Background to Legal Case

By Sharon Schmidt

CASE tests administered. January 11- 15, 1999. The “1998 Semester I Pilot Form B Chicago Academic Standards Exams” (CASE tests) were administered in Chicago’s high schools. A total of 22 tests were administered — one multiple choice and one constructed response test in eleven subjects.

Substance publishes some of the tests. January 19, 1999. As part of its ongoing critique of Chicago’s testing program, Substance published six of the CASE tests in the January – February 1999 Substance. The issue included more than 25 pages of material on topics other than CASE. Substance mailed the paper to its subscribers and vendors. By January 21, the newspaper began arriving at Substance subscriber’s homes and offices.

Board files for copyright registration. Threatens lawsuit. January 25, 1999. The Board of Education retained attorney Patricia Felch, at that time of the firm of Peterson and Ross, to expedite the Board’s filing of a copyright registration for the CASE tests and prepare a legal case against Substance editor (and Chicago school teacher) George Schmidt and Substance.

Other media coverage begins. Board sues Schmidt and Substance, ex parte. Judge issues three extraordinary writs. January 26, 1999. The Chicago Sun-Times ran an article on the CASE controversy — the first of many reports by local and national newspapers, TV and radio stations.
Schmidt was quoted by the Chicago Sun-Times saying that Substance had published the CASE because the tests were a “curricular atrocity” and that the time had come to debate the educational integrity of the claims of the Vallas administration.
The head of the Board’s legal department, Marilyn Johnson, was quoted by the Chicago Sun-Times saying that the Board would be likely to “file suit to seek up to $1 million in damages” and that an investigation would be conducted and that Schmidt would be disciplined.
Chief Accountability Officer Phil Hansen was quoted by the Chicago Sun-Times saying that it cost “$900,000” to develop the CASE.
The Board of Education rushed through a copyright application for the 1998 CASE at the United States Copyright Office in Washington D.C. The application was received on January 26 and the “certificate of registration” for the 1998 CASE made effective on January 26.
At approximately 4:00 p.m. the Board filed suit in federal court against Schmidt and Substance for copyright infringement and violation of trade secrets.
Felch and her associates from Peterson and Ross — accompanied in court by Board attorney Nancy Laureto (and other Board lawyers under the direction of Marilyn Johnson) — went in front of U.S. District Judge Charles R. Norgle, Sr. ex-parte (without the named defendants being notified).
In addition to filing the suit, which asked for $1 million in damages, they obtained three extraordinary writs from Judge Norgle — a temporary restraining order, an order of protection and a writ of seizure.
The Board’s written motion that asked for the writs stated: “The only reasonable means of repairing that destruction is for this Court to order retrieval of every single copy of the Newspaper, along with any other communication devices that the Teacher-Publishers have used to disseminate the 1998 examination booklets. The Newspaper and other materials already disseminated must be confiscated, even if it takes the U.S. Marshals going to every Chicago Public School teacher’s home. The unauthorized copies must be destroyed.”
In court, after a brief discussion with Felch, which was interrupted once by a comment from Board attorney Nancy Laureto, Judge Norgle accepted the Board’s complaint against Schmidt and Substance and the motion for the three writs. Norgle signed an order that said that the temporary restraining order, the writ of seizure and the order of protection were “in effect until 9:30 a.m. on Friday, January 29, at which time the Board may seek an extension, and/or defendants may appear.”
By the end of the afternoon, Norgle had decided the case on both the facts and law without Schmidt or anyone from Substance being present.
Schmidt, who had been working at Bowen High School on January 26 teaching his four English classes and doing his job as security coordinator, found out that he and Substance had been sued from reporters who called him at his home in the late afternoon.
That evening three TV news programs ran segments on the “educational atrocity” of CASE and the city’s response to its publication in Substance.
As part of all the newscasts, Mayor Richard M. Daley was shown fuming. Daley, on the TV news, said: “Who are these teachers? What kind of people are they? We should find out where they live.”(Channel 2). “What kind of teachers are they? What, do they want to cheat and have the kids get a phony grade? What, are they worried about their salaries?” (Channel 32).

