New twist in the Istation saga: DPI asks superior court to overrule stay

Updated on Tuesday, December 17, at 1:04 P.M.

Superintendent of Public Instruction Mark Johnson and lawyers for the Department of Public Instruction (DPI) are fighting for reversal of two orders that stalled a contract DPI signed with reading assessment vendor Istation — and they’re taking the fight to both the hearing officer’s boss and the superior court.

DPI is asking the state Superior Court to overrule an administrative body’s decision that stalled its contract with Istation, a K-3 reading assessment vendor.

The state’s Department of Information Technology (DIT) ordered a stay on DPI’s rollout of Istation in August after Istation’s competitor, Amplify, protested the contract. Last week, DIT upheld that stay after DPI threatened to seek restitution from the superior court unless DIT ruled. DPI now seeks to proceed in the court anyway, and wants the court to reverse both stays.

Johnson also filed a letter Tuesday to DIT Secretary and State Chief Information Officer Eric Boyette asking him to step in and rectify errors in the handling of the case by DIT and General Counsel Jonathan Shaw. Johnson’s letter claimed the initial stay from August was improperly ordered and that Shaw asked DPI to enter an agreement that would have broken state law.

DPI’s motion Monday claimed the department did not receive due process and that DIT committed “clear and material errors of law” in maintaining the stay.

“The Stay Orders contain clear and material procedural and substantive errors of law that have deprived NCDPI’s of meaningful due process and has unduly burdened the agency’s ability to execute its vital statutory and constitutional duties to serve the students, teachers, and residents of North Carolina,” the motion reads.

DPI’s motion said that if the Superior Court does not intervene, the agency will be harmed. That harm, the motion stated, is to DPI employees who cannot use the Read to Achieve program in its literacy work, to teachers who cannot assess their students’ reading and tailor instruction based on results, to parents who cannot make decisions based on the assessment results, and to students who cannot receive personalized instruction through Istation’s tool.

Istation has been providing its tool to classrooms and training teachers at no charge to the state since DIT placed a stay on the contract in August. DIT last week allowed Istation to continue providing its tool for free but upheld its original stay on the contract pending a hearing on the case, scheduled for January 13. 

DPI’s motion also claimed that DIT General Counsel Jonathan Shaw used an improper “sufficient information” standard in evaluating Amplify’s request for the stay. DPI claims that their petition concerns preliminary injunctions, “couched as stay orders.” Therefore, DPI said the appropriate standard would be one typically used for preliminary injunctions — which is to say that Amplify needed to prove likelihood of winning its case and irreparable harm if DIT did not issue the stay. 

DPI’s petition claimed that Shaw’s order maintaining the stay includes findings of fact that are not true and that his conclusions of law are unsupported by the evidence provided in the case. The motion stated that there is no evidence of bias toward Istation in the process, of improperly changing evaluation criteria, nor of creating an evaluation team only with members who previously voted for Istation.

The motion further stated that DPI sought DIT’s counsel throughout the process, contrary to DIT’s decision last week. “NCDIT’s approval of all procurement steps creates a strong presumption that NCDPI complied with all statutes and rules and did not ‘jeopardize the integrity of the fairness of the procurement process,'” the motion said.

Johnson’s letter claimed the stay was ordered without giving notice to the other parties in the case and without using the correct standard.

After the parties’ arguments on the stay were heard in October, they met again with Shaw for a settlement conference on November 19. Johnson’s letter stated that Shaw proposed that DIT take over the contract and add Amplify as a second provider of reading assessments. Though the Read to Achieve legislation mandates just one vendor, the letter said Shaw asked if DPI could ask the General Assembly to change the law. After DPI’s counsel replied that the legislature was not in session, the letter said Shaw asked if DPI would make an agreement now and ask for a change in the law during the next session.

The letter also claimed Shaw intentionally delayed a decision on the stay hoping the parties would reach a settlement without the need for a DIT decision.

“Mr. Shaw’s actions and statements suggesting that NCDPI agree to a settlement that would force the agency to violate state law indicate that his primary interest in the settlement conference was relieving NCDIT of having to adjudicate the contested case, rather than mediating the parties to a mutually-agreeable resolution that complied with state law,” the letter stated.

Johnson’s letter also echoed the motion’s claims that Shaw’s decision to uphold the stay was based on an improper standard and on “findings of fact” and “conclusions of law” that were not based on evidence.

The letter concluded by saying that, “If NCDIT cannot properly adjudicate this matter, NCDPI will seek an alternative, impartial venue to ensure that all parties receive a fair hearing.”