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Teachers Unions Exposed To Anti-SLAPP Punitive Claim For Suing Mom Nicole Solas Over Critical Race Records

Teachers Unions Exposed To Anti-SLAPP Punitive Claim For Suing Mom Nicole Solas Over Critical Race Records

The lawsuit by Rhode Island affiliates of the National Education Association against South Kingstown mom Nicole Solas may turn out to be a historic mistake by the teachers unions, exposing them to punitive damages and discovery under the anti-SLAPP statute.

As someone who spent 22 years as a civil litigator prior to joining Cornell Law School, including 13 in Rhode Island, I understand well that lawsuits frequently do not turn out as the plaintiff intended, sometimes catastrophically so. I’m not making a prediction, but I am sounding a warning, that the lawsuit by two RI affiliates of the National Education Association against South Kingstown mother Nicole Solas may turn out to be a historic mistake, one that exposes the unions to punitive damage claims by Solas under the Rhode Island anti-SLAPP statute, as well as intrusive discovery as to union motivations.

The background you probably already know. Solas, a Rhode Island stay-at-home mother, first told her story at Legal Insurrection about her problems getting information about Critical Race and Gender teaching in South Kingstown schools, including the kindergarten to which her daughter was enrolled for fall 2021. (She has since then said she will send her daughter to private school because she fears retaliation against her daughter because of this controversy.)

We have tracked the story since it launched at Legal Insurrection and spread nationally:

In a surprise move, last week two Rhode Island branches of the largest teachers union in the country, NEA-Rhode Island and NEA-South Kingstown, filed a lawsuit and motion for an emergency injunction against Solas and the school district and school committee from which she sought records.

The lawsuit, including links to the pleadings, is detailed in these two posts:

NEA-RI and NEA-SK seek an injunction against the South Kingstown school district and school committee releasing records Solas has requested under the RI Access to Public Records Act (APRA). The unions claim that some of the records are not subject to APRA, and might expose private emails and other details regarding union member teachers, such as which teachers advance Critical Race Theory, and communications with the union on that topic and other topics.

The claim that such records are private is doubtful. Records of teacher communications about CRT and with the union that are on the computer systems of or in the possession of the school district are subject to APRA production unless they fall under a specific statutory exemption. Additionally, South Kingstown has been extremely aggressive in asserting exemptions and redacting documents, and there is no evidentiary basis in the union court filings to suggest that would not be the case here. So factually, the hysterical claim that South Kingstown is going to start handing out personal or personnel records of teachers is without basis.

But more important, it does not appear that the unions have “standing” to seek the injunction. We addressed this point in Unions May Have Major Legal Problem In Lawsuit Against RI Mom Nicole Solas Over Public Records Of Critical Race Teaching:

There is a Rhode Island Supreme Court case that is going to have to be addressed, and which seems to sink the unions’ lawsuit. Ilana Cutler, Esq., Legal Insurrection Foundation Investigations Counsel, found the case, and it appears to be good law. And let’s just say I was shocked to find a case seemingly so on point and not addressed in the unions’ papers that it could present a major problem for the lawsuit.

The case is a 2004 Rhode Island Supreme Court case, In re New England Gas Co., 842 A.2d 545, 551–52 (R.I. 2004), in which the court found no right of a non-party to the public records process (in the position of the unions here) to seek to prevent disclosure of allegedly non-public information. That case even relied upon prior precident involving a different union’s attempt to intervene.

We provided this excerpt from the New England Gas case (emphasis added):

This case requires us to revisit the Access to Public Records Act (APRA), G.L. 1956 chapter 2 of title 38. On its face, the avowed purpose of the APRA is “to facilitate public access to governmental records which pertain to the policy making functions of public bodies and/or are relevant to the public health, safety, and welfare.” Section 38-2-1. We also have held that the APRA provides a remedy only to those people who are denied access to public records; it does not provide a remedy to prevent public agencies from disclosing recordsSee Pontbriand v. Sundlun699 A.2d 856, 867 (R.I. 1997); Rhode Island  Federation of Teachers, AFT, AFL-CIO v. Sundlun595 A.2d 799, 803 (R.I. 1991). Discerning no reason to deviate from these principles, and as the General Assembly has not seen fit to provide such a remedy, we reemphasize the strong public policy expressed in the APRA in favor of public disclosure.

