Missouri AG, Georgia nonprofit communicated for months before school subpoenas

Schools say surveys being targeted by Attorney General Eric Schmitt are a tool to reach students directly and to comply with state accountability measures

By: - June 27, 2022 10:00 am

The subpoenas followed months of behind-the-scenes discussions between the attorney general's office and the Southeastern Legal Foundation, according to emails obtained by The Independent through an open records request (photo by Madeline Carter).

In 2018, a rash of students were dying by suicide in southwest Missouri. The Neosho School District wasn’t immune.

“We were averaging about a suicide-and-a-half a year,” said Jim Cummins, the district superintendent. “And we knew that that couldn’t continue.”

The district of roughly 4,600 students launched “a full frontal assault” to address the issue, Cummins said. They hired a director of counseling services and convened a monthly meeting of parents, staff and community members to find solutions.

If you or someone you know is in crisis, call the National Suicide Prevention Lifeline at 1-800-273-8255 or text HOME to the Crisis Text Line at 741741.

A major part of the district’s efforts also included implementing social emotional learning, an academic concept that aims to bolster kids’ social and emotional skills, like self-efficacy and grit.

By asking students questions like, “How often did you remain calm, even when someone was bothering you or saying bad things?” and “How clearly were you able to describe your feelings?” and assessing students’ responses in conjunction with other metrics, like their grades, attendance and discipline, the district aimed to take a pulse on how well it was building up its students, helping them develop their self-esteem and their ability to persevere in the face of inevitable challenges.

The district didn’t experience another student who died by suicide until recently — the first in nearly four years, Cummins said.

Now those same surveys have landed in Attorney General Eric Schmitt’s crosshairs

At the urging of a Georgia-based legal nonprofit, Schmitt issued seven subpoenas to school districts — including Neosho — and a civil investigative demand to an education consultant demanding more information about the surveys. 

His office called the surveys “invasive” and alleged they include “personal and otherwise unnecessary questions about their parents’ political views and income, and questions about their sexuality, as well as racially motivated or leading questions.”

The subpoenas followed months of behind-the-scenes discussions between the attorney general’s office and the Southeastern Legal Foundation, according to emails obtained by The Independent through an open records request. 

Schmitt’s office first reached out to the nonprofit organization in September 2021 to inquire about its federal lawsuit against Springfield Public Schools alleging mandatory racial equity training violated two district employees’ First Amendment rights.

Over the next eight months, the attorney general’s office and the Southeastern Legal Foundation were in periodic contact, with the foundation passing along letters, including one sent to Gov. Mike Parson’s office, and holding calls to “touch base.”

One phone conference was scheduled for the morning of March 10 — three hours before the nonprofit filed an open records request with the Missouri School Boards’ Association (MSBA).

Five days later Schmitt sued MSBA over alleged Sunshine Law violations.

A little over a month after that on April 19, the Southeastern Legal Foundation filed a lawsuit of its own against MSBA over alleged Sunshine Law violations — with some of the lines in the lawsuit nearly identical to language from the attorney general’s own lawsuit.

Kimberly Hermann, the foundation’s general counsel, sent a note to Jay Atkins, general counsel in the attorney general’s office, that morning with a copy of a news release announcing the lawsuit.

“Thanks Kim, I appreciate the head’s up,” Atkins wrote back. “I saw when it went up on Just the News. Good luck!!”

Chris Nuelle, Schmitt’s spokesman, did not clarify the office’s interest in reaching out to the foundation, and said in a statement that the foundation “has brought credible concerns of several parent groups to our office on several occasions, and we take those parental concerns seriously.”

Schmitt has made transparency in schools and challenging school mask mandates a focus of his office and campaign for U.S. Senate over the past year.

Somebody's cheating off of somebody else's paper in this whole thing. Their allegations are the same. They're clearly coordinating one way or the other.

– Chuck Hatfield, an attorney representing the Missouri School Board Association

With the foundation’s focus on parental and student rights, Hermann said it’s not uncommon for attorneys general to reach out “when we litigate in their state on issues that are important to them.”

Hermann said the March 10 call was to confirm with Schmitt’s office whether a 1988 opinion still reflected their legal conclusion that MSBA is subject to the Sunshine Law, “and both lawsuits rely on that publicly available reasoning.”

“The Missouri Attorney General’s office did not advise SLF on its records request or lawsuit against MSBA,” Hermann said. “SLF sent similar records requests to school board associations in other states, but MSBA is the only state association that has refused to provide the requested records.”

Chuck Hatfield, an attorney representing MSBA in both lawsuits from Schmitt and the foundation, said “one of them is simply following on the heels of the other.”

“Somebody’s cheating off of somebody else’s paper in this whole thing,” Hatfield said. “Their allegations are the same. They’re clearly coordinating one way or the other.”

Meanwhile, school districts facing the subpoenas say the surveys don’t contain the incendiary questions Schmitt portrayed. They’re used for a variety of reasons, from ensuring students’ feedback is heard firsthand to being incorporated to comply with state accountability measures set by the state education department.

