Webb v. Paine

• Decision Date: 26 January 2021
• Docket Number: Civil Action No. 2:19-cv-00447
• Citation: 515 F.Supp.3d 466
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Jason WEBB, Plaintiff, v. Steven L. PAINE, State Superintendent of Schools, in his individual capacity and official capacity ; and Jan Barth, Assistant State Superintendent of Schools, in her individual capacity and official capacity, Defendants.

515 F.Supp.3d 466

Jason WEBB, Plaintiff,

v.Steven L. PAINE, State Superintendent of Schools, in his individual capacity and official capacity ; and Jan Barth, Assistant State Superintendent of Schools, in her individual capacity and official capacity, Defendants.

Civil Action No. 2:19-cv-00447

United States District Court, S.D. West Virginia, at Charleston.

Signed January 26, 2021

Andrew C. Robey, Jonathan Zak Ritchie, Michael B. Hissam, Ryan McCune Donovan, Hissam Forman Donovan Ritchie, Charleston, WV, for Plaintiff.

Jan L. Fox, Mark C. Dean, Michelle E. Gaston, Steptoe & Johnson, Charleston, WV, Michael J. Farrell, Farrell White & Legg, Huntington, WV, for Defendant Dr. Steven L. Paine.

Jan L. Fox, Mark C. Dean, Michelle E. Gaston, Steptoe & Johnson, Charleston, WV, for Defendant Jan Barth.

MEMORANDUM OPINION AND ORDER

John T. Copenhaver, Jr., Senior United States District Judge

Pending are plaintiff Jason Webb's motion for summary judgment, filed August 20, 2020, ECF No. 68, and defendants Steven L. Paine and Jan Barth's motion for summary judgment, filed August 21, 2020. ECF No. 70.

I. Background

Plaintiff is a registered lobbyist in West Virginia who was hired by the national testing company ACT, Inc. ("ACT") to provide lobbying services in West Virginia, with the contract being entered into on January 25, 2016 for a period of six months. Webb Dep., ECF No. 68-8 at 196:13-197:13. The contract between plaintiff and ACT was continually extended until July 2019. Id. at 218:3-10. Defendant Paine was Superintendent of Schools, from March 27, 2017 until February 21, 2020. Paine Dep., ECF No. 68-4 at 18:7-14, 202:9-13. Defendant Barth began work as a special assistant in mid-April 2018, being promoted to Assistant Superintendent of Schools on July 1, 2018. Barth Dep., ECF No. 68-1 at 39:10-21.

In 2016, prior to defendants arriving at the West Virginia Department of Education ("WVDE"), legislation was introduced in both chambers of the legislature that would have enshrined ACT as the chosen provider of educational assessments in West Virginia. Prior to being replaced, the Smarter Balanced test, an assessment of Common Core standards produced by a partnership between the Smarter Balanced Assessment Consortium and the American Institute of Research ("AIR"), was the statewide assessment for students in West Virginia. ECF No. 68-8 at 32:9-22; see also AIR, AIR Partners with Smarter Balanced Assessment Consortium to Create an Online Test Delivery System for States, https://www.air.org/resource/air-partners-smarter-balanced-assessment-consortium-create-online-test-delivery-system (Sep. 6, 2012). Senate Bill 676 would have expressly made ACT the provider for students in grades 3-8 and the 11th grade, and House Bill 4024 would have expressly made ACT the provider for the 11th grade test only. ECF Nos. 70-5, 70-6. Neither bill advanced from its respective chamber; however, a similar bill, House Bill 4014, would have required West Virginia to adopt a test with the exact testing structure of ACT's products by requiring that the test assess the five subject matter areas contained in the ACT exam, consisting of English, reading, writing, science, and mathematics. ECF No. 70-7. HB 4014 was passed by both chambers and vetoed by Governor Tomblin in 2016. Id.

On February 27, 2017, a sweeping education bill, House Bill 2711, was introduced in the House "by request of the Executive," i.e., by the request of newly elected Governor Justice. ECF No. 70-10. The House Education Committee amended the language of the bill to require the statewide 11th grade assessment test for the five subject areas contained in the ACT test. Id.; see also ECF No. 68-8 at 39. Senate Bill 18, introduced around the same time as HB 2711, originally named ACT as the assessment provider, but the Senate Educational Committee determined it would be inappropriate to name a specific provider and that the assessment should be decided through the normal bidding process. Stewart Dep., ECF No. 70-11 at 47-48. The amended language calling for the five components contained in ACT's products was removed when HB 2711 arrived in the Senate. ECF No. 70-10. Plaintiff testified that Senator Kenny Mann, the Chair of the Senate Education Committee, informed him that while he wanted the ACT test to be the statewide assessment, Paine had represented to him that removing the pro-ACT language would not damage ACT's chances of being selected. ECF No. 68-8 at 70:20-71:20. Sarah Stewart, in-house counsel for WVDE, believes that it was in fact the Governor's request that the language be removed that led the Senate to do so. ECF No. 70-11 at 42-44. Regardless of the hearsay statements attributed to Mann and Stewart's belief, it is noted that HB 2711 was enacted into law on April 26, 2017, opening a selection process for an assessment for grades 3-8 and the 11th grade, without language that specifically favored ACT. See 2017 W.V. HB 2711.

