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A for Effort

George Schmidt made his point: the CASE test was worthless. But the quality of the test wasn't the issue in court.

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In his five-year fight against what he calls "stupid standardized tests," George Schmidt has had to face one formidable foe after another, including Mayor Daley. To that list he must now add another--federal judge Richard Posner, who ruled on December 31 that the Board of Education had the right to punish Schmidt for publishing a standardized test the board had given to high school students.

"I'm very disappointed by Posner's ruling," says Schmidt, who taught high school English for more than 20 years and has been editing and publishing Substance, a monthly newspaper on education issues, even longer. "I feel he overlooked the case. He was far too personal in what he wrote."

If Posner got a bit personal it might be understandable. Schmidt's a provocative critic who irritates and even infuriates powerful people by teasing, taunting, and ridiculing them. He's launched muckraking investigations into allegations of central office incompetency, wasteful spending, abuse of power, and censorship of teachers.

The Substance expose that got him in trouble with Daley and led the board to sue him concerned the Chicago Academic Standards Examinations, better known as the CASE. Daley and former schools CEO Paul Vallas had created the CASE as part of their effort to hold teachers accountable for what their students haven't learned. Given twice a year at the end of each semester, the test is a mix of multiple-choice questions, essays, and problems. According to the suit filed by the board against Schmidt, it was intended "to serve as a mechanism for teachers to calculate up to 20 percent of the grades for the students who completed the tests [in] Algebra, Geometry, English, Earth Science, Biology, Chemistry, Environmental Science, World Studies, United States History and Physics."

First given in the 1997-'98 school year, the CASE was unpopular with many teachers, who thought too much of their class time--over a month a year--was already devoted to preparing for standardized tests, among them required state and national achievement exams. The teachers contended that many questions on the CASE were poorly written, illogical, and misleading, making it a waste of taxpayers' money.

In January 1999 Schmidt used Substance to publish parts of the English, social studies, and mathematics sections of the test that had been given to students earlier that month. As he explained it, "The time has come to debate the educational integrity of the claims of the Vallas administration--and you can't have a legitimate debate about a test without allowing people to see the test they're debating."

When school officials saw the test questions in Substance they were furious, calling it "a terribly damaging" act of sabotage. They said they would have to recall all the copies of the test, which they said they'd intended to use again. Former school board president Gery Chico told the Daily Southtown that Substance was "a rag to trash anybody at the board of education....We've been called names, we've been ridiculed, and we haven't done a thing. But the fact of the matter is, when you break the rules, no matter who you are, you are going to pay."

Daley joined the debate, accusing Schmidt of attempting to keep teachers from being held accountable. "What kind of teachers are they?" Daley asked reporters. "Do they want kids to cheat and get a phony grade and move on? They are the same people who socially promoted children."

On January 26, 1999, the board filed its suit, which made copyright law the central issue. The suit charged that Schmidt had "carelessly, negligently or willfully violated the spirit of keeping test material confidential and secure" and had "misappropriated [the board's] trade-secret rights of confidentiality and security." It asked that Schmidt be forced to pay the board's legal fees as well as the $1 million it would cost to replace the test he'd published.

That March, Schmidt was also fired from his teaching job at Bowen High School. He says that in the five years since, he's been in a "legal hell--a Chicago version of Bleak House." He and his wife have had to borrow or raise nearly $300,000 for legal fees.

Schmidt appealed his firing, and the hearing officer ruled against him (he's since appealed to a Cook County circuit court). He filed a counterclaim against the board in federal district court, seeking damages and legal fees on the grounds that he had a right to publish the test, which he insists is a public document, under the First Amendment and the fair-use doctrine. The judge dismissed his counterclaim, ruling that neither the First Amendment nor the fair-use doctrine applied to his case, and a second judge later concurred.

Although almost every major ruling has gone against Schmidt, school officials have pretty much conceded that he was correct about the worthlessness of the test. According to one of Schmidt's lawyers, Alan Barinholtz, board officials testified in depositions that they wouldn't have used the exact same test anyway. Last year the board abolished the CASE altogether.

That may be why the board dropped its demand that Schmidt pay its legal fees and agreed to limit his damages to $500, tacit admission that it might not be able to persuade a jury--if the case ever came to trial--that the test had ever been worth $1 million.

Some of his friends and allies advised Schmidt to pay the $500 fine and move on with his life. But he wanted to continue his appeal. He wanted to make the case that a government body can't use copyright law to keep a public document secret and that newspapers shouldn't be punished for pursuing stories that concern large public issues. And he wanted his job back. "There's a lot at stake," he says. "They took away my job. They endangered the well-being of my family. They used copyright law to beat me up. And I'm supposed to walk away? I remember sitting in a judge's chambers while he tried to get me to agree to settle. He said, 'How dare you waste this court's time?' I looked at him and pointed to the flag and said, 'Your honor, we have a fundamental disagreement about the meaning of these symbols of democracy.' I have the right to fight to get my job back, because I never should have been fired in the first place. I have the right to a jury trial. I have a right to point out to a jury that the stuff we published was worthless and a waste of taxpayers' money. I don't think government should be allowed to use copyright law to keep public documents private. What's next? Are they going to restrict our access to budgets by slapping a copyright on them?"