***

We begin our analysis by noting that this Court has “long recognized that the underlying policy of the APRA favors the free flow and disclosure of information to the public.” Providence Journal Co. v. Sundlun616 A.2d 1131, 1134 (R.I. 1992) (citingProvidence Journal Co. v. Kane577 A.2d 661, 663 (R.I. 1990);Pawtucket Teachers Alliance Local No. 920, AFT, AFL-CIO v. Brady556 A.2d 556, 558 (R.I. 1989); Hydron Laboratories, Inc. v. Department of Attorney General492 A.2d 135, 137 (R.I. 1985); The Rake v. Gorodetsky452 A.2d 1144, 1147 (R.I. 1982)).

We also have made clear that the APRA provides neither a right to prevent the release of private informationPontbriand699 A.2d at 867nor a remedy to compel nondisclosureRhode Island Federation of Teachers595 A.2d at 802. We reached this conclusion after a careful analysis of legislative intent and an examination of federal case law decided under the analogous Freedom of Information Act (FOIA). Pontbriand699 A.2d at 867. The Supreme Court of the United States has held that the FOIA was designed to enlarge disclosure by public agencies and that “Congress did not design the FOIA exemptions to be mandatory bars to disclosure.” Chrysler Corp. v. Brown441 U.S. 281, 293 (1979).

Thus, the APRA exemptions, similar to those under the FOIA, allow public agencies to withhold documents, but do not require withholdingSee Tripp v. Department of Defense193 F. Supp.2d 229, 238 (D.D.C. 2002). Similarly, in Rhode Island Federation of Teachers595 A.2d at 802-03we held that the APRA provides no remedy to compel withholding non-exempt information from the public:

“The similarity between FOIA, as interpreted, and APRA is striking. In both instances the Legislature has cast the public official as the guardian of exempted material. His or her discretion in respect to disclosure cannot be challenged by a private party. As in the  case at bar, if a remedy is to be provided, it must be provided by the Legislature and not by the court.

“Our statute, like the Federal FOIA statute, is directed solely toward requiring disclosure by public agencies and does not provide a reverse remedy to prevent disclosure.”

I leave open the possibility that we’re missing something, and the unions have a way around the standing problem. I don’t think so, but perhaps the unions will prove me wrong.

But if I’m right about the standing problem, then the unions have a bigger legal problem than merely a weak lawsuit. The Rhode Island Anti-SLAPP statute (Limits on Strategic Litigation Against Public Participation) appears to apply, opening up various remedies to Solas:

Section 9-33-1 – Findings

The legislature finds and declares that full participation by persons and organizations and robust discussion of issues of public concern before the legislative, judicial, and administrative bodies and in other public fora are essential to the democratic process, that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances; that such litigation is disfavored and should be resolved quickly with minimum cost to citizens who have participated in matters of public concern.

Solas’ APRA requests pretty clearly are a “petition for the redress of grievances” – the grievance and redress being the request for records – and also were intertwined with Solas’ exercise of her freedom to speak out against Critical Race and Gender being taught in South Kingstown schools. This is supported by Section 9-33-2(e), which describes the broad reach of the statute:

(e) As used in this section, “a party’s exercise of its right of petition or of free speech” shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; or any written or oral statement made in connection with an issue of public concern.

We’ve not found a RI case addressing anti-SLAPP in the context of an APRA request, perhaps because no one brings such suits after the RI Supreme Court decision in the New England Gas case. But Solas’ APRA requests and the unions’ lawsuit over it certainly seem within the plain scope of the statutory language.

