Superintendent candidate’s voter guide sentence about sex education can stay, state supreme court says

OLYMPIA – The Washington Supreme Court ruled against Superintendent of Public Instruction Chris Reykdal on Friday in a lawsuit challenging an opponent’s voter guide statement regarding Reykdal’s support for comprehensive sexual health education.

Reykdal sued Maia Espinoza in June over a statement in her voter guide statement that said Reykdal championed a policy that teaches “sexual positions to 4th graders.” The Thurston County Superior Court ruled in favor of Reykdal, saying the statement was false and ordering the Secretary of State’s office to remove the statement in voter guides ahead of the primary.

Espinoza appealed to the state Supreme Court, which ruled Friday that Reykdal did not have a substantial likelihood of prevailing in a defamation action as Espinoza did not show “actual malice” – the standard set in the 1964 U.S. Supreme Court case New York Times Co. v. Sullivan that requires a “reckless disregard” for the truth in a defamatory case.

The decision, given to candidates in a summary on Thursday, comes days after the Washington state primary where Reykdal received about 40% of the vote and Espinoza, currently finishing second, received about 25%, as of Monday.

“A weight has been lifted from our campaign,” Espinoza said in an interview. “Certainly we did not intend ever to lie. We do intend to expose the truth, as uncomfortable as the subject is.”

Washington state law allows for a candidate to sue another candidate over false statements in the voter guide, but in order for the statement to be removed, it must be proven to be defamatory. The supreme court did not rule on the truthfulness of the statement, only that Reykdal was not likely to prevail in a defamation case.

Reykdal said he would never support teaching what Espinoza is saying in her statement.

“The statement is still false and untrue,” Reykdal said in an interview. “There just wasn’t enough damage to take it out.”

The line in question refers to supplemental reading recommended in a handout from one of a list of curricula reviewed by the Office of the Superintendent of Public Instruction to be acceptable under the new comprehensive sex ed bill that passed last session. Reykdal has supported the bill, which calls for age-appropriate sexual health education to be taught multiple times during a child’s education.

Reykdal argued in superior court that the material Espinoza referred to is a third-party source that parents could use in addition to what is being taught in school. Espinoza argued the material is not age-appropriate and is still available to parents and students.

Espinoza has spoken out against the new bill and Reykdal’s support for it throughout her campaign. She said it’s her job as a parent to point out examples where the bill is inappropriate, and all materials should be scrutinized before given to a child – something she does not think Reykdal has done.

“It’s easy to pass legislation that sounds good when the effects are much different than that,” she said.

Reykdal said the curriculum is age-appropriate and the law gives plenty of flexibility to school districts and parents, allowing school districts to choose their own curriculum and parents to opt their children out of instruction.

“What she claims doesn’t exist in the law or policy or in state level standards,” he said. “The voters have to decide now.”

In superior court, Reykdal also sued Secretary of State Kim Wyman, claiming he was not given adequate time to have the statement removed from voters’ pamphlets, if it was found to be false.

According to state law, the secretary of state’s office has three days from when candidates submit their statements to notify a candidate that they have been mentioned in a voter pamphlet statement. Reykdal said he was not informed until 17 days later.

Had the secretary of state given notice sooner, Reykdal said he might have had a better chance of winning in state Supreme Court. Instead, the court did not have time to hear oral arguments and only relied on written briefs, he added.

Reykdal also worried about the implications of this decision. He said this gives other candidates the ability to lie in future voter guide statements because what has to be proven to have a false statement removed is so difficult, especially in a short amount of time.

“This is basically giving (candidates) permission to say whatever they want and attack whatever they want,” Reykdal said.

Espinoza disagreed, saying a statement still cannot have reckless disregard for the truth, something she said her statement does not have.

“I’m not too worried this gives anyone a license to lie,” she said.