‘It’s a Gag Order’: California Threatens Researcher Who Testified That Pandemic Closures Hurt Poor Kids

Stanford University's Thomas Dee could face up to $50,000 in fines following testimony

Stanford University
Stanford University / Wikimedia Commons
August 10, 2023

California has threatened a Stanford University researcher with a lawsuit and up to $50,000 in fines after he testified on behalf of poor families suing the state over pandemic school closures.

Thomas Dee, who has studied academic outcomes for 11 years at Stanford, submitted testimony last month in support of the families’ claims in a 2020 lawsuit that the state harmed vulnerable children when they shut down classrooms and effectively stalled instruction. Within days, the California Department of Education sent him a letter claiming that because he works with taxpayer-funded data from the agency, he could not criticize the state in court.

The agency alleged in its letter that he breached an agreement he signed on behalf of a Stanford research project that uses state data, and has warned that they may yank the project’s access and fine Dee $50,000 unless he immediately works to "mitigate further damage." Dee said in court documents that the agreement is completely separate from the testimony he offered for the lawsuit.

"It’s a gag order," said Williamson Evers, a senior fellow at the Independent Institute in Oakland and a former federal education official under President George W. Bush. He added that it’s "extreme" for the state to try to hold public data hostage in order to control what researchers say.

California’s push to suppress unflattering testimony about its longest-in-the-nation school shutdowns comes amid mounting evidence that closures were disastrous for students. National test scores for kids who learned remotely declined more than those with in-person learning. In California, urban districts in some cases failed to resume full in-person instruction until June 2021, prompting students to lose six years of academic gains. Just 24 percent of poor students in the state and 15 percent of black children, meanwhile, met math proficiency standards last year.

The lawsuit’s plaintiffs are five low-income families from Los Angeles and Oakland, all black and Latino, who allege their kids had only sporadic and poor quality video instruction while classrooms remained shut.

Ahead of Dee’s testimony, Department of Education officials warned both Dee and his Stanford colleague Sean Reardon—who was also set to testify—that they could face sanctions if they spoke against the department in the case, said Michael Jacobs, a partner at the law firm Morrison and Foerster which is helming the parents’ lawsuit.

Reardon, who helped with a major research project on learning losses from school closures, ultimately opted not to testify because of the threat. Reardon did not respond to a request for comment sent through Stanford’s Center for Education Policy Analysis.

The ACLU of Southern California says the state’s actions violate the First Amendment. So far the state isn’t budging on its position. In a filing last week, the California Justice Department defended the education agency’s argument.

Californa’s deputy attorney general Elizabeth Lake wrote that the education department’s "incentive" to audit and evaluate its own programs’ effectiveness would be "significantly ‘chilled’" if research partners were "free to profit by testifying as an expert witness in litigation rather than work cooperatively with CDE through publishing papers, engaging in public dialogue and developing further research questions."

The California Department of Education did not respond to a request for comment.

Evers of the Independent Institute said that since the state controls massive sets of data that researchers need to do their work, the case could have dire implications if the agency has its way.

"If they’re faced with a choice of having access to this data, which they need to evaluate the effectiveness of the state programs, versus a gag order where they can’t say anything negative in court, it’s a very unhealthy thing for free speech, scholarship, and the rights of parents and taxpayers," he said.