Mom, Denied Ethnicity and Gender Class Course Materials, Will Appeal Judge’s FOIA Ruling

Judge Jacob James Cunningham agreed with Rochester Schools’ argument that Michigan’s FOIA law covers only school districts and not individual teachers.
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(The Center Square) – Carol Beth Litkouhi isn’t done.

Unhappy with the board of the Rochester Community Schools in Michigan, she won election to a six-year seat with them in November. On Monday, she told The Center Square last week’s ruling by an Oakland County Circuit Court judge denying her Freedom of Information Act request for the district’s ethnicity and gender class course materials will be appealed.

“I thought my case was pretty straightforward,” Litkouhi told The Center Square. “I always knew it was a possibility that the judge would side with Rochester Schools, but I fully believed he would come down on the side of transparency.”

The Freedom of Information Act request was related to obtaining course materials for a class titled “History of Ethnic and Gender Studies.” She sued in March. Judge Jacob James Cunningham agreed with Rochester Schools’ argument that Michigan’s FOIA law covers only school districts and not individual teachers.

Mackinac Center Legal Foundation Attorney Steve Delie, representing Litkouhi, disagrees with the judge’s ruling. He warned that Cunningham’s decision establishes a dangerous precedent for transparency requests submitted to publicly funded institutions.

“If this decision stands, the implications would be staggering,” Delie wrote in an email to The Center Square. “Should the reasoning of this case be applied to its fullest extent, it’s questionable whether records created by local government or university employees would be subject to FOIA, even if they clearly relate to a public function. We will appeal this decision to ensure that parents, citizens, and journalist continue to have access to the records needed to hold government accountable and fully participate in the Democratic process.”

As reported by The Center Square last March, Litkouhi submitted a FOIA request to the school district in late 2021 to collect information on course materials. She paid $418 to see a unit plan for the course but was restricted to perusing them on district property and forbidden from copying the materials allegedly due to copyright concerns. Litkouhi was denied access to other materials she had requested in her FOIA and was told by the school district they weren’t obligated to obtain those materials from the teacher.

“What’s being taught in Rochester Schools is becoming less concerning to me than a judge concluding FOIA law in Michigan can cover public employers but not employees, in this instance school administrators but not teachers, and also that instructional materials used in classrooms are considered private,” Litkouhi said.

Cunningham concluded Michigan’s FOIA law covers only school districts and not individual teachers.

Cunningham wrote in his opinion, “[S]ince the Court finds that public school teachers are not ‘public bodies,’ therefore their papers and work product are not ‘public records’ under FOIA.”

He continued, “Even assuming, arguendo, that public-school teachers are ‘public bodies,’ for the purpose of FOIA requests, a review of the court file, pleadings, briefs, and evidence offered show RCSD has not prepared, owned, used, possessed or retained the documents requested by Plaintiff’s December 14, 2021, FOIA request.”

The original suit filed by the Mackinac Center contained a complaint regarding a second FOIA filed by Litkouhi seeking district teacher diversity, equity, and inclusion training materials from 2020 to 2022. According to Delie, that issue was resolved by the two parties.

Litkouhi was one of four winners in November’s election, picking up 16,980 votes. Incumbent Jessica Gupta led (19,837 votes) and won the other six-year seat. She was more than 900 votes clear of the nearest competitor; two others won two-year seats on the board.

Bruce Walker
Bruce Walker is a regional editor at The Center Square. He previously worked as editor at the Mackinac Center for Public Policy’s MichiganScience magazine and The Heartland Institute’s InfoTech & Telecom News.

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