DEI training not 'trade secret' exempt from public disclosure, appeals court tells school district

Diversity, equity and inclusion training materials are so valuable they must be hidden from the public as trade secrets, according to a Pennsylvania school district.

A state appeals court recently ruled against that legal argument and a lack of evidence to justify it – in reversing a lower court whose affirmed exception could have swallowed the rule for public disclosure under the Keystone State's 17-year-old "right to know" law. 

Downington Area School District relied on a vague affidavit from its DEI Director Justin Brown, who claims he devised the Diversity Awareness Program training years before joining the district and the materials' value comes from "not being generally known to" or "ascertainable by proper means by other persons" except his own clients.

The Commonwealth Court of Pennsylvania said the district got it backwards. 

"To the contrary, the training materials derive their value from being shared with School District employees and anyone who participates in D.A.P.’s training program," and Brown "conflate[d] the concepts of trade secret" – like Coca-Cola's formula – "and product" like his training materials.

"Accepting Brown’s reasoning would have set a dangerous precedent – government-sanctioned training materials – used to train thousands of government employees daily – could be shielded from public disclosure and transparency if officials simply labeled them as a 'trade secret,'" according to lawyer Wally Zimolong.

He's a member of the Goldwater Institute’s American Freedom Network who represents requester Anne Trethewey, a mother of three who sought to learn whether the district, about half an hour from Philadelphia, was "indoctrinating" her kids in DEI two years ago.

This victory aside, "the fight to protect parental rights isn’t over," Zimolong said. "School districts across the country continue to use secrecy, including unfounded claims of trade secrets and proprietary information, as a shield to push ideological agendas."

Trethewey hasn't fully won yet, however. The appeals court in its decision also remanded the question of whether the materials are "confidential proprietary information," whose disclosure by an agency would cause "substantial [competitive] harm" to the submitter, to the Chester County Court of Common Pleas, which fully sided with the district.

Trade secrets have been asserted in other hot-button public records fights, as when the Food and Drug Administration heavily redacted portions of the "biologic product file of Pfizer’s COVID-19 vaccine for ages 16 and up" and the State Department blacked out 36 of 39 entities that received funding from its since-rebranded Global Engagement Center.

One of the most consequential invocations of trade secrets came from then-Twitter's censorship of the New York Post, President Trump's 2020 reelection campaign, Republican lawmakers and a mainstream journalist for sharing the newspaper's expose on then-first son Hunter Biden's abandoned laptop.

School districts have been loath to release records on what they teach teachers and students, and even who has access to students, when parents and conservative activists seek them, but it's not clear how commonly they assert trade secrets to defeat requests.

Mother and attorney Nicole Solas, a serial filer of Access to Public Records Act requests to Rhode Island institutions, told Just the News she's appealing the University of Rhode Island's trade-secrets basis to stop her from accessing its taxpayer-funded "Safe Zone" trainings on gender identity and sexuality. She's also represented by Goldwater.

Public institutions and teachers unions have asserted a variety of APRA exceptions, including personal and medical privacy, to prevent Solas from obtaining records related to culture wars in curriculum and adult advisers to student LGBTQ clubs among others. 

Solas sued a district for allegedly outsourcing intimidation against her to teachers unions, and the same district – backed by recurring Solas foe state Attorney General Peter Neronha – claimed the Open Meetings Act didn't apply to its closed-door black, indigenous and people of color advisory committee meetings even though the district paid a nonprofit to run them.

She's now giving visibility to a campaign against the Rhode Island Department of Health by Texas medical freedom activist Mary Talley Bowden to get a medical board member's emails, after the board manager told Bowden board members use private emails.

"You DO possess the records bc the board emailed RIDOH employees," Solas wrote on X, tagging RIDOH. She said the agency gave her the same excuse last year for a consultant who used "personal email" but backed down when Solas "contacted the comms director."

The heightened scrutiny on DEI in education from red states and the second Trump administration – including the U.S. Department of Education actively soliciting reports of race- and sex-based discrimination in K-12 public schools through a new "End DEI" portal – hasn't stopped all institutions from continuing the work, sometimes under a different name. 

Texas lawmakers froze increased funding requests for state higher education institutions in light of DEI rebranding and credit mandates for degrees, while Michigan State University claims its DEI programs don't need any changes to comply with Trump's orders.

'Fudge recipe' is trade secret, not 'widely shared' training materials

Pennsylvania's Trethewey had requested all documents, materials and presentations used by the DEI program director and DEI staff "to instruct or lead any training or programs to any staff, teacher, counselor or student" in the district, and any copyright information.

She also wanted materials used to instruct or lead "any cultural awareness, courageous conversations, unconscious bias and cultural proficiency training or programs to any staff, teacher, counselor or student" in the district.

Downington Area responded just two days later – Jan. 5, 2023 – that her requested information "is a trade secret and would cause substantial harm to the competitive position of the person that created and submitted this information" – DEI Director Brown.

His attached certification claims he created the materials without district resources and they are "protected by copyright and are my personal proprietary training materials," which are "password protected and the credentials are maintained in confidence."

District employees "understood that their answers were to be kept confidential from the public" and would only be disclosed "to the extent necessary to evaluate the training," he wrote. 

Brown elaborated in a supplement after Trethewey appealed, noting he has conducted trainings using his own materials since 2008. His company, DAP, "conducts team building workshops and open discussion sessions dealing with diversity and cultural awareness" but if his materials were distributed, "other trainers can steal that material and claim it as their own."

In a paragraph italicized by Senior Judge Emerita Mary Hannah Leavitt, who wrote the opinion on behalf of President Judge Renée Cohn Jubelirer and Judge Christine Fizzano Cannon, Brown said he also uses these materials "outside the classroom" with other clients. 

While legal precedents have deemed "a fudge recipe," customer lists for door-to-door sales and "pricing formulas" as trade secrets, Brown's materials are closer to a screenplay, which has no economic value until "exploited publicly through broad dissemination," the opinion says.

It's not like Coca-Cola because his sparse attestation "did not identify a 'formula' or 'algorithm' that was the secret" to a product, which cannot be secret given it is "widely shared," Leavitt wrote.

While Brown may yet be able to show on remand his materials are "confidential proprietary information" properly shielded from disclosure, the opinion said he offered "no evidence" this would cause "substantial competitive harm" and failed to identify his competitors.

"Brown’s claim of harm in his supplemental attestation contradicts his statement in the certification" that his materials are "not made available" to others, Leavitt wrote.

The fact that he obtained copyrights doesn't shield him from the right-to-know law, since "Brown disclosed the material in the application process (material that eventually becomes public) in exchange for certain economic protections relative to his work," the opinion says.

"Accordingly, any copyrighted material used by Brown and DEI staff to instruct or lead any training or programs to the School District staff must be made available to Requester [Trethewey] for inspection."

As for non-copyrighted materials, Brown was too vague for the court to know whether they are "videos, PowerPoints, outlines, lesson plans, or something else" and didn't explain how it's valuable to the district's competitors or who they are in "the DEI training market," and likelihood of substantial injury if his materials are released, Leavitt wrote.

The district invoked a precedent that actually favors Trethewey, the court found, because it blocked disclosure for a completely alien situation: the Pennsylvania Higher Education Assistance Agency’s "employee manual on debt collection procedures."

"PHEAA was created by statute, but it is funded by its operations, not by appropriations from the legislature. It competes with banks" and "took extraordinary steps to keep its manual on default loan collections confidential and shared it only with a select number of employees."