Massachusetts Department of Education Liable for Unconstitutional Censorship, Says Court
CONTACT: media@aclu.org
BOSTON -- The Massachusetts Department of Education violated the United States Constitution when it prevented a critic of the state’s standardized testing system from speaking at a public education conference, State Superior Court Judge Hiller Zobel has ruled.
The censorship case was filed by the American Civil Liberties Union of Massachusetts on behalf of Alfie Kohn, a nationally known critic of high-stakes testing such as the Massachusetts Comprehensive Assessment System.
"Here, the record makes clear that the government (through the DOE) was
attempting to dictate what Mr. Kohn could say and what his prospective listeners
could hear," wrote Judge Zobel in his opinion entered on July 28 but released
today. "A person in Mr. Kohn's position has a right to be heard without
government interference, and people in the position of the other plaintiffs have
a right to hear him. The First Amendment 'necessarily protects the right
to receive information.'"
Kohn, author of The Case Against
Standardized Testing: Raising the Scores, Ruining the Schools, had been invited
to deliver a keynote address at a May 2001 public education conference in
Northampton, Massachusetts. The conference was sponsored by the DOE, area
colleges including Smith, Mount Holyoke and University of Massachusetts-Amherst,
and more than a dozen community groups committed to improving high school
education in Massachusetts.
Although speakers’ fees, including
those of Kohn, were to be paid by private funds, Susan Miller Barker of the DOE
ordered that Kohn be barred from delivering the keynote. In an e-mail
uncovered during the lawsuit and specifically cited in the court's decision,
Barker wrote "It was stupid ... to use state funds in a way …
diametrically opposed to the state's and the board of ed's legislative and
policy agenda."
The lawsuit was filed on behalf of Kohn and
attendees at the conference who were denied the opportunity to hear him.
The court ruled that, by preventing Kohn from speaking because of his viewpoint,
the DOE violated the federal Constitution and the Massachusetts Civil Rights
Act.
In response to the ruling, Mr. Kohn said, "It is gratifying
to have the court confirm what we knew -- that the Department of Education is so
committed to its agenda of high-stakes testing that it will violate the
Constitution to silence those who disagree."
Kohn and the citizen
plaintiffs were represented by Boston attorneys Michael Rader and Michael Albert
of Wolf, Greenfield & Sacks, who acted as cooperating attorneys with the
ACLU of Massachusetts. ACLU of Massachusetts staff attorneys Sarah Wunsch
and William Newman also were co-counsel for the plaintiffs.
"The
court has put the Department of Education on notice that its political
preferences must never again take precedence over the First Amendment," said
Rader.
The court entered a declaratory judgment for the plaintiffs
and ordered the parties to submit additional papers concerning the form of the
final judgment within 14 days.
Today’s decision is online at www.aclu-mass.org/news/08.01.06.Kohn_Memo.pdf