If the anti-SLAPP statute applies, it triggers a mechanism to quickly end the lawsuit (emphasis added):

Section 9-33-2 – Conditional immunity

(a) A party’s exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions in connection with a matter of public concern shall be conditionally immune from civil claims, counterclaims, or cross-claims. Such immunity will apply as a bar to any civil claim, counterclaim, or cross-claim directed at petition or free speech as defined in subsection (e) of this section, except if the petition or free speech constitutes a sham. The petition or free speech constitutes a sham only if it is not genuinely aimed at procuring favorable government action, result, or outcome, regardless of ultimate motive or purpose. The petition or free speech will be deemed to constitute a sham as defined in the previous sentence only if it is both:

(1) Objectively baseless in the sense that no reasonable person exercising the right of speech or petition could realistically expect success in procuring the government action, result, or outcome, and
(2) Subjectively baseless in the sense that it is actually an attempt to use the governmental process itself for its own direct effects. Use of outcome or result of the governmental process shall not constitute use of the governmental process itself for its own direct effects.

(b) The court shall stay all discovery proceedings in the action upon the filing of a motion asserting the immunity established by this section; provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion.
(c) The immunity established by this section may be asserted by an appropriate motion or by other appropriate means under the applicable rules of civil procedure.

But wait, there’s more. If Solas prevails on an anti-SLAPP motion, the court must award reasonable attorney’s fees. If the lawsuit was “frivolous,” then it exposes the person or entity bringing the lawsuit (the unions here) to compensatory and punitive damage claims. Section 9-33-2 further provides (emphasis added):

(d) If the court grants the motion asserting the immunity established by this section, or if the party claiming lawful exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions in connection with a matter of public concern is, in fact, the eventual prevailing party at trial, the court shall award the prevailing party costs and reasonable attorney’s fees, including those incurred for the motion and any related discovery matters. The court shall award compensatory damages and may award punitive damages upon a showing by the prevailing party that the responding party’s claims, counterclaims, or cross-claims were frivolous or were brought with an intent to harass the party or otherwise inhibit the party’s exercise of its right to petition or free speech under the United States or Rhode Island constitution. Nothing in this section shall affect or preclude the right of the party claiming lawful exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions to any remedy otherwise authorized by law.

A claim for damages under the statute must be made as part of the motion to dismiss, not in a separate lawsuit.

Now you can see the significance of the “standing” issue. If the unions never had standing to sue, with the law being clearly spelled out in a RI Supreme Court case, then arguably the lawsuit was “frivolous” triggering the damage provisions, including punitive damages. The statute does not mandate punitive damages, but it does provide for judicial discretion to award them.

Whether the bringing of the lawsuit was malicious might depend on what discovery turns up — Solas would be able to bring into evidence and gather more evidence of the union efforts against her, including the circumstances of the NEA-SK meeting in which her image was shown to union members who were warned about her.

The unions’ motivations could be critical to the punitive damages aspect, Hometown Properties, Inc. v. Fleming, No. C.A. WC92-689 (R.I. Super. July 3, 1998):

This Court finds that Fleming’s claim is derived from the standard enunciated in the statute. Thus, a prima facie case for punitive damages is made when Fleming’s evidence indicates that Hometown’s lawsuit against her was frivolous, or was brought with an intent to harass said party, or otherwise inhibit said party’s exercise of her right to petition or free speech.

The standing problem arguably shows frivolousness. The “intent to harass” or “otherwise inhibit” Solas would be a matter for discovery of what the unions did and with whom they communicated in the lead up to the lawsuit. We already know, based on public records obtained by the Legal Insurrection Foundation, that the Rhode Island School Superintendents Association bragged that it was working with its “union friends” on trying to limit APRA due to Solas. Whether NEA-RI and NEA-SK were part of that effort might be relevant.

[Redactions by Legal Insurrection Foundation]

Communications with NEA headquarters also may be discoverable, since after the Solas dispute arose NEA launched a national effort to push CRT in schools, National Education Association Votes To Push “Critical Race Theory” Into K-12 Schools Across The Country. Was the lawsuit against Solas part of a more aggressive national NEA campaign to crush dissident parents? That’s a relevant question.