More media interest. Growing interest in other Chicago test abuses. January 27, 1999. Reports on the Board’s suit against Schmidt and Substance and the Board’s plan to fire Schmidt from his teaching position appeared in the Daily Southtown, the Chicago Tribune, the Chicago Sun-Times, and on WGN TV and Fox 32. Board president Gery Chico was quoted in the Chicago Daily Southtown saying that Board officials would get back at Schmidt and Substance for their previous exposés: “We’ve sat by for 36 issues [of Substance],” Chico said. “We’ve been ridiculed and we haven’t done a thing.”
Schmidt and Substance’s attorney, Alan Barinholtz, spent the day attempting to obtain information from the Board’s legal department. Late in the afternoon, Board attorney Marilyn Johnson finally provided Barinholtz with the legal paperwork that had been filed 24 hours earlier and discussed with numerous reporters.
Chicago media became interested in other school testing issues. The Chicago organization Parents United for Responsible Education (PURE) held a packed press conference on the Chicago Board of Education’s harmful retention and testing policies. Although PURE’s speakers and their literature focused on the Iowa Tests of Basic Skills (administered to elementary school children and used by the Board to retain students in the third, sixth and eighth grades) some reporters continued to ask, “But what about CASE?”

Anti-Substance editorials. January 28, 1999. Both the Chicago Tribune and the Chicago Sun-Times ran editorials against Schmidt and Substance.
The Chicago Sun-Times said that Schmidt’s actions were “damning.” The Chicago Tribune said that Schmidt had published the CASE as an act of “sabotage,” which, the editorial stated, was “far worse” than if he had passed out the questions before the test. The editors called his conduct “un-teacherly” and said he should be fired.
The Chicago Tribune stated that Norgle had violated Schmidt and Substance’s First Amendment rights by signing the order.

Court date. January 29, 1999. Schmidt, other Substance staff members and their attorneys finally had their first day in court. Judge Norgle lifted the temporary restraining order and the writ of seizure. Schmidt heard plausible legal rumors that if he resigned from his teaching position the Board would drop the lawsuit.

Schmidt’s last day at Bowen high school. February 1, 1999. Schmidt went to his job at Bowen High School, which turned out to be his last day at the school. In the evening, a Board process server came to his home with a letter ordering him to report to the Office of Schools and Regions, at 125 S. Clark Street, to the department known as “Camp Beverly,” effective February 2.

Sun-Times smear campaign. February 23, 1999. Chicago Sun-Times columnist Raymond Coffey libeled Schmidt on behalf of the Vallas administration. He reported a 1997-98 Board investigation against Schmidt, rehashing unproven allegations, without contacting Schmidt.

Public denouncements of Schmidt at board meeting. Investigation planned. February 24, 1999. At the monthly Chicago Board of Education meeting, President Gery Chico announced that the Board had hired attorney Fred Bates to investigate Schmidt. Bates spent several weeks searching through Schmidt’s classroom at Bowen and interviewing Bowen staff and community people in an attempt to find any wrongdoing.

Schmidt suspended without pay. March 5, 1999. A “pre-suspension hearing” was held at Board headquarters, 125 S. Clark Street. Board attorneys read the charges against Schmidt, stating that he violated Board policy by publishing the CASE tests in Substance.
Schmidt’s attorney said that Schmidt denied the charges and that his use of the CASE in Substance was protected by the First Amendment and the Fair Use provision of the Copyright Act. Schmidt’s position was that any employment decision in response to his constitutionally protected activity as Substance editor was a violation of his constitutional rights.
The Board’s hearing officer held that Schmidt be suspended without pay. Four hours later, a security officer presented Schmidt with a letter signed by schools CEO Paul Vallas notifying him that “based on the pre-suspension hearing held on March 5” Schmidt was suspended without pay. The security officer escorted Schmidt out of the Board’s central office building.

Counter suit filed. April 2, 1999. Schmidt and Substance filed suit against the Board for violation of First Amendment rights. In May, Board lawyers filed a motion to dismiss Schmidt and Substance’s counterclaim.

Judge rules against Substance motion. June, 1999. Schmidt and Substance filed a motion to dismiss the Board’s charge of a violation of trade secrets, noting that the Board is a governmental body and Illinois Trade Secrets laws protect private corporations. In July, Judge Norgle denied Schmidt and Substance’s motion to dismiss the Board’s trade secrets complaint.

