News
By George Miller, 7-11-24
Citizens Defending Freedom (CDF) is now in litigation with Nassau County School District (NCSD) and suppliers allegedly refusing to disclose legally discoverable curriculum/materials. Court trial underway since June 18. Citizens Journal Florida attended the first session and subsequently interviewed CDF lead attorney James Bruner.
Back in February, the Nassau County chapter of 7000 strong civic organization Citizens Defending Freedom finally tired of the Nassau County School District (NCSD) repeatedly refusing to disclose what CDF said it is legally required to, namely third party-administered behavioral health school curriculum and lessons, upon demand. So after exhausting disclosure request options, dating back to July, 2023, in February, 2024 they unleashed a 68 page lawsuit against the District, and a supplier of materials and mental health education services, the local Starting Point Behavioral Health and their supplier/materials author as well, Ripple Effects. Read our article on this. CDF Court Filing # 191446774 E-Filed 02/07/2024 12:07:11 PM
This resulted in a flurry of legal briefs and negotiations, leading to a settlement offer by NCSD and a good faith counteroffer by CDF, both rejected. It seems that the District is unwilling to allow CDF to have all the materials to make them available to interested members of the public, citing a bevy of legal objections, denied by CDF.
The suit evidently nudged NCSD sufficiently for them to show a very small token amount of material, hold a meeting with plaintiff Jack Knocke and do a demo of one of the sessions. This was unacceptable to CDF because it did not constitute the entire curriculum/lessons/materials that they sought to make available to interested residents, which they assert they are legally entitled to. The body of work in question is said to number around 400 videos/interactive instructional materials designed to address student behavioral problems. Some of the topics are highly objectionable to some people, including sensitive materials (* listed later in this article) thought to be deemed inappropriate by state rules and community standards. CDF attorney James Bruner told us that the District had offered to provide less than they wanted, but Knocke maintains that defeats the purpose of informing the public, which he says is permitted by FL law.
(For those of you who believe that the schools have no business butting into students’ mental health, you might be right, but the state disagrees with you and has actually mandated it.)
So, the parties believed it necessary to utilize the court to hold a trial, which began on June 18 and will be continued on July 15 in the Yulee Courthouse at 9:30 a.m. (courtroom E). Prosecution and defense presented their cases and attempted to thwart opposition assertions, testimony, motions.
Court Trial- Day 1, June 18, 2024
Judge Aho saw that a brief case history and overview were presented and checked to ensure that a settlement offer and counteroffer had been made, but weren’t mutually satisfactory. Both parties stuck to their positions so no progress was made there. Aho did manage to get the parties to lay out their cases, helped ensure that arguments/issues were clarified, and ruled on objections, keeping the complex proceedings moving along without any major hitches. But they weren’t able to wrap it up in one day, so it’s back on Monday July 15 at 9:30 a.m.- Courtroom E in the Yulee Courthouse.
Allow us to summarize the main issues in contention that we heard in the courtroom, read in case papers or discussed with plaintiff’s attorney (School District does not want to discuss case with us):
– This case is more complex than a standard disclosure situation because the material is licensed to and administered by another party (Starting Point), which in turn licenses it from a third party, Ripple Effects.
– CDF believes that all forms of the named curriculum should be made fully available to the public and cited FL Public Records Act 119. They said that there are legal exceptions to copyright and trade secret non-disclosures on education and “fair use” grounds, which this qualifies for. They added that freedom of information considerations override proprietary ones in this case. NCSD disagrees.
– NCSD says this material is protected as a supplier trade secret and that they are contractually committed to protect it. CDF’s attorney told us that even after eliminating those terms in another District contract (“Botvin”) and being made aware of state law, they have not attempted to change this one to be in compliance. Instead, they are vigorously spending taxpayers’ resources to fight off the CDF information request. A lot of preparation and legal work had to be done by defendants to field a team of six people at the trial, including the District Superintendent, Assistant Superintendent, the program administrator, Chief Counsel, plus Starting Point’s CEO and Attorney. NCSD Counsel described the case as “much ado about nothing.” Attempting to distance themselves as much as possible from the products, he made it clear that the District merely makes the referral, then Starting Point takes over and delivers the services.
– CDF maintains that the material must be released by law, that the clause in the contract to protect against that is specifically illegal per FL law, so it is null and void. Furthermore, CDF asserts that NCSD eliminated that clause in a newer contract. They added that the delay in responding and time wasted has an impact, which itself is a violation. CDF said it has been told at various times by defendant that: they’re working on it, look at our web site, you have no login rights to materials, ask Starting Point instead, not subject to public records request (no citation included), will update when we have more, no answers at all for a long time, school administrators not involved in delivery of products and services, school administrators do not have access, Ripple Effects products are not videos, these are not curricula and lesson plans, not in connection with official business, no delegated function from NCSD to Starting Point using Ripple Effect, it’s a trade secret, HIPPA prevents.
