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I still remember something Joe Becker said to me nearly three years ago. We’d just officially launched the Center for Justice and Constitutional Litigation here at NPRI and hired Joe as the Center’s director, and he was perfectly frank about what it was we were getting into.
“Beating the government,” Joe told me, “is hard.”
Is it ever.
We got a fresh reminder of that this week in our lawsuit against the Clark County School District. As you know, we’ve sued CCSD for its refusal to provide us with teachers’ government-issued email addresses, as required by Nevada public-records law. On Monday, District Court Judge Douglas Smith employed a tortured interpretation of the Nevada Revised Statutes, and a bizarre re-characterization of our request, to grant the school district’s motion to dismiss our case. (For a point-by-point takedown of Judge Smith’s ruling, I would direct you to Joe’s recent comments, which you can find here.)
Disappointing as the news was, however, it wasn’t altogether surprising. What Joe told me back in 2010 is absolutely right: Beating the government is hard. Government bodies have nearly unlimited resources with which to litigate, and judges are often inclined to give government the benefit of the doubt, no matter how flimsy its arguments. To litigate against government, therefore, is to accept the role of the underdog, plain and simple.
That said, I want to tell you something very important: Now is not the time to feel discouraged. Despite this setback, our fight will continue. And there is plenty of reason for optimism.
As we announced Monday, we have already decided to appeal this decision to the Nevada Supreme Court, which has a history of smacking down district-court judges for misguided rulings on open-government matters. That history — and the overwhelming strength of our case — have us confident we’ll prevail. And perhaps just as important is the fact that public support for our position is coming in from across the ideological spectrum.
Among those to respond to Monday’s news was Allen Lichtenstein, attorney for the American Civil Liberties Union of Nevada, who told the Las Vegas Review-Journal that “[t]he Nevada Supreme Court has been quite clear that government records are public, with very limited exceptions.” Of the directory of email addresses we’re seeking, he added: “It’s a public record.”
In addition, none other than Steve Sebelius, the liberal RJ columnist with whom I’ve butted heads before, took our side in his Wednesday column, titled “Plenty of grounds to appeal teacher email decision.”
And Barry Smith, who helped craft Nevada’s Public Records Act, added, “I’m not following the judge’s logic. This is clearly a matter of public record.”
It’s an exceedingly rare occasion when Allen Lichtenstein, Steve Sebelius, Barry Smith and I are all singing the same tune. But if ever there were an issue that should produce such broad consensus, this is indeed it.
That’s because open, accountable government is a sine qua non of a free society. All of us — whether we’re conservatives, liberals or something in between — are threatened when those entrusted with the levers of government decide they no longer have to answer to the citizens they’re hired to serve.
And on that front, the Clark County School District has been among the Silver State’s worst offenders. As Lichtenstein put it, the district’s latest shenanigans are just part of its “seemingly never-ending attempt to whittle away at public records law.”
Enough is enough. It’s time for CCSD to be held accountable. And to that end, our fight goes on.
Take care, and we’ll see you (and CCSD) at the Nevada Supreme Court.
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