Lawsuits, Another Far Right Tool To Defund Public Education

The National Merit Commended Certificate "Crisis"

School Districts are Under Fire

School districts across the country are under fire. The assaults on our school systems are not just being fought just at school board meetings and by FOIA, but they are also being conducted through politically motivated lawsuits and investigations, many of which lack merit. 

Here in Northern Virginia, we are in the eye of the storm with near constant politically-motivated news coverage, lawsuits, or investigations–all of which pop up too often for any one citizen or group to monitor. Last December, 4 Public Education promised it would examine the National Merit Commended Certificate “crisis” in order to estimate its impact on the school district. This “crisis” involved an expensive investigation by FCPS and of FCPS by the Youngkin administration, vilification of the school district via significant negative national and local media coverage, and multiple legal attacks on our school system. These investigations and lawsuits racked up substantial legal costs for FCPS and the Commonwealth, and unknown other financial and emotional costs during a nearly year-long attack on FCPS staff.

However, in the current case of Miyares v. FCPS, the facts are particularly bewildering. Seemingly, based on exaggerated reporting and the complaint of one non-Asian parent, Attorney General Jason Miyares leveraged the civil rights division of the Commonwealth of Virginia to pursue an investigation of alleged anti-Asian discrimination due to delayed distribution of National Merit Commended Certificates, despite no Asian-American students or families raising an alarm about 2022 delays of the certificates. 

AG Miyares’ investigation resulted in two legal cases, unnecessary confusion and division in the Fairfax community, more outsized scrutiny attention on Thomas Jefferson High School for Science and Technology (TJ), a distraction from the education of students in FCPS, and an untold amount of taxpayer money wasted on a fake crisis. Also, it cost over $1.6 million in outside legal fees to date for two legal cases, per a recent FOIA from FCPS: AG Miyares’s case cost FCPS $1,376,484 and Mark Spooner’s case cost FCPS $266,270 in outside legal fees.

We will now fulfill that promise by revealing the full story of the investigations and lawsuits that cost taxpayers millions dollars through:

• Describing the issue and Governor Youngkin’s involvement in the investigation.

• Mythbusting the “Commended Certificate Crisis.”

• Defining a manufactured crisis and the National Merit Scholarship Corporation (NMSC) process.

• Describing the FCPS investigation and identifying impact on FCPS staff and students.

• Detailing the legal cases against FCPS by Attorney General Jason Miyares and retired lawyer Mark Spooner.

These subjects will all be detailed in drop-downs below. Click on the triangles to read more about any of these discussions. 

As best as possible, this blog will refer to source documents, news reports, and FOIAs to detail the financial and local impact of the Commended Certificate Crisis. However, as I share the story of the “Commended Certificate Crisis” below, I will share personal observations about the events, because I (accidently) found myself in the eye of the storm. My own high school Junior had received PSAT scores in December 2022, and would be going through the National Merit Scholarship Corporation (NMSC) process during the 2023-24 school year, which made me curious about the news reports, and later confused why some news sources were making a mountain out of a molehill. Even I knew that commended certificates were nice, but no key to the kingdom of college admission and scholarships. 

Also, as a regular at school board meetings, I was interviewed by Fox 5 about the National Merit “Commended Certificate Crisis” because I mentioned it in my public input to the school board. Specifically, I said “I’m dismayed by recent news about FCPS…that delayed paper certificates are taking priority over critical needs of all of our students and that the loudest voices are using this as yet another opportunity to pit equity against merit as if they are mutually exclusive.”

During this interview with Fox 5, I was interrupted, stalked, and videoed by the Coalition for TJ parent responsible for the initial and ongoing local reporting on the manufactured Commended Certificate Crisis. Likely, that intimidation inspired me to attend a number of legal hearings this summer to see how taxpayer money was spent on such ridiculous allegations.

So…sit back and enjoy this blog that covers how a manufactured crisis siphoned $1.64 million in outside legal costs from Fairfax County’s budget. Click on the triangles below to expand any section.

