Two months into his new job, Lieutenant Governor Mark Robinson called a press conference to announce that he’d convened a task force to investigate the indoctrination of the state’s students. Across the country, conservatives claimed their children were besieged by ideological strong-arming in the classroom. Robinson wanted to find evidence that it was happening in North Carolina.
“People say, ‘Well, where’s the proof? Where’s the proof?’ We’re going to bring you the proof,” Robinson said.
North Carolina’s first Black lieutenant governor, Robinson quickly emerged as an ambitious conservative firebrand with an eye on the Republican nomination for governor in 2024. As a State Board of Education member, he fought new social-studies standards that emphasize diversity and railed against teaching systemic racism.
Robinson’s task force, called F.A.C.T.S., would further his campaign against progressivism’s influence in public education by soliciting complaints through his office’s website and deciding whether the solution required a new law or should be addressed by the state school board, he told reporters.
Beyond that, details were scarce. No updates or press releases followed the March 16 press conference.
But on July 14, Robinson said his task force had found exactly what he expected—and would release a report this week.
“The issue of indoctrination in our classrooms is real, folks,” he said, according to The News & Observer. “It’s not some figment of somebody’s imagination. It’s happening all across the state, unfortunately.”
It’s unclear how imminent the report actually is. On Tuesday, however, the lieutenant governor’s office confirmed to me that the task force held its first—and, so far, only—meeting in June. The members reviewed submissions from constituents and were “probably” given a PowerPoint presentation, Brian LiVecchi, Robinson’s general counsel, told me in an email.
No journalists or members of the public were present. The task force did not provide 48 hours’ notice of the meeting, as the state’s Open Meetings Law requires of public bodies, nor did it leave a record of who attended and what transpired—no audio or video recordings; no minutes.
This wasn’t an oversight. If there’s another meeting, it will be held in private again, LiVecchi says. He doesn’t consider the task force a “public body,” so he doesn’t think the Open Meetings Law applies.
“Frankly, we’re talking about a group of individuals meeting informally with staff around our conference table,” LiVecchi told me.
The General Assembly’s Legislative Analysis Division disagrees. Responding to a question from Rep. Graig Meyer, an Orange County Democrat, the division’s principal staff attorney, Bradley Krehely, wrote Tuesday that “the FACTS Task Force appears to be a public body that would be subject to the Open Meetings Law.”
State law defines a public body as “any elected or appointed authority … that (i) is composed of two or more members and (ii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function.”
The F.A.C.T.S. task force has 15 members, five of whom are state or local elected officials, according to a list provided by the lieutenant governor’s office in May. (Of the 13 whose voter registrations I located, two are Democrats.) They all appear to have been selected by Robinson.
Their role, LiVecchi emailed Tuesday, is “to give the LG and his staff their professional ‘take’ on various things that were reported to us,” with the goal of “eventually [preparing] some kind of report of our findings.”
Those criteria check the law’s boxes for a public body, says Brooks Fuller, director of the North Carolina Open Government Coalition at Elon University.
“I’d make the argument that it’s a public body based on what we know now,” Fuller said. “It is a group of two or more members appointed to exercise an advisory function to the lieutenant governor.”
There’s one potential caveat, Fuller says: Nothing in state law or the Constitution gives Robinson the authority to appoint a task force. (By the same token, nothing says he can’t.)
“It’s arguable that [the task force meeting] is an informal convening and not a public body because the lieutenant governor has no appointment power to form such groups,” Fuller said. “That argument may be valid, but it seems like bad public service even if [it is] legal.”
When I asked LiVecchi why the task force hadn’t defaulted to transparency and public access, he pushed back.
“I believe that our office is being very transparent and open about what we have received from constituents—you have received all of it—and what we believe the issues to be,” he said.
It’s true that Robinson’s office provided me with the first 450 submissions the task force received. But getting them wasn’t easy.
I requested the records immediately after Robinson announced the task force. A month later, in April, LiVecchi told me that “many if not all of these records would be exempt from disclosure due to the privacy requirements of FERPA [the Family Educational Rights and Privacy Act] and the lieutenant governor’s status as a member of the State Board of Education.”
Nothing in the state’s public records law exempts State Board of Education members from having to disclose communications with the public, and FERPA protects students’ education records from public disclosure, but not complaints about school officials.
“In trying to use FERPA to withhold the complaints themselves, they’re making spurious arguments about why they don’t have to comply with basic transparency requirements,” said Jonathan Jones, a Durham attorney and former director of the Open Government Coalition. (Jones advised me while I was seeking the complaints and tweeted about it afterward.)
“When anybody communicates with a public official, there’s no presumption those communications are private,” Fuller added. “If they have to do with public business—the [Board of Education] or lieutenant governor or [General Assembly]—they are unequivocally public records.”
LiVecchi eventually said he’d release the records if he could redact senders’ identifying information. While registering my objection—these complaints will form the basis of a report intended to influence public policy, so the public should know who’s behind them—I agreed. My only alternative was to sue.
(After all that, on May 21, LiVecchi sent the records in two batches, the largest of which came unredacted.)
“Between this and the strange rationales that the lieutenant governor’s office cited for attempting to withhold the complaints under the public records law, it seems [Robinson] has little interest in transparency or following the law,” Jones said.
Even with the Legislative Analysis Division’s interpretation that these meetings are subject to the Open Meetings Law, the only way for a third party to force Robinson to open task force meetings to the public would be a lawsuit, an expensive endeavor that would likely outlast the task force itself.
Meyer, the state representative, says someone should sue anyway.
“I don’t think they’re afraid of getting sued,” Meyer told me Wednesday. “It’s something they probably want. But the public interest is not just in the interest of public policy making, but in the process. In this case, we’re talking about something that’s very controversial right now and has very real consequences for how schools work.”
Last week, Senate leader Phil Berger proposed a constitutional amendment to ban affirmative action and took up a House-passed bill to prohibit the teaching of what he labeled critical race theory, though the term doesn’t appear in the bill.
After a Senate committee’s modifications, the bill will list 13 concepts schools can’t “promote”—for example, “particular character traits, values, moral or ethical codes, privileges, or beliefs should be ascribed to a race or sex, or to an individual because of the individual’s race or sex”—and will require schools to notify the state Department of Public Instruction and post detailed information online 90 days before they discuss any of the concepts.
Berger says the Senate’s efforts will protect the “very foundations of the liberal order” by prohibiting public schools from “compelling students to affirm or profess belief in … certain discriminatory concepts.”
Critics say Republicans’ goal is to prevent teachers from discussing racism in the context of current events and manufacture a base-motivating wedge issue where none actually exists.
The report Robinson’s task force produces will try to prove those critics wrong. But the public won’t get to see how it was created.
Jeffrey Billman reports on politics and the law for The Assembly. Email him at jeffrey@theassemblync.com.