Discovery begins. August, 1999. Attorneys for the Board and for Schmidt and Substance exchanged discovery requests and legal paperwork. Norgle encouraged attorneys to settle the case before it went to trial.
Norgle suggests case is about “theft”. September 23, 1999. A status hearing was held in front of Judge Norgle. Norgle stated that Board’s suit against Schmidt and Substance was a “theft” case and that Schmidt should be tried separately from Substance. Norgle scheduled another status hearing for September 30.
Schmidt explains Norgle’s error. Norgle convinced, but calls Schmidt “recalcitrant” for wanting his job back and delays setting trial date. September 29, 1999. Schmidt and Substance’s attorneys submitted a memo, “Defendants’ Memorandum on the Issues of Bifurcation, severance or ‘trial splitting,’” that explained to Norgle that Schmidt was not charged with theft.
In addition, the memo explained that the case was unprecedented, that it was a lawsuit involving a newspaper reporting the activities of municipal government. It was a First Amendment case, not a copyright case, the memo explained.
On September 30, 1999, Norgle told Schmidt’s attorney, “You convinced me,” regarding the issue of trial splitting. Norgle said he understood that Schmidt should not be tried separately from Substance.
Norgle told attorneys for Schmidt and Substance and for the Board to have another conversation (outside his courtroom in a conference room) about settling the case and report back to him as soon as they were finished.
Felch, Marilyn Johnson and two other Board lawyers met briefly with Schmidt’s lawyers Alan Barinholtz, Mark Barinholtz and Jeff Boulden. The Board attorneys had previously suggested the possibility of a settlement. Attorneys for Schmidt and Substance said they would only settle the case under the condition that Schmidt be reinstated to his teaching position, with the back pay and benefits owed to him. The Board refused.
Norgle called Schmidt and Substance “recalcitrant” and scheduled the next hearing for November 1. At that hearing, Norgle told attorneys that before setting a trial date he would rule on any outstanding motions.
Board pays $35,000 for secret investigation of Schmidt. November 17, 1999. The Board authorized a $35,000 payment to Fred Bates for his investigation of Schmidt that began in February. The Board denied Substance’s Freedom of Information Act request to receive a copy of Bates’ report.
Board officials made no public comments about the findings of the investigation. Nothing in the information Bates gave the Board from his investigation was used against Schmidt in the Board’s termination case against Schmidt.

Second City benefit. November 21, 1999. Hundreds of supporters attended a special performance of the Second City for the Substance legal defense fund benefit.
George Schmidt and Substance retiree editor Al Korach thanked supporters for their help. Schmidt and Jeff Boulden reviewed the case.
“In order to stop the public discussion of those dumb tests, they had to come up with a magic number that would scare people,” Schmidt said. “They came up with America’s favorite big money number: $1 million. Their goal wasn’t to recover damages, but to prevent continued public discussion of an important public event — the abuse of standardized tests by the Daley and Vallas administrations.”
One of Substance’s lawyers, Jeff Boulden, explicated the issues of First Amendment rights and Copyright Law as they applied to the Substance case. “The school board sought to prevent the public’s access to the CASE tests through the use of the protection afforded by the copyright laws of the United States,” said Boulden. “The goal of copyright, to quote the Constitution, is to ‘promote the advancement of science and other useful arts by encouraging authors and inventors to share their ideas with the public.’ To do this, copyright protects an author’s financial interest in his creation.
“Are we to take the position that a government’s economic interest in a test should trump the First Amendment? In the Pentagon Papers case our Supreme Court held that national security in a time of war did not trump the rights of free speech and the press.”

Norgle throws out counterclaim. January 4, 2000. Judge Norgle granted the Board’s motion to dismiss Schmidt and Substance’s First Amendment and Fair Use counterclaim.