I’m not predicting an outcome here, I’m just pointing out that this might head in a direction the unions never thought possible — they may be subject to extensive court discovery as part of a punitive damage claim under the anti-SLAPP statute, and then a punitive damage award. If all that happens, this lawsuit may turn out to be a historic mistake by the teachers unions.

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Comments

Seems like a textbook SLAPP case.

But in today’s semi-lawless America, who knows.

Historic mistake – I sure hope so

Nicole — you and your family are in my prayers.

And Professor — you and your family too.

    lc in reply to Snail. | August 11, 2021 at 8:35 am

    Ditto!
    Praying for a hedge of protection.
    They deserve our thanks as well.

    Did I miss seeing who is representing Mrs. Solas?
    Is it a pro bono group?

madisonian_123 | August 10, 2021 at 9:04 pm

It really looks like the unions were engaged in a tactic of harassing this lady. I hope she takes them to the cleaners.

    Also looks like the hubris of the school committee and unions lured themselves into their own trap:

    “We already know, based on public records obtained by the Legal Insurrection Foundation, that the Rhode Island School Superintendents Association bragged that it was working with its “union friends” on trying to limit APRA due to Solas.”

    They may have carelessly or even knowingly been sending a warning to all teachers with a veiled threat that intended to freeze allies of Solas by intimidation. But as has been argued here with legal analysis, it amounts to a bluff. Now that bluff is about to be called and that will probably clear the path for parents across the country to start demanding disclosure from their own school committees.

    Even if the unions withdraw their lawsuit, all hell is coming their way. What are they going to do? Threaten a national strike? Good! Perfect opportunity to re-introduce the idea of the very constitutionality of government employee unions. Will they risk it? I doubt it. Do they cave? I can’t wait to see how this works out.

Professor – Many thanks to LI for exposing CRT. May this be one of many wins for American families.

Wow — super in-depth analysis from Professor J. We are lucky to be privy to his insights!

Professor, can the Unions dismiss their complaint and avoid exposure under the RI anti-SLAPP statute? If so, Solas needs to file an answer and counter-claim ASAP and before such a dismissal-from someone who is not familiar with RI replications, rejoinders, sur-rejoinders, rebutters, sur-rebutters and demurrers.

JusticeDelivered | August 10, 2021 at 9:25 pm

I hope that damages are high enough that she can afford to stay home, that all of the cost for private schooling for k12 is covered, and that there is enough left over for a first class education for he daughter.

    Given the animus of the teacher’s union and certain teachers and administrators, I think a strong case can be made that Solas should be compensated in an amount to send all her current and future kids to private school where those involved with the Union cannot cause them harm. That could easily be over $1 million.

    And the punitives should be sufficient to dissuade any future multi-billion dollar organization from infringing upon the rights of a parent. HOW DARE THEY. They work for the people. Supposedly for the good of the kids. In fact, the STATE itself has a vested interest in sanctioning and fining and adding punitive damages because the STATE’s very legitimacy is at stake. If people – especially parents – cannot feel safe obeying the State’s commands (laws) they will stop obeying. To wit, they will stop sending their kids to ideological indoctrination centers that we used to call schools. What else will they stop doing? who know? but once trust and confidence are lost – it is hard to restore it. I think puni’s should be $50 million – that’s not too much for a national organization that seems to have thrown its full weight and over against a parent to try to quash them. And it is just 10x the amount the NEA said they set aside to defend their members from lawsuits against teachers pushing CRT. And if they EVER DARE to set aside another $5 million for defense against parental interests and in support of a political objective – the next time it should 100x their defense fund.

      Morning Sunshine in reply to Ben Kent. | August 11, 2021 at 8:31 am

      “If people – especially parents – cannot feel safe obeying the State’s commands (laws) they will stop obeying. To wit, they will stop sending their kids to ideological indoctrination centers that we used to call schools. What else will they stop doing? who know?”

