Four years ago I gave the Massachusetts Department of Education one of the Phoenix’s annual Muzzle Awards (scroll down to second item), arguing that its decision to prevent a prominent critic of high-stakes testing from giving a speech was an abridgement of his First Amendment rights.

Yesterday, according to this Boston Globe story, Superior Court Judge Hiller Zobel agreed, ruling that Alfie Kohn‘s rights were violated under both the U.S. Constitution and the Massachusetts Civil Rights Act. Zobel wrote: “The record makes clear that the government was attempting to dictate what Mr. Kohn could say and what his prospective listeners could hear.”

The lawsuit on Kohn’s behalf was brought by the ACLU of Massachusetts, which issued a statement yesterday. Here is the complete text:

BOSTON (August 1, 2006) — The Massachusetts Department of Education (DOE) violated the United States Constitution when it prevented a critic of the Massachusetts Comprehensive Assessment System (MCAS) standardized test from speaking at a public education conference because it did not like his viewpoint, State Superior Court Judge Hiller Zobel has ruled. The case was filed by the American Civil Liberties Union (ACLU) of Massachusetts and cooperating attorneys at Boston’s Wolf, Greenfield & Sacks, P.C. on behalf of Alfie Kohn, a nationally known critic of high-stakes testing. Judge Zobel’s decision was entered on July 28 but released today.

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 shortly before the conference began 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.

“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,” states Judge Zobel’s written opinion. “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.’ “

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 American Civil Liberties Union of Massachusetts. ACLUM 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.

A copy of Zobel’s decision can be found here (PDF).

Media Nation’s advice to Lt. Gov. Kerry Healey: Drop this, if Mitt will let you. Censorship is always wrong. The Kohn case hasn’t gotten much attention. But if you fight it, it’s yours — and folks might start to notice.


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