Fear and Confusion Feed a Manufactured Crisis

A manufactured crisis is a controversy created to sway the public and politics, typically to affect social, political, or economic change. Typically, manufactured controversies rely on fear-mongering and confusion combined with regular amplification of cherry-picked information and voices. 

Across the country, public schools have had to deal with the onslaught of manufactured crises over Critical Race Theory (CRT), inclusion, equity, and diverse books. Manufactured crises have been a critical tool of the culture wars on our schools. As Michael Hinojosa, former Superintendent of Dallas ISD, said about CRT, “This is a manufactured crisis. This is not real. This is a national playbook by some very smart, organized people.” Agreeing with this idea, the National Education Association, which represents 3 million voices, shared that dark money networks are behind these attacks. 

Nevertheless, school districts across the nation have had to spend money and time defending themselves from lawsuits, resources that could otherwise be spent on educating students and improving their opportunities. This national trend of fear mongering and wasting the time and funding of school systems seems to have reached amazing heights since the pandemic, leveraging the fact that few people understand how public schools work.

Locally, TJ has been a political football for the last three years. Nathan Cline notes that “Thomas Jefferson has been at the center of Virginia’s educational culture wars after the school began overhauling its admissions policies in an attempt to add more Black and Latino students to its rolls. “

This “Commended Certificate Crisis” is a manufactured crisis that relies on fears already triggered by 3 years of anti-public school rhetoric and nonstop media onslaught from right-wing media. It also relies on the lack of understanding of how things work and inattention to details by the general public, which includes a failure to review FCPS publications and source documents.

While We Weren't Watching, a Manufactured Crisis Unfolds

The manufactured crisis over delayed notification of commended certificates in FCPS broke over Winter Break, while staff, parents, and students were on vacation. On December 21, 2022 an inflammatory story was published in a right-wing think tank publication, The City Journal, by Asra Nomani, a senior fellow of the Independent Women’s Network (IWN). The story accused FCPS administrators of intentionally withholding student awards, when in fact, it was merely a minor delivery delay of commended certificates to TJ students. Commended certificates are essentially the honorable mention of the NMSC world, which means that although the students achieved great PSAT scores, they were not semi-finalists and did not have access to National Merit scholarships, thus that recognition means little to most colleges. 

The City Journal outlined an accusation that this delay was part of a long “war on merit” triggered by an overzealous attempt at equity by FCPS, rather than an accidental oversight by overworked administrators in the school system. Of course, one should take this accusation with a grain of salt, since the City Journal is the same source for Chris Rufo’s fabricated CRT crisis in 2020, and it has fomented anti-transgender culture wars through an unrepentant anti-LGBTQIA stance in 2023. In other words, it can be considered an unreliable source of news and facts.

Once the City Journal story broke, it was amplified by other right-leaning publications like the National Review and New York Post. Soon the allegation was reposted all over twitter like a Christmas gift no one wanted or deserved. To fully understand the lack of depth and accuracy of these first “reports” on the “crisis”, none of them managed to spell the name of the complaining parent correctly: her name is “Shawnna Yashar '' with two n’s, not one.

Leveraging misunderstandings (and possibly paid troll farms), word of mouth on Twitter misinformed followers that the impact of the delayed notification was worth hundreds of thousands of dollars for affected students. This is an outlandish claim, since even the National Merit Finalist and Semi-Finalist awards are frequently less than $2,500 per year. 

Unforgivable false accusations, threats, and calls for administrators’ resignations spread across social media platforms. Little did we know, at that time, that the delayed commended certificate crisis would dominate the news and social media. It infiltrated social media like a virus leaving truly horrific comments on positive community posts about children, some of which hit several days before the CIty Journal story was published, which is curious. 

TJ’s principal received threats, false accusations, and demands for her resignation over the winter school break. For example, this celebratory post of TJ staff in adorable costumes received so much hate that it is painful to read the comments. 

