Students Got 'ACT Help Files' for Exam, Fired Teacher Says

     DETROIT (CN) - A Michigan school district fired a high school teacher for reporting that the school helped students cheat on the standardized ACT exam by loading "ACT help files" onto school calculators that students could use during the test, the teacher claims in court.
     Scott Herlein sued the Fremont Public School District, its Board of Education, Superintendent James Hieftje, and the seven members of the School Board, on July 31 in Federal Court.
     The school district hired Herlein in 2005 to teacher Spanish, math, psychology and French, Herlein says in the lawsuit.
     "On March 4, 2014, plaintiff Herlein was serving as a room supervisor while the ACT exam was being taken by students at the Fremont Public High School. During the ACT exam, the students were permitted to use school calculators provided by the school," the complaint states.
     Michigan public schools assess school performance based on students' standardized test scores, including the ACT. Some colleges use ACT scores as a factor in admissions.
     "Plaintiff Herlein noticed that the calculators provided by the school for use during the exams contained information that had been downloaded onto the calculator," Herlein says in the lawsuit.
     "The calculators contained preloaded 'ACT help files.' The 'ACT help files' included information that was related to the content of both the 'Day 1 ACT mathematics assessment' and the 'Day 3 Michigan mathematics assessment.'
     "Plaintiff Herlein suspected that the 'ACT help files' that were downloaded onto the calculators and that were provided to students during the exams violated the law."
     Herlein says he reported this to the Michigan Department of Education (MDE). When he got no response, he says, he contacted local media.
     "The State, through MDE, eventually conducted an investigation into Mr. Herlein's report and found that staff of Fremont Public Schools had loaded ACT 'help information' onto the school calculators that students had used in an ACT Prep class. The help information was then preloaded onto the school calculators just prior to the administration of the ACT test and the MME [Michigan Merit Examination] exam," the complaint states.
     "The MDE, through its investigation, estimated that about 60 percent of the students taking the ACT and the MME exam used calculators with the preloaded ACT help information.
     "The defendants conducted an investigation concerning plaintiff Herlein's anonymous report. On or about May 5, 2014, plaintiff Herlein was interrogated by agents of defendants. Plaintiff Herlein admitted that he had filed a report with the MDE."
     On May 14, the MDE issued an "Irregularity Findings and Remediation" notice to the school district, Herlein says in the complaint. "The MDE stated that 'concerns do remain regarding the ACT Help Information file that was placed on school-owned calculators, and made available for use on the MME.' The MDE also required defendant Fremont Public School District to comply with three 'remediation' points during the administration of future state assessments."
     On May 21, Superintendent Hieftje gave Herlein a letter saying he would be fired on "tenure charges." The lawsuit does not explain what the "tenure charges" were, but Herlein says he denied them.
     On May 30, the School Board voted unanimously to fire him, based on the tenure charges.
     That was a sham, Herlein says: "Defendants terminated plaintiff for engaging in protected First Amendment free speech, including without limitation, filing a report with the MDE and ACT and contacting local news media.
     "Plaintiff Herlein was speaking as a citizen on a matter of public concern. The administration of state assessments, the results of state assessments and any irregularities regarding state assessments are matters of public concern."
     Herlein seeks damages under the Whistleblower Act, and for retaliation.
     He is represented by Kurt Kline with Kalniz, Iorio & Feldstein in Grand Rapids.
     Standardized test scores have become increasingly important for public schools in the past generation, particularly since Congress passed the No Child Left Behind Act in 2001. School funding, employee bonuses, and sometimes a school's very existence, may hinge upon results of students' standardized test scores. Critics have said that the system creates pressure to cheat, and cheating scandals have led to scandal and lawsuits in several school districts, including Atlanta, Houston and Philadelphia.