“Quite frankly, it’s a waste of taxpayer dollars, because we’re having to take taxpayer dollars to pay the attorneys to represent us against the attorney general of our state,” Cummins said. “And we’re not the first school that’s had to do that over the last year.”

Role of surveys

Like critical race theory, social emotional learning has become a specter that some parents and conservative groups have seized on nationwide

The Southeastern Legal Foundation, which describes its mission on its website as advocating “for limited government, individual liberties, and the free enterprise system,” called social emotional learning “thinly disguised political indoctrination” in its May letter to Schmitt urging for an investigation into surveys allegedly used in the Webster Groves School District.

In Florida, more than 50 math textbooks were rejected for containing elements of social emotional learning and the state has ended its participation in programs that assessed youth risk factors, according to the Tampa Bay Times.

Like the recent focus they’ve received in Missouri, student surveys and the third-party companies administering them have been the subject of scrutiny at school board meetings across the country from Nebraska to Georgia.

The foundation’s May letter to Schmitt focused on surveys in the Webster Groves School District, and examples appeared to include a mix of surveys created by students, outside surveys and ones administered by the district.

But the questions other subpoenaed districts included in surveys which have been posted online largely don’t touch on those topics.

“The survey did not ask students about their parents’ political beliefs, income levels or racial biases, as suggested in the Attorney General’s press release,” said Ryan Burns, a spokeswoman for the Jefferson City School District.

Instead, the district’s surveys focused on students’ emotions, asking questions like: “Do you have a teacher or other adult from school who you can count on to help you no matter what?”

Other districts’ surveys were similar in scope, with Lee’s Summit also touching on questions on race in its climate and equity survey for 6th to 12th grade students, like: “At your school, how often are you encouraged to think more deeply about race-related topics?”

Including student feedback in decisions related to schools’ culture and climate is a key component of the district’s strategic plan, and the district’s equity plan “is also foundationally grounded in building dignity and belonging for all young people and adults in our school community,” said Katy Bergen, Lee’s Summit spokeswoman.

Cummins noted supporting the social emotional well-being of students was also one of the major uses schools were approved to spend emergency federal relief funds on, and he said “we’re not ashamed of the questions we asked.”

Surveys also play a role in how schools are evaluated by the state under the Missouri School Improvement Plan 6. Since the plan’s first version, a survey tool called the Advance Questionnaire has been used as part of the process, said Mallory McGowin, a spokeswoman for the Department of Elementary and Secondary Education.

I’ll let people make their own conclusion about why the AG is doing what he’s doing, and I would suggest that if they want to know, we’ll see what happens in August. And I wouldn’t be surprised if in August all this stuff doesn’t go away.

– Jim Cummins, superintendent of the Neosho School District

Updated to reflect current research, the current version now awards schools two points out of the 100 available for incorporating a survey of their choice to assess ​​school culture and climate by soliciting feedback, including from students.

“Positive school climate and culture are critical to building a foundation of trust and strong learning environments,” McGowin said, stressing that schools should consult with their attorneys to ensure they’re complying with federal privacy laws.

Evan Rhinesmith, director of research and evaluation at Saint Louis University’s Policy Research in Missouri Education Center, said soliciting feedback from students, parents and the broader community, is a new direction for Missouri that’s gained resonance amid the pandemic.

“Schools are getting much more attune with that aspect of wanting to make sure that they are being supportive, and recognizing just ‘Hey, there was a lot that happened…” Rhinesmith said, “and the best way to ensure that we’re able to recover academically from some of those things that we have experienced over the last two years now, is to make sure that we’re helping kids feel prepared to handle everything else that happens in the school day.’”

Asked about schools using surveys to meet state accountability and improvement measures, Schmitt’s spokesman said: “We’re not aware of any requirement that invasive and racially charged surveys be administered to students — that’s why we sent these subpoenas, to get to the bottom of these surveys and to see how school districts are using the data gleaned from these surveys.”

In Neosho, “the development of ‘soft skills’ has been a consistent request in parent feedback,” and Cummins said the surveys hadn’t faced pushback when they were issued. But Schmitt’s subpoenas have forced the district to squelch rumors in an area where things like critical race theory are “a non-issue” in a deeply conservative area of the state, he said.

To Cummins, Schmitt “is trying to single handedly weed out the pool of educators,” who get caught in political issues rather than getting to focus on serving students. Cummins wouldn’t speculate on the motivations behind the subpoenas, but noted Schmitt is running in a competitive GOP primary for Missouri’s open U.S. Senate seat, that is set to take place in August. 

“I’ll let people make their own conclusion about why the AG is doing what he’s doing, and I would suggest that if they want to know, we’ll see what happens in August,” Cummins said. “And I wouldn’t be surprised if in August all this stuff doesn’t go away.”

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Tessa Weinberg
Tessa Weinberg

Tessa Weinberg covers education, health care and the legislature. She previously covered the Missouri statehouse for The Kansas City Star and The Columbia Missourian, where her reporting into social media use by the governor prompted an investigation by the Attorney General’s office. She most recently covered state government in Texas for The Fort Worth Star-Telegram.

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