At the time, I didn’t really pay much attention to these stories, because I was recovering from COVID, and my family narrowly avoided the Southwest meltdown of 2022, a delay so bad that it inspired an SNL skit, before celebrating Christmas with family. Nevertheless, I remember feeling bad for TJ’s Principal (Dr. Bonitatibus), FCPS staff, and the newly hired Superintendent Dr. Reid whose much-needed Winter Break was derailed by something so silly and contrived.

Governor Youngkin Quickly Intervenes in the "Crisis"

Despite other pressing education issues like under-funded schools and problems with teacher retention, this minor delay in notification resulted in an overreaction by Governor Youngkin. (Well…maybe it wasn’t really unexpected, because the Governor’s office has rarely ignored an opportunity to exploit or target public schools, especially those in FCPS which have a 12-member School Board composed entirely of Democrats.)

On January 3, 2023, Governor Youngkin officially declared: “We need to get to the bottom of what appears to be an egregious, deliberate attempt to disadvantage high-performing students at one of the best schools in the country. Parents and students deserve answers and Attorney General Miyares will initiate a full investigation. I believe this failure may have caused material harm to those students and their parents, and that this failure may have violated the Virginia Human Rights Act.” 

Does it seem highly unusual that the Governor’s office would consider a 2-3 week delay in delivery of honorable mention certificates a human rights violation? Yes, and it was surprising at the time considering the facts involved:

1. Only one student’s parent complained out of 261 TJ commended students.

2. There were no complaints from current parents of Asian seniors at TJ.

3. FCPS had already remedied the situation in December by informing all affected TJ parents and the colleges to which the students applied. 

While most Fairfax and TJ families were dumbfounded by the hype and attention from the Governor and Attorney General Miyares, there were complaints and accusations from a small selection of Coalition for TJ parents, few of whom had kids at TJ or FCPS, and none of whom could define actual impacts of delayed notification on any TJ students. Nevertheless, these three to seven parents held rallies at TJ, Langley, and Gatehouse (FCPS headquarters), sporting signs and t-shirts with the slogan “Save Merit.” This was an obvious attempt to generate media attention. This small number of Coalition for TJ parents demanded the resignation of the TJ principal, Dr. Ann Bonitatibus, something they had been demanding since June 2020 over another manufactured outrage.

Thankfully, media outlets like Reston Now recognized these actions early on as an “outcry stoked by conservative activists,” which was substantiated by the outlandish and unverified claims the Coalition for TJ parents made to the media, including calling the delayed notifications: 

• A “criminal act” 

• “Robbing the rights of parents to celebrate these achievements with their children” 

• “Downplay[ing] the significance of these awards to students in the name of equity” 

• “Catastrophic” 

• A “coverup that stole scholarships from students”

AG Miyares Platforms the Coalition for TJ

On 1/4/23, Attorney General Miyares announced investigations into the delayed commended certificate notifications and changes to TJ admissions for “for unlawful discrimination in violation of the Virginia Human Rights Act.“ This is an odd action, considering that AG MIyares fired the civil rights division of the AG’s office upon taking office in 2022. This announcement involved a press conference where Coalition for TJ members stood on a stage with AG Miyares, while members of the public were summarily ejected from the event. To date, there has been no update on either of these investigations and it is unknown how much staff time was expended on these investigations. 

Meanwhile, throughout January, the Fairfax Times continued to churn out outrageous pieces that named principals (some of whom received threats) and additional schools to keep up the hype of this manufactured crisis. Somehow, they tried to connect unrelated costs for a consultant for the strategic plan into the mix, likely to reinforce their conviction that merit and equity were being pitted against each other. 

Honestly, it was silly, but the public ate up this manufactured crisis because of ignorance about the significance of commended certificates, but also because certain media platforms fed peoples’ innermost fears that had been inflamed by constant, negative right-wing media coverage about public schools. I was glad my kids’ school wasn’t on any of the Fairfax Times’ lists because it seemed like a huge distraction to administrators who were trying to manage college applications and educating students. Most parents I knew thought it was as ridiculous as I did. Little did they know what it would cost our district–click on the triangle below to read more.

