Public school districts are accountable to the people. And when private citizens ask for their school district’s public records, they generally can access them. This is a function of freedom of information acts (FOIA) and similar open records or sunshine laws in various states. These laws, which take differing forms in their respective states, require public bodies to disclose their records for inspection upon request from private citizens.

But in Virginia, school districts offload some of their governmental activities onto a purportedly separate organization—the Virginia School Boards Association (VSBA)—which claims that it is a private association unreachable through open-records laws. VSBA is an association of which, as of 2022, 100% of Virginia’s more than 130 public school boards are members. Despite a majority (or more) of its operating budget coming from Virginia’s public school boards, its membership consisting only of Virginia public school boards, its governing board being drawn only from Virginia public school boards, and a Virginia court stating that it is an instrumentality of Virginia’s public school boards, VSBA claims it is not subject to Virginia’s Freedom of Information Act. In other words, the VSBA asserts immunity from the accountability contemplated by Virginia’s FOIA law and rejects its responsibility to be transparent to the citizens of the Commonwealth.

This heavily impacts the transparency of public school boards in Virginia as the VSBA plays a key role in drafting their policies, locating their superintendents, and training their leadership. It claims its mission is to “assist [Virginia’s public school] boards in whatever ways they need so that they can fulfill their legal responsibilities.” Additionally, the Internal Revenue Service (IRS) determined, at VSBA’s request, that VSBA performs “an essential governmental function,” and it therefore granted VSBA tax-exempt status under 26 U.S.C. § 115. Yet VSBA denies any obligation to the families directly impacted by the services it performs for Virginia school boards.

These and other facts led a Virginia parent to sue the VSBA—represented by my firm, the Founding Freedoms Law Center in Richmond, Virginia—to seek a judicial determination that it is subject to open-records laws. Every state’s definition of what entities are subject to their FOIA laws is different. In Virginia, this law applies to organizations principally supported by public funds and/or those that constitute agencies or entities of Virginia’s government. If the majority of VSBA’s income is provided by Virginia’s government, if the IRS believes that essential government functions are accomplished through VSBA, and if the VSBA benefits from tax-exempt status because of that determination, how could open-records laws not apply?

Virginia’s judiciary has yet to resolve this issue concerning VSBA. However, parents across the nation may face similar accountability concerns. In many states, carefully monitoring the activities of local school boards is not enough. Maintaining a watchful eye on one’s state-wide association of school boards may also be necessary. Moreover, if that organization is as intricately involved in state affairs as VSBA, or if it enjoys special federal tax-exempt status under 26 U.S.C. § 115, then that state’s open-records law may provide an important avenue for public accountability.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].