It all started with some Facebook posts.
Ahead of the March primary elections in Texas, Frisco ISD made three posts on its Government Affairs Facebook page during early voting, claiming the district was $90 million behind in funding because of Gov. Greg Abbott’s school voucher push.
The Texas Legislature hadn’t increased the state’s per-student funding for schools in five years, and a major education bill with an education savings account provision that would have also increased the state allotment failed – leaving districts once again feeling a budget crunch.
What followed was a lawsuit from Attorney General Ken Paxton’s office against Frisco ISD – and six other school districts – accusing staff and administrators of using public funds for electioneering or political advertising ahead of Super Tuesday.
Now, most of those districts have settled their cases. But one remains: Frisco ISD.
“There's an interest from other school districts in Texas that they be given parameters of what is and is not legally permissible to say online in the context of elections,” said Lucas Henry, the school district’s attorney. “And in this case, Frisco ISD did not cross that line. That is our position.”
The Facebook posts at issue did urge the public to vote, while also pointing out the state allows Texans to vote in either party’s primary. The posts also said redistricting has solidified which seats will be held by Republicans or Democrats, and whichever candidate wins the primary “will decide whether or not public schools get funded appropriately,” according to one post.
The implication, according to Paxton’s office, was that voters should cast their ballot in the primary for the party most likely to win against candidates who expressly supported Abbott’s school voucher plan and vote instead for candidates who backed increased public school funding.
But Frisco ISD maintains the posts were well within the boundaries of the law.
“They don't mention any specific measure,” Henry said. “They don't advocate for or against any specific candidate or group of candidates, and they don't encourage people to vote for the Republican Party or for Democrats in the upcoming election.”
The reasons why some districts came to quick resolutions and not others vary. Some, like Castleberry ISD officials, said they immediately told Paxton’s office there was no intention to violate the law in their communications.
Others, like Aledo ISD, denied the electioneering allegations and defended their stance on public education funding but later said officials came to an agreement with Paxton’s office in order to avoid the cost of ongoing litigation.
The Denton County District Attorney’s Office placed two administrators indicted on electioneering charges on pretrial diversion last week, giving them an opportunity to expunge the charges from their records if they followed the terms of an agreement. Huffman ISD, another district facing a lawsuit, did not respond to a request to confirm whether a proposed agreed injunction between the parties filed in Harris County court in late July has been finalized.
In the case of Frisco ISD, trustees initially voted to negotiate a resolution with the Office of the Attorney General. A Collin County judge issued a temporary restraining order and later an injunction prohibiting the district from including certain lines in the Facebook posts that could be seen as electioneering, such as the mention of Abbott’s school voucher push.
Frisco ISD maintains the state isn’t entitled to an injunction. In a May brief filed in the Dallas-based Fifth Court of Appeals, the district argued its Facebook posts were not electioneering because they didn’t advocate for a specific candidate, political party or ballot measure — criteria outlined in the Texas Election Code.
“I think that the state has taken a much broader interpretation of electioneering and political advertising than the law can rightfully support,” Henry said. “I think they broadened the definitions of those terms and expanded them beyond what the law actually says.”
The district also believes the issue is moot because officials removed any problematic language from the Facebook posts and deleted one post altogether. Frisco ISD argued there’s no chance the posts at issue will be replicated during the general election season, as the state of Texas said it fears, because the posts were tied specifically to the March primary elections.
Paxton’s office writes in its brief that just because the posts were changed or deleted doesn’t mean Frisco ISD escapes alleged fault — and it doesn’t mean district officials wouldn’t electioneer in the future, especially because of phrases like “public education is always on the ballot, especially during the primaries.”
“The March primary election may have been the catalyst for the District to publish the Facebook posts, but the State’s interests extend beyond that one election,” the state’s brief reads. “The State seeks to enjoin the District from electioneering at any time—as the law requires—including during future elections.”
Paxton’s office pointed out the district judge didn’t mention whether the posts advocated for or against a candidate, measure, political party or public officer in her issuing of a temporary injunction.
The state even filed a motion for contempt because it said Frisco ISD’s revised posts still violated the terms of the judge’s temporary restraining order.
The Texas Association of School Boards Legal Assistance Fund wrote an amicus brief in Frisco ISD’s appeal saying school vouchers are an issue, not a measure, so the district was not electioneering by allegedly alluding to Republican support for a voucher program.
Jim Whitton, a Fort Worth attorney who has spent 40 years representing schools in Texas, said he agreed.
“The attorney general's argument seems to imply that, well, everybody knows if you say, ‘vote for the candidate who's in favor of public education,’ that means vote for the Democrat, because everybody knows Republicans are against public education,” Whitton said.
TASB called on the court to provide school districts with guidance about what constitutes electioneering because of the apparent conflicting interpretations and applications of the state’s election code.
Whitton said that lack of clarity is likely why Frisco ISD is still challenging the electioneering allegations as opposed to coming to an agreement like the other school districts.
“I think they're just concerned,” he said. “They don't know what they can do and they can't do.”
A permanent injunction hearing in the case is set for Sept. 30 in Collin County.
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