Frisco ISD is the only district still fighting Ken Paxton's lawsuit over school vouchers

It all started with a few posts on Facebook.

Prior to the March primary in Texas, Frisco ISD posted three messages on its Government Affairs Facebook page during early voting, claiming the district was $90 million behind in funding due to Gov. Greg Abbott's school voucher campaign.

The Texas Legislature had not increased per-pupil funding for schools in five years, and a major education bill that included an education savings account provision that would have also increased the state’s funding failed, leaving school districts facing new budget challenges.

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 money for election campaigns or political advertising in the run-up to Super Tuesday.

Now, most of those districts have settled their cases. But one remains: Frisco ISD.

“There is 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 has not crossed that line. That is our position.”

The Facebook posts in question urged the public to vote, while also noting that the state allows Texans to vote in both parties' primaries. The posts also said that redistricting has solidified which seats are held by Republicans or Democrats, and whichever candidate wins the primary “will determine whether public schools are properly funded,” one post said.

According to Paxton's office, this meant that voters had to cast their ballots in the primary for the party most likely to win, against candidates who explicitly supported Abbott's school voucher plan, and instead vote for candidates who supported more funding for public schools.

However, Frisco ISD continues to maintain that the messages fell well within the limits of the law.

“They're not naming any specific measure,” Henry said. “They're not advocating for or against any specific candidate or group of candidates, and they're not encouraging people to vote Republican or Democratic in the upcoming election.”

The reasons why some districts moved quickly to a resolution and others did not vary. Some, like Castleberry ISD officials, said they told Paxton's office right away that there was no intention to break the law in their communication.

Others, such as Aledo ISD, denied the allegations of election campaigning and defended their position on public education funding, but later said the officials had reached an agreement with Paxton's office to avoid the costs of continued litigation.

Denton County Prosecutor's Office last week charged two executives with election campaign charges of pre-trial diversiongiving them the ability to have the charges expunged from their records if they abide by the terms of an agreement. Huffman ISD, another district facing litigation, did not respond to a request for confirmation whether a proposed negotiated injunction between the parties filed in Harris County Superior Court in late July has been finalized.

In the case of Frisco ISD, the trustees were initially voted to negotiate a resolution with the attorney general's office. A Collin County judge granted a temporary restraining order and later an injunction prohibiting the district from including certain lines in the Facebook posts that could be construed as campaigning, such as mentioning Abbott's school voucher campaign.

Frisco ISD argues that the state is not entitled to an injunction. In a May brief filed with the Dallas-based Fifth Court of Appeals, the district argued that its Facebook posts did not constitute campaign voting because they did not advocate for a specific candidate, political party or ballot measure — criteria set forth in the Texas Election Code.

“I think the state has taken a much broader interpretation of campaigning and political advertising than the law can legitimately support,” Henry said. “I think they've broadened the definitions of those terms and expanded them beyond what the law actually says.”

Office of Governor Greg Abbott

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Politeness

The district also believes the issue is irrelevant because officials removed all of the problematic language from the Facebook posts and deleted one post altogether. Frisco ISD argued that there is no chance the posts in question will be replicated during the general election season, as the state of Texas fears, because the posts were specifically tied to the March primary.

Paxton's office wrote in its letter that the fact that the posts were altered or removed does not mean Frisco ISD escapes alleged culpability — and it doesn't mean district officials shouldn't conduct election campaigns in the future, especially given statements like “public education is always on the ballot, especially during primaries.”

“The March primary may have prompted the District to publish the Facebook posts, but the state's interests extend beyond that one election,” the state memorandum reads. “The state seeks to prohibit the District from campaigning as required by law at all times, including in future elections.”

Paxton's office pointed out that the district judge, in issuing the temporary injunction, failed to state whether the posts advocated for or against a candidate, measure, political party or official.

The state even filed a motion for contempt of court, arguing that the revised messages from Frisco ISD still violated the terms of the judge's temporary restraining order.

The Texas Association of School Boards Legal Aid Fund wrote an amicus curiae brief in Frisco ISD's appeal, arguing that school vouchers are a problem, not a measure. The district was not campaigning for Republican support for a voucher program.

Jim Whitton, a Fort Worth attorney who has represented Texas schools for 40 years, said he agreed.

“The attorney general's argument seems to imply that, well, everyone knows that when you say 'vote for the candidate who is in favor of public education,' that means you're voting for the Democrat, because everyone knows that Republicans are against public education,” Whitton said.

TASB has asked the court to provide school districts with guidance on what constitutes an election campaign, given the apparent conflicting interpretations and applications of state election law.

Whitton said the lack of clarity is likely why Frisco ISD is still fighting the election campaign allegations instead of reaching an agreement like other school districts.

“I think they’re just worried,” he said. “They don’t know what they can do and they can’t do it.”

A hearing on a permanent ban will be held in Collin County on September 30.

Do you have a tip? Email Toluwani Osibamowo at tosibamowo@kera.org. You can follow Toluwani on X @tosibamowo.

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