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Court Rules Substance Can't Publish Whole Test: Schmidt Responds

Publication Date: 2004-01-01

George Schmidt, publisher and editor of Substance, fought a hard fight. There were victories. Chicago's disreputable test, CASE, was abolished.

But George lost his job and is out more than $200,000 in legal bills. Every test resister in the country, everyone who believes in the First Amendment, should help him pay this bill. Send your contribution to:
5132 W. Berteau
Chicago, IL 60641

When someone is willing to fight your fight, you need to do what you can to help.

You can read the court decision at:


Judge Posner has completely ignored our First Amendment arguments, reduced the case to a simple "copyright infringement" as if there was never a newspaper or its editor involved, and ruled in favor of the Divine Right of Tests.

Posner is one of the haughtiest and most
influential men currently sitting on any U.S. court, a professor at the University of Chicago Law School, a widely published "author" in the ultra conservative public intelletual mode (Google if you're interested in that part), and a
regular on the lecture circuit where intellectual property law is concerned.

He is trying to defend several status quos at once:

  • High-stakes testing;

  • The widest possible use of copyright by government to suppress public debate;

  • The narrowest possible range of First Amendment rights for actual citizens
    (i.e., those of us who don't have the money-- like government and corporations do--to pursue expensive and complex cases such as this for cynical judges like himself to split hairs over;

  • The broadest possible range of "rights" for Big Government and Big Corporations (as in this case).

  • Ironically, Posner (like many other reactionaries) poses as a conservative. If you follow the logic of his decisions and writings, however, they have all served those economic interests currently riding roughshod over individual rights.

    He also won't debate either his own opinions or their implications in public.

    In court, he seeks absolute control, which he is usually given not only because lawyers by the time their cases get before someone like him are cravenly subservient to those in the black robes, but because he demands it by demeaning everyone in front of him, using sarcasm, cynicism, and the kinds of illogical logic that you can read in his decision.

    The sheer intellectual dishonesty of his work (and this is just one example) would be challenged if more people scrutinized the opinions of the nation's top judges, but since the main people who follows such things are lawyers who might have to argue in front of guys like Posner, their high hobby horses are
    rarely even noted as such. Lawyers cringe before the guy. The result is that he can ignore virtually all of the First Amendment Law regarding individual rights and the rights of newspapers we put before him on this case. It's all in our arguments and in the amicus briefs, especially the brief by the Chicago Teachers Union; all on the court website at uscourts.gov seventh circuit, then case
    # 03-1479.

    He wipes out the First Amendment even where it's relevant, viciously distorts both the facts and the law of the case because he is beyond criticism himself, and gets away with it because most people can't afford to get as far as we
    got, let alone go the next step and take the whole thing to the U.S. Supreme Court. Then he creates a First Amendment "right" for the Chicago Board of Education!

    Here's an account in the Chicago Tribune.

    Paper cannot publish whole test, court rules
    Ana Beatriz Cholo
    Chicago Tribune
    January 1, 2004

    In a case that has been monitored as a freedom of speech issue, the 7th U.S. Circuit Court of Appeals ruled Wednesday that a newspaper cannot publish the entire contents of a standardized test.

    The Chicago Board of Education sought more than $1.3 million in 1999 from George Schmidt, editor of an investigative publication called Substance. Schmidt, a teacher, had published six versions of a standardized test called the Chicago Academic Standards Exams.

    Schmidt was suspended without pay and subsequently fired from his teaching position. The tests are no longer administered in the Chicago schools.

    A little over a year ago, Schmidt was convicted of violating state and federal copyright laws. School district officials offered Schmidt a chance to settle the case if he publicly acknowledged wrongdoing. Both parties also agreed to a settlement of $500. Schmidt still chose to appeal.

    The former Bowen High School teacher expressed disappointment with the appellate decision.

    "The court didn't realize more completely the necessity of public criticism of so-called standardized tests and ... that these tests have to be criticized once administered in their entirety and not just cherry-picked for their most ridiculous questions," Schmidt said Wednesday.

    Schmidt said an appeal may be too costly. Already, he said, he has spent more than $200,000 in legal fees.


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