Judge Dismisses Lawsuit Against Tredyffrin/Easttown School District

PHILADELPHIA, PA — A federal judge dismissed a lawsuit filed by a parent accusing the Tredyffrin/Easttown School District of violating his First Amendment rights by preventing him from recording his voice dictating about copyrighted diversity training materials.

U.S. Senior Judge Harvey Bartle III concluded in a the the judge's nine-page opinion available Wednesday that Benjamin M. Auslander’s First Amendment rights were not violated when he was prevented from dictating into his cell phone when reviewing teacher training materials provided by Pacific Educational Group, a San Francisco consulting firm that provides materials to school districts about racial equity.

The suit was filed on April 15, 2022 accusing the district and Arthur McDonnell, the business manager, of preventing him from recording his voice when reviewing four-year-old materials that he characterized as critical race theory, according to the opinion.

The judge noted that McDonnell advised Auslander that he could inspect the materials and take notes but he could not record or copy documents.

The judge granted a request from Brian Elias, a Blue Bell attorney, to dismiss the lawsuit because the district could not copy the materials due to copyright infringement laws.

"We are pleased that the court agreed with our position, and found that the school district did not violate Mr. Auslander’s First Amendment rights, and otherwise acted properly in this matter," Elias said Wednesday.

The judge wrote in his opinion that the contract with the district and Pacific Education Group has a provision that the group retained a copyright to the materials.

The judge also stated the school district had no way of knowing if the Auslander’s recordings of the training materials and his later use would legally constitute fair use.

Auslander’s attorney, Walter S. Zimolong III, of Villanova, was not available for comment.

Zimolong said in court documents that Auslander's rights were violated because he was not permitted to have a copy of the documents and record his mental impressions of what he was reading in the district's office.

The judge noted in his opinion that Pacific Education Group was later added to the case as defendant because it had a copyright on the materials.

During the case, PEG was later dismissed from the case after agreeing to allow Auslander to make a copy of the training materials.

The judge's opinion is available here.