Massachusetts Education Department Drops Appeal of Adverse First Amendment Ruling

Acknowledges Mistake in Canceling Speech of Critic of Standardized Tests

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BOSTON – The Massachusetts Department of Education (DOE) has agreed to drop its appeal of a lower state court’s ruling that DOE officials violated the First Amendment when they coerced education conference organizers into cancelling the keynote speech of Alfie Kohn, a well-known critic of high stakes exams like the Massachusetts Comprehensive Assessment System (MCAS) testing program. In dropping the appeal, the DOE issued a statement acknowledging that a former DOE official “violated the First Amendment rights of Alfie Kohn to be heard and to communicate information and of people to hear and receive information, at a conference in western Massachusetts in 2001.” The DOE said, “The DOE’s position is that vigorous debate about education issues is healthy and welcome.”

Commenting on the end of the long-running lawsuit, Kohn said he was “hopeful that DOE’s newfound commitment to open discussion of education policies means that it will never again attempt to silence those who disagree with its policies – and that it will be open to considering the substantial evidence that indicates the MCAS testing program is doing more harm than good.”

Michael Rader, an attorney at Wolf Greenfield & Sacks, counsel in the case with the ACLU of Massachusetts, said he was encouraged that the DOE had acknowledged its mistakes: “I am pleased that the Department of Education decided to drop the appeal and accept the essence of the court’s verdict that the DOE had violated the fundamental constitutional rights of parents, teachers and community members as well as Mr. Kohn.”

In May 2007, Judge Hiller Zobel issued a decree against the DOE and ordered the department to pay $155,000 in fees and costs to the plaintiffs’ lawyers. The right to receive information is protected by the First Amendment, and Judge Zobel found that right was also violated by the coerced cancellation of Kohn’s speech. The DOE filed a notice of its intent to appeal the ruling to the Massachusetts Appeals Court, but later elected to drop that appeal.

The original case was filed by the ACLU of Massachusetts and cooperating attorneys Rader and Michael Albert at the law firm of Wolf, Greenfield & Sacks, P.C. on behalf of Kohn, Leslie Edinson, a Springfield public school principal, David Sprague, a school counselor, and parent Jan Shotwell, who had planned to attend Kohn’s keynote speech. ACLU of Massachusetts attorneys Bill Newman and Sarah Wunsch were co-counsel on the case.