Subsequently, WVDE opened a public bidding process for two statewide assessments: one for students in grades 3-8, and one for students in the 11th grade. Rhudy Dep., ECF No. 70-17 at 24. ACT placed a bid to provide its "ACT Aspire" exam for grades 3-8 and its ACT test for 11th grade students. Id. ACT's primary competitor, the College Board, submitted the only other bid for the 11th grade assessment, with its SAT test. Id. at 32. AIR submitted a bid for grades 3-8, with the Smarter Balanced test. ECF No. 68-8 at 132. After bids were submitted, a blackout period began, in which communications between vendors and WVDE were prohibited to maintain integrity in the bidding process.

Id. at 117. Plaintiff testified that despite the blackout, Paine approached him at an event for school administrators on June 20, 2017 and told him "we are not going to use that – that 3-8 [test], that Aspire. That's junk," and then walked away. Id. at 118-19. Paine testified that he did not recall such an encounter and that he seriously doubted he would say something to that effect. ECF No. 68-4 at 55-57.

In the late summer of 2017, both the ACT test and the SAT test were disqualified in their initial bids with the WVDE, as both vendors' applications were missing mandatory portions in order to be considered. ECF No. 70-17 at 31. Accordingly, the WVDE opened a second bidding process, in which College Board and ACT submitted applications again for consideration for the 11th grade exam. Id. The College Board, with its SAT test, was awarded the contract for the 11th grade assessment in the rebidding. Id. ACT filed an official protest with the scoring process, contending that (1) only the ACT adequately addressed the WVDE's requirement for a science assessment and (2) certain points were improperly deducted from ACT and, if those deductions were applied equally, it would have resulted in the SAT being disqualified. ACT Protest, ECF No. 70-21. WVDE then reanalyzed and rescored ACT's bid, which resulted in ACT being awarded an additional 15 points but still falling short of the minimum score of 50 to be considered as an option. Hutchens Dep., ECF No. 70-14 at 24. ACT did not exercise its right to appeal this decision to the state circuit court. ECF No. 68-8 at 130. Thus, the College Board remained the winner of the bidding process for the 11th grade test. ECF No. 70-14 at 24. ACT lost the bid for the assessment of grades 3-8 to AIR. ECF No. 68-8 at 132-33. ACT did not formally protest the award of the bid to AIR. Id.

Even though ACT was not selected as the statewide provider for either assessment, it still had the opportunity to be selected as an assessment provider on the county-level under a policy known as the "local option." The local option procedure is provided for under the Every Student Succeeds Act (ESSA), a federal law passed in 2015. See Pub.L. No. 114–95. According to Dr. Vaughn Rhudy, Executive Director of the WVDE Office of Assessment, the procedure provided for under ESSA is lengthy and complicated, requiring interaction with federal regulators and federal law, as well as a peer-review process and required submissions. ECF No. 70-17 at 69-73. Paine testified that ACT nonetheless expressed interest in pursuing the local option, through Scott Frein, a national lobbyist for ACT and Scott Montgomery, a Vice President of ACT. ECF No. 68-4 at 73. Paine likewise expressed enthusiasm for working with ACT to provide a local option. Id. A collaborative process between ACT and WVDE to prepare for the peer-review process required by ESSA ensued between May 11, 2018 and May 2, 2019. See ECF No. 70-52.

On February 13, 2018, Senate Bill 532 was introduced, which would have required WVDE to develop a process for providing a local option to counties of either the SAT or the ACT for the 11th grade assessment. ECF No. 70-24. Plaintiff testified that Chairman Mann informed him that Paine had met with Chairman Mann and Senator Rucker to advise them that the WVDE could and would give counties the power to opt for whichever test they preferred in Spring 2019, and that SB 532 was thus unnecessary. ECF No. 68-8 at 155. Paine testified that he did not recall this meeting, but if it happened, he likely would have informed the senators that WVDE was already seeking approval from the U.S. Department of Education for the local option. ECF No. 68-4 at 73-74. Regardless of the hearsay statement attributed by plaintiff to Chairman Mann, it is noted that Mann pulled the bill and read a statement drafted by WVDE on the floor of the Senate, stating that counties would have the choice between the SAT and the ACT starting in 2019. ECF No. 68-4 at 76:15-77:5. In 2019, the legislature passed Senate Bill 624, which would have created a local option. ECF No. 70-41. WVDE took the position that SB 624, like SB 532, was unnecessary given the federal process for approving the local option. ECF No. 70-11 at 89. Governor Justice vetoed the bill on March 27, 2019, reasoning that it conflicted with another statute that...