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ACLU turns to courts in latest attempt to stop NECAP testing

July 24, 2013

Rhode Island ACLU Executive Director Steven Brown, left, talks about his group’s lawsuit against the R.I. Board of Education. Listening in the ACLU offices in Providence Wednesday are, from left, ACLU lawyer Elizabeth Wien, retired Department of Education board member Ken Fish, student Priscilla Riveira and parent Jean Angeliano.

PROVIDENCE – The RI ACLU and eight other plaintiffs sued the new RI Board of Education (BOE) on Wednesday to force the panel to answer a petition asking that public schools stop using the NECAP (New England Common Assessment Program) test as a graduation requirement.

The suit does not challenge the NECAP test directly – at this point – but merely seeks to have the BOE respond to a June 21 petition submitted by 17 organizations by either starting a rule-making process to consider stopping the use of NECAP as a graduation requirement or formally rejecting the petition with a board vote.

If the board were to vote to reject the petition, the petitioning organizations – which include the ACLU – could then appeal that rejection in court.

ACLU Executive Director Steven Brown and volunteer attorney Elizabeth Wiens told reporters that, under the Administrative Procedures Act, the BOE had 30 days to respond to the petition by has not done so yet.

BOE Chairwoman Eva Marie Mancuso wrote a July 17 letter to Brown that said in part: “Although the Board has taken no action to ‘deny’ your petition, neither will we be in a position to begin formal rulemaking within the prescribed time period. We are at the very initial stage of gathering relevant information and identifying issues.

“Please be assured,” the letter continues, “that we value the input of your respective organizations and your views will be a factor once we begin our discussions about the Secondary School Regulations. Until that time, please consider this informational letter to be a ‘denial’ of your petition, but please understand that this denial is born of temporal circumstance only and in no way reflects on the merits of your petition…”

That is not good enough, Brown said during the morning news conference, because Mancuso is only one member of the board and the petitioners need a vote by the full board in order to proceed. They can not do so based on a letter by a single board member.

Contacted Wednesday afternoon, BOE Spokesman Michael Trainor said the board would have no comment on pending litigation.

Saying that the board, which has been in existence for seven months, “has an obligation to grapple with this issue now,” Brown noted that “we know there are potentially 4,000 students at risk of not graduating this coming year because of the results on this flawed high-stakes test.

“So the lives of all these students are in limbo,” Brown added. “Every month’s delay in grappling with this problem means increased anxiety and uncertainty for those students, for their families and for their future plans. That is why we felt that the BOE’s consideration of our petition in a timely manner was so critical and why its failure to act on it in any way has necessitated this lawsuit.

“There is a momentum and an urgency that this issue demands,” he said, “and the board’s failure either to initiate rulemaking proceedings or deny the petition, which it has a right to do, undercuts the purpose of this whole petition process in state law and it is our strong belief that the board has to take responsibility, one way or the other, for the fate that is awaiting these 4,000 students.”

Priscilla Rivera, a senior at Providence’s Hope High School, said she is in danger of not graduating at the end of the school year because she did not score high enough on the NECAP test.

Rivera, who aspires to being a writer, said she holds herself to high standards, “so when I found out I didn’t score high enough, it haunted me. I could not focus on any of my classes. I felt so confused and lost. I couldn’t get it out of my head.”

Not only that, Rivera related, but “after the NECAP results came out, our curriculum changed. My teachers were told to plan their lessons around the NECAP. In math classes, we spent our time learning how to solve specific kinds of math problems that are on the test. In English classes, we began to spend way more time writing in-class essays that we see on the NECAP. I love writing, but this was not creative writing, it wasn’t deep, analytical writing, it was simple responses to boring prompts that sucked the interest out of our curriculum.”

Ken Fish, who retired as director of the Department of Education’s director of Middle and High School Reform, said, “At the moment, what we are really asking is for this Board of Education to try to rescue its rapidly eroding reputation and come to grips with what is possibly the most important item on their agenda right now – it is certainly the most important item for the 4,000 kids who face an entire senior year of uncertainty and stress. It’s not right. Board of Education: Do your job.”

The Department of Education has repeatedly said that passing the NECAP test is not the be-all and end-all of a student’s graduation. Students are given the opportunity to take the test a second time and if they merely show improvement, rather than achieving a passing grade, they will be able to graduate.

In her letter to Brown, Mancuso said, “The proficiency-based graduation requirements raise man complex issues, and board members have publicly expressed their desire to more fully understand the requirements themselves, how they are implemented and the manner and extent to which their implementation may affect students in the Class of 2014. She said those issues will be discussed during the BOE’s annual retreat on August 24 and 25.

Follow Jim Baron on Twitter @Jim_Baron

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