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Testing/Assessments and Learning Standards
October 09, 2014

Lawsuit: State Education Department's ban on discussing tests violates free speech

Source: NYSUT Media Relations
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ALBANY, N.Y. Oct. 9, 2014 - New York State United Teachers has filed suit in federal court seeking to invalidate confidentiality agreements the State Education Department requires teachers to sign before scoring state tests, saying the prohibition - with its accompanying threats of discipline, including dismissal, license revocation and criminal prosecution - is an unconstitutional prior restraint on teachers' free speech rights.

The suit, filed Wednesday by NYSUT's Office of General Counsel on behalf of five teachers, charges the State Education Department with violating teachers' First Amendment and Fourteenth Amendment rights by preventing them from speaking out on matters of public concern. The suit charges SED's rules unconstitutionally make teachers' speech conditional on government approval while establishing a "system to police the free exchange of ideas and opinions regarding its compulsory and costly testing regime."

"Teachers must be free to protect their students and speak out when they have concerns about state tests. Instead, they are under a 'gag order' to be silent - and that is hurting children," said NYSUT President Karen E. Magee. "Teachers are the professionals in the classroom. Their voice is essential to robust public debate about the state testing system. If teachers believe test questions are unfair or inappropriate, they should be able to say so without fear of dismissal or losing their teaching license."

NYSUT Vice President Catalina Fortino said, "Free speech is a hallmark of our democracy. The State Education Department's rules violate this basic American right that teachers have to confront their government and speak out on important issues, such as when state tests are flawed or when questions are poorly written or are age- or developmentally inappropriate."

The U.S. Supreme Court has repeatedly noted, as recently as June, that teachers are the members of the community most likely to have informed opinions about educational issues. Thus, their uninhibited speech holds special value in public debate. "It is essential that teachers be able to speak out freely on such questions without fear of retaliatory dismissal," the court said.

In 2014, for the first time, teachers who proctor and administer the state English Language Arts and math exams were prohibited from reading the exams. The only teachers permitted access to the 2014 exams were teachers directly involved in the scoring process and who had to sign confidentiality agreements. The confidentiality agreements require teachers not to "use or discuss the content of secure test materials, including test questions and answers, in any classroom or other activities," including speaking in a public forum as a citizen.

The lawsuit requests that the U.S. District Court, Northern District declare the prohibition on disclosing and discussing the content of state tests to be unconstitutional, and to issue an injunction against the enforcement and implementation of the terms of the confidentiality agreements for state exam scoring. Plaintiffs in the case are five teachers, including four from Spencerport in Monroe County and one from Taconic Hills in Columbia County. All are NYSUT members.

AUDIO: NYSUT President Karen Magee talks to Public News Service-NY about the lawsuit

New York State United Teachers is a statewide union with more than 600,000 members in education, human services and health care. NYSUT is affiliated with the American Federation of Teachers, the National Education Association and the AFL-CIO.

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