TJ Families Myth-Bust the "Crisis" Narrative

Although the first interviews and comments were all from Coalition for TJ members, eventually the rest of the student body and parents of TJ were finally interviewed by the media. Aimee Cho of NBC4 debunked myths promulgated by Coalition for TJ parents about the impact of commended certificates, and interviewed a parent of a commended student who confirmed that it wasn’t a big deal to his daughter and that some were “blowing this out of proportion.”

On 1/25/23, Athena Jones of CNN did an amazing interview with Dr. Reid. She also uplifted voices of other parents who said the delay was “not a very big thing” or “My son got noticed a little bit late. It did not impact his applications.” 

These independent news reports confirmed what most of us already knew: this was a manufactured crisis that was wasting the time and money of our school system and families. At the same time, these news reports highlighted that 393 of the 459 seniors at TJ, were either commended or semi-finalists (132 were semifinalists and 261 were commended). Thus, the sheer number of commended certificates that needed to be physically handed out was a burden on the staff, as it had been for years, particularly when staff were focusing on fulfilling obligations for college application season, which started November 1st. Also, nearly all students and parents compared their score to college board cutoff scores available online as soon as PSATs scores were sent to students.

Of course, some of the best reporting came from the students themselves. On 1/7/23, staff at tjTODAY published a hard-hitting editorial that included copies of Ms. Yashar’s initial emails to TJ staff after she found her fson’s commended certificate in his backpack a week after he had received it at TJ. At the time, her son felt, as many local FCPS students do, that the commended certificate “didn’t mean very much because he wasn’t a semifinalist.” 

The emails also show that Ms. Yashar’s emails seem to become more combative as time progressed, and that she was in communication with Governor Youngkin’s Department of Education (VDOE) within a day of discovering the certificate in her son’s backpack. How was she able to involve the VDOE so quickly, particularly during Thanksgiving week? Why would anyone from VDOE care about a delay in notification with no actual impact?

The tjTODAY students also poked holes in Ms. Nomani's City Journal story that “indicated that students lost millions of dollars in scholarship money because commendations were delayed. This is far from the truth. “ In some ways, this editorial identifies that the NMSC process is so convoluted that even a TJ student had trouble understanding it. So, now might be a good time to explain the National Merit scholarship process–click on the triangle below to read more.

What is the National Merit Scholarship process?

Since controversy is manufactured where there is uncertainty, now seems to be a good time to explain what the National Merit scholarship process is.

To be honest, it felt like this manufactured crisis relied heavily on people’s basic misunderstanding of terms, because few understand the National Merit awards process except for college admissions officers, the College Board, high school administrators, and high school junior and senior families. So, here is a quick rundown of the PSAT and National Merit awards process: 

• PSATs are taken by about 1.5 million high school juniors in October, and they receive their scores about 8 weeks later, are informed the following September if they are in the top 1% of PSAT scores and are eligible for National Merit scholarships, and are informed if they are in the top 3% of PSAT scores and receive Commended Certificates sometime in October or November. 

• Few of the National Merit scholarships come with big money attached; however, some schools or businesses offer scholarships based on National Merit status as finalists and semifinalists, with a shorter list of offers for students who receive commended certificates. 

• Also, scholarships are typically not determined until the Spring of Senior year after college acceptance. 

• Most parents I know look up their student’s PSAT score to compare it to previous year semifinalist cutoffs published online. Many TJ juniors immediately check their PSAT scores against these cutoffs. I looked up my own son’s scores last year.

To further dispel misunderstandings, there is a handy blog that covers the National Merit awards process and other insights on the manufactured “commended certificate crisis.” 

Of course commended certificates are essentially the honorable mentions of this whole process. They include the top 3% scoring students who took the PSATs, but they carry little to no weight in college admissions. Thus a slight delay in delivery is unlikely to have an impact on most students in Northern Virginia, much less for TJ students. Unfortunately, after so much hype and disinformation, FCPS was forced to not just investigate and solve the problem, they also had to prepare for litigation. Click on the triangle below to read more about this investigation.

