Massachusetts Department of Education Liable for Unconstitutional Censorship, Says Court

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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