberlé Crenshaw in the 1970s. It has become synonymous with a kind of racism that applies to institutions rather than individuals. It could, for example, describe police departments that disproportionately apply excessive force against African Americans.

In fact, it was one of these moments, the murder of George Floyd by a white officer in May 2020, that is most responsible for pushing critical race theory into the public consciousness. The cell phone video of Floyd’s death taken by a Black teen prompted months of protests and led many school leaders to take public stands condemning racism and calling out “white privilege.”

Some of those efforts prompted outcries not only from parents, but educators. Teachers in a New Jersey district about being required to participate in what they described as “insulting” anti-bias training. One white teacher reportedly said a presenter told her she was a “inherently racist” and a “white supremacist.”

And in the Virginia Beach Public Schools, where some board members are pushing to ban critical race theory, Superintendent Aaron Spence agreed that his district went too far when literacy coaches attended a February training in which a video speaker said white educators should say “of course I’m racist.” Such approaches, he said, alienate teachers when “the whole goal of equity is to keep everybody in the room.”

With public comments over critical race theory dominating the last three board meetings and staff members frequently responding to calls and emails from residents, he called the uproar an “intentional agenda of distraction” that “takes us away from the real work of addressing the challenges we face in public education.”

In September, former President Donald Trump put his stamp on the issue with an banning federal employees from receiving any training about critical race theory, further contributing to the perception that it promotes anti-American ideas. President Joe Biden reversed the order, but its language became a template for state bills to come.

Just last week, Republicans on the peppered Education Secretary Miguel Cardona with questions about critical race theory, specifically a notice for a that references the 1619 Project and the work of Boston University’s Ibram X. Kendi, a leading author in the field. (The department has since removed the references.)

Named last year as one of most influential people, Kendi won the National Book Award for . With such accolades, he is among speakers who can command over $20,000 an hour to address school districts on the issue. Kendi, like others, argues that everyone is born into a society founded on racism and that it requires to reverse disparities. He advocates for a , which would create an anti-racism agency to evaluate all local, state and federal policies to ensure they don’t contribute to inequity.

During the virtual hearing, some committee members tried to get Cardona to denounce Kendi’s work. “Do you realize how radical and how out of touch this guy is?” Rep. Glenn Grothman of Wisconsin asked.

Virginia Rep. Bob Good pushed Cardona to ensure that the federal government wouldn’t legally challenge state laws banning critical race theory. While Good was speaking, someone shouted “racist” and New Jersey Democrat Donald Norcross’s name briefly showed on the screen. Chairman Bobby Scott, D-Va., later noted the “inappropriate comment” and asked the members to respect each other.

Cardona said multiple times the issue has become politicized and the department doesn’t dictate curriculum, but that he trusts teachers to navigate these issues and believes culturally responsive teaching “builds community.”

Scoring ‘political points’

In states where legislation has already passed, some educators are questioning how they’ll be able to address controversial topics this fall.

“How can we learn about U.S. history without feeling distress at times?” asked Eddie Walsh, an eighth-grade social studies teacher at Memphis Grizzlies Preparatory Charter School in Tennessee, one of the states that has passed anti-critical race theory legislation. “Our goal as educators isn’t to make kids guilty, but we also can’t lie to them or omit the truth when it comes to our past.”

In Texas, Republican Gov. Greg Abbott signed this month that allows teachers to cover the history of white supremacy, including topics such as the Ku Klux Klan and the eugenics movement, which involved the forced sterilization of Black women. But it forbids instruction from causing students to “feel discomfort, guilt, anguish, or another form of psychological distress” because of their race or sex.

Asia Klekowicz and Ryan York, co-CEOs of The Gathering Place, a San Antonio charter school with a focus on social justice, know they could be sued.

“There is a long history in the U.S. of laws being written as a way to score political points.” York said. “We welcome challenges to the way we [address these subjects].”

‘Thousands of critical conversations’

So, where do we go from here? Legislation designed to suppress the controversial philosophy’s influence is problematic for a few reasons, said Matthew Shaw, an associate law professor at Vanderbilt University. First, he said, the laws are difficult to enforce. And second, they’ve only created greater interest in the ideas they seek to wipe out.

“The irony is that trying to ban or limit critical race theory in conversations in such a public, blunt, legalistic manner has sparked thousands of critical conversations,” he said.

One of the more thoughtful exchanges occurred last week, when two Black educators addressed the National Charter School Conference. Ian Rowe, a fellow at the conservative American Enterprise Institute, called the debate a “massive distraction” from the fact that too many students — including white children — read below grade level.

“We want to create equality of opportunity for all our kids. Literacy has to be the anchor of that,” said Rowe, who sits on the board of the which aims to unite people based on “common humanity.” “I don’t want the whole hullabaloo around critical race theory to detract from something that is holding back kids of all races.”

He said students should know the history of racial oppression, including the Tulsa race massacre, alongside the “stories of racial resilience,” such as how Booker T. Washington founded more than 5,000 schools in Black communities throughout the South with Julius Rosenwald, the president of Sears. And teachers should introduce critical race theory alongside ideas that challenge it. The problem, he added, is when it’s presented as a “sole theology.”

But at the same session, Sharif El-Mekki, CEO of the Center for Black Educator Development, described the backlash to critical race theory as “absolute hysteria.” He added that focusing on successful Black people who “made it” ignores the reality of why they had to be resilient in the first place.

“That is a pathway to the dark side without the full story,” he said.

—Reporters Beth Hawkins, Mark Keierleber, Asher Lehrer-Small, Kevin Mahnken, Marianna McMurdock, Bekah McNeel and Patrick O’Donnell contributed to this report.

Clarification: An earlier version of this story reported that Rockwood School District officials spent $2,500 to place private security guards outside two administrators’ homes. That expenditure was related to a district controversy involving the removal of the “thin blue line” flag — a police solidarity symbol that has become associated with white supremacy — from a high school team’s baseball cap.

Lead images: Getty Images, Teaching for Change/Flickr and /Instagram