Termination hearing against Schmidt. January 18, 2000. The Board’s employment termination case against George Schmidt began in front of Illinois State Hearing Officer Michael Gerstein. The Board charged Schmidt with violating four sections of the Chicago Public School’s Employee Discipline Code:

“Section 3-19, which prohibits any act or conduct in violation of or failing to perform any duty required by the Chicago Public School’s Code of Ethics;
“Section 3-21 which prohibits the use of school property for unauthorized purposes;
“Section 4-8 which prohibits any conduct which is cruel, immoral, negligent or criminal;
“Section 4-9 which prohibits violations of school rules, Board rules, policies or procedures which result in behaviors that grossly disrupt the orderly educational process in the classroom or in the school and may occur on or off of school grounds or assigned work location.”

Board attorneys made opening statements and called three witnesses: Phil Hansen, the Chief of Accountability; Carole Perlman, the Director of Student Assessment; and Adelbert Kouba, the Director of Business Management Services for the Office of Accountability.

Hearing continues. Judge Norgle’s incompetence shown in another case. January 19, 2000. Monty Neill, the executive director of FairTest, one of Schmidt’s expert witnesses, testified on behalf of Schmidt. He was allowed to testify during the Board’s case (which was presented before Schmidt’s defense) due to his travel constraints. Neill testified to the poor quality of the CASE tests.
The Board continued its case against Schmidt by calling Bowen Principal Alejandra Alvarez, Bowen “CASE coordinator” Judy Wiatrowski, and George Schmidt as an “adverse witness.”
In a separate case, the U.S. Seventh Circuit Court of Appeals overturned Judge Norgle’s February 1999 decision against City Treasurer Miriam Santos. Santos, the top-ranking Hispanic official in city government who had often been at odds with Daley, had been convicted with misusing her office to raise funds for the state Democratic Party. On January 20, 2000, Santos was released from jail, where she had served four months of a 44-month prison term, sentenced by Judge Charles Norgle.

Judge Norgle reconsiders counterclaim. Hearing continues. January 20, 2000. Norgle granted Schmidt and Substance’s motion to reconsider his January 4 decision (to grant the Board’s motion to dismiss Schmidt and Substance’s counterclaim). Norgle requested further explanations from the Board and Schmidt and Substance.
Schmidt continued his defense in the Board’s termination case with testimony by Gerald Bracey, one of the most widely read authors on educational testing, who testified that the CASE tests were seriously flawed.
George Schmidt testified about his teaching career with the Chicago public school that began in 1969, and his involvement with Substance that has been ongoing since 1975.

Hearing continues. January 21, 2000. Schmidt finished his testimony, testifying about the publication of the CASE tests in the January-February 1999 Substance.
Bowen teacher George Cummins testified as a rebuttal witness to the testimony of the Bowen principal, who had testified against George Schmidt.

The hearing was continued until March 13.
[A complete report on the January hearing proceedings appeared in the February Substance, pages 19 – 48].

Hearing continues. March 13, 2000. The Board was allowed to present a witness in an attempt to rebut Schmidt’s experts, Neill and Bracey. The Board called Thomas Kerins, the assistant superintendent to improvement, standards and assessment for the Springfield public.

Closing arguments submitted. June 1, 2000. Attorneys for the Board and attorneys for Schmidt submitted written closing arguments to hearing officer Gerstein.

Counterclaim dismissed. June 16, 2000. Judge Norgle affirmed his January 4 decision to grant the Board’s motion to dismiss Schmidt and Substance’s First Amendment counterclaim and defenses.

Schmidt and Substance will appeal to the United States 7th Circuit Court of Appeals, when the federal rules permit such an appeal.

