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Victory in Chicago!!

Posted: 2003-01-28

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For Immediate Release:

Teacher newspaper, editor vow to continue fight against Board of Education censorship. School board reduces $1,400,000 "copyright in-fringement" claim to $500 as highly publicized 1999 lawsuit goes to Seventh U.S. Circuit Court of Appeals and possibly to the United States Supreme Court

Press Conference:
Wednesday, January 29, 2003 10:00 a.m.
at the law offices of Alan Barinholtz
55 W. Monroe St., Suite 3330
Chicago, IL

For further information contact:
George N. Schmidt, Editor, Substance
Substance office: 773-725-7502
Cell phone: 773-401-6202
Home: 773-725-6182

Alan Barinholtz, Attorney at Law: 312-704-4000

(Chicago, January 28, 2003). After four years and nearly a million dollars in legal costs, the Chicago Board of Education has reduced what it once claimed was a million dollar loss to a mere $500 in a federal lawsuit that critics of the school system charge is one of the most insidious cases of censorship in recent memory.

A Chicago public school teacher who also edits the monthly investigative newspaper Substance announced today that he and the newspaper intend to continue to pursue a "full vindication of our rights and the First Amendment" in a four-year-old federal lawsuit which will now go to the Seventh Circuit Court of Appeals on two major constitutional issues and several significant other issues.

The litigation originated when Chicago's school board and mayor denounced the newspaper and the school board sued the newspaper and its editor for more than $1 million alleging "copyright infringement" after the January 1999 publication of a number of local tests which the newspaper argued were a ridiculous waste of taxpayer money.

A stipulation signed by both parties and entered by U.S. Magistrate Judge Edward Bobrick on January 22, 2003, ends the present district court level litigation in the case entitled "Chicago School Reform Board of Trustees. vs. Substance, Inc. and George N. Schmidt" (99 C 440).

In the stipulation, both sides agreed that in the event that the appeals on behalf of Schmidt and Substance newspaper are lost all the way to the United States Supreme Court, Schmidt and Substance will pay a total of $500 to the Chicago Board of Education in full and complete settlement of all claims.

Copies of the relevant court documents are now available at the federal court in Chicago and will be made available to the press on January 29 at the Substance press conference.

"From the beginning, this case was about censorship, about using lawyers to bully critics, about the duties of a free press free of intimidation, and about the protections we owe whistle blowers," said Substance editor George N. Schmidt. "The 'copyright infringement' claim was thin pretext for subverting the Bill of Rights and the public's right to know. Sadly, it succeeded, at great expense, for the past four years. That shows more about how Chicago has been functioning since the bubbles of the 1990s than about anything else."

Schmidt said he is glad things now can move ahead.

"This case is finally beginning to return to sanity," Schmidt said in a press statement to be read at a press conference on January 29, the fourth anniversary of the first appearance of Schmidt in federal court on the lawsuit.

"For four years, the Chicago Board of Education and the political leaders of this city have been allowed to misuse the federal courts in a pernicious attempt to undermine the people's constitutional right to know about the public's business," Schmidt continued. "We published government documents in a newspaper. The fact that those documents were 'tests' and contained a copyright slug has no bearing on the fundamental issue. The Chicago Board of Education routinely puts the words 'copyright' in the most trivial documents. The production of the CASE tests had already cost the people a lot of money - and cost the teachers and students in our public schools an enormous amount of wasted time - by the time we published some of them to open up informed public debate in January 1999. Instead of correcting its behavior, the government - in this case our school board and the Vallas administration - continued to waste money both on CASE and on the legal cover up of its waste and mismanagement in the development and implementation of CASE. This has been about censorship and a cover-up from beginning to end. We blew the whistle. Chicago tried to stomp us out rather than admit its mistake and correct its error."

Schmidt noted that in December 2002, the Chicago Board of Education quietly ended the CASE tests in the high schools after teachers threatened to boycott the tests in January 2003. "Even there, however, the story hasn't been fully told," Schmidt said. "The Board of Education paid $220,000 print the tests for this year. Although they cancelled the high school tests, they administered CASE in selected elementary schools on January 21, 22, and 23rd. The silliness continues."

Secret suppression of the Bill of Rights

From the beginning, the CASE case had a great deal of melodrama, while secrecy prevailed and interfered with informed public debate.

