Schools use copyright laws to deny parents' access to 'intrusive' surveys; One mom wants to stop it

The Supreme Court reaffirmed parental rights in public schools and access to federal courts this year, reinstating a permanent injunction against California's so-called gender secrecy policies that hide students' gender identity from their parents and authorizing pro-life pregnancy centers to sue New Jersey in federal court to stop speech-chilling subpoenas.

Now a Kentucky mother is asking the high court to resolve a related jurisdictional issue that could not only gut the right to know what their children are experiencing in public schools, but give all public entities a convenient path to deny public records requests.

The Southeastern Legal Foundation petitioned SCOTUS on behalf of Miranda Stovall to review a 6th U.S. Circuit Court of Appeals ruling, upholding a lower court, that federal courts are the wrong venue for deciding whether federal copyright law permits or prohibits school districts from showing parents copyrighted surveys given to students.

Jefferson County Public Schools claimed education publisher Pearson – also a defendant – could sue the district for copyright infringement if it fulfilled Stovall's Kentucky Open Records Act request for the Pearson-owned survey it gave her child, which Stovall believes is "inappropriate and intrusive" based on how her child described it.

Pearson "notoriously pushes radical ideologies," Stovall's lawyers said, citing its 2021 editorial guidance that commits to "embedding anti-racism, social equity, and environmental sustainability in teaching and learning." 

Stovall told Just the News two years ago when she first brought suit that the district's stonewalling is also censoring her. 

"Without the records, I can’t go to a school board meeting and address my concerns with the school board or go to other parents and show them what is happening in our schools," she said.

Parents have a First Amendment right to "access any school materials" given to their children and to "speak out against them," the Southeastern Legal Foundation said.

Governments sue requesters so they have to pay legal costs

The issue drew national prominence in 2022 when America First Legal, founded by now-White House Deputy Chief of Staff Stephen Miller, sued Virginia's Loudoun County Public Schools on behalf of parents to stop survey administration without 30 days' notice to parents, claiming it violated state law. A county court dismissed it for lack of legal standing in 2023.

But the practice of invoking copyright law to deny public records requests has become especially common in fights over educational curricula in the past 15 years.

The Show-Me State's courts approved the University of Missouri's refusal to share syllabi with the National Council on Teacher Quality in 2014. The University of California Santa Barbara withheld a religion course syllabus from a Hindu activist in 2018. And North Carolina State denied a request for syllabi in 2021 because faculty owners denied permission.

Arizona State University allegedly hid a mandatory DEI course behind copyright in 2023, but a Pennsylvania appeals court rebuked a school district for claiming its own DEI training was a "'trade secret," like Coca-Cola's recipe, exempt from disclosure.

The issue exploded into another culture war in 2024 when a Tennessee judge denied the release of Covenant School shooting suspect Audrey Hale's manifesto and other writings on copyright grounds. "It’s the first decision in Tennessee concluding that copyright law trumps the state’s public records act," Freedom of the Press Foundation said then.

Some governments have gone even further by suing public records requesters to shield the documents, the Associated Press reported in 2017. The tactic denies requesters the possibility of getting governments to pay their legal fees if they win.

Declined offer to inspect survey in person

Stovall is concerned JCPS's survey is comparable to those "routinely administer[ed]" by schools nationwide, asking children "about their sexual orientation, sexual activity, drug and tobacco use, and mental health without parental consent or knowledge," the petition says. 

All she wants is a survey copy to discuss "with her child in the privacy of her own home, and so that she can show other parents the potentially intrusive and inappropriate questions."

The mother's Open Record Act request sought a "full digital copy of the ‘BESS Social and Emotional Screener’ or ‘Mental Health Screener’ or ‘Screener Questionnaire’ to be given in 6-12 grades during school," according to U.S. District Judge Rebecca Grady Jennings's order granting Pearson's motion to dismiss a year ago.

Pearson's Behavior and Emotional Screening System is used to "determine student strengths and weaknesses" in their "behavioral and emotional well being," according to a school district's description of the survey.

Jennings, a first-term President Trump nominee, emphasized the school district offered to let Stovall "inspect the survey in person" but she declined.

The mother is "merely anticipating a defense [by the school district] that otherwise could be presented in a state action" and asking Jennings "to find the defense without merit to end run the filing of a state court action," which is "not enough to raise federal question jurisdiction in declaratory actions," Jennings wrote. 

'Only lawyers could love' these legal arguments

The 6th Circuit, which backed Jennings, not only contradicted the Connecticut Supreme Court, which ruled only federal courts can decide whether fair use allows the fulfillment of public records requests for any given copyrighted materials, but left Kentucky state courts free to reject their own jurisdiction over Stovall's dispute, the petition warns.

"Without clarity about in which court they must file suit, parents are forced to play a jurisdictional shell game" in which defendants can "tie up parents in expensive jurisdictional litigation for years" – potentially getting an answer only after their kids have graduated – or a federal court could overturn a state court decision on the copyright question, it says.

SCOTUS has recognized the same timeliness concerns in litigation involving both K-12 and college students, as when it ruled five years ago that students can sue public colleges for censorship alone – even when colleges rescind the policies to moot the case, and without proving economic harm – so that they can get faster legal relief.

Congress has designated federal courts as the venue for deciding fair use, yet both federal and state courts "have been consistently confused by whether a copyright case is within exclusive federal jurisdiction," leading them to "resort to creative methods to avoid having to decide the scope of their jurisdiction," the petition says.

The 6th Circuit neutered the "national uniformity" demanded by Congress in the copyright system within its jurisdiction of Kentucky, Michigan, Tennessee and Ohio, freeing their state courts to decide fair-use disputes involving their own public records laws without actually requiring them to do so, Stovall's petition says.

"Kentucky might call fair use what Tennessee calls copyright infringement, while courts in other Sixth Circuit states like Michigan might hold they lack jurisdiction altogether, leading to three states in the same circuit with different scopes of copyright protection and different views about their jurisdiction," the petition warns.

If a Kentucky court ends up agreeing with the Connecticut Supreme Court's ban on its courts adjudicating these disputes, Stovall will be left "in a jurisdictional black hole." This creates "piecemeal precedent," with nearly 20 rules on open records requests "that are all over the map of messy, confused law," the petition says.

Governments are the only winners in this system, Stovall's lawyers argue.

Without any "clear forum" to challenge "dubious assertions of copyright," requesters are "stuck in a jurisdictional Catch-22," the petition says. Ordinary people face the "Herculean" task of filing both state and federal lawsuits against opponents with "carte blanche – using their own tax dollars – to entangle them in jurisdictional arguments only lawyers could love."