– NCSD maintains that the materials aren’t even curriculum and lessons, so they don’t fall under the law. CDF attorney James Bruner readily cited passages in the contract that contradict that. Ripple Effects also describes the products as:
A digital suite of programs to personalize social emotional skill building and promote positive behavioral and mental health. Used across tiers and settings, Ripple Effects programs ensure each learner gets what they uniquely need to thrive in school and life.
Starting Point’s attorney Mr. Poole actually refereed to the products/services as “prevention services” not mental heath services and disclaimed that it is curriculum. He also stated that if the judge ruled that disclosure was appropriate that it would violate the law, would be a technical felony and that trade secrets outweigh public disclosure law. District Counsel Steger reinforced this. Plaintiff’s attorney has asserted the opposite.
Plaintiff and Defendants’ attorneys each tried to explain how copyright, trade secret laws and disclosure laws support their side. The judge has her work cut out for her trying to sort that out.
Plaintiff’s star witness was none other than Jack Knocke, Plaintiff CDF’s own Nassau County Executive Director. He is the one who learned about Starting Point and that they were working with NCSD. He had concerns about their approach so made what he thought was a valid public information request so that CDF and interested members of the public could learn what it is about and ran into a brick wall. We have already summarized what CDF encountered, above. NCSD and SP Counsel attempted to undermine Knocke’s credibility as a witness by claiming he had no mental health chops. Knocke believes he doesn’t need those to legally request subject materials, since the law envisions this and permits it. He says health care professionals he knows are concerned about them but fear retribution and want to remain anonymous and to see the materials. It is his understanding that even parents wouldn’t have access to materials their own children would have administered to them. Knocke says he doesn’t have a list of involved students parents nor does he know if they have access to the subject materials. Defendants did not enlighten us on that in court.
SD attorney Wesley Poole said there are restrictions on discussing settlement offers in court.
Some finer points brought out… Starting Point is doing the work of the government. The requirements for doing this are actually given to the county by the state, but this is delegated to and administered by the school district. Some funding comes directly from the state. There might even be some private NGO money involved (Lutheran Foundation). So attorney Poole said that the School District does not pay for Starting Point, presumably to distance the District more in order to claim that they are not NCSD materials and therefore not subject to disclosure. Knocke later wrote us: “When materials, software or services are provided to the school system for free, red flags should go up. This is the tactic that many Social Emotional Learning (SEL) companies use to infiltrate the school systems with non-academic materials that can be harmful to children.” But it is very clear that the district administers the program, refers the students and keeps track of what is going on. The school is the portal through which the students are engaged with SP. There were arguments about the product/service delivery venue. It sounds like SP does most of it at the schools and does not pay rent for use of the facilities. All of these topics are attempts to relate or distance the school district from these materials, which might affect public disclosure, or so the defendants hope.
Both sides claim that trade secret and copyright law are on their side, They mentioned various tests to ascertain that. CDF Counsel James Bruner later tried to explain to this non-legally trained reporter, telling me that for something to be a “trade secret,” it must provide an economic advantage to the possessor, the holder must treat it as secret- keep the secret, label it as such. He doesn’t feel that these materials even meet those requirements, since they are disclosed to many thousands of customers. Furthermore, the defense would be unable to prove misappropriation or misuse with evil intent, or to make money with them, since the avowed purpose is merely to inform parent, public and mental health professionals.
We (CJF school reporter and I) did hear a presentation by the head of the mental health program at a school board meeting a while back (it was the night that the District/board was taking up the world history textbook complaint). The work sounds very challenging, he seemed very passionate about his work and says others in the program are too. Sounds like it is very stressful and burnout could be a problem. I don’t recall that these materials and services were specifically mentioned.
For those who are interested, the is is Circuit Court of the Fourth Judicial Circuit in and for Nassau County Florida case 2024-CA-38, COUNTY CITIZENS DEFENDING FREEDOM USA,INC. and JOHN A. KNOCKE a/k/a JACK KNOCKE, individually. We also unitized a plaintiff’s reply, court filing # 199414921 of 5-29-24.
* Ripple Effects materials topics
CDF does not know which topics may have been removed and even whether this is all of them here (this is from Exhibit J in plaintiff’s case materials):
Relevant Articles:
https://www.counties.citizensdefendingfreedom.com/fl-nassau/press/botvin-mental-health-curriculum/
George Miller is Publisher and Co-Founder of Citizens Journal Florida, based in Fernandina Beach. He is a “retired” operations management consultant, software and publishing executive (10 years) and manufacturing management professional.
