For the third time in less than two months, the ACLU of Rhode Island has taken legal action against the R.I. Board of Education for violating open government laws in dealing with the Board’s controversial “high stakes testing” mandate. The ACLU called the Board’s lack of transparency on this divisive issue “a refutation of the openness in government that Governor Chafee has so often promoted.”
This latest lawsuit, an expansion of one filed in July, challenges the Board’s debate and vote in secret last week to reject a petition by seventeen organizations for a public hearing on repealing the “high stakes testing” graduation requirement. The ACLU’s amended complaint, filed by volunteer attorneys Marc Gursky and Elizabeth Wiens, claims that the secret discussion violated the Open Meetings Act, and asks the court to declare the vote null and void, impose a $5,000 fine against the Board for willfully violating the law, and require the Board to consider the petition on its merits.
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. Yet to this day, despite repeated pleas from parents, students and community groups, the Board has refused to publicly discuss the requirement.
The origin of today’s legal action dates back to June, when the ACLU and 16 other organizations formally filed the petition in accordance with the Administrative Procedures Act (APA). Under the APA, the Board had thirty days to respond to the petition, either by denying or it by initiating a public rule-making process. Instead, Board Chair Eva-Marie Mancuso denied the petition on her own, citing “temporal circumstances” and stating that the Board would be receiving “an in-depth informational briefing” on the general topic at a Board retreat scheduled for late August. Three days after that letter was sent, the Board held a regular monthly meeting where it did not address the petition. As a result, the ACLU filed suit in July, arguing that the Board violated the APA by failing to consider the petition in a timely manner.
The Board finally placed the petition on its September 9th meeting agenda. Before getting to that item, however, the Board went into closed session, purportedly to discuss the ACLU’s underlying APA lawsuit. Immediately upon reconvening into open session, however, Mancuso announced that the Board had not only discussed the lawsuit, but had also discussed the petition itself in its closed session and had voted, 6-5, to reject the petition. The lawsuit notes: “No exemption in the Open Meetings Act authorizes discussion in closed, executive session of a rule-making petition filed pursuant to the Administrative Procedures Act, nor was any such exemption cited by the RIBOE.”
The Board was chided by a court only a month ago for seeking to violate the open meetings law. Shortly after the ACLU filed the APA lawsuit, it was forced to sue the Board again after Mancuso announced that the Board retreat she had referred to - including the high stakes testing briefing - would be held behind closed doors. At an emergency hearing on the ACLU’s suit, a Superior Court judge ordered that the briefing be held in public.
Two weeks ago, a number of community groups called on Governor Chafee to intervene in the high stakes testing dispute, but he has remained silent throughout the recent debate and litigation over the Board’s actions. Both the General Assembly and the City of Providence have also called on the Board to reconsider the high stakes requirement.
Numerous questions have been raised about the validity of the NECAP test as a high stakes testing tool. In a letter accompanying the petition in June, the organizations argued that, rather than educating students, the requirement has led to too much time being spent teaching to the test. In fact, the R.I. Department of Education supported legislation this year that explicitly authorized school districts to yank students out of core classroom activities to prep for the test if that was deemed to be in the student’s “best interest.”
Copies of the amended lawsuit, the June petition, and other documents relating to the earlier open meetings lawsuit are available at http://www.riaclu.org.