A lobbyist for the group behind the ACT standardized test is suing West Virginia’s state schools superintendent and an assistant state superintendent.
Jason Webb alleges that state Superintendent Steve Paine repeatedly discriminated against ACT’s attempt to win the statewide standardized testing contracts and, when Webb fought that discrimination and spoke up about it, threatened ACT with a loss of business if Webb didn’t shut up.
Eventually, Paine and Assistant Superintendent Jan Barth demanded that ACT fire Webb, the suit alleges. Webb’s suit also alleges Paine and Barth illegally infringed upon his First Amendment rights and his business relationship with ACT.
Instead of ACT, the state Department of Education, which Paine leads, chose the College Board’s SAT test as the high school exam.
“Dr. Paine and Dr. Barth are aware of the lawsuit that has been filed by Jason Webb but have not been served,” Kristen Anderson, a spokeswoman for the Department of Education, said in an emailed statement Thursday afternoon. “They both deny the allegations set forth in the complaint. Additionally, the West Virginia Department of Education stands by its procurement procedure for the state’s summative assessment which was conducted in a transparent and fair manner.”
The department chose the American Institutes for Research tests for grade levels 3 to 8. ACT had asked the state to pick its Aspire tests for those grades.
The federal lawsuit was filed Wednesday in West Virginia’s Southern District, a few days before the House of Delegates reconvenes the special legislative session on education on Monday.
Webb said he also supports the state Senate’s sweeping new education bill, which would legalize charter schools in West Virginia. He also lobbies for K12 Inc., an online education company that, among other things, operates online charter schools. The state Department of Education opposes virtual charters.
J. Zak Ritchie, one of Webb’s attorneys, didn’t answer whether ACT asked Webb to file the suit or whether the timing was coincidental. In an emailed statement Thursday morning, an ACT spokesman said the company was not involved in the suit.
“ACT is not a party to Mr. Webb’s lawsuit, and we are not in any way connected to it or responsible for it,” Ed Colby, ACT’s senior director of media and public relations, said. “Mr. Webb’s lawsuit is a personal matter, and ACT has no comment or position it.”
In the suit, Webb seeks monetary damages and “any other relief to which Webb may seek or be entitled.”
“Several times in 2018 and 2019,” the suit claims, “Paine himself called top ACT officials — and ultimately the CEO — to threaten them that if ACT did not stop Webb from publicly criticizing Paine’s department or other vendors or education policies favored by Paine, or if ACT did not fire Webb as their lobbyist, Paine would ensure that ACT would never do business with the State of West Virginia again.”
Webb accuses Paine of discriminating against ACT in several ways dating back to 2017, when the governor and state lawmakers banned the previous standardized test, Smarter Balanced.
In February of 2017, Gov. Jim Justice said in his first State of the State Address that “I am going to propose we throw Smarter Balanced in the trash can and we go to an ACT testing.”
Webb alleges the education department, before Paine became superintendent in March 2017, asked him to advocate for changing data privacy laws.
“The Department explained to Webb that the change to the law was needed if the Department were to choose the ACT test as the statewide assessment,” the suit states.
The change allegedly would have come through 2017’s Senate Bill 656, which only seven lawmakers voted against in the final votes.
Webb alleges that Paine then pushed for Justice to veto that legislation, and when the superintendent learned in April 2017 that Webb was still advocating for the governor to sign it, Paine called a national ACT lobbyist and said “that if ACT wanted anything in West Virginia, ACT better ‘get a handle on Jason Webb.’”
The suit doesn’t name the national lobbyist or other ACT officials, and Ritchie declined to provide names.
The national lobbyist called Webb, and those two “concluded that the best course would be to try to get along with Paine since he was the state superintendent, particularly since they knew Paine gets upset easily,” the suit says.
Webb then told the Governor’s Office it was OK to veto the bill, and Justice did.
The suit says the department also suggested amendments to 2017’s House Bill 2711 that would’ve “allowed the Department to more easily select the SAT as the statewide assessment.” HB 2711 was Justice’s broad education legislation that included the ban on Smarter Balanced.
After Justice signed HB 2711, the department issued a request for proposals to hire testing contractors and instituted a “blackout period … prohibiting anyone from discussing the contract other than the formal presentations” in the proposal process, the suit states.
Nevertheless, Paine allegedly told Webb during the blackout period that ACT may win the high school testing contract, but the department wouldn’t use the Aspire test for the lower grade levels.
“That Aspire or whatever you call it,” Paine allegedly said. “It’s junk.”
This alleged statement came a few months after criticism of Aspire from state school board members in Alabama, which was then one of only two states using Aspire for federal accountability purposes, as West Virginia would’ve done had it picked that test.
SAT eventually beat ACT, though the suit says this was for the grades 3-8 contract. SAT actually beat ACT for the high school contract, while the American Institutes for Research, separate from both the College Board and ACT, won for the lower grades.
Webb said he continued to tell lawmakers why ACT’s products were preferable to the College Board’s, including the SAT. In fall 2017, Paine allegedly called the national ACT lobbyist again to say “ACT should tell Webb to stop criticizing how Paine and the Department conducted the [request for proposals] process or they would never do business in the State again.”
The College Board earns about $1 million annually through the high school standardized testing contract.
Into 2018, Paine and Barth allegedly continued calling ACT officials regarding Webb, including asking ACT to “prevent Webb from posting about certain topics on Twitter.” Webb said he had previously criticized the SAT in a tweet.
Paine and Barth allegedly continued objecting to Webb into this year, with Paine and Barth telling ACT it “needed to get rid of Webb — i.e., fire him — or else ACT would never do any business in West Virginia again.” Paine allegedly called ACT’s chief executive officer on March 5, saying ACT needed to get rid of Webb or ACT would be disqualified “from participating in future bids due to ACT having an ‘unscrupulous’ person associated.”
Paine later asked the Governor’s Office for a veto of this year’s Senate Bill 624, which would’ve allowed counties to choose the ACT instead of the SAT as their high school standardized test, the suit says. Justice vetoed it.
Brian Abraham, Justice’s general counsel, has said the education department requested the veto, although the department did not confirm or deny that statement.