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Our dumbed-down debate over the Justice Department and schools

Attorney General Merrick Garland is sworn in to testify to the Senate Judiciary Committee on Oct. 27, 2021. (Tasos Katopodis/Pool/AP)
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The political debate over the Justice Department and schools could use some lessons in reading comprehension.

From the beginning, the conservative backlash against the Justice Department’s memo on examining threats against school board members has been rooted in an oversimplification. So much of the pushback describes the memo as if it targets virtually any parent with the temerity to question their school board officials. The reality is the memo is specifically focused only on those making threats.

From there, there are valid questions about whether this rises to the level of a federal priority at this moment in time — along with just how pervasive such threats are. And for fleeting moments during Wednesday’s Senate Judiciary Committee hearing featuring Attorney General Merrick Garland, we actually got some important dialogue on that.

Unfortunately, this was again overshadowed by efforts that misconstrued the issues involved in the service of scoring political points and cable news sound bites.

Over the past week, GOP critics of the Justice Department’s move have gotten some help. The National School Boards Association (NSBA), whose letter raising concerns about such threats preceded the Justice Department’s move early this month, apologized for some of the language in the letter. The apology appeared to refer to it having linked the threats to potential “domestic terrorism.” Some state school board associations also distanced themselves from the national group and even left it, not just because of the language of the letter and for the lack of coordination but also, in some cases, for raising this as a federal issue at all.

But when all of this came up Wednesday, the nuance was again often conspicuously missing.

Republicans on the committee repeatedly treated the NSBA’s apology as a retraction of its initial letter and suggested that meant the Justice Department should retract its memo as well.

Sen. Ben Sasse (R-Neb.) claimed the NSBA “recanted” and “rejected their own letter to you,” while adding, “and yet you still won’t disavow your memo.”

“The letter is disavowed now, so you’re going to keep your memo going anyway, right?” said the committee’s ranking Republican, Sen. Charles E. Grassley (Iowa). “Is that what you’re telling me?”

Sen. John Cornyn (R-Tex.) added: “You did not apologize for your memorandum of Oct. 4 even though the National School Boards Association did. Why didn’t you rescind that memorandum and apologize for the memorandum?”

Most of the GOP senators on the committee offered some form of this argument. Sens. Ted Cruz (R-Tex.), Josh Hawley (R-Mo.) and Marsha Blackburn (R-Tenn.) characterized the apology as a retraction. Reports in conservative media also cast the issue accordingly.

Garland repeatedly explained that the NSBA’s apology did not, in fact, retract its underlying call for assistance or disown that larger premise of the letter. He also explained that the language in the NSBA letter about “domestic terrorism” or even using the Patriot Act to prosecute cases was not a part of his own memo. In other words, to the extent something was specifically being apologized for, it didn’t exist in his memo.

“I read their letter,” Garland told Sasse. “Their letter doesn’t recant their concerns about safety. It recants some of the language in their letter which I never adopted.”

He emphasized to Sen. Richard J. Durbin (D-Ill.): “The letter that was subsequently sent does not change the association’s concern about violence or threats of violence.”

All of this is true. The NSBA said broadly that “we regret and apologize for the letter,” but the only specific thing it cites is “some of the language included in the letter.” It gave no indication it was pulling back on its call for federal assistance, nor did it say it disavowed or retracted anything else in the letter.

Is it possible the NSBA has gotten cold feet about the federal effort because of the blowback? Certainly. But it has not said as much. (NSBA spokesman Jason Amos told The Post, “We don’t have any further comment” beyond the apology letter.)

As noted above, that doesn’t mean there can’t be informed and good-faith debate about whether this is something that requires federal government action, and why the Justice Department sprang into action so quickly after the NSBA letter.

While responding to Durbin, Garland explained that part of the reason was there is plenty of evidence this has been an increasing problem not just with school board members but also with other public officials.

“It’s an arising tide of threats of violence against judges, against prosecutors, against secretaries of state, against election administrators, against doctors, against protesters, against news reporters,” Garland said. “That’s the reason that we responded as quickly as we did when we got a letter indicating that there were threats of violence and violence with respect to school officials and school staff.”

At other points, there were efforts to pin Garland down on the veracity and the extent of the actual evidence of these threats, beyond the NSBA letter’s claims. Garland explained that the department relied upon information such as the letter and news reports but stressed this was a very preliminary step.

“This is an assessment step that comes before investigations,” he said.

Even the Cornyn exchange included some good drilling down on what the federal government’s role in this will or should be:

GARLAND: The Justice Department has two roles here. We assist state and local law enforcement in all ways, and we enforce federal laws which prohibit threats of violence by telephone, by email —
CORNYN: Well you, as a longtime federal judge with the distinguished legal career — you understand that not every crime, assuming it is a crime, is a federal crime. Correct?
GARLAND: Absolutely.
CORNYN: And some of these things, unless there is some nexus to interstate commerce or to the federal government, they’re largely within the purview of the state and local law enforcement authorities. Correct?
GARLAND: I think you put that correctly. We have authority with respect to the mail, with respect to the Internet, with respect to —
CORNYN: Right. Well, let me give you an example. If somebody says to the school board member if you do that I’m going to meet you outside and punch you in the nose, is that a federal offense or is —
GARLAND: That's not a federal offense.
CORNYN: I agree. I agree, and ...
GARLAND: There’s nothing in this memo suggesting that it is.

Cornyn then asked Garland why this would involve the Justice Department’s National Security Division, which is cited in the news release for the DOJ’s memo (though not the memo itself).

It’s a fair question, in that it could perhaps be read as suggesting the Justice Department was entertaining the idea that these threats might involve some form of domestic terrorism. But Garland said it was just part of the normal process and that the division is looped in on similar issues, including threats to public officials.

“They were involved, for example, in the election threats,” Garland said. “They were involved in the threats against judges and prosecutors. They were involved in the hate crimes threats cases. It’s just a natural part of our internal analysis.”

The backdrop of all of this is impossible to ignore. Not only is this an issue which clearly motivates the GOP base in these times of mask mandates and debates over transgender rights and race curriculum in schools, but Republicans are banking on this issue in next week’s Virginia governor’s race. That’s thanks to Democratic nominee and former governor Terry McAuliffe’s comment that “I don’t think parents should be telling schools what they should teach.”

But all that often came at the expense Wednesday of truly learning more about this Justice Department decision.

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