Teachers and Parent Fight Gag Order on Standardized Testing

     SANTA FE, N.M. (CN) – Five teachers and a parent and child sued New Mexico’s Department of Education this week, challenging a regulation that could cost teachers their licenses if they “disparage” standardized testing.
     Lead plaintiff Mary Mackie, a teacher, sued the New Mexico Public Education Department on Wednesday in Santa Fe County Court.
     They say the “non-disparagement regulation creates a secretive Star Chamber wherein teachers are not permitted to voice any concerns, but are permitted to provide praise.”
     Citing the regulation, the teachers say it “prohibits ‘administrators, teachers, volunteers and office personnel’ from ‘disparag[ing] or diminish[ing] the significance, importance or use of the standardized tests.’ The non-disparagement regulation only prohibits ‘disparagement,’ but in no way restricts a teacher’s ability to praise the standardized tests they must give their students.”
     Increased use of standardized testing, particularly since the No Child Left Behind Act, and its possibly devastating results – which can include closure of schools and loss of jobs – has met increasing resistance, from teachers, some administrators and parents.
     Critics complain that class time is wasted teaching to the test; teachers’ evaluations and their jobs may depend upon students’ scores on tests whose reliability is questionable; that low test scores may cost a teacher her job though the scores, if reliable, may be a result of problems from previous years; that schools targeted for closure have overwhelmingly been in poor neighborhoods serving children of color; and that the tests themselves may be inherently racially and class-biased.
     “The concerns are serious, touching on one of the most basic functions of government: public education,” the teachers say in the complaint. “They include criticisms that government officials have prioritized profit and politics over public education; have fundamentally changed education, as teachers now must devote significant hours teaching to the tests, not to their students’ actual educational needs; and have ignored that the tests are often developmentally inappropriate and traumatic for some students with disabilities.”
     Mackie and three co-plaintiffs teach at Montezuma Elementary School in Albuquerque; the fifth teacher teaches at Kearny Elementary School in Santa Fe; the parent’s child goes to school in Albuquerque.
     They say the gag rule is so severe it could intimidate teachers into avoiding parents’ questions about whether the tests are appropriate for their children.
     Parents in New Mexico have the right to opt out of standardized tests on their children’s behalf, and school websites provide opt-out forms.
     The teachers say in the lawsuit that if parents ask them whether they should exempt their children from a test, the teacher should be able to speak frankly about the advantages and drawbacks of the tests. Under the gag rule, though, that could cost them their teaching license.
     Anita Doornbos, the parent plaintiff, asked her child’s teacher about the time spent taking the Partnership for Assessment of Readiness for College and Careers (PARCC) test and whether the test was appropriate for her dyslexic child.
     Doornbos says the teacher, fearful of violating the disparagement rule, told her she “could not talk about the test.”
     Mackie, a reading specialist with 20 years experience in the classroom, recalls working with a nonverbal, cognitively impaired student who could not read or even hold a pencil.
     Because Mackie was not allowed to read the test questions to the student, she had to hold up four fingers to indicate A, B, C or D and have the student, who could not read the question, pick one for an answer. Then Mackie filled in the bubble and moved on to the next question, which the student could not read for herself or understand in any meaningful way.
     But because Mackie could not “disparage” the test to the student’s parents, she had to administer the test and record the results.
     For its part, the New Mexico Public Education Department disparaged the lawsuit.
     “This is nothing more than a straw man argument to push a much more extreme agenda – they want to eliminate testing all together, and we disagree with them,” Education Department spokesman Robert McEntyre told Courthouse News in an email. “We have reduced testing, but reasonable assessments help up identify struggling kids, so we can give them the help they need to learn in the classroom.”
     The email, in its entirety, continues: “Furthermore, this regulation was put in place by the [Governor Bill] Richardson Administration to ensure that students are encouraged to do their very best on these exams, which is why none of the straw man arguments used by this special interest group has ever happened.
     “However, any teacher spending time disparaging exams that students will be taking is a waste of valuable time and unquestionably detrimental to their students. And we should always put our students first.”
     The teachers seek declaratory judgment that the regulation violates the New Mexico Constitution in seven ways, and an injunction against its enforcement.
     They say the rule constitutes “unconstitutional, viewpoint-based restriction that chills speech and … violates both the free speech rights of New Mexico public school employees and the rights of parents to receive information,” that it is unconstitutionally vague, violates teachers’ right to due process and students’ right to education.
     Their lead plaintiff is Alexandra Freedman Smith with the ACLU, assisted by attorneys with Wray & Girard, and Kennedy Kennedy & Ives, all of Albuquerque.

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