Lawsuit alleges MCPS boundary changes part of nationwide racial equity push

Plaintiffs seeking to overturn upcounty redistricting

May 11, 2020 10:20 p.m.

Community members seeking to overturn a recent redistricting decision made by the Montgomery County school board allege that the changes were made as “part of a nationwide effort to bring about racial equity by decoupling local schools from the community and using busing to move children around the county.”

In January, some community members filed a legal challenge of boundary changes made in the Clarksburg, Seneca Valley and Northwest high school clusters. The lawsuit alleges that the school board violated the state’s Open Meetings Act by holding at least one “behind the scenes” meeting to “discuss the true reasons for the boundary changes” before finalizing the redistricting in November.

The lawsuit highlighted a message sent by school board member Jeanette Dixon to a parent that said, in part, “I do wish I could share with you what went on behind the scenes related to all of this. It is not what you surmise especially how you perceive Mrs. Smondrowski was treated,” referring to board member Rebecca Smondrowski.

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Challengers say the message is clear that board members at some point held an undisclosed private meeting to discuss the boundary changes.

They also point to Howard County, where the school board was found to have violated the Open Meetings Act “at the same time” in the redistricting process.

Dixon, however, in an affidavit responding to the claim, said her “behind the scenes” reference was about a private one-on-one conversation with a fellow board member.

The Maryland Open Meetings Act allows school board members to discuss official matters privately if a quorum is not present. So, in Montgomery County, school board members could discuss redistricting efforts one-on-one without violating the Act, as long as no more than four members are present or part of the discussion.

“Based on one line of an email, out of context … this court has been asked to assume the existence of a meeting and then to insinuate that the deliberations they assume took place was on a topic covered by the OMA, all in violation of numerous provisions of the Act,” school board attorneys wrote in court documents. “Without Plaintiffs’ conjecture about the meaning of Dixon’s ‘behind the scenes’ remark, Plaintiffs have nothing.”

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Plaintiffs argue Dixon’s claims cannot be assumed true and “there is reason to believe that Board members engaged in email communications about the boundary changes that were kept from the public.”

In new court filings, Plaintiffs also broaden their argument, saying the school district, led by Superintendent Jack Smith, has an agenda: to achieve racial equity at all costs. They allege the school district masks its intentions by using data about students in poverty as a proxy for making reassignments based on race.

Reassigning students based on their race is unconstitutional, so the school district uses data about students who are eligible for free and reduced-priced meals — known as FARMS — as a work-around, the lawsuit says, adding that most FARMS students are black or Hispanic.

A county Office of Legislative Oversight report published in December said 87% of MCPS students eligible for FARMS in Fiscal Year 2019 were black or Hispanic.

The “true targets” of the racial equity push, the lawsuit says, are Walt Whitman, Winston Churchill and Thomas S. Wootton High Schools, known collectively as the “W schools.” The schools are often regarded as being high-performing. They generally have more affluent student bodies and are less diverse than some other county schools.

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The lawsuit further alleges that Smith “supports” the Local Government Alliance on Race and Equity, a “national network of government to achieve racial equity and advance opportunities for all.” The lawsuit does not provide evidence that Smith supports the organization, aside from saying Smith “has proposed boundary changes in the local schools that would have the effect of racial balancing the student bodies (and no other observable effect) in the affected clusters.”

School district spokesman Derek Turner said in an interview that he does not know of anything indicating Smith has an affiliation with the Government Alliance and Racial Equity.

The Montgomery County government does have a page listing it as a member of the organization.

The school board “has a history of rubber-stamping the recommendations and decisions” made by Smith and a “review of the decisions of Dr. Smith reveal not a single instance where he was overturned on appeal by the local board,” plaintiffs wrote in court documents.

The filing does not elaborate on what decisions were reviewed, how many or during what time frame.

“There is much more the Plaintiff can prove related to the true reasons for the policy change, but the point has been made that not all is as we are being told,” the lawsuit says.

Subpoena of former board member Jill Ortman-Fouse

To support their claim that the school board illegally passed the policy governing how school boundaries are drawn, plaintiffs subpoenaed former school board member Jill Ortman-Fouse, asking her to provide various documents from her time on the board.

Ortman-Fouse was a school board member from 2014 to 2018, and was a lead proponent of updating an MCPS policy to emphasize the importance of student body diversity.

In their subpoena, plaintiffs ask for more than 50 things, including:
● All school board documents about the upcounty boundary study, including the rationale for its adoption
● School board documents about changes to the policy about school boundaries, known as Policy FAA
● Documents concerning transportation to and from schools involved in the study
● Documents provided to the school board relating to the improvement of the quality of education in schools involved in the study
● Documents about the overlap between students involved in FARMS programs and those involved in the English for Speakers of Other Languages program
● Position statements and meeting records submitted to the board from parent-teacher associations about the boundary study
● All social media posts made by school board members about the boundary study
● All social media posts made by school board members about changes to Policy FAA
● Documents referring to what factors were weighed in the boundary study and the relative weight given to each factor
● All documents Ortman-Fouse used to support the position that Policy FAA was properly adopted
● All documents to support the position that the boundary study was not arbitrary
● Documents that support the position that the boundary study was “based on sound educational policy”
● Documents that support the position that the boundary study was not racially discriminatory
● Documents that support the position that FARMS rates were not used as a proxy for race in the boundary study
● Any documents about any private meetings regarding the study
● Any documents about any private meetings regarding revisions to policy FAA
● Documents related “to the inclusion of Whites and Asians in the same category when used by the Board in any determinations or policy making”
● All correspondence between school board members and MCPS staff or community members related to revisions to policy FAA or the boundary study over the past four years
● Documents concerning “how the Board should address potential and actual community reaction to the Boundary Reassignment,” including “strategies and actions to minimize, mitigate, deflect, obscure or otherwise address the community concerns/potential fallout”
● A data set for each student at all of the schools included in the boundary study that includes the student’s ZIP code, age, gender, race, ethnicity, home language, date of enrollment in MCPS, grade, special programs they are enrolled in and all key state test results
● Data about discipline and suspension at each school in the study
● Documents that show PTA funding to each school for the past three years
● Documents showing all training sessions, materials and supplies received by school board members and MCPS staff members about social equity and racial justice.

Attorneys for the school board argue that legislators “possess absolute privilege against being questioned or producing documents regarding their legislative activity,” a protection that exists to “promote free, robust and effective debate and deliberation on matters of legislative concern.”

Additionally, the list of documents sought have “no clear tie between” the allegations in the lawsuit.

“The subpoena and document request are nothing more than a ‘fishing expedition’ in order to attain information,” the board’s attorneys argue. “… The subpoena request is overly broad and requires the searching of voluminous documents, none of which is relevant to the complaint alleging a meeting in violation of the OMA.”

Attorneys for the school board ask the judge on the case to reject the request for deposition and subpoena for documents from Ortman-Fouse. A ruling had not been made on the motion as of Monday afternoon.

A pretrial hearing is scheduled for June.

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