In court papers filed today, the ACLU has asked for a prompt hearing on its request for a preliminary injunction against the R.I. Board of Education for violating open government laws in dealing with the its controversial “high stakes testing” mandate. The ACLU’s motion asks the Court to order the Board to reconsider in open session a secret discussion and vote it took two weeks ago, rejecting, by a vote of 6-5, a petition filed in June by seventeen organizations seeking a public hearing on repealing the Board’s “high stakes testing” graduation requirement.
The ACLU motion follows an amended lawsuit filed last week by ACLU volunteer attorneys Marc Gursky and Elizabeth Wiens, claiming that the secret discussion and vote at a September 9th Board of Education meeting violated the Open Meetings Act (OMA). The Board was considering the petition only after the ACLU had challenged in court the Board’s failure to respond to the petition within thirty days, as required by the Administrative Procedures Act (APA).
Dozens of interested individuals, including many of the plaintiffs in the initial lawsuit, attended the September 9th meeting to listen to the Board’s debate on the petition. Before getting to that agenda item, however, the Board went into closed session, purportedly to discuss the ACLU’s underlying APA lawsuit. Immediately upon reconvening into open session, however, Board Chair Eva-Maria Mancuso announced that the Board had not only discussed the lawsuit, but had also discussed the petition in closed session and a majority had voted to reject it.
The ACLU’s motion notes:
[T]here is no small irony in Defendants’ invocation of the litigation exception after violating the thirty day time constraint. Consideration of the Petition would have occurred in open session had it been considered by the RIBOE in a timely fashion. Having failed to act within thirty (30) days, thereby provoking a lawsuit, Defendants now claim consideration of the Petition can occur in secret. Defendant asks this Court to condone, indeed reward, its initial violation of the APA by giving it a free pass under the OMA. This turns both statutes, intended to promote open and responsible government, upside down.
In seeking court intervention, the ACLU’s court papers emphasize that “the merits of the Petition involve a critical issue in public education. . . . This is a matter of keen public interest, and has engendered charged debate. Clearly the matter deserved public airing, and the public was disserved by the secret session.”
The Board was rebuked by a court only a month ago for seeking to violate the open meetings law on the very same issue of high stakes testing. Shortly after the ACLU filed the APA lawsuit, it was forced to sue the Board again after Mancuso announced that an August Board retreat – which would include a briefing on high stakes testing - would be held behind closed doors. At an emergency hearing on that suit, a Superior Court judge ordered that the briefing be held in public.
As a result of the high stakes testing requirement, scheduled to take effect in 2014, approximately 4,000 students face the risk of not graduating next year because of their scores on the current test, known as the NECAP. Numerous questions have been raised about the validity of the NECAP test as a high stakes testing tool. Yet to this day, despite repeated pleas from parents, students and community groups, the Board has refused to publicly discuss the requirement.