Late in the afternoon of January 26, 1999, Chicago's school board secretly filed its million dollar "copyright infringement" lawsuit against newspaper Substance, its editor, George Schmidt, and 22 unnamed "John and Jane Does."

The lawsuit was brought before the controversial U.S. District Court Judge Charles Norgle Jr. Judge Norgle allowed the hearing on January 26, 1999, to continue without notifying the defendants. Schmidt was working as a teacher at the time, and Schmidt's lawyers have offices two blocks from Judge Norgle's courtroom.

The secret hearing yielded enormous temporary benefits for the school board at the expense of the rights of Substance, its editor, and many other Chicagoans.

By the time the January 26, 1999 hearing was over, Judge Norgle had issued three extraordinary writs against the newspaper and its editor.

o A temporary restraining order barred further distribution of the January-February 1999 issue of Substance, which contained the complete text of six of 22 "Pilot Form B" Chicago Academic Standards Examinations (CASE) that had been administered during the week ending January 15, 1999.

o A protective order barred any distribution of copies of the tests, which had come into the possession of the newspaper from anonymous sources.

o A writ of seizure demanded by the school board's attorneys gave the school board the right, as it stated in its own motion, to "order federal marshals to go to the homes of Chicago teachers" to retrieve what it characterized as its "property."

At the time the secret court orders were issued against Substance and its editor, George Schmidt was an English teacher at Bowen High School in Chicago, where he was working that day. At the time, he also served as the school's union delegate and as the school's gang security coordinator. That afternoon, he was working in his classroom and at other duties at the school - a fact that was known to the Board of Education's attorneys when they brought their lawsuit "ex parte" before Judge Norgle at the end of the court's day.

Constitutional issues involve "Pentagon Papers" and "Pickering" cases

"From the beginning, this case was an attack on a newspaper's duty to inform the public of waste and mismanagement in a public body," Schmidt said. "From the beginning we pointed out that the 'copyright infringement' claim by the government was a thin pretext to suppress public debate on the CASE tests. We also pointed out that the U.S. Supreme Court had already decided this matter in the Pentagon Papers case in 1971. In that case, the court held that the government could not stop a newspaper from publishing important government documents, even if those documents allegedly contained military secrets in time of war. The incredible thing about the 1999 Substance case was that the government - in this case the Chicago school board - was able to get away with the suppression of debate and the restriction of access to documents by simply claiming that certain documents were protected by a 'copyright' which hadn't even been applied for at the time the lawsuit was filed."

The constitutional right of the newspaper was not the only right undermined by the Chicago censorship case, Schmidt said.

"In January, March and June 2000, the Board of Education held a kangaroo court on whether they were able to fire me from my first job - teaching at Bowen High School - because on my second job - editing Substance - I had published those odious CASE tests in Substance," he said. "In August 2000, the Chicago Board of Education voted unanimously to fire me, meaning that a teacher could be fired in Chicago not for anything he did wrong in the classroom, but because he criticized the school board."

Schmidt said that in addition to the Pentagon Papers case, the appeals to be filed by Substance will cite the precedent case in "Pickering." In the Pickering case, the United States Supreme Court held that it was unconstitutional for a school board to fire a teacher who publicly criticized school board policies.

Expensive litigation

In response to the legal attack by the government, Substance reorganized to continue publication despite the odds. A voluntary legal defense and survival fund was also established to enable the newspaper to cover the enormous attorney's fees and costs.

"For more than a year, it was touch and go as to whether the newspaper would survive," Schmidt said. "Twice we had to combine editions, publish-ing a 'double issue' dated two months instead of one. We also contracted our annual number from eleven issues to ten after examining what we could do to survive."

Schmidt also noted that the Substance staff was under attack during the opening months of the litigation. "One of our staff members resigned," Schmidt continued. "I had to spend weeks reassuring the other members of the staff that their personal assets were not in jeopardy, given the fact that Substance is a corporation. Members of the Vallas administration also tried to seize our mailing list and intimidate our readers. There has been nothing like it in this town in half a century."

Key to Substance's survival, Schmidt said, was the massive outpouring of generosity from subscribers and others across the country. "Immediately after the lawsuit, we sent a letter to our subscribers, asking them to contribute to our legal defense. Hundreds responded over the next couple of months. Via the Internet, we were also put in contact with networks of colleagues across the nation who were equally critical of high-stakes, secret, standardized multiple-choice tests. That network grew, and those people helped us enormously." By the end of the year 2002, Substance had raised and paid more than $130,000 in attorneys' fees and legal costs. "Our fundraising efforts have had to be ongoing," Schmidt said. "It basically meant that we were unable to expand our business for that whole time."