      I have always said that homeschoolers are counter-culturists by nature, that we question a lot more of the “cultural norms” in society: vaccines, mandatory college, raw milk bans, doctor choices, etc. We question EVERYTHING, and explore options and then make our own choices.
      Why? Because we have already bucked the biggest cultural norm in America by NOT putting our kids on a school bus. The government is creating a lot more of us this past year. I do not think that was the plan.

“I’m not predicting an outcome here, I’m just pointing out that this might head in a direction the unions never thought possible”

Which is amazing to me, a non-legal professional, since I and many of the other non-legal professionals here immediately thought of SLAPP counterclaims as soon as we heard of the union suit. Are we to assume the professional union lawyers are actually that stupid, or do they think they have an angle?

    Voyager in reply to henrybowman. | August 11, 2021 at 2:20 am

    It could be either one. Or it could simply be sufficient desperation that they’re willing to take insane risks, because the cost of losing is so high for other reasons.

    I’m reminded of just how much I Berlin is spending, and willing to risk losing just to keep trying to avoid admitting they were wrong.

    TX-rifraph in reply to henrybowman. | August 11, 2021 at 8:03 am

    I have found lawyers to be generally risk adverse. I have also found many leaders to be sociopathic in that they want to destroy people who push back rather than submit. They do not care about damaging the organization. They care about their ego and their power. This may be a case where the legal advise was ignored and the attorneys were told to file against Solas.

    CommoChief in reply to henrybowman. | August 11, 2021 at 8:38 am

    Henry,

    In the LI article a week or so back I pointed out that the unions may be opening themselves up for counter suits. That’s as far as I was willing to go. I went to Law School, but didn’t take the bar exam. I am not an Attorney. Many of my posts use qualifiers; seems, may, perhaps, possibly.

    You can’t reasonably expect a practicing Attorney, a Professor of Law at that, to make much more of a statement of certainty.

    The key to understanding the law is to always remember the phrase ‘it depends’. There are no absolutes in our legal system. Unfortunately a long standing interpretation or doctrine could be altered by a CT. A jury could could make unexpected decisions, they frequently do.

    What seems like hedging isn’t due to lack of awareness about the law it is because the Professor understands that uncertainty. He can’t be expected to undermine his professional reputation by making uninformed or casual comments on a website.

    Brave Sir Robbin in reply to henrybowman. | August 11, 2021 at 11:28 am

    “Are we to assume the professional union lawyers are actually that stupid, or do they think they have an angle?”

    Legal counsel is very expensive. Just answering a motion by Plaintiff by a frivolous or harassing litigant can cost thousands of dollars. Defendants without means are overwhelmed by and capitulate to litigants with means. This is why SLAPP laws have been implemented.

    However, successful invocation of SLAPP is no sure thing. It just isn’t. And attempting to gain SLAPP protection costs money which a Defendant may not have. Therefore, strategic legal harassment may still work in many cases.

    Having said that, since this case has garnered national attention, the legal resources available to Ms. Solas are somewhat expanded as she may have greater access to pro bono assistance and contributions to cover costs and fees. So it is not the brightest move by the teacher’s union. But then, when you realize who is teaching your kids these days, do you really expect bright moves from a teacher’s union?

So if my legal knowledge were limited to watching Erin Brockovitch a decade ago, I question whether damages would be limited to the local branches or whether there was active direction to CRUSH her out from the national entity. Seems like the national entity should be slammed for punitive damages well into the MILLIONs if that were the case.

A little potential something that warms the cockles of our hearts.

The Teachers Unions might need a good bankruptcy attorney on retainer in the very near future.

Pushback works. Bloody noses are all bullies understand.

Is failure to disclose adverse legal authority not an ethical issue in Rhode Island?

Defund public schools, CRT leaves little choice.

Pushback requires courage. Solas is a courageous patriot so she is a threat to the totalitarians who want submission. They fear courage as totalitarians are cowards.