FCPS Investigates to Reveal the Truth about the "Crisis"

By early January, noting threats of lawsuits raised in various media sources, most by Coalition for TJ leaders and their allies, FCPS had already decided to conduct its own thorough investigation using Sands Anderson, an outside legal firm with whom they initially contracted on 12/29/22. Although preliminary internal reviews showed that this was “a unique situation due to human error,” the media hooplah meant that more needed to be done to reassure FCPS families and Fairfax citizens of the true situation and to ensure it would never happen again.

During the Sands Anderson investigation commissioned by FCPS, AG Miyares continued turning up the heat on social media and in the news with aggressive comments and press releases. It became so bad that Sidley Austin, an outside law firm representing FCPS, deemed it necessary to to publish a letter on 3/14/23 outlining concerns about the AG’s behavior:

“Since January of this year, your office has sent a number of pre-investigation letters to Fairfax County Public Schools (“FCPS”). These letters have not been used to confidentially seek information from the district. Rather, the Attorney General has publicly released these letters through press releases and social media posts. The language used in these letters and accompanying press releases does not suggest that the Attorney General is conducting legitimate inquiries and investigations, but rather that your office has reached certain conclusions before even gathering the basic facts. More problematically, the Attorney General has used inflammatory language and rhetoric, falsely accusing certain FCPS school-based educators, by name, of racially discriminating against students.”

Thankfully, Sands Anderson did a quick and thorough report that was completed in March 2023. Shortly thereafter, FCPS provided key findings from the Sands Anderson external investigation. Essentially, the report found that a few of FCPS high schools had delayed notification of commended certificates due to a lack of comprehensive policy regarding notification which resulted in delays due to lack of administrative oversight, logistics, and lack of awareness of a deadline–all of which was compounded by the fact that the NMSC does not directly notice students or provide guidance for notification. 

Ultimately, the Sands Anderson report summary written by FCPS directly contradicted accusations the school system faced of deliberate delays and equity. However, the report noted FCPS was impacted by the manufactured crisis with impacts including significant costs to the division, threats to staff, and a distraction from focusing on the education of students: 

“It is unfortunate that a media report erroneously attributing these issues to intentional conduct triggered this unnecessary controversy. Among other things, this has necessitated that FCPS expend significant division funds on legal counsel to investigate the assertions made, but that is only the beginning. After FCPS retained Sands Anderson to conduct its external investigation, the Virginia Attorney General publicly announced its own investigation into these issues. FCPS has been required to retain separate legal counsel to respond to that investigation, imposing significant additional legal costs on the division.” 

But the greatest cost of this unfortunate episode has been borne by FCPS staff. The controversy surrounding these issues, fueled by additional press reports and by the Attorney General’s public statements and press releases, has led to FCPS staff members being individually harassed and threatened, including through targeted phone calls and emails using hate-filled and threatening language. The emotional toll on our staff has been substantial, and, in addition, staff have been required to divert significant time and attention away from their education-focused roles to respond to these inquiries. All of this has harmed and undermined our core educational mission, and we do hope that the factual findings of this external investigation can put this entire issue, and the erroneous claims that sparked this controversy, to rest.”

As a parent of a high school senior, I concur with the key findings published by FCPS: 1) Colleges are fully aware of PSAT and SAT scores because scores are transmitted with college applications, and 2) most academically aggressive Fairfax County students with high standardized test scores knew that  if the National Merit Finalist and Semi-Finalist awards don’t tip the admission scales at elite colleges, why would a commended certificate make a difference?

I was upset to find that FCPS staff were harassed and threatened and substantial outside legal costs were borne by FCPS. Based on the news coverage, some of which was vicious and targeted staff by name, I had suspected as much; however, I was wondering about the financial costs, as well. How much were these costs? 

