A federal court judge ruled in favor of Fusion Academy in a discovery dispute in the private school’s $4 million lawsuit against the Town and Andover Public Schools.
Fusion is accusing the school committee of violating the Massachusetts Open Meeting law, the Americans With Disabilities, and its First Amendment rights when it denied its applications in May 2018 and April 2019 to open a private school in Andover. The company, which runs schools for students in grades 6-12 who struggle in normal school settings, is seeking $2.6 million for the 10-year lease it signed at 3 Dundee Park Drive in September 2018 and $1.4 million for its build out of the site.
By policy, the Town and APS do not comment on active litigation.
Fusion filed a motion to compel earlier asking U.S. District Court Judge Myong J. Joun to order the district to turn over to turn over copies of applications and approvals for families who wanted to homeschool their children. The district’s homeschool policy is identical to the procedure APS uses to approve applications for private schooling.
“Since the standards for approval of both types of applications are governed by the same statute, Fusion is of the belief that evidence of how home school applications are treated as compared to how Fusion’s applications were treated is relevant,” Fusion said in its motion. “The defendants have refused to produce any applications and related approvals, notwithstanding Fusion’s willingness to limit the number required to be produced and notwithstanding Fusion concessions intended to preserve privacy rights allegedly attaching to the applications.”
Joun granted the motion following a status conference on Wednesday. The order requires Andover to produce five, randomly-selected applications from each of the three school years between 2018-2019 and 2020-21. The Town has until Dec. 1 to submit a status report “stating whether it will notify in writing the parents/family of students whose records have been selected for production.”
It was the second time in three months the court has ruled against the Town in a discovery dispute. In August, U.S. Magistrate Judge M. Page Kelley ruled Andover had failed to provide answers to interrogatory questions from the select board and two former superintendent, writing Andover had done “exceedingly little” to answer Fusion’s questions.
Among the evidence Fusion cited about the school board’s open meeting law violations in its amended complaint was a draft press release in turned over by APS that announced the school committee’s rejection of Fusion’s second application before the board took its first vote on April 11, 2019. “Based on the tracked changes contained in email correspondence among the defendants, the draft started nearly a month before in March,” according to Fusion.