A Jan. 11 filing in U.S. District Court offers hints at how Andover Public Schools and the school committee will defend a private school’s allegations it deliberated in private in twice denying its application to operate in Andover.
The school committee decline comment through district spokeswoman Nicole Kieser last week on a Fusions’s claim that it violated the Massachusetts Open Meeting Law and the federal Americans With Disabilities Act when it twice denied its applications, which were contained in Fusion’s Jan. 18 amended complaint.
“The level of participation that Fusion Learning seems to think it was entitled to is well beyond what is required under the Open Meetings Law,” the school committee said in its Jan. 11 opposition (embedded below) to Fusion’s request to file an amended complaint.
U.S. District Court Judge Patti Saris granted Fusion’s request to file its amended complaint with the new allegations on Jan. 18 after reviewing the school committee’s Jan. 11 opposition motion. 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.
Joe Wadland of Andover-based Wadland & Ackerman, who is representing Fusion, said Saris’s decision to accept the amended complaint shows the documents uncovered in discovery “speak for themselves and can’t be undone.”
“Members of the school committee and school administrators violated Fusion’s constitutional rights of due process, equal protection, and academic freedom,” Wadland said. “They also usurped the right of Andover residents to fair and open government, as well as depriving parents the choice of considering Fusion as the best place for their child — a choice that parents of Newton, Hingham and Burlington have under the same state standard applicable to all school districts in Massachusetts.”
Still, the opposition motion offers a glimpse of how the town will mount a defense against the new allegations in the $4 million lawsuit.
Fusion Academy’s Allegations
Fusion claims more than 10,000 documents the town turned over in the trial’s ongoing discovery phase include evidence showing at least three school committee members discussed and drafted a press release announcing the school committee’s first rejection of its application more than a month before the actual vote on April 11, 2019.
The complaint also claims former Chair Shannon Scully “specifically directed that Fusion Academy representatives not be invited to the virtual ASC meeting” in an email sent on March 18, 2021, the same day it met and denied Fusion’s second application. 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. The denial was based on a recommendation by former Assistant Superintendent Sandy Trach.
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 Trach’s recommendation report to “better support publicly their sham vote.”
Scully did not run for reelection last year and now sits on the Andover High School building committee. Last week, she 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 the 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. Blumstein did not respond to a request for comment on Thursday.
Different Interpretations Of Open Meeting Law
The school committee unanimously denied Fusion’s first application in April 2019. Spruce, Scully, current Chair Susan McCready and current committee member Lauren Conoscenti, who was not on the board for the first denial, voted to deny Fusion’s second application. Former school committee member Paul Murphy cast the lone dissenting vote.
Minutes from the committee’s March, 25 2021 meeting do not show participation by Fusion representatives (see page 34 of the opposition motion), but at least five Fusion representatives spoke at the March 18 meeting, where the committee took no action. Fusion representatives also spoke at the March 21, 2019 meeting when the first application was denied, according to the meeting minutes (page 22).
The “Open Meeting Law, provides that…all meetings of a public body shall be open to the public’,” the town’s Jan. 11 motion said. “That is it. Contrary to Fusion’s allegations, meetings of public bodies are not iterative and never-ending.”
While Andover Public Schools has declined comment on the case, citing a policy to not publicly discuss pending litigation, Scully’s suggestion the complaint shows a lack of understanding of the open meeting law mirrors arguments in the district’s Jan. 11 opposition filing. “However, provided no conclusions were reached, the sharing of information among public officials does not constitute a ‘deliberation’ as defined in the Open Meeting Law. On the contrary, it is specifically allowed.”
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 for students in grades 6-12 who struggle in normal school settings. In Massachusetts, it has 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 by 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.