ACLU files 3rd lawsuit against Board of Ed. over secrecy regarding NECAP


Yesterday, the American Civil Liberties Union of Rhode Island (ACLU) announced their third attempt at legal action against the Rhode Island Board of Education, claiming the board violated open meetings laws by voting on the ACLU’s petition for a public hearing on high-stakes testing in executive session.

The amended claim, which was sent to the board on Sunday, claims that the “secret discussion” during the Sept. 9 board meeting regarding the petition for a public hearing on high-stakes testing violates the Open Meetings Act. The claim asks that the vote to deny the petition be null and void, a $5,000 fine be imposed on the board and the board be required to reconsider the petition in an open discussion.

Mark Gursky, the attorney for ACLU, told the press that the claim was sent over to the board’s attorney on Sunday and he expects them to respond within the next few days.

“If they don’t agree [to have that entered], then we will file a motion, that motion will probably be allowed and [the board] will have an additional 20 days [to respond],” said Gursky. “But the concern is that this cannot go on indefinitely. The board has had the opportunity to consider the petition … Every day they fail to give the public an opportunity to hear the debate, there is another day that there is a violation.”

Steven Brown, executive director of the ACLU of Rhode Island, was one of the speakers at a press conference.

“Parents, students, teachers, community advocates, the General Assembly, and just about everybody else with an interest in the education of our children have been engaged in a vigorous public discussion and debate on the issue of high stakes testing for the past six months. The only group we know of that has not publicly debated the issue, and refused to do so repeatedly despite numerous public requests, is the state’s own Board of Education,” said Brown, pointing out that this is the third legal action taken by the ACLU and its fellow plaintiffs requesting a public hearing on the issue in the past two months. “Even worse, [the board] have been willing to repeatedly violate the law in order to avoid that discussion.”

The ACLU’s legal action began in June when they and 16 other organizations filed their original petition requesting an open public hearing on the high-stakes testing mandate through the Administrative Procedures Act. Brown explained that under that act, the board had 30 days to respond to the petition by rejecting it or beginning the public rule-making process.

Instead of responding, Brown said Board Chair Eva-Marie Mancuso denied the petition under “temporal circumstances” and said the board would receive a briefing on the topic of high-stakes testing at a private retreat in late August.

The ACLU took its second legal action against the board by suing on July 24, claiming the board failed to address the petition in a timely manner despite having a meeting on July 15. This is the claim that was amended yesterday.

The ACLU also filed an open meetings lawsuit over the private retreat; they won that case and the board was barred from having the retreat in private.

The board finally addressed the original petition on Sept. 9, 45 days after their 30-day deadline, but the discussion and vote was held in executive session. The petition was denied by a vote of 6-5.

Brown and his fellow plaintiffs believe that if the public is given the chance to speak their case regarding high-stakes testing directly to the board, something may get changed, especially since almost half of the board voted in favor of the hearing process.

“The old education board approved this policy, but since that time the effects of the policy have changed the debate,” said Thomas Sgouros, a plaintiff in the case and parent of a high school student. “These include not only the number of students at risk of not graduating, but also the many educational opportunities denied our students due to the increased focus on testing. Circumstances have changed. The new board should know about it, but they don’t care to listen.”

During yesterday’s press conference, each of the speakers had a chance to give their comments regarding the claim and their belief that the board has violated the open government policy championed by Governor Lincoln Chafee.

Ken Fish, a former director at the Office of Middle and High School Reform at the Rhode Island Department of Education (RIDE), brought up that Chafee ran for governor under the campaign slogan “Trust Chafee,” yet the board appointed by Chafee is being anything but trustworthy. “In this world of accountability, Governor Chafee must be held accountable for the arrogance of his appointed board chair in leading his appointed board into repeated violations of open meetings laws and attempting to stifle an open and informed discussion among its own members,” said Fish.

Fish was asked what he hopes the governor will do in regards to this claim. He said he hopes Chafee will listen to the educators, parents and students and intervene with the actions of the board.

“I’d ask the governor to act on those ideals we voted for. Show us we really can once again ‘Trust Chafee,’” said Fish.

He also pointed out that since Chafee is not seeking re-election in 2014, he should “do the right thing,” without political motivations.

Rick A. Richards, a former employee in RIDE’s Office of Testing, pointed out that the “tone and process of policy making” by this new board is very different from those of the past.

“No previous chair ever called opposition protesters ‘a sideshow’ or students ‘a bunch of kids with signs,’” said Richards. “Governor Chafee set a high bar for public transparency, yet he watches silently as his chair repeatedly ducks under this bar.”

Brown and his fellow speakers were clear that this latest claim is not addressing the use of the New England Common Assessments Program (NECAP) and high-stakes testing but to address the inappropriate manner in which they believe the board has responded to requests for public discussion.

“An open process is a goal in and of itself,” said Brown. “Regardless of what the outcome is, and we all agree on what the outcome should be, but regardless, following the rules as to ensuring there is an openness to the process, an openness to the discussion and to the debate and an opportunity for the public to participate in a meaningful way is critical in and of itself, regardless of what the outcome is and that is really what we’re talking about today.”

The speakers also said that while they acknowledge that the board still has a right to deny their petition, they believe an open discussion needs to be held, and public comment should be allowed during that discussion.

When reached for comment, Elliot Krieger of RIDE said Chairman Mancuso is reviewing the ACLU matter with counsel and has no comment at this time.


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