Activist Russell Fish wants to know the score at DISD.
Activist Russell Fish wants to know the score at DISD.
Mark Graham

Leveling the field

Education activist Russell Fish might have gotten poured out of court in April when state District Judge Martin Richter ruled that he had no right to force the Dallas Independent School District to disclose 10 years of student scores from the Iowa Test of Basic Skills (ITBS), but he is back with a vengeance and new friends. Leading a coalition of the local chapters of the NAACP and LULAC, Fish now finds himself keeping company with State Attorney General John Cornyn, who is siding with Fish on his open-records request.

The Attorney General's Office intends to file an amicus curiae (friend of the court) brief on behalf of Fish when the case is heard before the U.S. Fifth Circuit Court of Appeals. And Fish is reveling in the extra muscle. "We're going to come at this with both barrels firing," he says.

Fish found it difficult to understand why he was denied access to the test-score database when he first requested it in October 1997 pursuant to the Texas Public Information Act. He found it particularly galling since the district had already turned over the same information to the Dallas Citizens Council and Texas Instruments for their own private research ("Peep Hole Power," November 5).

Of course, Fish already had a fiery history with DISD, having published the district's financial records on his Web site: He hopes to do the same thing with these test scores and prove that minority students who perform poorly on ITBS tests do so because they are being taught by the worst teachers -- those who have been purposefully dumped into minority schools by district administrators. However, laying blame on teachers for their failure to educate minority students isn't his ultimate goal, he says; it's retraining teachers and reviewing curriculum. But if that means firing consistently bad teachers in the process, so much the better.

DISD first told Fish he couldn't have the scores, then the district said he could have them for a processing fee of $4,000, claims Fish. Once he threatened to sue, DISD reduced its asking price to $2,040. But Fish believed the school district would stall indefinitely because it was bent on protecting itself and blaming students for their own academic inadequacies. So he formed a coalition with the two minority groups and convinced the nonprofit Texas Justice Foundation to represent them in a lawsuit, which was filed in October.

But on April 19, Judge Richter granted DISD's motion for summary judgment, signing a one-page order that offered little justification for his ruling. Tom Stack, attorney for the Texas Justice Foundation, took issue with the order, believing DISD had contradicted itself in its own motions. At one point, according to Stack, the district denied that the data Fish requested even existed, and then in a subsequent motion, it supplied evidence that DISD's own statistician, Dr. Robert Mendro, had used the data in a school district study.

After the ruling, Stack approached the AG's office about getting involved in the case. He did so based on Cornyn's "assertions that his office was going to take an active role in open records," says Stack. "We thought this could be a prime case for them to show how serious they were about it."

The attorney general, as state's chief enforcer of the act, took Stack up on his challenge. The Dallas Observer has obtained a copy of a three-page letter written on August 10 by Special Assistant Attorney General for Litigation John Greytok and addressed to DISD attorney Eric Moye. Greytok strongly urged DISD to reconsider its stance and release the ITBS scores to Russell Fish. He concluded by saying that after studying the court file, "it is difficult to understand how DISD can deny access to the public records...Mr. Fish's request properly invoked his rights under the Texas Public Information Act."

The letter also stated that Attorney General Cornyn planned to file an amicus brief in the case. A friend of the court brief is submitted when a case involves larger issues than just those presented by the parties -- often issues relating to public policy.

DISD attorney Eric Moye says that he replied to Greytok's letter, but he refused to reveal his response, suggesting that the Observer needed to ask the AG's office what he had said. Heather Brown, a spokesperson for the Attorney General's Office, had no comment about Moye's response, though she did reveal somewhat diplomatically why her boss felt compelled to get involved in the DISD case. "The attorney general is concerned about enforcing the open-records statute and affording the public's right to know."

Fish will also receive further legal support from the nonprofit Freedom of Information Foundation of Texas, which also intends to file an amicus brief. Sally Romano, a volunteer lawyer with the foundation, finds it curious that the attorney general is now willing to participate. "It'll be interesting to see which issue [Cornyn] thinks is the most important," says Romano. "It would be nice to see him address the procedural screw-ups, the way the school district dragged their feet. It's the sort of thing that [DISD] knows is not a big enough deal for the AG to go ballistic about, so they do just enough of it to drive you nuts."

According to attorney Stack, this whole controversy could have been over months ago when he offered the DISD a settlement on behalf of Fish and the coalition. But Stack says that the district was unwilling to move: "They seemed more concerned about teachers than students, more concerned about teachers than parents." Fish is hoping that with a little help from the AG's office and the appellate court, DISD will rearrange its priorities.


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