So in December, Schmidt found himself in front of a three-judge panel from the federal Court of Appeals for the Seventh Circuit--Posner, Frank Easterbrook, and Ilana Rovner. From the start it was clear that Posner was the key judge in the matter, because he was asking the most forceful questions.

That was a bad break for Schmidt. A 2001 New Yorker profile by Larissa MacFarquhar portrays Posner, who's been moving steadily to the right since his early days as a liberal Democrat, as a brilliant but hard-hearted bean counter, a pragmatist who has "promoted the idea that laws should be evaluated for their consequences--economic and otherwise--as much [as] for their fairness and that judges should not deliberate over rights and duties in the abstract, but figure out what kind of incentives their rulings were putting in place." She cites a 1994 evaluation of Posner by the Chicago Council of Lawyers that concludes, "Chief Judge Posner routinely does not pay sufficient attention to the facts, or leaves out crucial facts, in order to reach desired conclusions."

"In Posner's mind, the right decisions are the ones that benefit society the most, and you can calculate those benefits in terms of social and economic costs," says Mark Weinberg, a constitutional lawyer. "He always asks, what's the practical effect of a ruling?" Weinberg says Posner's ruling in the Schmidt case offers a glimpse of how Posner sees the world. Instead of focusing on the public's right to know how tax dollars were being spent by the schools, he immediately zeroed in on the question of how much the publication of the CASE had harmed the board.

In his ruling Posner writes that tests, even standardized ones, "are expressive works that are not costlessly created, and the costs are greater and so the incentive to create the tests diminished if the tests cannot be reused....There is no analytical difference between destroying the market for a copyrighted work by producing and selling cheap copies and destroying the subsequent years' market for a standardized test by blowing its cover."

Posner concedes that Schmidt had the right to quote portions of the test in order to analyze it effectively: "Copyright should not be a means by which criticism is stifled with the backing of the courts." But, he added, Schmidt had done "harm to the school board" by forcing it to swallow "the cost of creating substitutes for the questions that Schmidt published."

Posner goes on, "So where to draw the line?" How much could Schmidt have published without harming the board? "The question cannot be answered precisely," Posner writes. Nevertheless, he concludes, Schmidt did cross a line.

"There is more than a suspicion that Schmidt simply does not like standardized tests," Posner writes. "That is his right. But he does not have the right, as he believes he does (he claims a right to copy any test that an expert will testify is no good), to destroy the tests by publishing them indiscriminately, any more than a person who dislikes Michelangelo's statue of David has a right to take a sledgehammer to it. From the amicus curiae briefs filed in this case, moreover, it is apparent that many other teachers share Schmidt's unfavorable opinion of standardized tests. (A cynic might say that this is because such tests can make teachers look bad if their students don't do well on them.) So if Schmidt can publish six tests, other dissenters can each publish six other tests, and in no time all [the tests] will be published. The board will never be able to use the same question twice, and after a few years of Schmidtian tactics there will be such difficulty in inventing new questions without restructuring the curriculum that the board will have to abandon standardized testing. Which is Schmidt's goal."

Posner winds up, "If Schmidt wins this case, it is goodbye to standardized tests in the Chicago public school system; Schmidt, his allies, and the federal courts will have wrested control of educational policy from the Chicago public school authorities."

Schmidt sees Posner's ruling as a travesty. "He didn't consider the facts," he says. "How can he say we caused the board harm by publishing those tests? The board people had sworn in depositions that they weren't going to use the same tests anyway."

Furthermore, Schmidt says, other states have found it perfectly acceptable to publish tests that have already been given. "The law in Texas is that they publish the state test they give for promotion to high school," he says. "Go to their Web site--you'll find it. Similarly, the state of Massachusetts does the same thing with its comprehensive exams. You can download those tests."

Schmidt claims Posner's ruling shows bias. "He turned me into an adjective and took a gratuitous swipe at teachers--it reads like an editorial from the National Review," he says. "I don't know where he got that bit about me being out to destroy standardized tests--I've never said that. I think standardized tests have a place in the classroom. I just don't like stupid ones, and I believe people have a right to see what tests are being given to their children."

School officials say the issue's now resolved. "The court was right to preserve the integrity of the test," says Peter Cunningham, a board spokesman. "The test's no longer being used, and we're glad to close the book on this."

But Schmidt intends to appeal Posner's ruling to the Supreme Court, even though he doubts the court will take the case, much less overrule the decision. "What's truly amazing about this is that Posner turned everything upside down," he says. "He makes me look like Goliath and the board look like David. I'm the individual with limited resources up against a government of unlimited resources--yet that's being turned on its head."

Art accompanying story in printed newspaper (not available in this archive): photo/Dorothy Perry.

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