Karen Magee: Tearing Off The Gag

Oct 23, 2014

Every spring, New York students must sit for hours on end, filling in bubbles on standardized tests that purport to measure their progress in English Language Arts, science and math.

Every student from third-grade to eighth grade must take these tests.  And while New York has put a temporary pause on the use of the results for high-stakes decisions, there’s no question that New York’s multi-million-dollar standardized testing system is expensive, highly controversial and polarizing.

Yet, when it comes to the actual test questions, teachers are silenced. The State Education Department gags them.

To be more specific, teachers must sign “confidentiality agreements” that prohibit them from discussing any of the test questions – as part of any activity not authorized by the State Education Department.  In fact, teachers who aren’t grading the exams aren’t even permitted to see them.

This overly broad “gag order” on discussing standardized test questions comes with the threat of stiff penalties for violators.  Teachers who ignore SED’s gag order may face disciplinary charges, lose their teaching license or face criminal prosecution.

It goes without saying that teachers shouldn’t be talking about the questions or the answers in front of students while they are taking the tests.  And, S-E-D did eventually release half the test questions – although it was in August, four months after students put their pencils down.

That’s not what’s at play here.

The union I lead – New York State United Teachers – filed a lawsuit on behalf of five teachers recently. We are challenging those confidentiality agreements as an unconstitutional violation of teachers’ free speech rights.

We believe teachers have a right – and a duty – to speak out on issues of public concern, especially when they are protecting children in their classrooms from a testing system many believe is out of control.

If a test question is poorly worded or nonsensical . . .

If a test question contains a factual error . . .

 If the answer on the official answer key is clearly wrong  . . .

Or, if a test question is not age or grade appropriate, or not linked to the curriculum, teachers must be free to raise their concerns in the public arena.

The U.S. Supreme Court has noted that teachers are the members of a community most likely to have informed opinions about educational issues and, thus, their uninhibited speech holds special value in public debate.

We agree.  Teachers should be able to freely discuss educational issues without fear of retaliation for doing so.

The State Education Department’s “gag order” – contained in these broad confidentiality agreements – is designed to stifle dissent and criticism over its controversial and expensive standardized testing program.

NYSUT’s lawsuit in federal court seeks to invalidate these confidentiality agreements as an unconstitutional prior restraint on teachers’ First Amendment Rights.

We are confident in our case. Government – meaning the State Education Department – should not be policing the free exchange of opinions and ideas.  The “gags” on teachers must be untied.

Karen Magee, a former elementary and special education teacher in Harrison, is president of the 600,000-member New York State United Teachers.

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