Through a FOIA, I found out that through March 2023, FCPS invoices for outside counsel related to the AG Miyares’ investigation totaled $767,104.39. This number doesn’t include FCPS staff time, much less time for AG MIyares and his staff to pursue a Human Rights Violation investigation over one current parent’s complaint. It also doesn’t include future cases filed against FCPS–click on the triangle below to read more about the legal cases.

Where there is a Will, There is a Costly Lawsuit

Before proceeding any further, a reminder is in order: All of this time and expense is related to a minor delay in delivery of paper commended certificates to students in 2022, when all involved students would be reporting their PSAT and, more importantly, SAT scores directly to their schools. The Governor of Virginia declared this delay to be discriminatory, and Human Rights Abuse, despite the fact that only one current parent complained and her child is not Asian. I just wanted to make sure we were on the same page before discussing expensive legal challenges to FCPS over the Commended Certificate Crisis.

The Attorney General’s Case

In total, the AG Miyares investigation against FCPS cost FCPS a total of $1.4 million in legal costs. To understand how, one must look at the case brought against FCPS: Miyares v. FCPS (CL-2023-001005, previously filed as CM-2023-0000285). Piecing together information from press releases, court documents, and hearing attendance (by yours truly), these are the basics of the case:

• AG Miyares launched a civil rights investigation into the delayed commended certificates (and TJ admissions changes) on 1/4/23. On 1/25 and 3/31 AG Miyares issued demand letters asking for all Sands Anderson findings and documents. 

• In April, FCPS offered underlying non-privileged documents, a list of FCPS employees interviewed, and video recordings of interviews with one current and one former TJ parent (Ms. Yashar and Ms. Nomani). However, citing attorney-client privilege and work product doctrine, FCPS refused to “provide Sands Anderson's report, findings, employee interviews or any related documents.” 

• The AG then invoked VA Code demanding assistance in investigation of “unlawful discriminatory practice[s]”. Va. Code §2.2-521 Subpoena Power to get access to this report.

• On 6/12/23, FCPS responded that it would not provide the Sands Anderson documents because: 

• Virginia Code requires a "good cause" for subpoena.

• FCPS is protected by sovereign immunity.

• The documents are protected Attorney-client privilege & work-product doctrine.

• Dr. Reid addressed the public directly about status of the legal case, including FCPS actions to date.
  

• On 6/14/23 during an interview with WJLA, MIyares claimed that he had not heard that employees had been harassed before Dr. Reid’s video message on 6/12/23, despite the letter sent to him dated 3/14/23. 

• On 6/20/23, FCPS provided a public update regarding its continued cooperation with the AG’s National Merit commendation investigation. Out of concern for the privacy and safety of the 23 employees interviewed and the AG’s continued “disregard [of] such privacy concerns” certain exhibits in the case were removed from the public record. Referencing his 6/14/23 interview, FCPS noted that AG Miyares was continuing to “dismiss the significance of such privacy and safety concerns, claiming that he was entirely unaware of anything supporting concerns that FCPS teachers and staff have received threats over this issue.” 

• On 8/3/23, at the Fairfax Circuit Court, I watched John McGavin (McGavin, Boyce, Bardot, Thorsen, & Katz) and Sean Royall (Sidney Austin LLP) argue on behalf of FCPS claims identified above against Christine Johnson (Senior Assistant AG) and Nathan Moberly (Assistant AG, VA Office of Civil Rights) who represented the Attorney General’s office. 

• The AG’s office claimed that FCPS might be hiding evidence of “race discrimination” in the Sands Anderson report and work papers, despite no evidence (other than articles inspired or written by Ms. Nomani who penned the initial City Journal story) to support such a claim. 

• Repeatedly, FCPS’s lawyers responded that documents under attorney-client privilege would not be given to the AG’s office, and that they already shared evidence and documents needed by the AG to conduct his investigation. Mr. Royall shared that FCPS had even offered to help with an investigation, so he was questioned whether the AG’s office was actually doing an independent investigation. 

• Mr. Royall described the entire episode as “very costly,” indicating that it would be better to “spend money on educating children, and not on legal disputes.” 