Final arguments in termination hearing. June 23, 2000. Schmidt’s attorney, Alan Barinholtz, and Board attorney, Nancy Laureto presented their final arguments to the hearing officer.
Barinholtz stated that the Board had not met its Burden of Production, let alone its Burden of Proof, in the charges against Schmidt.
Barinholtz also argued that the First Amendment, the Fair Use Doctrine of the U.S. Copyright Law, and the Illinois Whistleblower Act protected Schmidt’s right to publish the six CASE tests.
Hearing officer rules praises Schmidt and rules against him. July 14, 2000. Illinois State Hearing Officer Michael Gerstein recommended that the Board fire Schmidt. [See the September 2000 Substance for more information].
Gerstein said that the Board did not prove its two most serious charges against Schmidt: 1) that he had caused a “gross disruption of the educational process” and 2) that he had been cruel, immoral, criminal or negligent.
However, Gerstein stated that the Board proved that Schmidt had used Board property without Board authorization and that he violated Board policy by publishing the test. Gerstein accepted the Board’s claim that the six CASE tests had cost the board in excess of $1 million to create. Gerstein said that he wanted to recommend a lesser penalty for Schmidt, but that state rules did not allow it.
In his 20-page opinion, Gerstein praised Schmidt. “Everything in the record indicates that Mr. Schmidt is a fine teacher,” he said. “Everything in the record indicates that Mr. Schmidt is dedicated to his students. Everything in the record also indicates that Mr. Schmidt’s publication of the CASE examination was motivated by his desire to do what’s best for the students. The public school system needs teachers like George Schmidt.”
Gerstein said that he was following Judge Norgle’s decision that Schmidt had no First Amendment or Fair Use defenses for publishing the CASE. Gerstein said that Schmidt did not prove a Whistle Blower defense.
The Chicago Board of Education votes to fire Schmidt. Hundreds protest. August 23, 2000. The Board voted 6-0 in favor of the motion to dismiss Schmidt. Board member Norman Bobbins did not vote.
Public school teachers, university professors, authors, activists, parents, and concerned citizens from across the United States and in Chicago had tried to influence the Board members not to fire Schmidt.
They wrote letters to Paul Vallas, Gery Chico and the Board members, urging them to reinstate Schmidt to his teaching position at Bowen High School. Some supporters left phone messages with Vallas and Chico’s secretaries; others delivered petitions to the Board.
The support for Schmidt came in two waves, in July and August just prior to the July and August board meetings.
After reading a message posted on the Internet on Monday, July 24 that stated that the Board might vote at the Wednesday, July 26 meeting to terminate Schmidt, approximately 50 people responded over the next 48 hours with their letters and phone calls to the Board.
Another outpouring of support occurred for a few days in August, between Friday, August 18 and Wednesday, August 23 after more people became aware that the vote against Schmidt would take place.
The letters stressed the First Amendment of the U.S. Constitution, which guarantees freedom of the press; Schmidt’s exemplary record as a teacher; the poor quality of the CASE tests and the public’s right to know the content of high-stakes tests.
During the public participation section of the Board meeting, several people made speeches urging the Board not to vote against Schmidt.

Schmidt appeals termination. October, 2000. Schmidt filed suit against the Board in Cook County Circuit Court. This is the form that Schmidt’s appeal of the Board’s August 2000 firing must take. The case is presently on hold because the judge agrees with Schmidt that much rests on the federal adjudication of the constitutional issues we have raised.

Another fund raiser. January 15, 2001. Substance held a fund raiser at The Second City. Hundreds attended. Thousands of dollars were raised to pay legal expenses.

New judge. Winter – Spring, 2001. The Board’s $1.3 million case was reassigned from Judge Norgle to Judge John Darrah. Over the next few months, Darrah periodically met with lawyers from the Board and Substance. The trial date was set for September 19, 2001.

Trial postponed. August, 2001. After two discussions with counsel, Darrah agreed to the postponement of trial from September 19, 2001, to January 7, 2002. Darrah told attorneys that this would be the last postponement in the case.

Substance deposes Board officials. September, 2001. Substance attorneys conducted depositions of five major witnesses for the Chicago Board of Education: Former CEO Paul Vallas (retired June 2001); Chief Accountability Officer Phil Hansen; Joseph Hahn, director of research, evaluation and quality review; Carole Perlman, director of citywide testing; and Adalbert Kouba, who is Director of Business Management Services for the Office of Accountability for the Chicago Board of Education.
In the course of five days of depositions, Substance attorneys uncovered contradictions and misrepresentations, showing that the board had consistently misled the court throughout the current litigation.

Substance submits motion to reverse Judge Norgle’s decisions. October 24, 2001. Substance attorney Mark Barinholtz presented the following material to Judge John Darrah in hopes that, in light of the information uncovered during the depositions, that Darrah would reverse Judge Norgle’s decision to throw out Substance’s First Amendment and copyright law defenses and rejection of Substance’s First Amendment counterclaim.

