The Andover School Committee violated both the Massachusetts Open Meeting law and the Americans With Disabilities Act when it twice denied a private school’s application to open in town, according to the latest documents filed in a federal lawsuit.

U.S. District Court Judge Patti Saris allowed Fusion Academy to file a second amended complaint with the new accusations on Jan. 18 over the town’s objections. The first claim in the amended complaint accuses the town and school committee of violating the Americans with Disabilities Act by denying parents of children with disabilities additional options when it denied Fusion’s applications in 2019 and last year.

The second, more serious allegation accuses the school committee of “knowingly and purposely” violating the open meeting law under former chair Shannon Scully. Fusion said evidence of both violations were uncovered in the more than 10,000 pages of documents turned over by the town in the lawsuit’s discovery phase. The amended complaint (embedded below) says “at least a quorum of the school committee…defied the state’s open meeting law in order to rig the vote against” Fusion’s application.

Saris also reversed a September ruling where she dismissed Fusion’s claims the town and the school committee had violated Fusion’s due process rights.

Andover Public Schools spokesperson Nicole Kieser declined comment on behalf of the school committee, which does not publicly discuss pending litigation.

Violation Discovered In More Than 10,000 Pages Of Documents

Among the evidence Fusion cited about the school board’s open meeting law violations in its amended complaint was a draft press release in discovery evidence turned over by the town 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.

Wadland & Ackerman, which is representing Fusion, said in the complaint Scully, former school committee member Joel Blumstein and current member Tracey Spruce discussed the application privately and edited a recommendation report to “better support publicly their sham vote.”

Scully, who did not run for reelection last year and now sits on the Andover High School building committee, denied that she and the other committee members violated the open meeting law and said Fusion’s representatives attended and commented at the series of “open, public, and televised meetings” before each vote on the applications.

“Fusion’s claims are spurious and without merit, and I’m confident anyone with an understanding of open meeting law would reach that conclusion,” Scully said.

Spruce, who was first elected to the school committee in 2018 and is currently vice chair, declined comment.

Andover News asked Blumstein for comment on Thursday and will update this article if he gets back to us. Blumstein, who currently chairs the West Elementary School and Shawsheen Preschool building committee, did not run for reelection in 2020 after serving two, three-year terms.

Scully and former Superintendent Sheldon Berman also worked on editing the news release up until a day before the vote, according to the new complaint. Scully’s conduct “was knowing and intentional. She did not act reasonably or in good faith in respect of Fusion Academy and its application and knowingly and intentionally violated Fusion Academy’s due process rights,” Andover-based Wadland & Ackerman said in the complaint.

When Fusion’s application came before the school committee for a second time in March 2021, Scully “specifically directed that Fusion Academy representatives not be invited to the virtual ASC meeting” in an email sent the day of the meeting. Fusion also claims Scully refused to let its representative participate in the school committee’s discussion of its application on March 18 and when it voted to deny the application on March 25.

No complaints of the alleged Open Meeting Law violation have been filed with the Massachusetts Attorney General’s office. The law includes civil penalties of fine up to $1,000 for each violation.

Denials Forced Fusion To Close Andover Location

Fusion operates 60 schools in 17 states runs schools for students in grades 6-12 who struggle in normal school settings, including schools in Burlington, Hingham and Newton. The company also offered supplemental programs in Andover when schools switched to a remote learning model during the coronavirus pandemic.

Fusion closed its Andover location in June 2021 after the second denial.

Town Manager Andrew Flanagan’s then-fiancee Michelle Houlihan was Fusion’s Head of School for the Andover location. The two were married in October. Flanagan filed a conflict of interest statement with the state Ethic Commission in April 2021.

Under Massachusetts law, school committees only need to approve private schools if “its instruction equals the public schools in the same town in thoroughness and efficiency and that private students are making the same progress as public school students.” Massachusetts laws do not require licensed teachers or place time requirements for how long students must spend learning in private schools.

The town filed separate responses on behalf of the town and school committee last year ahead of Saris’s September ruling. The filings were short on specifics, other than denying the town, “acting through the Board of Selectmen or Town Administrator, for example,” had a role in reviewing and colluding with the school committee to deny Fusion’s applications in April 2019 and March 2021.

The school committee’s response cited guidance from the Massachusetts Department of Secondary and Elementary Education asserting its authority to deny the applications, arguing that Fusion’s one-on-one instructional approach would result in students spending fewer hours working with teachers.

Fusion is seeking $4 million in lost revenue, interest and attorney fees. In its original complaint, Fusion said the school committee required the company to secure a lease as a pre-condition of its review process of the second application. Among the damages, Fusion 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.

Correction: An earlier version of this story misstated allegations made in Fusion Academy’s original complaint. Andover News regrets the error.

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