• On 8/15/23, the judge decided not to grant AG Miyares subpoena for FCPS’s privileged investigation conducted by attorney’s Sand’s Anderson (see full decision). 

Attending the hearings led me to more questions than answers, including: 

• How could this entire investigation be caused by one parent’s complaint? 

• How did the AG’s office and Governor get involved in the first place–who contacted them? When and how did they contact them?

• What happened with the VBOE concerns? Who at the VBOE was concerned?

• Had the AG’s office conducted an independent investigation or were they just trying to get the Sands Anderson work papers? 

• And, how much did this misguided case cost Virginia taxpayers?

I’ve only been able to answer the last question: FCPS Invoices for the AG Investigation totaled $1.38 million in outside legal fees.

Mark Spooner’s Lawsuit

To date, Mark Spooner’s case, Spooner v. FCSB (GV23007550), cost $266,270 in outside legal fees for FCPS. On 4/27/23, Mr. Spooner (of Fairfax School Monitor), a retired lawyer whose blog is regularly amplified by the Fairfax GOP, filed a petition to force FCPS to produce unredacted copies of Sands Anderson attorney materials and communications pursuant to his FOIA–in other words, he demanded nearly the same documents that the AG had requested. Apparently, Mr. Spooner wanted to answer the question “How could it be that there was “no evidence” that “woke” considerations played a role in the high schools’ decisions, given that a mother of a TJ student had quoted school administrators of admitting otherwise?” 

Mr. Spooner’s “petition contend[ed] that the claim of “attorney-client privilege” has no merit,” presuming that the 3/31/23 FCPS update was produced by Sands Anderson, which would waive privilege.”  This set off a series of hearings in 2023 held on 5/8, 5/17, 7/19, 8/23, and 10/4. 

On 10/4 both John Foster (FCPS Counsel) and Mr. John McGavin (FCPS’s outside attorney) were present during an all-day hearing and were quite solicitous of Mr. Spooner. In contrast, the consideration shown Mr. Spooner during his questioning was not returned when the FCPS General Counsel, Mr. Foster was cross-examined. Instead, Mr. Spooner’s cross-examination of Mr. Foster appeared to have  more sustained objections than actual answers. It was so painful that at one point the judge said to Mr. Spooner, “I can’t tell you how to ask your questions. You have a burden of proof.” It was quite painful to watch.

Over the course of several hours, Mr. Spooner was proved to be wrong, since Mr. Foster had penned the summary of the Sands Anderson report. Also, FCPS counsel reaffirmed that the Sands Anderson report and work product was protected by attorney-client privilege, something that was not really under doubt, as attorney-client privilege has significant precedent. On 11/01, Mr. Spooner appealed with an unknown outcome

During the 10/4 hearing, FCPS’s lawyers noted a number of times that the AG’s office seemed to have an interest in his case because they sent two of their lawyers: Mr. Moberly and Joel Taubman (Assistant AG, Virginia Office of Civil Rights, Fairfax). This begs the question: how much did that cost taxpayers and what was their relationship with Mr. Spooner? Were these two cases and parties connected? 

While writing this blog, I also learned that Mr. Spooner, a grandfather whose children have never attended FCPS, has sued FCPS at least four other times! How much have those cases cost Fairfax County taxpayers? How much did they distract FCPS staff from their purpose of running a school system and educating our schoolchildren?

I spent about two working days attending these hearings, which made me realize the costs associated with both the Miyares and Spooner cases must be immense. For every hour that attorneys and staff are in the courtroom, 10-200 hours of work goes into preparing materials. But even I was surprised to find via FOIA that outside legal counsel for FCPS for these two cases totaled $1,642,383, neither of which includes the cost of Mr. Foster’s time and other internal costs borne by FCPS.

Financial, Emotional, and Education Costs of a Manufactured Crisis

We will never know the full impact of the manufactured Commended Certificate Crisis on FCPS and its employees, much less Fairfax families, particularly those at TJ who were at the heart of the manufactured controversy. We will also never know how much time, energy, and money the governor’s, attorney general’s, and VBOE’s offices spent on this effort. Nor will we ever know what motivated the amplification of this story across social and news media.