The material presented to Judge Darrah on October 24, 2001, included the following:

• An eight page “Motion to Vacate and/or Reconsider Dismissal of Certain Affirmative Defenses… Due to False Representations to the Court.”
  
  
• The “Motion to Vacate” was backed up by a 30-page “Memorandum [of law] in Support of Motion to Vacate…”
  
  
• As evidence supporting the Motion and the Memorandum, Substance attorneys compiled a “Schedule of Exhibits…”

The Schedule included more than 250 pages of documents and testimony that had been compiled during the course of Substance’s discovery.

Judge Darrah rules against Substance. October 30, 2001. Judge Darrah rejected the entire Substance argument in four sentences. He stated: “This matter comes on this morning on defendant’s motion to vacate and/or reconsider dismissal of certain affirmative defenses. I’ve read the motion. I’ve read the memorandum in support of it. And there is no authority for the relief you seek. The motion is denied.”
Darrah did not handle the motion, which involved questions of fact and law, in a standard way (which would be for the judge to schedule a briefing schedule so that both side have a chance to tell their versions of events and their interpretations of the law in writing. Then oral arguments are scheduled so that the matter can be discussed in open court in front of the judge, who often asks questions of both sides).

Another fund raiser. November 11, 2001. Two hundred subscribers and supporters attended Substance’s annual fundraiser at The Second City. Many more contributed to the paper’s legal defense fund, but chose not to attend the event, which grossed over $10,000 in ticket sales and contributions for the Substance legal defense and survival fund between August 1, 2001 and November 31, 2001. The Substance net was at least $6,000, all of which went towards legal expenses.
Board tries to delay trial. Darrah refuses. Board gets another judge. December 6, 2001. Judge Darrah emphatically denied the Board lawyers’ request that the trial be delayed from its scheduled January 7, 2002. In order to get the delay, Board lawyers asked Schmidt and Substance’s lawyers to agree to move the case to a “magistrate judge.”
In federal court, a magistrate judge is equal to the sitting judge and is empowered to hear cases that are not criminal cases. Magistrate judges are different from other federal judges in a couple of ways. They cannot try felony cases, and they are not appointed to life terms. They also have smaller courtrooms, which may have influenced the board, which wants to minimize public scrutiny of its lies.
Substance and Schmidt agreed. (As early as February 1999, Substance attorneys had suggested going to the magistrate judge rather than continue the case in front of Charles Norgle, the first judge on the case). Under the federal rules, the move from Judge John Darrah to Magistrate Judge Edward Bobrick was automatic. The move delayed trial again. Judge Bobrick asked both sides to provide him with the complete record of the case for review.

Third judge encourages settlement. January 15, 2002. At a status hearing, Judge Bobrick encouraged lawyers for Board and Schmidt and Substance to settle. On February 4, 2002, a crowd of supporters waited outside the judges chambers while lawyers from both sides discussed the case. Another status meeting with the lawyers in Bobrick’s private chamber was held on March 4, 2002. The content of the conversations cannot be disclosed to anyone other than the lawyers’ clients.
Huge legal costs for Substance, paid for by Substance subscribers and supporters through ongoing donations. Substance’s total legal fees and related costs since the case began in January 1999 passed $100,000 as of March 2002. Substance has paid almost all of the legitimate portions of that huge bill. The balance of the bill from one lawyer — no longer part of the Substance legal team — who was less than adequate in his representations is being paid on a protracted schedule. The Substance legal team at this point consists of Alan Barinholtz, Mark Barinholtz, and Elaine Siegel.
The legal costs continue and will likely increase again. Once the case is finished at the district court level, the main constitutional questions (that Norgle ruled against) have to be appealed to the Seventh United States Circuit Court of Appeal.

Board’s costs grow. March 27, 2002. The Chicago Board of Education approved a payment of $25,000 to the law firm of Banner & Witcoff for work done by attorney Patricia Felch and others from the firm in the litigation known as “Chicago School Reform Board of Trustees v. Substance and George N. Schmidt.” The payment was at least the fifth time since January 1999 that Chicago’s school board had voted to pay expensive outside lawyers to perform work on the Substance case. The payment brought to more than $200,000 the amount the Board of Education has voted on-the-record to pay to outside lawyers in the three-year-old lawsuit.
In addition to the amount spent on outside lawyers in the litigation, the school board has also deployed several of its own in-house lawyers in the case. In April 2002, three board attorneys (Marilyn Johnson, Robert Hall, and Nancy Laureto) filed appearances in the federal court.

