PRESS RELEASE: DFI Hauls the Biden Administration into Court for the Fourth Time After Public Document Requests Go Unanswered for Years

The latest lawsuit seeks records demonstrating the influence of the teacher unions on the U.S. Department of Education’s management of its Charter Schools Program

WASHINGTON—The Defense of Freedom Institute for Policy Studies (DFI) has filed its fourth lawsuit against the Biden administration to enforce DFI’s rights under the Freedom of Information Act (FOIA). DFI’s latest suit arises from the U.S. Department of Education’s (Department) refusal over a period of two years to provide any records in response to DFI’s FOIA requests regarding controversial changes to the Department’s $440 million Charter Schools Program (CSP).  

In March 2022, in response to demands from the American Federation of Teachers and the National Education Association, the Department’s Office of Elementary and Secondary Education (OESE) proposed changes to the CSP intended to strangle charter school growth by imposing grant conditions so onerous that they would discourage charter school operators from applying for CSP grants.

In the following months, DFI submitted two FOIA requests to the Department seeking records related to those changes, including communications between the Department and teacher unions that lobbied for the revised changes to the CSP. To date, the Department has failed to provide any documents in response to DFI’s FOIA requests that have been pending for more than two years.  

“The question is, what are the political appointees at the Department trying to hide?” asked DFI President and Co-Founder Bob Eitel. “If there’s nothing untoward about the process the Biden administration undertook to make these changes to the CSP grant program, then why haven’t they produced any documents? The public, and, importantly, charter school students and parents, deserve to know who is shaping policy behind the scenes and their motives for doing so. We are committed to getting those answers for them, and we look forward to our day in court.”

DFI has sued the Biden administration four times for stonewalling its FOIA requests, including requests submitted in February 2022 for documents related to its weakened oversight of colleges’ and universities’ compliance with a federal law that requires them to disclose foreign gifts and contracts.

In a recently released report by DFI, titled “Fumbling FOIA: How the Biden Education Department’s Stonewalling Undermines the Public’s Right to Know,” DFI found that, although the Department received far more FOIA requests during the first three years of the Trump administration compared with the first three years of the Biden administration, the Department under Betsy DeVos’s leadership was far more transparent and responsive to FOIA requests than the agency under Miguel Cardona.

The report states, “Based on the Department’s FOIA logs, during the first three years of the Trump administration, the Department’s FOIA response rate (excluding only those on which the Department had not acted) was 67 percent, with 44 percent of FOIAs granted in whole or in part. Only 3.4 percent of requests were denied in full.

“The Department’s response rate during the Biden administration was only 48 percent, with only 19 percent of the requests granted in whole or in part. More than half (52 percent) of the FOIA requests remained in processing—receiving no final disposition [by the end of the calendar year in which they were filed]. Comparing only the first three years, the Trump administration’s Department still processed 19 percent more FOIA requests than that of the Biden administration—even though the Trump Education Department received 8,000 FOIA requests during that time frame, compared to only 7,352 during the corresponding period in the Biden administration.”

The report also compares response rates between the Trump and Biden administrations for selected conservative and liberal organizations making FOIA requests. The sampled liberal organizations are the Democracy Forward Foundation, the Center for American Progress, American Oversight, American Bridge 21st Century, National Women’s Law Center, and Women’s Law Project. The sampled conservative organizations are the Defense of Freedom Institute for Policy Studies, America First Legal, the Heritage Foundation, Judicial Watch, America First Policy Institute, and Parents Defending Education.

When examining the response rates of the organizations sampled based on viewpoints, there is a noticeable delay in the Biden Education Department’s responses to the sampled conservative organizations compared to the Trump Education Department’s responses to the sampled liberal organizations. During the Trump administration, 74 of the 236 FOIA requests submitted to the Department by the sampled liberal organizations received a final disposition—a response rate of 31 percent. During the Biden administration, only 17 out of the 98 FOIA requests submitted by the sampled conservative organizations received a final disposition—a response rate of 17 percent.

Report co-author and DFI Research Assistant Selena Lin said,  “The data suggests a notable disparity in the Biden administration’s treatment of FOIA requests from conservative organizations compared to the Trump administration’s treatment of liberal organizations. These findings raise concerns about the Biden administration’s commitment to transparency and accountability and highlight the need for further scrutiny and examination of FOIA processes and practices of the Biden administration.”

To read DFI’s report on FOIA transparency across the Trump and Biden administrations, click here.

To view DFI’s latest FOIA lawsuit against the Biden administration, demanding access to documents about its changes to the Charter Schools Program, click here.

DFI is committed to robust oversight of the federal agencies responsible for education, workforce, labor, and employment policy. To learn more about our priorities and to view our work, please visit DFIPolicy.org/oversight.