Testing/Assessments & Learning Standards
December 20, 2016

Federal judge approves settlement untying gag on teachers

Source:  NYSUT Media Relations
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ALBANY, N.Y. Dec. 20, 2016 — A U.S. magistrate judge approved a legal settlement partially nullifying a gag order placed on teachers that prohibited them from discussing state standardized test questions, even after they had been publicly released, New York State United Teachers announced today.

The settlement approved by U.S. Magistrate Judge Christian F. Hummel requires the State Education Department to acknowledge that teachers and administrators who signed confidentiality agreements in connection with the scoring of English language arts and math tests in grades 3 through 8 may discuss any material publicly released. In addition, the SED agrees that educators will not be subject to discipline for discussing publicly released test material, and will pay NYSUT $10,000 in attorneys’ fees.

Teachers must still sign confidentiality agreements and will still be prohibited from discussing questions while exams are being scored, and before they are made public.

“Teachers are the professionals in the classroom. Their voice is essential to public debate about the state’s testing system, especially when they believe test questions are unfair or inappropriate,” said NYSUT President Karen E. Magee. “This settlement reflects progress. Test questions planned for use in future exams will remain confidential. However, educators will now be able to freely speak out, as they should, when they have concerns about questions already released to the public.”

Relentless pressure by NYSUT, in concert with parents, resulted in a state law that requires the SED to release by June 1 all questions that contribute to students’ scores. The commissioner may only withhold questions that would impair the validity or reliability of future examinations. This June, for example, SED released 75 percent of test questions from the 2016 ELA and math exams, a major step forward.

NYSUT Vice President Catalina Fortino said the settlement affirmed two important principles.

“While there are still limitations on what can be said during grading, teachers now have the opportunity to give honest and expert feedback to the public about the quality of these tests,” Fortino said. “We strongly believe that teachers, as professionals, have a duty to protect students from harm, such as when test questions are flawed; are poorly written; or are age- or developmentally inappropriate. This settlement affirms that principle. And, the settlement also demonstrates that NYSUT will use every tool it can, including the courts, to protect members from senseless policies, such as gag orders that seek to silence their voices.”

NYSUT filed suit in October 2014 on behalf of five teachers – four from Spencerport in Monroe County and one from Taconic Hills in Columbia County. The suit charged SED and then-Commissioner John King Jr. with violating teachers’ First Amendment and Fourteenth Amendment rights by preventing them from speaking out on matters of public concern. The suit charged SED’s rules were an unconstitutional prior restraint on free speech; unconstitutionally made teachers’ speech conditional on government approval; and established a “system to police the free exchange of ideas and opinions regarding its compulsory and costly testing regime.”

In 2014, for the first time, teachers who proctored and administered the state ELA 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, who had to sign confidentiality agreements. The confidentiality agreements required 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.

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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