Defendants have violated FACA in the creation of the National Parents and Families Engagement Council.
Parents Defending Education (PDE), a nationwide nonprofit membership association that empowers concerned citizens to become more engaged in America’s education system, along with America First Legal and Fight For Schools and Families, filed a new lawsuit today against Miguel Cardona, U.S. Secretary of Education, the United States Department of Education, and the National Parents and Families Engagement Council, alleging that the Defendants have violated the Federal Advisory Committee Act in four broad aspects:
- The Defendants have violated the requirements under section 5 of FACA, 5 U.S.C. app. 2 § 5, that an advisory committee’s membership be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” id. § 5(b)(2); and that “appropriate provisions” be made “to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment[,]” id. § 5(b)(3). The Council’s members are allies of the Biden Administration. Most of the organizations have applauded the Administration’s previous decisions, and nearly 80% of their leaders have donated to President Biden or other Democrats. Defendant Cardona selected members that are agreeable, not balanced.
- The Defendants have already violated, and absent relief, will continue to violate, the non-discretionary transparency and public access requirements of section 10 of FACA, 5 U.S.C. app. 2 § 10. The Council has met without public notice; without making those meetings open to the public; and without timely notice in the Federal Register. Id. § 10(a). It has also failed to make all “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the Council “available for public inspection.” Id. § 10(b). The Plaintiffs only learned that the Council has met after the Department revealed that meetings had occurred in its second Press Release.
- The Defendants have already violated, and absent relief, will continue to violate, FACA’s non-discretionary establishment requirements. 5 U.S.C. app. 2 § 9(a). No statute specifically authorizes the Council’s establishment. Id. § 9(a)(1). Nor did the President specifically authorize the Council’s establishment. Id. Nor did Secretary Cardona publish notice of the Council’s establishment in the Federal Register. Id. § 9(a)(2).
- The Defendants have violated—and continue to violate—the oversight provisions of FACA and its interpreting regulations by failing to prepare and file a charter for the Council with all necessary political bodies, including but not limited to the Congressional committees that would otherwise exercise oversight responsibility over the Council. Id. § 9(c). Nor have the Defendants assigned a Designated Federal Officer to the Council to ensure compliance with FACA, and any other applicable laws and regulations. In other words, the Defendants have shielded the Council from any meaningful oversight.
America First Legal Foundation et al. v. Miguel Cardona, et. al.
July 6, 2022
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