The attack on Schmidt and Substance also affected Schmidt and his family. In March 1999, Paul Vallas suspended Schmidt from his teaching job. At the time, by working overtime and summers, Schmidt was earning more than $60,000 per year working for the Chicago Board of Education. In August 2000, the Chicago Board of Education voted to fire Schmidt ending a distinguished 28-year teaching career. The termination vote was taken despite the fact that the hearing officer who heard the case stated that Chicago's children needed more teachers like George Schmidt.

"It was very rough on all of us," Schmidt recalls. "Our staff were worried. People were more afraid than ever to be quoted on the record during those times. And it really hit my family. For example, we juggled various ways to pay for our medical insurance during those years. At one point, we were paying $1,000 per month in COBRA to maintain our medical insurance. Using the courts and lawyers to bully opponents is much more subtle than using leg breakers and street thugs, but the logic of power is the same whether the thugs are wearing jeans and tee shirts or thousand dollar lawyer pinstripes. It's things like that that enable arrogant tyrants like Paul Vallas to succeed in the kind of legal bullying they tried with us in this case. Middle class people can't afford to stand up to this kind of bullying for long."

Despite the odds, Substance survived. Schmidt was able to continue working on issues pertaining to public education, not only in Chicago, but increasingly across the country. Since he was sued by the Vallas administration in January 1999, Schmidt has been an invited speaker at conferences including the Association for Supervision and Curriculum Development (ASCD), Educational Research Association (AERA), the National Council of Teachers of English (NCTE) and other groups. In 2000, he received the first "Emperor's New Clothes Award" (including a check for $6,000) from a group of writers and educators from across the United States. In 2001, he was awarded the "Courage in Teaching" award by the Whole Language Umbrella of the National Council of Teachers of English.

"The support we have received proved that thousands of people are willing to stand up for the Bill of Rights and are willing to take a stand against secret high stakes testing in public schools. Even when the issues are clouded for a time by the kinds of media hysteria we faced during the bubble years, the support continued growing," Schmidt said. "We've received contributions as little as $4 from people who could barely afford it and as much as $5,000 from wealthy people. We have a responsibility to continue this fight until the Bill of Rights exists, even here in Chicago."

Since the Substance publication of the CASE tests in January 1999, the controversy over the use of standardized tests for high-stakes decisions has grown more and more pronounced. "Not a month has gone by when there is not another report of a scandal caused by secret tests," Schmidt said. "Last week, a court in Minneapolis ended a $13 million class action lawsuit brought by families who children had been misscored on the Minnesota promotion and graduation test two years ago. Test secrecy and the abuse of standardized tests have brought parent and press litigation in Arizona, Massachusetts, Florida, and other states. The only solution to this problem is going do be more democracy - not less. We need to have complete disclosure of all high-stakes tests after they are administered, and we need a full public debate on the value of these tests in democratic public education."

Schmidt noted that the CASE litigation has proved how the government of Chicago uses the law and lawyers to bully citizens into submission to corrupt government policies.

"Since January 1999, the Chicago Board of Education has spent - by my estimation - at least a half million dollars on lawyers and related costs to silence me and Substance," Schmidt said.

"Beginning in January 1999, they paid an outside attorney - Patricia Felch - and the various firms she worked for on a regular basis to handle some of the legal work on this case. At the same time, they have paid at least a dozen of their own staff attorneys for work on the federal litigation, on the termination hearings, and on other matters like challenging my claim for unemployment benefits."

Schmidt noted that by December 2002, the Board of Education had approved expenditures in excess of a quarter of a million dollars for outside lawyers in the case. The school board has refused repeated requests to reveal the complete amounts paid to their own staff attorneys and the details of the amounts they have paid to outside lawyers.

"On top of what they've spent on lawyers to bully me, they've spent millions continuing CASE until it collapsed late last year," Schmidt said. "It should have been terminated when teachers first began criticizing it in 1998, months before we published some of its more ridiculous moments. The city would have saved millions of dollars had school officials listened to teachers' com-plaints about CASE from the beginning. Instead, it was censorship and cover-up all the way."

A materials briefing book containing many of the documents referred to in this press release will be available at the January 29 press conference.

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