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Ed Eiler (Purdue University photo)

The fight over 10 Republican state board of education members’ decision to go over the head of Superintendent Glenda Ritz with a letter to lawmakers about school grades is not over yet.

On Friday, Judge Louis Rosenberg did dismiss Ritz’s lawsuit objecting to the members’ letter. But now a complaint from four private citizens is repeating Ritz’s claims — and their effort could force attention to a question that Rosenberg left unaddressed: whether or not the state board broke the law with its letter.

When StateImpact Indiana first reported the complaint, its origins were somewhat mysterious. Today, the genesis of the complaint is still not completely clear.

One participant, Ed Eiler, said he was recruited to join the action. Indianapolis labor lawyer William Groth, who provided legal advice, said he did not recruit anyone.

Groth said he was contacted by an intermediary who he declined to name, citing attorney-client confidentiality. Both Groth and Eiler said the action was not sponsored or encouraged by Ritz or the Indiana State Teachers Association. Groth said he has not met Ritz nor represented ISTA in the past. He said he believes he was consulted because of his expertise in the Open Door Law, which the complaint says the board violated.

In an interview, Eiler said some light on who the group is and what it hopes to achieve.

Eiler is a Purdue University college professor and the former superintendent of schools in Purdue’s hometown of Lafayette, Ind. He was a passionate and early critic of education reform as former state Superintendent Tony Bennett and then Gov. Mitch Daniels defined it.

He’s also convinced that the Indiana State Board of Education broke state transparency laws when 10 of its 11 members — all of them except state Superintendent Glenda Ritz — jointly signed a letter asking the Republican leaders of the Indiana House and Senate to intervene in a dispute with Ritz over when A to F school grades should be issued. Ritz is the only Democrat holding statewide office. All the other members of the state board were appointed by Republican governors.

So when contacted and asked if he would add his name to a complaint aimed at nullifying the state board’s action, he quickly signed on.

“It’s important for it to be addressed,” Eiler said in an interview Monday. “When you basically have meeting by email, it appears to be a clear violation of the Open Door Law. When you consider public policy issues without an opportunity to provide input or respond to the public … the public has a right to know and participate.”

(For more on Eiler, check out Lafayette Courier Journal columnist Dave Bangert’s recent column.)

Ritz, who was traveling in China when the letter was signed and delivered, had insisted to the state board that the grades, which were issued Oct 31 last year, would have to be delayed until late November because ISTEP testing glitches had backed up the data collection process. The other board members wanted to have the Legislative Service Agency calculate Indiana Department of Education data and determine the grades.

Ritz filed suit upon her return, but problems with court action were immediately evident. Attorney General Greg Zoeller quickly moved to dismiss the suit, arguing that state officials cannot use their own attorneys to initiate lawsuits without consulting with his office, which Ritz didn’t do. Judge Louis Rosenberg, who sounded skeptical of Ritz’s legal argument in a hearing on Tuesday, ultimately dismissed the case on Friday. But in siding with Zoeller on procedure, Rosenberg did not address the merits of the case. In other words, he was silent on whether or not the state board broke the law with its letter.

That’s where the new action comes in.

Eiler and former Merrillville Superintendent Tony Lux are joined by two others — Eiler said he didn’t know them personally but describes them as education activists from Fort Wayne and Bloomington — in appealing to Indiana’s Public Access Counselor, Luke Britt, for a ruling on the legality of the state board’s action. Britt, an August appointee by Republican Gov. Mike Pence, can affirm the board’s action or challenge it. The board is not bound by his ruling and could decide to embrace or ignore it. Still, a ruling from the public access counselor also is a necessary first step to filing a lawsuit. So Eiler and his allies could challenge the state board in court no matter which way Britt rules.

The heart of the issue is whether the board’s letter constituted a policy decision that was made outside of an open public meeting. Public boards in Indiana must do their business in public. While they can meet behind closed doors for discussion or to receive information under certain circumstances, decisions must be made in open meetings. Ritz, and now Eiler’s group, argue that a letter on behalf of the state board signed by a majority of its members that specifically asks another branch of government to take action on its behalf constitutes a policy decision and therefore discussions by email or other means that led to the decision were, in effect, an illegal secret meeting.

“The whole issue is doing public business in public,” Eiler said. “It’s a significant public policy issue. This would be a disturbing precedent when it comes to the public’s right to know about actions that a public board is taking when making public policy.”

The genesis of the complaint is not completely clear. Eiler said he was recruited to join the action, but Groth, who provided legal advice, said he did not recruit anyone. Groth said he was contacted by an intermediary who he declined to name, citing attorney-client confidentiality. Both Groth and Eiler said the action was not sponsored or encouraged by Ritz or the Indiana State Teachers Association. Groth said he has not met Ritz nor represented ISTA in the past but believes he was consulted because of his expertise in the Open Door Law.

But if Ritz and her political allies are not sponsoring the effort, Eiler acknowledged politics and the will of the voters is on his mind.

The state board’s letter, he argued, was an effort to circumvent the the state superintendent’s authority and that of the Indiana Department of Education. He noted that 1.3 million votes were cast for Ritz when she upset Bennett in 2012.

“It’s inconsistent with the mandate the voters gave,” he said. “That was a statement that they were concerned about some of the education reforms that were being enacted and they wanted to be heard that those needed to be thought through, thoroughly, and there needed to be more involvement from the public.”