Saddam Hussein was hiding in a hole like the animal he was when he could not crush his opposition.

I am appalled at the suit. I think there is clear legal precedent making it frivolous. The problem for Ms. Solas’ counterclaim, however, is Rhode Island civil procedure, which requires the unions to name her as a party because of the declaratory nature of the suit’s plea. I hope the judge finds the complaint frivolous, and throws it out, but I think the damage would have been done. This is lawfare, not law.
This one is a weird case, the plaintiff and the primary defendants seem to be working together from the emails, but this has been a strategy of the left for years on the environmental cases (sue the government, who agrees to a consent judgment giving the environmentalists what they want, making it the law of the land without legislation.) If Solas gets herself removed as a party under SLAPP, can the unions and the school board agree to a settlement that gives them what they both want? Unless the judge stands up to them, I don’t see it otherwise.

MaggotAtBroadAndWall | August 11, 2021 at 10:27 am

I wish you’d take a strong position on how you expect it to turn out.

I no longer have confidence in the judiciary. My opinion for decades has been that they often do not “follow the facts” and then blindly apply the law. Instead, they often predetermine the outcome they want and then engage in a bunch of legalese mumbo jumbo to rationalize it.

Sorta like how on the federal level Kavanaugh sided with liberals to extend the “eviction moratorium”, even though he explicitly stated in the opinion that the CDC lacked the authority to impose it in the first place. It was black and white. No ambiguity. Yet he ignored it because he didn’t like the outcome.

So I understand your hesitancy. American “justice” is increasingly a matter of luck. Depends on which judge/jury hears the case and how they feel about the larger issue, not the facts and applying them to the black letter law.

    Nope. Quality attorneys don’t offer opinions about outcomes, they offer professional advice about the process. Even the ‘legal analyst’ on your favorite network isn’t going to predict outcomes with any degree of certainty.

    There are too many variables at play. The legal system isn’t a math equation where 2+2=4. It’s more like 2+2+unknowable x (+ possible other unknown x) =y.

    Look at some of the historic CT decisions. They are taught in Law School because they created a precedent. Usually because the CT adopted a previously unacknowledged doctrine. Had the CT not created a new interpretation the other party would have prevailed based upon the previous interpretation of the statute or policy in question.

    At best it’s reasonable to ask for odds with all those caveats but only when you the client are paying your attorney for his time.

So, the ACLU (the legal attack dog of the Left) is working with the union to undermine the ability of parents to know about and challenge the “educational” arm of the state. The ACLU is willing to work hand-in-hand with those with political power to undermine the ability of a parent to have a say in what is taught and how her children are taught. No surprise here. This tells you all you need to know about the ACLU’s actual concept of “civil liberties,” and how this pernicious organization often supports those in power, no matter how oppressive, as long as they have the ideology right and the right people are being persecuted. Who needs the racist Southern Poverty Law Center when we have the ACLU to do the dirty work.

Bankruptcy will not help the unions – they are not entitled to a discharge. At best they can re-structure their debt in a Chapter 11. At worst, they will be liquidated by a very happy bankruptcy trustee.

A peasant challenging the Democrat Ruling Class and it’s Teacher’s Union Shock Troops will not be tolerated; the Court system will protect its Ruling Class up to (and probably including) the ‘Robert’s Court.’

It should be obvious to taxpayers – but Government Media hides it.

Assuming it goes badly for the teachers unions, I have no doubt they will take it all the way to the SCOTUS, where Robert’s and Kavanaugh will join the liberal justices in finding that the law doesn’t actually mean what it says.

Where are all the commenters who were convinced that standing is some newfangled doctrine that the perfidiious Roberts made up the night before last?

Having experienced a Classic SLAPP Suit in RI over 20 years ago, I can affirm that the RI Statute is VERY Strong and the RI Judiciary will NOT allow Mrs. Solas to be threatened and intimidated!

She needs to SLAPP Back Now!

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