But we do know that this affected our schools where time and money was taken from needed education of students and support of teachers, a number of FCPS employees were threatened and harassed directly and on social media, and great harm was done to the safety and reputation of leaders like Superintendent Dr. Reid, TJ Principal Dr. Ann Bonitatibus, and Mr. Brandon Kosatka, TJ's longtime director of student services.

We also know that this manufactured crisis caused division in the community, as people argued over the merits of the case on social media. I felt this division intimately when I was stalked and harassed during an interview with Fox 5 in January 2023 and on social media in 2023.

Ultimately, this was an expensive distraction from the goals of our school system to support and educate children. This manufactured crisis cost $1,642,383 in outside legal fees for two cases that seemed to lack merit and were based on a City Journal opinion piece and a series of Fairfax Times stories. That is quite a lot of money that, as Mr. Royall said, would be better spent “on educating children, and not on legal disputes.” 

Additionally, Superintendent Dr. Reid shared that delays “had nothing to do with race or any effort to downplay students’ achievements” and the investigation found no evidence “suggesting that any later-than-usual notification impaired students’ academic, professional, or financial interests, including college admissions or scholarships.” She indicated that FCPS would create policies to prevent such a situation in future.

As an observer and parent whose child had just received his PSAT scores when this story came out in December 2022, this whole thing seemed bizarre and the timing of the story was suspect–who releases a story over winter break, much less a month after the facts were available? To me, it seemed that not only was there nothing to this story but all of the parties involved in the reporting seemed to be the same ones who were involved in the costly Coalition for TJ lawsuit against FCPS. 

Regarding the impact of delayed notification, all should heed the words of the Nick Anderson in Washington Post when he said: 

“Yet the matter at the core of this drama — a delay in delivery of letters of commendation for standardized test scores at Thomas Jefferson High School for Science and Technology and elsewhere in Northern Virginia — in all likelihood will have zero effect on the college admission prospects of any high school student or access to financial aid, according to experts in the field.” 

What matters far more than awards and honors, experts say, is the rigor of an applicant’s courses. So do grades, extracurricular activities and obstacles that might have been overcome. If applicants submit test scores, colleges will take into account the SAT or ACT, and often Advanced Placement scores. But experts say admission officers don’t pay much attention to performance on the PSAT/NMSQT.” 

Basically, everyone received their kids' PSATs in December 2021, so by September 2022, they had likely done their due diligence to know whether their student was a semi-finalist or commended student. Thus parents of 2023 and 2024 seniors knew that this story was garbage from the get-go. FCPS described the impact of this case perfectly when it said:

“It is regrettable that the AG is continuing to devote public resources and funds to this issue. The AG has all the information it needs to conduct its own investigation. Nonetheless, it has gone to court to try to breach FCPS’s attorney-client privilege. As a matter of principle and in order to protect our valued teachers and staff, we are opposing this unreasonable legal action. “

At the end of the day, this was a costly manufactured crisis to staff and the school district. Of course much of this is truly about money, power, and control: if school districts’ reputations suffer and/or they and school boards look like they are breaking the law or violating civil rights, it is that much easier to defund and dismantle public education. This is part of a game plan to make schools look like they are corrupt, dysfunctional, and inept rather than underfunded and overworked.

Legal means are often necessary to right wrongs, protect students, and ensure that school boards are not flagrantly violating the law. However, lately, legal methods are being used unscrupulously to extract time, money and attention away from our students, teachers, and school systems for culture war debates and click-bait. In this case, for FCPS, the price tag was $1.6 million in outside legal costs.

In a world where local ethical journalists are far and few between, it behooves us to follow the threads to see where it leads us. If you have questions, look at the source documents. Be sure to keep in the loop. Go to the courthouse, if you must and watch the proceedings, and then share your findings. 

You never know, you too may just find the price tag of these unfounded attacks to be too high.