Board files for summary judgement. March 28, 2002. The Board filed a motion requesting a summary judgement of the case from Magistrate Judge Bobrick. The Board is asserting that all the issues of fact and law have been decided and there is no reason to have a jury trial. The only remaining thing to go before a jury (if Bobrick grants their motion for a summary judgement) would be the amount of damages.

Substance files answer to Board's motion. May 24, 2002. Substance stated that the Board is not entitled to judgment as to liability on its copyright claim because (1) the Board procured its copyright registration by means of a fraud on the Copyright Office, (2) the Board has misused its copyright, (3) the Board has misled the Court and is otherwise guilty of "unclean hands".

Judge Bobrick attempts to negotiate a settlement between the Board and Schmidt and Substance. September 3, 2002. After a status hearing, Judge Bobrick met in his chambers with lawyers for the Board and Substance. Then he met in another private meeting with Schmidt and the Substance lawyers. The details of those conversations and the dramatically reduced amount of damages that the Board offered in order to settle with Substance to avoid trial are considered confidential. Schmidt refused the deal.

Chicago teachers promise to boycott CASE. September 23, 2002. Twelve English and history teachers from Curie High School informed schools CEO Arne Duncan in a letter that they intended to refuse to administer the CASE tests in January 2003.

Curie teachers honored at Substance benefit. November 10, 2002. Supporters helped raise almost $10,000 for Substance's legal defense. About 200 attended the Substance benefit at Second City, where George and Sharon Schmidt presented the Curie teachers with gifts of books from educational writers and activists across the country.

Board lawyers withhold information. December 5, 2002. At a status hearing, Judge Bobrick instructed lawyers for the Board and Substance to return to court on March 3 with all pretrial activities completed. He said that at that time he would schedule a "quick trial date." The Substance lawyers noted that they had not received many documents from the Board pertaining to CASE. They told the judge that they were planning to re-depose Board administrators Phil Hansen, Carole Perlman and Adelbert Kouba. In addition, the lawyers said that they would be travelling to California to depose officials from UCLA's CRESST, the testing center that the Board consulted with in creating the CASE tests. Board lawyer Nancey Laureto did not mention that school officials would be announcing the end of the CASE testing program to the judge or to the Substance lawyers. Her refusal to disclose that information caused both sides to have to appear before the judge the next day after the Chicago daily newspapers reported the end of CASE.

Board drops CASE. December 5, 2002. School officials informed the press and other individuals that they were ending the CASE testing program in the high schools. In January 2003, however, the Board administered the exams to some seventh and eighth graders in the city's gifted programs in the elementary schools.

Settlement talks on damages issue continue. December 6, 2002; December 13, 2002. Judge Bobrick held two more status hearings with lawyers for the Board and Substance to help negotiate a settlement on damages after it became known to him and to Schmidt and the Substance lawyers that CASE was finished.

Stipulation entered. January 21, 2003. Judge Bobrick signed the agreement between the Board and Schmidt and Substance stating that the parties have agreed to avoid further proceedings on the damages issue. The Board and Schmidt and Substance signed a stipulation which states that Substance and Schmidt will pay the Board a total $500 if they lose all appeals on the constitutional issues they have raised. Schmidt and Substance to appeal.

June 2003. Substance lawyers are finalizing the appeal to the United States Circuit Court of Appeals for the Seventh Circuit, which will be entered on June 18, 2003. Schmidt and Substance will assert that a newspaper has the First Amendment right to inform its readers thoroughly of the issues before them. The government has no more right to hide behind copyright in the CASE case than it did to hide behind "military secrets" in the Pentagon Papers case. Both are pretexts for subverting the First Amendment. The appeal also includes all of the lesser items that Schmidt and Substance have contested since the litigation began. These include the right to defend the publication of the CASE materials based on "Fair Use" and on Schmidt's rights as an employee to blow the whistle on waste and mismanagement in the school system.